> Battling over land rights in Batang Ai

by Deborah Loh, The Nut Graph

Food on the table and a roof over one's head — these are key issues in almost any election in rural Malaysia. But in the Sarawak hinterland, it's a more emotional subject as food and shelter are derived from a hereditary source, the forest, which has been fought over by native communities and the state for decades.

As such, expect Native Customary Rights (NCR) to be a major issue in the coming Batang Ai state seat by-election on 7 April 2009. Pakatan Rakyat (PR) leader Datuk Seri Anwar Ibrahim, whose Parti Keadilan Rakyat (PKR) is fielding a candidate against the Barisan Nasional (BN), has already promised as much. The PKR candidate is Jawah Gerang, who will face the BN's Malcolm Mussen Lamoh.

Anwar has pledged to restore customary rights to land if the PR wins the state in the future. He's also promised higher oil royalties for the state, and to make an indigenous Dayak the next chief minister. All this if the PR takes over in the next state elections, which must be held by 2011.

The PR will want to test the efficacy of playing up the NCR issue in Batang Ai during the campaign period. Away from the political tsunami and "new politics" of equality that rocked the peninsula in March 2008, NCR is probably the opposition's strongest rallying cry in Sarawak.

Frontline issue

Anwar has called Sarawak and Sabah the "frontline" states in the PR's bid to wrest the federal government from the BN. But while NCR will become a political issue, it must not be forgotten that it ought to first and foremost be a human rights issue. Promises made for the sake of winning elections can all too easily eclipse the realities of how entrenched the exploitation of NCR lands is.

If the PR wants people to believe its promises for Batang Ai and the rest of the state, it should show how it plans to untangle the intricate network of state and business interests. This will be no easy task given the high stakes.

Shedding light on NCR violations is an international fact-finding mission conducted by several non-governmental organisations under two networks, the international People's Coalition on Food Sovereignty (PCFS), and the Malaysian-based Pesticide Action Network Asia and the Pacific (Panap).

The mission's report, Rampaging the Rainforests, was released on 21 Feb 2009. While not targeted at the Batang Ai by-election or specific to the seat, it provides an understanding of NCR issues.

The findings, gathered from an April 2008 trip through north, central and south Sarawak, covered over 19 communities consisting of 70 villages and longhouses. More than 800 people were interviewed.

Land rights eroded

The report states that "continued and systemic organised aggression of indigenous peoples' land and rights" have taken place over the years. Evidence that attests to the natives' claims over their lands is usually disregarded. Such evidence is usually in the form of ancestral graves, fruit trees and cultivated land, handed down from generation to generation through customary practices.

The report notes the state institutions that have been used to steadily take away indigenous lands and place them under state or private interests.

One entity is the Sarawak Land Consolidation and Rehabilitation Authority (Salcra), which since 1976 has had the mandate to develop crops, usually palm oil, on indigenous land. Appearing as a joint-venture between the state and the natives, the idea is for Salcra to plant, harvest, process and market crops on behalf of the natives until such time when the indigenous farmers know how to do so themselves.

The land is then supposed to be divided among the participating natives, with each given a permanent land title.

However, Sarawak lawyer Bian Baru, who handles NCR cases, says the reality is that Salcra has issued few titles. He believes the BN might do so in the coming days before the by-election as a ploy to woo voters.

"In most cases, no land title is issued. In some cases, the land is divided into plots and given to the natives, but there is no title attached to the lot.

Bian Baru"If they (the BN) want to pacify voters now, they might think of issuing titles to those who have complained about not receiving them," Bian tells The Nut Graph when asked to comment on the use of NCR as a by-election issue.

Another mechanism used to expand development of plantations on indigenous lands was the 1994 Konsep Baru. It facilitated the acquisition of NCR land over 5,000ha by private companies.

Under this scheme, the private sector holds 60% of the land, native communities 30%, and the state 10%. However, the state also holds the natives' 30% in trust. The entire land is leased to the private sector to develop. In exchange, instead of compensation for the fruit trees and other ancestral claims to the land, the natives are to be paid annual shareholder dividends.

But according to the report, native farmers interviewed say they never received their dividends. In one instance, after the lease period expired, NCR land that had been turned into a plantation was sold off to another company, which then sold it to another company. The villagers who claimed customary rights to the land did not have any copies of the initial lease agreement.

Evidently the exploitation of native peoples is a well-told story the world over, including in Malaysia.

A "non-issue"

In Sarawak, indigenous communities are told that the state is developing their NCR lands "on their behalf" and that the land still belongs to them.

Parti Rakyat Sarawak president Datuk Seri Dr James Jemut Masing explains in a phone interview what the situation on Salcra land is in Batang Ai.

"We have always respected NCR, which are the laws and traditions of the natives. In Batang Ai, there is no land that has been taken by the state government. Salcra has only developed the land on behalf of the natives. They still hold the titles. The titles are given to them and we develop on their behalf."

However, Bian adds, besides the issue of land titles, the natives also feel that they would profit if they were allowed to develop the land on their own instead of receiving dividends from Salcra.

Will it work?

The fact-finding mission logged a total of 170 cases of legal action taken by Sarawak natives against either the state or private companies over claims to NCR land.

The manner in which NCR lands is taken for development also violates the United Nations Declaration on the Rights of Indigenous Peoples and the Roundtable on Sustainable Palm Oil, notes the report.

PCFS and Panap have launched an online petition, calling on the federal government to step in to protect NCR lands if the state government won't.

But will it work as a by-election issue?

Bian says while there is unhappiness among native communities, such sentiment may not necessarily translate into votes.

"It depends on what the BN can offer them. For a long time, people here have easily believed the promises of change and development. Over time, some are no longer so simplistic," he says.

Already, Masing has announced RM42 million worth of projects for Batang Ai. He says this is the proof of the BN pudding. "PKR talks a lot and has no substance. But the BN has been in Sarawak since 1963, and the people know that we deliver."

It is certainly easy for the BN to take that position when it has had the advantage of incumbency over the years.

Batang Ai will be a tough fight for the PR, and a lot hinges on the believability of its claims. For if Batang Ai were to fall to the opposition, how would the PR fulfil its NCR promises when the state government is still in BN hands?

Can Batang Ai voters, and other constituencies watching, wait a few more years for the next general election to give the PR a shot at making good on its promises?

Sadly, one consequence of turning a human rights issue into tactical political games is the nullifying of the good that nonpartisan civil society groups are trying to achieve for these indigenous communities. If everything is politics, little else is sacred.