Earth Island News
Indigenous victory overturned
On July 8, the Sarawak Court of Appeals overturned an historic indigenous land rights victory from 2001. The land claim of Iban Dayak community Rumah Nor to 672 hectares of communal forest was invalidated in the appeal, re-granting the land to Borneo Pulp Plantation Co. (BPP). BPP regained their lease despite the fact the company is bankrupt; their 200,000 hectares of monoculture pulp plantations have been leased to Grand Perfect, a new company owned by Samling, KTS Group, and Shin Yang, three of the largest logging and industrial plantation corporations in Sarawak.
The appellate court claimed that maps and oral histories of the community were "self serving" and "not corroborated by outside sources," and that indigenous peoples cannot claim rights over their "foraging areas." The court cited a lack of credible evidence to prove native customary rights (NCR) to the disputed area. Oddly, however, the court allowed that all the community-claimed lands outside the plantation lease – roughly 7,000 hectares of farmlands surrounding the disputed area – are indeed their ancestral NCR lands.
The case will be appealed at the federal level in the upcoming months. This may be a ray of hope for Rumah Nor. As headman Nor Anak Nyawai stated, "Our community has great courage to see this struggle through to the end. I pray I will live to see the day our rights to our ancestors' forest are returned to us."
The recent appeal decision has generated critical questions that must be answered by the Federal Court in the context of international precedents in native land rights law.
Photo: Jessica Lawrence
What is proof?
The Court of Appeals upheld some progressive aspects of the 2001 ruling, including the concept that native rights to customary lands cannot be extinguished except through unambiguous legislation and payment of compensation. It also upheld the concept that uncultivated communal forests and general "territory" of each community can be considered a type of NCR land, though this is now confused by the court's claim that "foraging" areas do not qualify.
The burden of proof to establish NCR still rests with each community. Few communities have access to colonial or government documents demarcating their areas prior to the formation of Malaysia in 1958, the cutoff date set by Malaysia's constitution to determine NCR. In remote areas, such documentation simply does not exist. In the Rumah Nor appeal, aerial photos showed closed-canopy forests in the disputed area, leading the State to claim that the village could not "prove" forest use.
Will oral history be respected?
Across Borneo and throughout the world, indigenous communities are documenting their oral history in community-made maps that formalize local knowledge of resources, sacred sites and graveyards, local names of rivers and geographic features, as well as myths, stories, and songs about the land. There is strong international precedent for oral history to be given as much weight as written evidence, such as Canada's Delgamuukw decision of 1997, which relied in part on oral history to prove Aboriginal entitlement to land. The federal appeal will turn on this issue: What evidence will be required beyond oral testimony to validate a native land claim?
Will communities be able to assert rights to foraging lands?
In 2001, the Court's answer was yes; in 2005, no – only areas once cleared for cultivation could be claimed, not primary forests used for foraging. Indigenous tribes across Borneo depend on careful stewardship of communal forests for hunting, fishing, and gathering of wild plants for food, medicines, rattans, and construction materials. The July decision is particularly threatening to land claims by nomadic and formerly nomadic Penan communities, who did not traditionally practice agriculture, and thus claim only foraging lands as their territory.
Land grab: the intensifying conflict
According to villagers of Rumah Nor, the conversion of those 672 hectares to monoculture acacia plantation meant the loss of their source of wild game, fish, vegetables, fruits, clean water, medicinal plants, and building materials. For the government and plantation industry, the disputed area will never produce enough profit to outweigh the costs of this legal battle, but the case exemplifies intensifying power struggles over lands and resources. With over 100 communities now filing similar court cases to protect subsistence farms, fallows, and protected forests, there are serious challenges to government plans to transfer hundreds of thousands more hectares to plantation industries.
Human rights concern
"It is now very much in question whether Sarawak will establish itself as a champion of indigenous rights to ancestral lands, as the Malaysian constitution allows," says Borneo Project Director Jessica Lawrence. "There have been several recent court victories for indigenous land rights in Peninsular Malaysia. If such precedents are followed, the disputed area of Ruman Nor will be returned to community control. If not, indigenous communities across Malaysia remain vulnerable to having their lands turned over to industrial control at every turn due to Ôinsufficient evidence' of occupancy,"
Human rights observers across Malaysia and around the world are focused on the outcome of the Rumah Nor federal appeal. According to Lawrence, "Without the ability to prove land rights through oral testimony and community-made maps, indigenous communities in Sarawak will have little hope of preventing the government from evicting them from ancestral lands in the name of industrialization. It will be expecially hard for them to protect their primary forest reserves.
"The world should keep a close watch on the development of this landmark case – it may determine cultural survival and the fate of the forests for hundreds of communities."