MalaysiaGIS.com

Source: Utusan Konsumer

The first one is a new land survey law. The Land Surveyors Ordinance 2001 which essentially removes the ability of native communities to prove the extent of the land on which they exercise Native Customary Rights (NCR) via an increasingly popular communal effort - community mapping.

For too long now, Sarawak native communities have been battling the Sarawak State Government for allowing logging and plantation operations and dam building activities on land which the people claim that they have customary rights over.

Central to this dispute is not the NCR per se but the extent of the NCR over the land. The bone of contention is such because among other reasons, Sarawak native communities have systematically developed a distinct system of land and land use categorisation that not only allots land for individual families, it also assigns parcels of forests for communal sharing.

Although the state has often conceded that the natives do have some customary rights on land surrounding their longhouse and on nearby cultivated areas, it has consistently disputed the natives claim to the high forest or hutan pemakai menoa in Iban, where hunting, fishing and gathering of forest products by community members take place. Naturally, it is in the high forest areas that logging concessions and dam building activities take place.

Hanging onto a precarious thread in a sticky larger legal web that often renders corporations more equal than communities of late with the assistance of several non-governmental organizations have chosen to systematically map the boundaries of their land by using methods made possible by the latest advances in satellite technology and combining them with traditional memory in the form of oral history. The result of this endeavour is community maps, a tool that can accurately determine the extent and boundaries of their inheritance, which in turn could efficiently proclaim that the best things in life are not for sale, a tool that becomes especially useful in a court of law.

In May 2001, the usefulness of community maps was victoriously demonstrated when the maps were accepted as evidence in the Rumah Nor/Luang case, which was a representative action brought by two Iban communities from Bintulu against Borneo Pulp Plantation Sdn. Bhd. that had been issued titles to two parcels of land; Borneo Pulp and Paper Sdn. Bhd. which sublessee of the land; and also against the Bintulu Superintendent of Land and Surveys who issued the titles. In their legal action, the people asserted that they had acquired NCR over certain parts of the land and that Borneo Pulp and Paper had trespassed and damaged the disputed areas.

In his judgement, Judge Ian Chin ruled in favour of the Plaintiffs, holding that the people are entitled to exercise NCR over the disputed areas. The basis of his judgement is his in-depth and detail definition of NCR that extend not only to the longhouse areas and the cultivated land around them but also include areas in the high forest used by the people to hunt, fish and obtain forest products.

The judge also stressed further that the people's rights had survived any laws created during later times and granted an injunction against the two companies and held that the titles issued to Borneo Pulp Plantation which included the disputed areas, were also declared void. He also expected that the Bintulu Superintendent of Land and Surveys to take the necessary steps to rectify the titles so as to exclude the disputed areas from the grant.

Thus it came to no surprise the grimly implanted in the Land Surveyors Ordinance 2001 are Section 20 and Section 23, the legal ammunition to shoot the communities where it hurts most - their initiatives to prove what is theirs is theirs through community maps.

Section 20 of the Ordinance bars any party from accepting any cadastral land surveys or survey plans, including community maps, unless they have been approved by the Director of the Department of Land and Surveys. This simply implies that even the courts are not allowed to make a decision over the admissibility of mapping or survey evidence conducted by community efforts as done in the Rumah Nor case and other cases. In effect, the section usurps the functions of the judiciary and transfers it to the aforementioned Director since the Director will be the sole authority who can determine which maps are legally valid even for use in courts as evidence.

Section 23 functions as a complementary intimidation tool that criminalizes anyone who is not a licensed surveyor and attempts to make a survey plan or map. On conviction such a person will be liable to fine not exceeding RM50,000 or to imprisonment not exceeding three years or both for each offence.

This is made possible because the ordinance also creates the Board of Land Surveyors to regulate the activities of land surveyors and states that only licensed surveyors can make most types of maps. However the catch is, mappers working with communities cannot simply become licensed surveyors even if they possess the necessary professional degrees that are recognized by the board.

This is because the law not only endows the board with the absolute power to decide who is a certified land surveyor and who is not, it also empowers the board to turn away license applicants without explanation and revoke a certified surveyor's license at any time.

Who are members of this Board? None other than the people from the top of the pyramid at Sarawak's Department of Land and Surveys with the Director of the department being the Chairperson and his or her Assistant as the Deputy Chairperson and so on.

Laws and Claws
Boundaries are scorned and desired for the same reason - because it defines the limit - but they are scorned and desired people with different interests. Absence of a comprehensive and participatory state-initiated effort all these years to map what rightly belong to the people is indicative of an Organised Presence that abhors limits set by a people-defined boundary.

If the state had wanted to, it could have easily undertaken comprehensive and all-inclusive efforts to map the people's land. Judge Ian Chin in his Rumah Nor's judgement had stated that in his Rumah Nor's judgement had stated that in reference to the Sarawak Land Code and the need for the registration of native land by the Land Office, the non-registration of the land in dispute, as with other ancestral land in Sarawak, was due to the fear of the power of that time that registration would result in large areas of Sarawak being claimed by native communities.

The law is certainly a fine example that defines the intention of the lawmakers. If disputes over land boundaries exist, the proper method to resolve them should be through a court of law. How can the natives, when faced with the might of huge timber and plantation corporation and the State Government encroaching into their land, prove their case in court when they are deprived from tendering in the key evidence to their claims i.e. communally made maps, which today can be put together scientifically by employing user-friendly technologies and oral history?

This legal example is nothing more than the ostrich that buries its head in the ground - if I don't want to see it, then it is not there. Thus the meaning of this law is simple - a paragon of the chicken and egg dilemma made easy - I can say whether you can say what is really yours and if I say you can't say anything, well then, you can't say anything at all and with that, only I can say what is really yours.

Simpler still, when someone else claims what is yours is theirs, it is the Department of Land and Surveys, operating as the Board of Land Surveyors, that shall judge and be the juror to decide on the admissibility of your evidence and if need be, they can play prosecutor too if you insist on continuing your efforts to put together the evidence without their authorization.

For years, community activists have made dozens of maps in Sarawak showing community boundaries, using mapping teams well trained in global positioning systems (GPS) and geographic information systems (GIS) technology.

The government knows only too well that most communities cannot afford to pay a licensed surveyor to map their boundaries, if in fact surveyors will be willing to risk taking on such jobs at all in the wake of this ruling.

But then again, even when a licensed surveyor is willing to take on the job to map for a native community, at the end of the day, the map will still have to be approved by the Director of Department of Lands and Surveyors before it becomes a valid document.

Without any map to indicate the extent of their land, communities will be increasingly powerless to oppose the claims of logging, oil palm and other companies on their land.

Clearly these provisions are a reaction to the Rumah Nor landmark victory and are an attempt to defeat the right of the indigenous people to prove their native land boundaries since recent cases show that the Sarawak courts are willing to legally recognize maps made by communities.

This law is truly without precedent, both in Malaysia and around the world. Peninsular Malaysia for instance has a Board of Land Surveyors, but there are no provisions there to restrict community mapping.

This new law, in spirit only seeks to claw the rights of the native communities to the land that they had inherited from their ancestors who had been around the area from a point of time that vested interests with selective amnesia pretend that they are incapable of remembering.

Sand in the Cooking Pot
The second law in question that will further erode the ability of the people to benefit from their ancestral land is the Forests (Amendment) Ordinance 2001 that seeks to criminalise people who take forest products out of state and communal land for commercial purposes, or even for domestic use, without any written permit.

Amendment to Section 47 of the Sarawak Forest Ordinance states, "a member of the community shall be presumed to be taking forest produce for sale, exchange or direct profit unless he can prove (otherwise) to the satisfaction of a court or the director (of forest)." Essentially, the law will presume the people guilty, unless proven innocent.

Now not only the people may lose their right to define what is theirs in the court of law, they also may not be able to do much with what is theirs without the approval of the state. How can you need permission to benefit from what you have traditionally inherited from your ancestors? This law can be compared to saying that one shall not work unless the state says you can.

Central to the maintenance of traditional native titles of an indigenous group to their land is the people's practice of substantially maintaining their traditional connection with the land by acknowledging their customary laws and observing the customs of the group on the land. This means that resources on native land need to be continuously utilized by the people in accordance with their adat and the land must never be abandoned - the people must be in continous and unbroken occupation and/or enjoyment of the rights of the land from time immemorial. Thus to legally say that the people now need permission from the state to utilize resources on the land has far reaching implications.

Enemy of the State
When the state criminalizes a community effort in empowering themselves to defend their ancestral properties and further criminalizes them for exercising their natural right to livelihood on those properties, it is to all intents and purposes, making an enemy out of the very people it is supposed to protect. At a time when indigenous peoples' rights are increasingly being recognized by the governments the world over, it is certainly appalling that the Sarawak State Government is going the opposite direction.

Let us not kid ourselves, a large number of natives who remain in the rumah panjang are not poor by tradition nor because of their traditions, they are poor because there are the select few who have made money living off their properties. Wealth is made out of selling at bloated prices what is obtained at discounted prices.

Indecent wealth is oppressive and coercive for it improverishes others to enrich itself. One can only be poor when one is dispossessed and deprived of a reasonable set of rights to maintain a decent life. Poverty is surely a convenient tool for wealth to assert and reassert itself. Often people are not just born poor, they are made poor to maintain someone else's wealth.

How does that define you
It is just too bad that while the state in the past did not take any comprehensive steps to fully map and register the people's customary land, now it is preventing the people from doing just that. "No we won't do that for you and no you can't do that too without our consent.

Like the chicken that crossed the road to get to the other side, the two laws have clearly crossed the boundaries of decency to make it easier for some chickens to have access to what is beyond those boundaries. Better still, when boundaries remain unclear, it is easier to redemarcate and trespass. With laws like these, some chickens can really fly.