"Indigenous peoples are entitled to self-determination. By this is meant their natural and inalienable right to retain and control the land and all resources found on their traditional territories, and the right to choose

their own way of life.

They have the right to practise and develop their culture and indigenous religion and to maintain

their cultural identity."

(Malaysian Charter on Human Rights, Article 16)

This chapter on the rights of indigenous peoples is in three complementary parts. The first section seeks to identify the issues and challenges facing indigenous peoples today in relation to their socio-economic status and the changes affecting their land rights. Next, a range of documented cases is presented which illustrate the central significance of land in the lives of the indigenous communities. This is reflected in Article 16 of the Charter and is highlighted in this chapter by examples of the difficulties faced by indigenous communities in exercising their "natural and inalienable right to retain and control the land and all the resources found on their natural territories and the right to choose their own way of life." Third, and lastly, the chapter concludes with detailed recommendations on how to resolve these issues in partnership with the government. This 1996 initiative resulted from a consultation between indigenous peoples themselves, in conjunction with the Indigenous Peoples Decade (1995-2004). Other aspects of Article 16 relating to cultural and religious rights will be dealt with in chapter 7.

The indigenous peoples of Malaysia, or Orang Asal, are not a homogenous group. There are at least 95 subgroups, each with their own distinct language and culture. However, they are all marginalised socioeconomically and culturally in Malaysia. Politically, the natives of Sabah and Sarawak are in a relatively better position compared to the Orang Asli (the Malay term for the indigenous peoples in Peninsular Malaysia) as they are part of the ruling government. Notwithstanding this political dominance, the socio-economic status of the majority of indigenous peoples in East Malaysia still lags behind, as it does with their counterparts in Peninsular Malaysia. There is a dramatic contrast between the proportion of indigenous peoples found within the population of Peninsular Malaysia and the East Malaysian States. In the former the indigenous peoples constitute only 0.7% of the total population. However, they form the majority in Sabah at 54.26% (Department of Sabah) and in Sarawak at 49.2% (Phoa 1996: 198). Nationally, they number approximately 2.1 million or 10.2% of the total population.

The lifestyle and means of subsistence of the indigenous peoples varies. In Peninsular Malaysia, fishing is the chief occupation of coastal communities, such as the Orang Laut, Orang Seletar and Mahmeri. Others, including some Temuan, Jakun and Semai communities, practise permanent agriculture and manage their own rubber, oil palm or cocoa farms. Another, approximately 40% of indigenous peoples live close to or within forested areas. These comprise the Semai, Temiar, Che Wong, Jahut, Semelai and Semoq Beri communities which engage in swiddening (hill rice cultivation) as well as hunting and gathering. They trade in petai, durian, rattan and resins to earn cash incomes. A very small number, especially among the Negrito groups, are still semi-nomadic and depend on the seasonal bounties of the forest. A fair number of them are to be found in urban areas surviving on their waged or salaried jobs.

In Sabah, the coastal and riverine communities mainly engage in fishing, together with cultivation of food for their own consumption. Surplus food, cash crops and jungle produce provide them with a cash income. The majority of the indigenous population live in the rural areas as subsistence farmers practising diversified agriculture - often a form of rotational (shifting) agriculture, combined with wet padi, tapioca, fruits and vegetables. An increasing number of them cultivate cash crops.

In Sarawak, the rural indigenous population also practise rotational cultivation with an emphasis on hill rice. These communities supplement their diet by hunting game and gathering forest produce. A small number of the Penan community still lead a nomadic life; hunting and gathering while the rest of the community either lead a settled or partially settled life. The rural indigenous communities depend on the river for their drinking water, food, washing and transportation. The indigenous population in Sarawak has also been integrated into plantation projects involving the cultivation of cash crops such as oil palm, pepper, cocoa and rubber trees. Others work in the timber industry and there are those who have migrated to urban areas.

1. Peninsular Malaysia* 92,529

18 sub-ethnic groups classified under

1. Negritos 2,972

[Kensiu, Kintak, Jahai, Lanoh, Mendriq, Bateq]

2. Senoi 49,440

[Semai, Temiar, Semaq Beri, Che’ Wong, Jahut Mahmeri]

c) Proto-Malay 40,117

[Temuan, Semelai, Jakun, Orang Kanak, Orang Kuala, Orang Seletar]

2. Sabah* 1,187,200

39 different ethnic communities estimated

1. Dusunic 476,981

[Dusun, Coastal Kadazan, Kimaragang, Eastern/Labuk, Kadazan,

Lotud, Kuijau,Tatana, Tengara, Bisaya, Rungus, Dumpas]

2. Paitanic 52,751

[Tambanua, Upper Kinabatangan, Sinabu, Lobuu/Rumanau, (Abai)

Sungai, Lingkabau]

3. Murutic 63,803

[Kolod/Okolo, Gana, Kalabakan, Sebangkung, Serudung, Tagal/

Sumambu, Baukan, Nabay, Timugon]

5. Suluk/Tausug 25,062

6. Sino-Native 23,865

7. Other Indigenous 377,895

[Bonggi, Illanun, Bengkahak/Mangkaak, Malayic (Cocos, Kedayan),

Tidung, Dayak, Lundayeh, Bugis, Ida’an]

3. Sarawak* 820,000

28 individual groups listed officially.

However, there are at least 37 known groups and sub-groups

1. Iban 493,000

2. Bidayuh 140,000

3. Melanau 96,000

4. Other Indigenous 91,000

[Kenyah, Kayan, Ukit, Penan, Sekapan, Lahanan, Lun Bawang,

Kelabit, Berawan and Punan Bah]

*The figure for Peninsular Malaysia is for 1995; Sabah - 1990 (calculation is from the 1970 Population Census using annual growth rate); and Sarawak - 1990.

Source: Nicholas 1996: 158, Lasimbang 1996: 178-9 and Phoa 1996: 198)

The main challenge confronting indigenous peoples today is that of being dispossessed of their native customary land. Land is their source of livelihood and its dispossession has invariably trapped indigenous peoples into a cycle of poverty. Equally importantly, is the fact that land embodies their cultural identity and thus its loss strikes at the very core of their identity. Traditional indigenous belief holds that land is not a commodity and consequently cannot be bought or sold. Rather, land is on loan to the people from God and it is their responsibility to take care of it. Therefore, land has spiritual and cultural values attached to it. For example, the practice of shifting cultivation is a skill developed and adopted to allow the environment to regenerate itself between each cycle of agricultural use. Shifting cultivation is also efficient and "effectively suited to the rather poor physical environment and specific ecological situations" (Spencer 1966) and has proven to be sustainable over the millennia (Hong 1987). In the main, indigenous peoples do not take from the forest and rivers any more than they need.

These traditional beliefs and practices function to nurture the natural environment and thus preserve the bio-diversity of the forest. In contrast, large scale rapid deforestation for extractive and "development" purposes destroys, often forever, this rich heritage of flora and fauna. Internationally, the preservation of the environment has become a major concern, not least because of the risk involved in losing a rich genetic resource. In addition, it is recognised that preservation would ensure a supply of clean, fresh air as well as making a contribution to preventing or halting the process of climatic change.

Paradoxically, the reluctance of indigenous peoples to part with their land for logging, plantations, dams, industrial zones, mining, roads and townships purposes is often labelled as "anti-development". This also implies that their way of life is considered "backward". The irony is that it is the "modern" development strategies that have resulted in the present environmental crisis. There is international level agreement that development has to be sustainable, i.e. consideration has to be given to the environment in planning. Research has found that the traditional lifestyles of indigenous peoples are environmentally sound. This implies that we may in fact have a great deal to learn from them.

In spite of the impoverished state that indigenous peoples have been plunged into economically, culturally and spiritually by mainstream development policies, efforts to integrate them into that very mainstream economy are still ongoing. For example, under the Seventh Malaysia Plan, the government development approach to eradicate poverty in Sarawak is to develop Native Customary Land into productive assets so that the indigenous peoples will realise its potential value through joint-ventures with the private sector for plantation development and other types of development (Dewan Undangan Negeri Sarawak Debates 21 November 1996).

This needs to be questioned on several grounds. First, is this what indigenous peoples themselves want? Secondly, will indigenous peoples benefit economically, spiritually and culturally from the development proposed? Experience has shown that indigenous peoples are rarely consulted on the kind of development they want, let alone be invited to participate jointly in private sector development projects. In the present scenario, change, in whatever form it takes, is usually imposed on them. For example, there are cases where their Native Customary Land has been forcibly encroached upon or taken in the name of development. Related to this is the issue of disruption caused by resettlement, of whether the new place can guarantee them the quality and type of life they have been used to and of the inadequacy of compensation. These are very real issues in both Peninsular and East Malaysia, where indigenous peoples continue to be dispossessed from their land.

For the indigenous peoples, the development path pursued has had a dramatic impact on all aspects of their lives, their livelihood, way of life and values. Being deprived of their land, they are increasingly pushed from a subsistence economy into the prevailing cash economy as labourers in the timber industry, workers in town or settlers in land schemes. The threat to their cultural identity caused by dispossession from their land, is reinforced through the education system. Harrison Ngau, then an indigenous youth in 1983 noted that,

"The introduction of formal western education has led to the emergence of a new lifestyle and culture among the younger generation Dayak. They are now trained in a new system with its different set of values and patterns of behaviour to fit into a new economic system very different from their traditional system..." (Harrison Ngau 1983).

In Peninsular Malaysia, a policy of integration started in the 1960s through the Department of Orang Asli Affairs (JHEOA) with the ultimate aim of integrating indigenous peoples into the Malay section of the community. This has, in more recent times, taken on the new dimension of attempting to convert the Orang Asli to Islam. (Nicholas 1996: 166). The JHEOA has a special section for the "spiritual" development of the Orang Asli and other government and non-government bodies too, each has its own programme with similar objectives. Nicholas noted that,

"The assimilationist tendencies, best epitomised by the publicly expressed intention of converting all Orang asli within the next ten years, undermine whatever genuine intentions the government may have for the well-being of the Orang Asli. At the very least, it brings the justification for attention towards Orang Asli one full circle - back to the early days of the British colonial government when the Orang Asli were merely regarded as ripe objects for the zeal of religious missionaries" (Nicholas 1996: 166-8).

In relation to this, it has been recommended that the definition of Malay in the Malay Reserve Enactment be amended to include Orang Asli who embrace Islam, speak Malay and follow the Malay culture and tradition (Chief Secretary of Land and Co-operative Development Ministry, Dr Nik Mohd. Zain bin Hj. Nik Yusof, 1996) can be questioned. The Orang Asli rights to land should be recognised irrespective of their religion. (As it stands, only indigenous peoples of Sabah and Sarawak and Malays are accorded special privileges and rights to land in the Constitution. The Orang Asli position to special rights and privileges is not clearly specified in the Constitution).

Although distinctly different, indigenous peoples rights need to be respected, accorded the same status and not to be discriminated against. For example, in the legal statutes on Malay Reserve Land, any change in status of any portion of reserve land, requires in law that another piece of land of similar size and features be declared as replacement. However, for indigenous peoples in Peninsular Malaysia there is no such guarantee in the law. The same can be said of the situation in Sarawak, as the Minister has the power to abolish Native Customary Rights (NCR) land. In Sabah, titled native land acquired compulsorily by the government may be replaced with another piece under section 16 of the Sabah Land Ordinance but in reality, most people are compensated with cash. Even then, compensation is rare and in these cases the land is often valued at a rate much lower than that for other land titles.

Another issue of concern is the subsuming of indigenous peoples under the category Malay or Bumiputra in population censuses. It is confusing and misleading when indigenous groups are not able to classify themselves according to their distinctive indigenous identities. According to the president of the Orang Asli Association-Peninsular Malaysia, Majid Suhut, this often results in indigenous people categorising themselves on official forms, as "others" in preference to the alternatives offered, namely, Malay, Chinese or Indian ethnic status. (Sun 20 October 1996)

It is possible to arrest and even reverse the erosion of cultural identity experienced by the indigenous peoples. First, their land rights need to be recognised and protected. Second, their knowledge of the forest and their spiritual and cultural traditions need to be actively respected and appreciated. One worrying consequence of the negative labelling of indigenous peoples as "backward" is that some groups are no longer proud of their traditional identity. Active recognition and respect for their way of life would put life into the purported multi-racial nature of the National Cultural Policy. It is of concern that only the physical aspects of indigenous peoples’ culture are promoted, e.g. for tourism purposes, without understanding and appreciating the spiritual and cultural values attached to it.

The JHEOA Director-General has revealed that 80% of the Orang Asli live below the poverty line compared with 8.5% nationally and that 50% are among the very poor as compared with 2.5% nationally (The Star 19 February 1997). One effort to eradicate poverty is through housing provision. However, according to Peninsular Malaysia Orang Asli Association Selangor Branch Vice-Chairman, Yusof Alip, only 10 to 15 houses are allocated annually, per district, under the Seventh Malaysia Plan (through the Orang Asli Department). This means that, "less than 5% of the Orang Asli population receive houses each year." (The Star 17 October 1996).

Nonetheless, the suitability of the houses is questionable. For example, Mahmud Kema from Kampung Bukit Kecil was given a two-room house measuring 4.8 x 5.4m as part of a poverty eradication programme (Ibid). The house is not only small but has heat-trapping zinc roofs and concrete walls. The marginalisation of the Orang Asli is further evident in the lack of provision of basic amenities such as electricity and piped water and basic infrastructure such as tarred roads. These services may reach other villages but will invariably stop short of an Orang Asli village. For example, the Temuans living in a village at Pertak are only a stone's throw away from the State Youth Centre but they are not granted any of its luxuries, namely electricity and piped water (New Straits Times 28 May 1996). This is in spite of the fact that for years, the Temuans themselves have been formally asking the state government to supply them with electricity. JHEOA statistics show that only 30% of Orang Asli in regroupment schemes have electricity and water compared with 90% of the total population nationally. (The Star 19 February 1997).

One of the highest percentages of poor households in the country is found in Sabah despite the fact that this is one of the richest states in the federation, in natural resources. The 1995 statistics from the Economic Planning Unit Sabah cite the poverty rate in Sabah at 22.6% compared with 8.9% for the national population. This means that 76,400 families from nearly all districts live below the poverty line. From this figure, 16,700 families are the poorest with a monthly income of below RM280. The majority of the poor are in the rural areas where they live as subsistence farmers, although more are to be found in urban squatter communities. About 70% live in the rural areas, most of whom are indigenous peoples (Lasimbang 1996: 183).

Poverty in Sarawak as shown by an analysis of data from the Economic Planning Unit is a rural phenomenon (Heyzer 1996: 18), with 96% of poor households in the rural areas. Approximately 10.7% of rural households are "hard core poor" where there is a lack of access to basic needs such as food, clothing and housing (in Heyzer: ibid). According to the Sarawak Land Development Minister, Datuk Celestine Ujang, although the poverty rate dropped from 24.8% 10 years ago to 20% last year, poverty among the Dayak community was worrisome. (New Straits Times 27 May 1996).

The feminization of poverty is also an issue to be considered. For example, Heyzer’s study in Sarawak shows that the feminization of poverty is occurring because of deforestation. The study was conducted in the early 1990s in three indigenous communities in Limbang Districts, Northern Sarawak, i.e. Penan and Kelabits in Long Napir, Murut in Kampung Lubuk Aur and Iban in Tanah Merah, Nanga Medamit. Deforestation results in an increasing shortage and contamination of essential natural resources.

As women are invariably responsible for the necessary tasks associated with social reproduction, this has meant longer hours of work and heavier workloads, a decline in their nutritional status and income, an increase of environmentally-related illnesses and other health problems and the breakdown of social support networks and traditional resource management system. The communities are also differently affected. The Penans who live upstream in the heart of the forest are worse off than the Ibans and Lun Bawangs, living nearer to Limbang town, who have been able to switch from being swidden cultivators to wage-earners.

In terms of health, the Orang Asli in Peninsular Malaysia record a lower health status than the general population. The median for the infant mortality rate during the period 1984-87 was about 51.7 infant deaths per thousand live births for the Orang Asli, in contrast to 16.3 for the general population. This high level of infant mortality for the Orang Asli contributed significantly to their high general level of mortality, as indicated by the life expectancy at birth. Life expectancy at birth for the Orang Asli was estimated to be 52 years for females and 54 years for males as compared with 72 and 68 years for females and males respectively for the general population. Orang Asli females experienced lower life expectancy at birth probably due to their higher maternal death rates resulting from childbirth or poor maternal health (Ng, et al 1987: 13).

Because of the geographical isolation of the indigenous peoples of Sarawak, health provision is made through a flying doctor service. However, its effectiveness is questionable. For example, the indigenous people of Baram, Sarawak complained in 1995, of the quality of health services provided. In particular, they say that flying doctors have failed to arrive as scheduled or promised. The long distances from their settlement to the nearest clinic prevent indigenous peoples from benefiting from the health facilities provided.

At 33%, Sarawak has one of the highest illiteracy rates in Malaysia.(Phoa 1996: 201). A local newspaper reported in 1992 that as much as 22% of the population do not have any formal education at all. The illiteracy rate is high among indigenous groups at 48.7% among the Iban farmers and 37% among the other natives, in contrast to 16.7% of the Malays and 4.2% of the Chinese (Phoa ibid). Sarawak also faces a lack of trained teachers and of quality school facilities, particularly in the rural areas. In 1995, indigenous communities of Long Sait, Ulu Baram appealed to the Education Department in Sarawak to improve the standard of teaching and the management of the school.

The dropout rate among children in rural communities in Sabah, where most of indigenous peoples reside, is high (Lasimbang 1996: 183). Perhaps, it is an indication that the teaching method or the content is not suitable. Conditions of schools in villages are usually deplorable. They are also understaffed and lacking in facilities.

In Peninsular Malaysia, now that the Education Ministry has taken over the responsibility of looking into the schooling needs of indigenous communities from the JHEOA, it is hoped that the quality of education and the facilities provided will improve. As it is 66% of the Orang Asli are illiterate (The Star 19 February 1997).

In line with Malaysia's projected poverty reduction programme of 5.5% by the year 2000, RM 2.4 billion has been set aside to help needy rural students and to implement health programmes for 1997. It is reported that there will be special emphasis on the needs of the Orang Asli. (Sun 26 October 1996). This shows that the government is concerned about the welfare of indigenous peoples. However, to go to the root cause of the problems, a more integrated approach that considers indigenous peoples’ world-views, lifestyles, cultural and spiritual traditions is needed. More importantly, given the fact that the indigenous peoples are trapped in a cycle of poverty due to their dispossession from their native customary land, there is an urgent need to recognise and protect their rights to land.

Until 1996, 18,587.26 ha of land has been gazetted as Orang Asli Reserves in Peninsular Malaysia. Another 83,269.86 ha has been applied for by the Department of Orang Asli Affairs (JHEOA). Given the population of Orang Asli at 92,529, this works out to only 0.2 ha or less than 2 acres per individual. At the same time, it is common to find Orang Asli land degazetted without their knowledge. Between 1990 and 1994, 2,764 ha of Orang Asli land were degazetted (Nicholas & Williams-Hunt 1996: 464-5).

According to statistics revealed by the Director General of JHEOA, only 0.02% of Orang Asli have title to their land (The Star 19 February 1997). The rest are living on reserve, state land or other lands.

Orang Asli who do not own land live as "tenants at will", as the state has the final say whether to allow them to stay on a piece of land or not. In other words, the state government has the right to gazette a land as Orang Asli reserve and to degazette it. In the event of this occurring, the affected Orang Asli are expected to move elsewhere. This is spelt out in the Aboriginal Peoples Act 1954 that takes care of all matters concerning the Orang Asli, particularly on land matters. The Act provides Orang Asli with only "usufructuary rights" - the right to use and not proprietary rights. Not only that, the state is not obliged to pay any compensation or to allocate an alternative site for the Orang Asli in the event that the land they are staying on is acquired.

Traditionally, the concept of land use and ownership was based on a land adat system which was developed by indigenous peoples over many generations. Initially, the system of land registration introduced by the British was not popular with natives. They were, however, gradually pressured to accept it as land became a scarce resource with more and more land being alienated for plantations, forest reserves and townships.

A total of 135,120 native land titles with an area of 266,886 ha have been issued and registered under the category of Native Titles (NT) and Field Register (FR). This accounts for 19.5% of the total land issued titles (Mohamad bin Jafry, 1996). Other categories of land titles are Country Lease (CL) and Provisional Lease (PL), but unlike NT and FR that can be solely owned by Sabah natives, CL or PL can be owned by all strata of society including foreigners, government agencies and others for a maximum of 99 years. Nevertheless, NT and FR land can be acquired by the government and compensated with cash based on the government’s valuation of the crops and the land itself.

The sections in the Sabah Land Ordinance, 1930 which deal with native land have been amended several times in a move by the government to develop such land commercially through diversification of land use. The 1989 amendment allows the sublease of NT and FR land to non-natives for a maximum period of 99 years. It was amended again in 1995 to allow for the NT and FR land to be use for commercial purposes, industry, housing and tourism without changing their status to CL. Amendment to the Land Acquisition Ordinance in 1993 makes it possible for compensation for the acquisition of NT and FR land to be at par with the value of the CL and PL land within the same vicinity.

These amendments were intended to help indigenous landowners however, they are not necessarily effective. For example, it has been observed that the traditional concept of land is continually being eroded with many indigenous peoples losing their land through unscrupulous land deals.

Land ownership by indigenous peoples in Sabah can be secured through the application of titles mentioned above, or through the establishment of Native Customary Rights (NCR) under Section 15 of the Sabah Land Ordinance. NCR to land include:

• Land possessed by customary tenure; customary tenure is defined as the lawful possession of land by natives by continuous occupation or cultivation for three or more consecutive years or by title under this Part… or Part IV of the Land Ordinance 1913" and it is "a permanent and transferable right of use and occupancy" subject to continuous cultivation and use of the land. A native who has established native Customary Rights has prior rights over any applicant for the land.
• Land planted with 20 or more fruit trees per acre;
• Fruit trees, sago, rotan and other plants of economic value planted, upkept and regularly enjoyed as personal property;
• Grazing land stocked with cattle or horses;
• Land that has been cultivated or built on within 3 years;
• Burial grounds and shrines;
• Rights of way for people and animals.

Although these criteria accord some protection to NCR land, there are many shortcomings to this section and other conflicting enactment and even sections within the Land Ordinance itself renders it inadequate. Firstly, fallow land cannot be claimed under NCR as "customary tenure" in Section 15(a) is defined as continuous occupation or cultivation for 3 or more consecutive years.

Secondly, although the Forest Enactment clearly provides for notices to be posted to the communities where a forest reserve is to be gazetted, to allow objections, this procedure is not generally followed. Very often, native communities are not aware that their native customary land has been included in a forest reserve until the companies come to extract the trees. Most of the forest and park reserve, which by December 1987 covered 3,614,435 ha or 49.1% of Sabah's total land area, was designated for logging (Lasimbang 1996:191). Furthermore, once gazetted as a forest reserve, granting land titles within the forest reserve will not be allowed until the concession period (between 5 to 25 years) is over. Experience in Tawau, east coast of Sabah, has shown that land did not revert to the communities after an area was degazetted from a forest reserve. Instead, it was alienated to other government agencies or sold to corporations for oil palm plantations.

Thirdly, the manner in which notices under Section 13 of the Land Ordinance are served is the subject of contention. These notices are written in English and only displayed on the Lands and Surveys notice board.

Finally, NCR is not taken into consideration in the alienation of land for plantations. About 12% of the total area of Sabah has reserved for commercial plantations to government statutory bodies such as the Sabah Forestry Department (SAFODA), Sabah Forest Industry (SFI), Sabah Land Development Board (SLDB) and Federal Land Development Authority (Ibid: 192). The purpose is to plant Acacia Mangium, oil palm and cocoa. Land is alienated to these agencies by mere gazette notifications. People are neither notified nor are their objections considered as the government considers untitled land as state land. Notifications are seen as a hindrance to the pace of development and are therefore avoided. Ironically, the land was alienated to agencies for "public purposes" and not for commercial purposes (Ibid). For example, when the SFI was privatised in 1994, the 288,623 ha of land previously alienated to it under Section 28 of the Sabah Land Ordinance, 1930 became property of individuals. Most of the land belonging to the Lundayeh indigenous peoples in the Sipitang district was acquired for "public purpose" - tree plantation for a pulp and paper project by the SFI.

There are three laws governing the indigenous people's rights to their land; the Land Code, the Forest Ordinance and the Native Customary Right (NCR) Law. Under the Sarawak Land Code, lands are classified as follows:

• Mixed Zone Land (8%) - is the most valuable land and may be purchased, sold or owned by any race in Sarawak;
• Natives Area Land (7%) - land formerly held by the natives under Customary Right to which titles has been granted to claimants;
• Native Customary Land (22%);
• Reserved Land (16%); and
• Interior Area Land (47%).

Although there is a provision in the Land Code which stipulates that from 1 January 1958, natives can still create customary rights as long as these adhere to the customary law of the community or communities, there are other provisions that can question or take away these rights. The methods by which native customary rights may be acquired include the felling of virgin jungle and the occupation of the land thereby cleared; the planting of land with fruit trees; the occupation or cultivation of land; the use of land for a burial ground or shrine; the use of land of any class for rights of way; or any other lawful method.

Sarawak's forestry policy accords priority to native rights but this may be rendered meaningless if their customary lands are under constant threat and destruction.

Over the years, amendments have been passed to make it more difficult for indigenous communities to hold on to or to protect their land. Amendment to the Land Code empowers the Minister to extinguish Native Customary Rights to any State Land. In the 1974 amendment, the settlement officer can even extinguish NCR by paying compensation and issuing lease. He can even overrule the native court.

In 1979, when amendments were made to section 209 of the Land Code, the scope for offences for unlawful occupation of State Land was widened to include erect building, clear, plough, dig, enclose, cultivate any State Land. Senior Officers of the Land and Survey Department were empowered to evict, seize, demolish, remove property on the land, where previously, only police officers could carry out this function. The Forest Ordinance was amended in the same year. Anyone caught trespassing, felling timber, collecting produce in the Forest Reserve, Permanent Forest or State Land can be evicted by the police, forest officer with a court order, and can take possession of all property. The court order has to be issued when the Director applies for it. Effectively, native communities who depend on the forest will no longer be able to freely enjoy gains from their ancestral domain.

In retaliation to the blockades set up by indigenous communities to protect their land, the Forest Ordinance was amended in 1987. Obstructing logging activities became an offence. Thus, whoever sets up a blockade on any road constructed or maintained by the holder of a licence or permit and/or prevents any forest or police officer, or licence or permit holder from removing the blockade will be jailed for two years and fined RM6,000 for the first offence and RM50 each day that the offence continues.

The latest amendment to Section 5 of the Land Code renders the indigenous peoples’ position even more precarious as all land under dispute is presumed state land unless it can be proven otherwise.

The amendment to the Land Code made in 1990 allows foreigners to buy land in Sarawak for industrial, recreational and tourism purposes albeit applicable only to State Land and alienated Mixed Zone Land.

A summary of the documented violations of indigenous peoples’ land rights is presented to highlight the injustices and sufferings that they are facing. The cases related here are those that have surfaced through the media. Documented cases of the violations of indigenous peoples’ land rights for Peninsular Malaysia are those shared by the Orang Asli Association of Peninsular Malaysia (POASM), Centre of Orang Asli Concern (COAC) and people working with the Orang Asli and the media; for Sabah as compiled by Partners of Community Organisations (PACOS), Sabah; and for Sarawak as shared by the affected indigenous communities, groups working with them such as Ideal, Indigenous People Development Centre, Sacess and the media. In these instances, indigenous communities are united and/or are strong enough to resist infringements of their rights and some cases are being contested in court. The cases covered barely reflect the seriousness of the situation as there are many more that go unreported for a variety of reasons. Some communities may be too weak in terms of numbers, contacts, political influence, financial resources or awareness and exacerbated by geographical isolation.

Furthermore, as some cases will highlight, it is not only the developer or logging companies that infringe the rights of indigenous communities but also the state in terms of the laws or regulations that fail to safeguard their land rights. These laws and regulations provide increasingly fewer safeguards with each subsequent amendment, as illustrated in the negative changes in state law in Sarawak. This trend is compounded by the fact that the police, instead of upholding justice, have been known to misuse their powers and openly assist the loggers, developers or encroachers. In Ulu Baram for instance, it has been a common sight to see the Police Field Force act as bodyguards to the loggers in any meeting with the Penan community representatives.

It is important to note that for those who agree to be resettled, this has also resulted in a drop in their living standard and/or of promises unfulfilled.

Source: The Star 17 October 1996

The Jahai community in Kampung Sungei Manok, Jeli, Kelantan was asked by the JHEOA to relocate there in 1972. In 1976, the land was approved for gazetting as an Orang Asli Reserve but to date it has not been gazetted yet. In 1988, a total of 1,630 acres was given Temporary Occupation Licence (TOL) status by the Kelantan government. Encroachments on the land started since the late 1970s, first by loggers and later by non-Orang Asli settlers from neighbouring districts. Since early 1992, some 20,000 ha of state land have been encroached upon by illegal settlers in Kelantan, especially in the traditional Orang Asli areas of Gua Musang, Kuala Krai and Jeli. This is partly due to the state government policy of giving district officers the authority to approve land applications involving less than 4 ha each. This saw a surge of applications especially in areas made more accessible by logging tracks and Pos Rual was affected as well.

In March 1993, due to an outbreak of cholera that had claimed a few lives, the Jahais were requested to vacate the settlement in an attempt to stem the disease. The community went and stayed in Jeli for about a month. Soon after their return to the settlement, on 25 April 1993 a Kelantan local came there and asked them to move out, claiming that he had bought the land. He gave them a day to do so. Despite the abuses and threats the Jahais refused to move. Six Kelantan locals came the next day at about 10.15am. Two of them were brandishing long knives and the supposed leader of the group insisted that the Jahais move out at that very moment. Things went out of control when the leader kicked the headman causing him to fall and a Jahai of 19 was cut on his left arm. Other Jahai men came to their rescue and in the ensuing fight 3 of the intruders died.

Nine of the Jahais were charged with culpable homicide not amounting to murder in May 1993. It was only after 3 years struggle in the court that they were acquitted without their defence being called on 30 June 1996.

It was reported that a high-powered team headed by National Unity and Social Development Minister secretary-general (I) Datuk Dr Zainul Arif Husin went to investigate allegations by the Orang Asli and Koperasi Daya Asli (KDA) Johor Sdn Bhd over alleged encroachment and illegal logging activities at Kampung Tamok, Bekok (Sun 20 September 1996). The team included JHEOA director-general, Ikram Jamaluddin. The action was taken following a demonstration by 100 Orang Asli at the settlement a week before. It was also reported that the Anti-Corruption Agency (ACA) will investigate the role of Orang Asli affairs officers in the cooperative to ensure that there is no foul play. Johor Menteri Besar, Datuk Abdul Ghani Othman, was quoted as saying that the state would request the Rural Development Ministry to take steps to differentiate the interests of the department's officers and that of the Orang Asli community which come under the cooperative. From reliable sources, it is learnt that the cooperative has been granted the licence to log. The tender opened early this year and it is believed that it was not closed yet when in August 1996, tractors cleared an estimated 30 hectares of the primary jungle that subsequently prompted the demonstration.

The cooperative has since decided not to take action. However, the villagers are still in the process of considering legal action. They are unhappy that they have not been consulted on the privatisation project involving the gazetted Orang Asli reserve and feel uncertain of their future. In place of the logged area, is an oil palm nursery and the proposal was for private companies to cultivate and to manage it for 8 years before being handed over to the villagers. Each family will then be given 8 acres of the oil palm plantation and a house. So far, this had been conveyed verbally to the villagers without any written proposal. The villagers counter proposed and requested for a bank guarantee of a million in the event that the project failed, for 10 acres of land per family with an additional 11/2 acres for building their houses, for a bungalow per family and for basic facilities such as electricity to be provided. Negotiations are still underway.

The acquisition of this land involved gazetted Orang Asli reserve land and non-gazetted reserve land of around 41 acres. The Orang Asli was informed of the acquisition of their land in early 1995 for the construction of the North-South Highway Link Project and the Kuala Lumpur International Airport (KLIA) Expressway. Based on the government's valuation, the Orang Asli will be compensated for their crops/fruit trees and houses but not for their land. The Orang Asli are not satisfied with the compensation that they have received under protest. When they asked how the compensation was calculated, the Land Officer replied that it is government's secret. Naturally, the Orang Asli are unhappy that they have not been consulted.

On 21 March 1996, a team of FRU was sent to evict them. 2 of their houses and 12 acres of their oil palm plantation were destroyed by the road contractor with the help of the FRU. Seven of the villagers on the non-gazetted land for which they and their ancestors have occupied since time immemorial have appointed lawyers for certain declaratory and consequential relief on their rights including to obtain a fair and just compensation for the acquisition of their land. Proceedings are believed to have been instituted and are expected to raise certain crucial constitutional and legal issues.

Meanwhile, the Orang Asli on the gazetted land is in the process of seeking legal action. They have attended an inquiry into the order of degazetting the land as Orang Asli reserve. In the case of degazetted land there is also no guarantee that it will be replaced and even if it is replaced, it will be very slow.

The Mahmeris of Kampung Sungai Judah, Kampung Sungai Bumbun and Kampung Sungai Kurau were requested to relocate to give way to the construction of the highway from Teluk Panglima Garang to Tanjung Ru. 38 families with about 132 population are affected involving an estimated 40 acres of land. Areas affected included their oil palm and coconut plantation. Of the 38 families, 5 families had agreed and accepted compensation between RM5,000-10,000 per family. The other 35 families have agreed to receive the compensation under protest and are in the process of seeking legal action.

Before 1995, 320.22 ha in Bukit Lanjan was set aside as Orang Asli Reserve. Early last year, the Selangor State Government sold 273.6 ha of this reserve to property developer, Saujana Triangle Sdn Bhd. Around 100 families are affected. Out of these, 27 had refused to enter the agreement and accept the compensation offered. They are not satisfied as they are not consulted and unhappy with the divide and rule tactic use by the developer who offered varying sums to the villagers. They are seeking legal redress.

Orang Asli have been residing in Sungai Dua, Olak, Bentong, Pahang for around 100 years on land declared and approved as an Orang Asli settlement. In the early 1990s, the land was acquired for industrial development and for resettlement programme of the non-Orang Asli. However, the Orang Asli were not told. They were later compensated for their destroyed farmland. In place of the farmland are now factories. As the factories are located overhead their houses, the Health Department of Pahang had advised them to shift. Their houses that are on lower ground along the river are not conducive as a settlement anymore because of the pollution from the factories. The Orang Asli are in a dilemma as no alternative place was proposed and no compensation offered.

The Orang Asli are not satisfied with the illegal clearing of their land that resulted in the pollution of the river, their source of water (Berita Harian 21 November 1996). They raised the issue of the lack of control in the issuing of temporary licence and permits for earth works that had caused river pollution and landslides. It is hoped that the application for works that will have adverse environmental consequences and the illegal opening of land will be frozen.

Thirteen Orang Asli from Kampung Merdu/Kedaik are still waiting for the compensation promised to them by the plantation side for approximately 183 acres of land taken from them. They had stayed on the land since early 1960s and applied for the land title in 1975 but did not receive any response from the land office. Instead, the land was given to the Sultan of Pahang and subsequently sold to Seong Thye Plantations Sdn. Bhd. (also known as Ibam) in the early 1990s. They are not satisfied with the RM400-RM800 paid by the plantation side for each house and demanded for a fairer sum of RM50,000 per family, failing which the land is to be returned to them.

As a result of being dispossessed from their land with their rubber trees, orchards and houses destroyed, they faced hardship in making a living. In a letter of complaint dated 6 January 1996 to the Deputy Chief Minister of Pahang, YB Dato’ Hj. Hassan bin Ariffin, Batin Boh Suan bin Tan See lamented "my people not only lose their sources of income but also face an uncertain future. My people are forced to shift and make way for plantations when development comes. Here and there, are plantations, mines, factories and etceteras making it difficult for my people to earn a living".

Approximately 290 acres of land belonging to 27 Orang Asli in Kampong Mikang and approximately 120 acres belonging to 6 Orang Asli in Kampong Keladi, Rompin were destroyed. Not only were their sources of income affected, their ancestral grave were also destroyed. In a letter dated 3 April 1996 to Dato’ Zaleha bt Ismail, Minister of National Unity and Social Development, they requested her to intervene.

The Temuan lives by the bank of Peretak River, an Orang Asli settlement at the foothills of the Hulu Selangor Forest Reserve in Kuala Kubu Baru. The Temuans were not told about the development on their ancestral land though their livelihoods are severely affected by the logging upstream. They complained of having less food to eat, as their staple diet, fish has been depleted. The river that was once crystal clear has turned murky due to the silt flushed down by logging activities and garbage strewn by picnickers. Utat Binket, a wild boar hunter and farmer lamented, "We have stomach ache whenever we drink the stream water. It smells of mud... We used to drink water direct from the river and waterfalls. Now, we have to boil it." (New Straits Times 28 May 1996).

The communities of 10 villages, kampung Dalit Laut, Punggul, Kalampun, Karamatoi Tengah, Karamatoi Laut, Nangkawangan, Belinin/Ruyun, Inandung, Nantabakan and Tataluan have been facing the continuous threat of having their land alienated for an oil palm plantation since the bid was first rejected in 1989. The villages in Dalit, the interior district of Keningau, are home to the Murut and Lun Dayeh communities. In 1992, the Sabah Land Development Board (SLDB) renewed its plan to open about 20,000 ha of land - 5,000 ha customary land and another 15,000 ha Forest Reserve that had been logged over four times. The communities of the villages then formed a joint committee, supported by people from 9 other neighbouring villages, to stop SLDB from encroaching into their land. After a long struggle, the SLDB had its bid rejected again in December 1995. The latest attempt was in November 1996, when the Assemblyman for the area who is also Deputy Chief Minister, Datuk Joseph Kurup, renewed his bid to alienate the area to SLDB.

The communities in Dalit are in for a hard time, trying to convince the government of their seriousness to conserve the forest and to give up the project for good. To them, the subsistence economy is very important and they do not want their life to be disrupted because of relocation. As it is, the logging activities have adversely affected their quality of life in terms of the quality of water, of the availability of food from the river and jungle, of their agricultural produce and of the availability of materials such as rattan and lias for handicraft. Women are faced with a greater burden to ensure sufficient food supply for the daily consumption of the household and to take care of the family when the husband is away for long periods looking for jobs to supplement the family income.

The Sabah Forest Development Authority, a government agency, is creating Acacia Mangium and other fast growing tree species plantations in various parts of Sabah - the biggest of which is the Bengkoka Peninsular, covering 150,000 ha of land. Planting began in early 1982 and expansion continued until early 1996. The plantations spread over more than 30 villages and most of the Rungus communities are confronted with limited area for planting their staple food, hill paddy. They are also constrained by the possibility of hazards from the fire-prone tree plantation. More than 30 villages are affected including Kampung Manggis, Suang Eloi, Datong, Patani Baru, Bahulu, Bongkol, Gumpa, Jambu, Kandang, Telaga, Liyu Darat, Liyu Tamu, Kapok, Kipahung, Bawing, Mangkubau Darat, Mangkubau Laut, Torong Putih, Melubang, Sipirak, Tanjung Berungus, Lok Dangkaan, Paparuan, Simuyu, Serupil, Suang Duyung, Maringgan, Pasar, Pancuran and Mangkapon Darat.

Although logging activities have gone down compared to the rate in the 1970's and 1980's, many villages are still affected by logging in 1996, mostly in the Pitas, Keningau, Tenom and Pensaingan district. The consequences they suffered are scarcity of food from the river and jungle and of materials for handicraft, declines in water quality and lower output of agricultural produce. Communities struggling against logging face a long drawn fight. A case in point is that of Bundu in Apin-apin, Keningau in which 12 villages is continuing their resistance to logging activities in the upper Apin-apin area. The logging company entered the area in 1987 but had its concession cancelled by the government after 3 years of struggle by the villagers. However, in 1995, the company renewed its bid to log the area. Conflicts among the communities combined with other factors are however, making it even harder to struggle against the logging threat.

Due to an increase in industrial activities and population growth in town centres, the construction of dams has increased over the last few years. Babagon dam is being built while the construction of Liwagu dam has not started yet. However, we only have information concerning Babagon Dam. The Babagon Dam in Penampang, about 30 km from Kota Kinabalu, covers an area of 7,500 acres and will submerge an area of 185 acres. Construction of the dam is expected to finish at the end of 1997. Here as in other similar ones, having a title does not guarantee security of tenure as titled land can still be acquired compulsorily. Lack of recognition over their traditional land and its importance to their way of life makes compensation a thorny issue for the 35 families who had to be relocated. As the land they were relocated to is inadequate, 50 acres, those who are traditionally farmers are finding it hard to secure alternative means of livelihood. The villagers are still claiming from the government just compensation for their customary land and desecrated graves, as well as to fulfil its pledge of better housing, farmlands and basic facilities in the resettlement area.

As part of the promise by the Barisan Nasional government when it came into power, work to open the Kota Kinabalu Industrial Park (KKIP) started in 1995. It covers an area of approximately 3,700 ha in Telipok, about 30 km from Kota Kinabalu. The industrial park comprises several zones such as Free Trade Zone, Industrial Zone, Business and Commercial Centre, Residential Area, Tourism and Recreation and Nature's Park.

Among the villages affected are Kampung Norowot and Sukoli with an area about 1,000 acres. The villagers have Native Title to their land. According to a landowner, the land was inherited from his father who opened it in the 40's. These two villages boast of fertile agriculture land, populated mostly by Dusuns and a small number of Bajaus. While the majority affected are farmers, a small number of them also work outside besides tilling their land. The main crops cultivated are paddy, rubber and fruit trees.

The villages have filed a legal suit for fair compensation. They demanded for their properties to be valued as industrial land and not as Native or Kampung Reserve, at RM12 per square foot. They demanded for adequate compensation for their existing houses and crops planted on the land and for an alternative site for their ancestral grave. In addition, the landowners are seeking agricultural land as part of the compensation, jobs in the Free Trade Zones and to be provided with 200 acres of land for resettlement, preferably near the site of the University Malaysia Sabah Campus .

The government has set aside a resettlement area for the two villages, promising a house with basic amenities such as electricity and water supply, which is what the villages are having now. The unfairness of the deal is, without land to work for their livelihood, the prospect of earning a living outside is gloomy. For the aged and those who are not trained for any other kind of work, especially women, it will be an alien life ahead.

The Mamut Copper Mine in Ranau started its operation in 1979. About 600 residents from 13 villages were affected when their agricultural land was destroyed by tailings from the mining activities. (Their land was taken after tailings from the mine overflowed into their paddy fields and could no longer be cultivated. The river is also polluted by chemicals - primary lead - causing much sickness and deaths of many farm animals).

In November 1995, the Compensation Claims Coordinating Committee said they were forced to seek legal redress, after the state government and the mining company refused to entertain their demands for compensation.

In September 1995, 300 odd villagers staged a peaceful demonstration in front of the High Court building to protest against the application for an eviction order against them from a 165 ha land in Menggatal by Dapan Holdings Sdn. Bhd. (Borneo Mail 14 September 1995). The villagers brought along a huge banner which said that former Chief Minister, Tan Sri Sakaran Dandai, who is now the Head of State, had granted their request for the land. They are disappointed that the promise to give them ownership of the land was not implemented. According to the villagers, they have occupied the land for more than 10 years and are laying their ownership based on customary rights as envisaged in the State Land Ordinance. More than 1,000 people from 300 families had settled on the land, comprising locals from Ranau, Penampang, Kudat, Keningau, Labuan, Tambunan and some other areas. The land was a State Reserve when the villagers applied for it to be gazetted as a village settlement. Their application had been granted in the form of documents. They are now applying for titles to the land as well.

All 50 families in Matabian occupying just over 2 ha of land had been told in early April 1996 to make way for the construction of the new State Library Headquarters. The villagers refused as they have not been offered an alternative site for resettlement and compensation. Village community head, Hasim Lawrence Piki, said that the villagers deserved better treatment as they have occupied the area since the 1970s. According to Permanent Secretary to the Local Government and Housing State Ministry, Datuk Ghani Rashid, although they have occupied the area for a long time, they cannot claim Native Customary Rights (Borneo Mail 2 July 1996). The residents were angry as the promise of an alternative site for them was not fulfilled. Kampung Matabian resident Julian Tanggiling said, "What is even more painful is that while the government has not lived up to its promise, it has instead sent in the demolition teams from the Kota Kinabalu Municipal Council." (Borneo Mail 2 July 1996). The demolition team had gone to the settlement at least three times since April and each time the villagers prevented the demolition team from doing their work.

In the last few years, the area gazetted for parks and wildlife sanctuaries has increased. The Lower Kinabatangan River Wildlife Sanctuary was expected to be implemented in 1996. The traditional forest of more than 7 villages, covering 28,000 ha was taken for the project. Most of the villagers asked the government to replace the forest area that has been their source of livelihood and spiritual as well as cultural continuity.

In Tuaran, local farmers were furious when the District Office allowed the road contractor to proceed with the construction of the road through their paddy field (Borneo Mail 15 January 1996). This happened despite the request made to the District Office to postpone the construction until they have completed their harvest. The needs of the people are just ignored.

In its recent meeting on 15 December 1996, the Bakun Region People's Committee (BRPC) discussed three related main issues arising from the Bakun Hydro-Electric Project (BHEP) which have not been resolved (Utusan Konsumer January 1997). First, in relation to resettlement matters, they are unhappy with the size of the land and the area of the resettlement area as it will not be able to support their means of survival. It appears that the offer may be as low as 3 acres per family, lower than the earlier offer of 7 acres and significantly lower than the demanded size of 30 acres per family. Nor is it clear how the calculation has been made. The terms and demands that the indigenous peoples have submitted to the government through the Bakun Development Committee have not yet elicited any response. Full resettlement details have not been disclosed resulting in worry over the uncertainties of the future. The indigenous people in the area reiterated that they choose to remain in the present area as they have an historically, strong attachment to it.

Secondly, compensation is not settled at all. The BRPC regard the government's decision to give compensation only after resettlement as a tactic to trap them. They are also in the dark over the rates and terms of compensation and this is compounded by the conflicts over what constitutes Native Customary Rights (NCR) lands. Hence, the disagreement over the size of the land for which compensated is to be given. Finally, there has been no proper consultation process with all the members of the affected communities. Whatever consultation has taken place has only been with their community leaders and political representatives who do not represent the interests and views of the masses. They condemn any ploy to label their differing views and stand as "outsiders" or "instigators' influence" as it is only an excuse to ignore their concerns and views.

The meeting took place in Kapit. The BHEP will displace around 10,000 indigenous peoples and flood an area the size of Singapore island. Touted to be the biggest dam in the South-East Asia region upon completion, it was first proposed in the 1980s. It was shelved in 1990 due to opposition from the local people and non-governmental organisations on human and environmental grounds. However, the project was revived in 1993 and awarded to Ekran Sdn. Bhd.

Note that the indigenous communities who gave way to the Batang Ai dam had, until end of 1996, not received all the compensation due to them.

A delegation of indigenous peoples from Ulu Baram came to Kuala Lumpur to visit the Home Affairs Ministry, the Deputy Prime Minister and the Health Ministry in August 1996. The purpose of the visit was to highlight the fact that indiscriminate logging was destroying their means of subsistence and to appeal for the withdrawal of the police field force that had been threatening and stopping them from defending their NCR land. In the letter dated 25 August 1996 to YB Datuk Megat Junid Megat Ayub they said that they had been suffering since 1987. Stressing the need for the withdrawal of the police field force they related two recent incidents.

In the first incident, on 29 January 1996, some Penans from Kampung Long Lamai were on their way to seek a discussion with workers at the Atapa logging camp. Not wanting anything untoward to happen, they turned back when the police field force fired 16 shots to frighten them. On 9 February 1996 the Penans attempted to prevent further encroachment of their land on which logging was proscribed but they were confronted with knife wielding workers from Atapa camp. The Penans reported the incident to the police but no action was taken. On 1 April 1996, 38 Penans from Kampung Long Lamai went to ask a bulldozer operator to stop working on the proscribed area. However, this was followed by the arrival of police field force personnel in a vehicle. On reaching the place they jumped down and directed their M16 at the Penans. The Penans refused to budge, reiterating that it was their ancestral land and that it was not wrong for them to defend what was rightfully theirs. A commotion started but was broken up by the arrival of the head of the field force, Sargeant Antony Besar who ordered those under his command to leave. As soon as Sargeant Antony departed, two remaining field force captains shouted at the Penans, asking them to come forward and fight. They fired 13 shots.

In another incident, on 29 March 1996, a team of police field force personnel on arriving at a village of the Penans at Long Sepigen, Serunggoh, Ulu Baram said that they wanted to fight with the Penans. They directed their M16 rifles at the women and children of the village, punched a villager and handcuffed another. Before

leaving, they warned that they would come back to fight or to finish them off.

The letter ended on a sad note stating, "We have continued to be disappointed for the past 9 years. Until now, we have neither received any response nor have any actions been taken, although we have raised these problems a few times [to the authorities concerned]."

The indiscriminate logging in Ulu Baram continues unabated. The areas encroached upon include Long Lamai, Long Sepigen, Long Blok, Long Sait, Long Sepatai, Long Sayan, Long Benalih, Ba Pengaran, Ba Lai and Pa Tik. Other areas such as Long Ajeng, Long Kepang, Long Sabai and Ba Berang are under threat and it is only a matter of time before their NCR lands are similarly affected as the bulldozers are getting nearer by the day. Meanwhile, the consequences of current logging activities are in themselves serious. Food from the forest is becoming increasingly scarce, water is getting polluted, bringing with it related ailments and diseases. In addition, the communities of Long Ajeng have noticed that visits by the flying doctor are getting even less frequent.

Some of the logging companies encroaching on the Native Customary Rights (NCR) lands of the Penans and causing untold sufferings to the indigenous communities are Rimbunan Hijau Sdn Bhd, Samling, Shin Yang, Interhill and U-Mas.

3. Encroachment of land at Sungai Nat, Tinjar Baram for an oil palm plantation and the abuse of police powers

Around 65 Iban families with an estimated population of 400 people have been living there since the 1920s and their native customary rights to the land were first recognised by the government of Rajah Brooke. Problems began in 1981 when Sarawak Plywood Sdn Bhd encroached on their land with logging activities. This was followed by Rimbunan Hijau Sdn Bhd. Both companies were fined for violating the Long House Adat. In 1992, Nadi Pelita Sdn Bhd a subsidiary of Pelita, a state government development agency, started an oil palm plantation and in the process polluted the water supply. The residents sent a letter of protest to the Health Department of Miri in September 1995, but their complaint was ignored. They also appealed to the Land Development Ministry to exclude them from the plantation scheme. At the same time, the villagers expressed their disappointment that their land was being taken by the Land Custody and Development Authority (LCDA) without their knowledge. There was no response from the Ministry. Besides Nadi Pelita Sdn. Bhd., Loagan Bunut Plantation Sdn. Bhd. and Bukit Limau Estate are also involved in developing the oil palm plantation scheme.

The villagers stand firm by their decision to protect their native customary land despite facing harassment and threats from the police field force on 10 August 1996 and 26 September 1996. In the latest incident, 7 police field force personnel and a regular policeman intruded into Riggi's Long House, ransacked the room of Riggi, the head of the long house who was not in at that time and later set themselves upon the representative of the headman, Insom ak Uban. Insom was beaten and handcuffed from behind. He subsequently lodged a police report to investigate the matter. The villagers are now in the process of seeking legal redress.

Around 35 families with an estimated population of 300 people involving 500 ha of land are affected by the oil palm plantation scheme managed by Bukit Limau Estate. Like their neighbours at Sungai Nat, the villagers have been there since the rule of Rajah Brooke when their NCR land was first recognised. Their land has been encroached upon for some years, first by the LCDA, without their knowledge, and secondly since 1992 through land clearance for plantations. In the process their fruit trees have been felled and only their paddy fields remain. They have raised the matter a number of times with the Land and Survey Department, the Resident of Miri Division, the District Office, the police and other concerned parties but have not received any response. The villagers are now in the process of seeking legal redress.

The residents of Rumah Umping are still demanding recognition of their NCR Land. They have been resisting efforts by the LCDA to open their customary land for an oil palm plantation scheme since 1992. Among the reasons cited in their letter of 13 November 1996 to the Land and Survey Department was the fact that they wanted to develop the land in ways that will benefit them, according to their needs and ability. They do not want their land to be leased or put in the hands of others as that may not guarantee their livelihood and that of subsequent generations. They were distressed that their land was being taken by the LCDA without their permission. Further encroachment was caused by the logging activities by Baram Sawmill Sdn. Bhd. and its contractors, who encroached on their land from 1991-1994.

About 40 owners of Native Customary Right Land in Kanowit, Naman and Sibu repeated their appeal to the state government not to develop their land in October 1996 as it will affect their livelihood. In their appeal they said, "We hope our forest will continue to exist for our use and the use by our future generations." (Borneo Post 9 September 1996). In their earlier press release dated 12 September 1994, they reiterated their demands contained in the memorandum signed by 202 families. They are opposing the oil palm plantation scheme as they want to develop their NCR land according to their way of life and to have small scale development that will benefit them. Based on previous experiences they doubt that the scheme will benefit them despite its intentions. As written in the press release, "We have relatives in existing schemes such as Nanga Tada, Ngungun and Sekuau in Kanowit (FELCRA schemes); Bukit Peninjau (SLDB scheme); Lemanak Salcra Scheme; Rimbas Salcra Scheme in Ulu Teruk. They informed us that their lives have become worse after joining the schemes because they have lost their NCR lands to the scheme, their wages as scheme labourers are low, their previous lives as paddy farmers according to their free will is being restrained, and so on. As a result, many of them have either left or abandoned the schemes to seek jobs elsewhere since they cannot sustain themselves and their families in the scheme."

The Kanowit Oil Palm Project will develop an area of about 30,000 ha and is a joint venture project between Boustead Agency and Sarawak Land Custody and Development Authority (PELITA), on behalf of the landowners.

Since August 1993, 471 families of farmers from Simalajau, along 27-38 miles Jalan Bintulu-Miri, Bintulu Division have been served eviction notices by Rajawali and Austral Enterprise. They were asked to shift to the opposite side of the road, effectively, rendering them squatters. 234 families from 14 long-houses refused to move from their native customary land which was inhabited with the permission of the area penghulu according to adat (their custom). The total land size affected is around 1,522 ha. A meeting was held between representatives of the village, representatives of Austral Enterprise and the Bintulu Resident but no agreement was reached. In August 1994, Austral Enterprise sued the villagers. Meanwhile, the villagers had lodged a police report against the company for trespassing on their native customary land and for planting oil-palms on it. Representatives from the village came to Kuala Lumpur to have a meeting and hand over a memorandum at the head-office in September 1996, but the officer refused to accept the memorandum. The court case will resume on 19 March 1997.

543 households (17 longhouses and one Malay village) with an estimated population of 3,000 are affected by the acquisition of 14,000 ha land at Sungai Sebatu, Suai Niah. Tradewinds Sdn Bhd, in a joint venture with the state government, will develop the oil palm plantation. The villagers have stayed there since 1954 and have native customary rights over the land. In return for each acre of land, the villagers were offered a pittance sum of RM100 of which they thought is unfair. They tried to prevent the bulldozers from entering and clear their land through a peaceful cultural ceremony but the contractor ignored it. Police also came to take away the villagers for questioning. Some rubber, cocoa and fruit trees were cleared. On 6 December 1996 the villagers lodged a police report. The villagers also found out that an agreement was struck between their longhouse headman and the developer without their knowledge. To the villagers it is not binding as it is beyond the jurisdiction of the village headman to conduct the transaction on behalf of the villagers. Section 24.25 of the Adat Iban which spells out the role of the village headman clearly does not include this responsibility. Furthermore, the villagers were not consulted at all.

Members of Siong Land Development Committee urged the state government to recognise their Native Customary Rights (NCR) lands between Batang Oya and Siong at Oya Road, Mile 27 Sibu as they have a number of documented evidence dating back to 1939 to proof that their ancestors had cultivated, planted rubber and fruit trees well before 1 January, 1958 on the said land (Borneo Post 25 August 1996). The land rightfully belonged to them and should never in the first place be classified as state land. Chairman of the committee, Ganing anak Iran, urged the government to refund the RM3.5 million land premium paid by the Kenyalang Borneo Sdn. Bhd. for the land bought. He said that the affected villagers were not informed of the sale of the land to Kenyalang for development purposes. For the 40 or more long house dwellers at the stretch of the road the issue is not whether they want development or not, rather development must be carried fairly so that everyone will benefit from it.

Recently a group of villagers prevented the sub-contractor of Kenyalang Borneo from carrying out construction work as they were not rightfully compensated by the government for the land acquired.

A group of about 10 indigenous peoples at Engkasu and Rasan areas in Tubau, Bintulu hit out at their community leader for not consulting the landlowners first, prior to the survey of their land for a big project. About 700 people from 115 doors of 4 longhouses had not agreed to the project. Authorities were advised to discuss the matter with the newly formed Village Development Negotiation Committee (Borneo Post 24 September 1996).

About 35 people from 7 longhouses at Jalan Ulu Segan expressed their concern over the acquisition of their land by the authorities concerned to sell it to the private sector (Borneo Post 8 May 1996). Over 1,000 acres of NCR land would be acquired and developed into an industrial estate. According to one of their representatives, Tuai Rumah Nyuak anak Muyang, about 100 acres of the NCR land had been sold to individuals and private sector without the knowledge of the people there. He said that they would accept development in the area provided that it is of mutual benefit.

Landowners who gave way to the construction of road between Kampung Igan and the Mattu-Igan Jetty urged the authorities to speed up with the compensation due to them. 20 of the landowners have been waiting for a few years and their appeal to the authorities had fell on deaf ears. They would like to know the reasons for the delay and why a small number of the landowners were paid while the majority are still waiting (Utusan Borneo 24 September 1996).

The theme for the Indigenous Peoples’ Decade (1995 - 2004) is "Partnership In Action" which reflects the need for governments to work together with the indigenous communities to find solutions to the major challenges with which they are faced today. The major challenge is how to best ensure that indigenous people are able to assert their fundamental rights to land, to determine the type of development and way of life they want, to indigenous education and to equal access to basic facilities. One such initiative is the national conference on "Indigenous Peoples’ Land Rights and Identity" organised by the Indigenous Peoples’ Network, Malaysia (JOAS) and held in September 1996 in Kuala Lumpur. The main objective of the meeting was to enable indigenous communities an opportunity to raise with the relevant government agencies key issues of indigenous identity, land rights and related government policies, as well as the need for mechanisms and methods to improve co-operation. Participating, were representatives of the government, NGOs and indigenous communities.

The conference ended with a number of resolutions aimed at recognising and protecting indigenous peoples’ land rights. A resolution that was common to the indigenous peoples of Malaysia was the call to the government to strengthen the recognition of native customary land both in law and in practice. There is much in common among the indigenous peoples as to what constitutes customary land. This includes burial grounds, lands which have been planted with marker trees; areas such as rivers and mountains named by indigenous communities and recognised by other communities; former and current farm lands; and sacred sites. Resolutions specifically for Peninsular Malaysia are as follows:

• The Aboriginal People’s Act has many weaknesses and is not favourable to the Orang Asli, giving them only tenant rights over their customary land. As such it needs to be strengthened and amended where necessary. The Orang Asli are to be accorded the same rights as the Malays and that of the indigenous peoples of Sabah and Sarawak.

• Orang Asli land should be recognised in the form of Orang Asli Reserve which give permanent ownership rights to individuals. The Aboriginal’s Act 1954 needs to be amended to guarantee this permanent status. The Malay Reserves Enactment could be used as the reference so that similar provisions could be made for Orang Asli Reserves.

• The power of state authorities has to be limited in cases of proposed abolition of Orang Asli Reserves, to enable consultations with Orang Asli to be carried out beforehand, and alternative land with the same expanse and quality to be gazetted as Orang Asli Reserves, as provided for under articles 8(5)(c) and 89(5) & (6) of the Federal Constitution.

• The Orang Asli Director General’s power over the Orang Asli Reserve land should be abolished.

• Further loss of Orang Asli land could be prevented if state authorities had procedures for screening out any Orang Asli land, before ownership is given to the concerned party.

• If Orang Asli land has to be acquired for national interests, fair and just compensation should be based on current market value and the potential of the property; and this is to be paid entirely to the Orang Asli.

• Should such acquisition involve relocation of people and the destruction of livelihood resources, consultation with Orang Asli must take place beforehand. The relocation site must provide a strong economic base and better facilities.

• The Orang Asli must be involved in the development of their land based on their needs and aspirations. The human development aspect must not be neglected and it should be the basis of the land development agenda of the government. The development of the Orang Asli reserve land should be institutionalized in the form of a Trust.

• An action committee consisting of government agencies and departments and Orang Asli should be set up in every district to act on Orang Asli demands related to land. This committee may organise dialogues, seminars and forums on the demands and seek solutions that strengthened cooperation between the government and Orang Asli.

Resolutions specifically for Sabah are as follows:

• The government should dialogue with indigenous communities, to consider customary land adat which have not been included as the criteria for customary land rights (Section 15, Sabah Land Ordinance (SLO)). For example, government departments need to understand that land left fallow to recover its fertility is an essential part of the crop cultivation cycle. Continuous cultivation merely to fulfill the existing legal criteria would impoverish the land. In addition, plants with economic value should include trees used for building materials, plants for handicraft making such as bamboo, rattan and lias and traditional medicinal plants (Section 15, SLO).

• The procedure for notifying affected villagers of land applications and the gazetting of land can be improved by announcing over the radio and by giving written notices to residents of the affected village (Section 13, SLO).

• Section 28 which allows the government to take NCR land through mere gazette notifications by the head of state (TYT) for large-scale projects should be deleted to safeguard native land.

• The recognition accorded to NCR (Section 64, SLO) should be upheld, that is NCR equal that of land titles. However, the processing of land applications by indigenous peoples should still be speeded up so that land titles can be obtained. The government should conduct an information drive on the procedures for land applications based on Native Customary Rights. Priority should be given to Communal Titles (Section 76, SLO) and Native Reserves (Section 78, SLO) by the government. This will also encourage indigenous peoples to apply collectively for land and thus discourage commodification of customary land.

• In order to gain and enhance cooperation from all quarters, those involved must respect local culture, indigenous peoples’ aspirations on development and government protocol. This includes the peoples’ choice of local leaders, for example, the Village Development and Security Committee and Village Headman, through election. A bottom-up approach should be adopted from planning to implementation. A District Development Committee could be set up comprising the Assemblyman, District Officer, department heads and non-governmental organisations, to hold meetings with villagers.

Resolutions specifically for Sarawak are as follows:

• The land application process must be speeded up through mapping exercises, including those carried out by local communities, dialogues and seminars. However, the land rights of those who prefer not to have titles for their land should be recognised.

• There are sections of the Sarawak Land Code which restrict the Native Customary Land rights. These should be deleted or amended.

• Indigenous peoples must have a say in determining the kind of development they want on their Customary Land. Consultations with local communities must be practised. Ownership of the land must be retained. They should not be the victims of development.

• The government must consult the communities before acquisition of their customary land. The giving of customary land to timber companies, government land development agencies as well as private developers for large-scale projects should be stopped.

• The actions by indigenous peoples to safeguard their Customary Land such as by setting up blockades peacefully should not be looked upon as anti-development and those involved in blockades are not to be punished.

• Should relocation occur, their land should be compensated with suitable land so that their way of life is not compromised. Housing and basic amenities should be provided, and just and fair compensation given. There should be support in the form of subsidy until they are able to harvest their crops.

• Indigenous peoples should be prepared to work with the government. At the same time, the government should recognise the land adat and identity of indigenous communities, particularly that of the Penan. The Indigenous Peoples’ Network at the village level could facilitate discussions, dialogues or seminars with the local Native Council which should expand its role.

Indigenous peoples in Malaysia are marginalised socio-economically and culturally. Politically, the natives of Sabah and Sarawak as a whole, are in a relatively better position compared to the Orang Asli of Peninsular Malaysia. However, they share a common problem of being dispossessed from their land which has led to an erosion of their cultural identity. The erosion of their cultural identity is being exacerbated by an inappropriate education system which fails to accommodate their beliefs and practices and in some cases by efforts to convert them to other religions. Additional factors include the effects of mainstream development as well as policy such as that for the integration and assimilation specifically targeting the Orang Asli in Peninsular Malaysia. This policy imposition, without consultation with the affected peoples, contains values that run counter to their worldviews, lifestyles, cultural and spiritual traditions.

Indigenous peoples in Malaysia hope to work in partnership with the government of Malaysia to resolve these outstanding problems. They urge recognition of their rights to land, rights to determine the kind of development they want, rights to indigenous education and way of life and rights to equal access to basic facilities. Specifically, in the cases mentioned, it is hoped that the government of Malaysia will take positive action to resolve the issues raised. Of particular concern is the fact that the police have misused their powers in an effort to silence the cries and efforts of indigenous peoples to hold on to their land, as in the case of the Penans in Ulu Baram and the Ibans in Sungai Nat, Tinjar Baram, Sarawak.

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