The total disregard for the land and resource rights of many forest-dependent peoples are often a major source of conflict between a national government, corporate logging interests and forest peoples.

The customary law of forest peoples, based on their traditional practices and cultural values, has often been undermined or even replaced by statute law imposed by a colonising power or otherwise adopted and imposed over all land within State boundaries, without consultation or consent of forest peoples.

In Sarawak, under the 1957 Sarawak Land Code, the Dayak's rights to land are recognised and protected by law, yet in practice these rights are ignored or not enforced, to the benefit of the forestry sector industries.

Most natives in Sarawak—with the exception of the nomadic Penan—classify the land surrounding their longhouses under two general categories: temuda (in the Iban language), which is land close to the longhouses and includes land cleared for farming and lands left fallow to regenerate into forest. Beyond the temuda extends an area of communal land for the collection of forest products (fruit, medicinal plants, building materials), for hunting and fishing and to be used as burial grounds. The two areas combined form the pemakai menoa (in Iban). Menoa is usually marked by natural boundaries such as rivers, streams, watersheds, mountain ridges or other landmarks.

In contrast to statute law, adat or customary law in Sarawak does not recognise the concept of private ownership of land. The system of usufruct rights allows the individuals to use the land but it is the community as a group that exercises the legal rights.¹¹⁹ As a native elder states: "The land belongs to the countless numbers of people who are dead, the few who are living, and the multitude of those yet to be born".¹²⁰

Statute law was introduced to Sarawak about 150 years ago by the Brooke and subsequent British Colonial Administration.¹²¹ During the early days of colonial occupation, the administration recognised native customs and peoples' usufruct rights to land and the resources upon it. The seeds of the current disputes were, however, already being sown as the colonial authority tended to ignore rights over fallow farming land and hunting territories, with the aim of weakening customary land rights claims. The Forest Ordinance of 1953, for example, classified large areas of forests as Permanent Forests, which extinguished native rights in certain areas and strictly controlled native activities in general. Native rights were totally prohibited in 'Forest Reserves'. The aim of this legislation was to curtail shifting cultivation and to reserve the forest lands for timber extraction.¹²²


Police field force move in to subdue villagers at Rumah Bangga, Sarawak, after their peaceful protests against the encroachment of a plantation company onto their land. December 1997.

Under current practices, when the Sarawak state government issues a licence for logging or for a plantation scheme, the government projects the view that Native Customary Land (NCL) is restricted to the areas cultivated (temuda) at the time, excluding the menoa and the fallow areas of temuda which are part of the shifting cultivation cycle. More recently, the state government has refused to recognise Native Customary Rights (NCR) on any land that is not continuously cultivated. This has had the effect of locking people onto poor tropical soils from which the nutrients have become depleted, resulting in poorer productivity. Many people are now reluctant to move for fear of losing their land rights even to the plots they currently occupy. These policies are causing great hardship to the people living in the interior of Sarawak and generating poverty and food shortages in communities which had been more or less self-sufficient. This increasingly restrictive view of NCL by the government and changes in legislation over recent years (see below) have shifted the balance of power over land resources significantly in favour of the state government and corporate interests.

The issuance of timber licences over Native Customary Lands has consistently violated the Sarawak Land Code, which guarantees Native Customary Rights, as well as the Sarawak and Federal Constitutions, which grant the defence of private property. The disregard for native rights and the forest ecosystem is also demonstrated by the rejection of all the numerous applications made by native communities for the demarcation of Communal Forests for the harvesting of forest produce. Between 1968-84, the area under such Reserves shrank from 303 square kilometres to just 56 square kilometres. Thus, although the law envisaged the setting aside of forest areas for the needs of the native communities in Sarawak, areas which are part of their traditional customary lands anyway, in practice, those rights have been denied in favour of the logging industry.¹²³

In addition, the 1996 Forests (Amendment) Ordinance Part II on Forest Reserves gives the Minister of Forests power to extinguish all subsisting rights or privileges over a forested area by notification in the government Gazette and posted on the notice board of the District Office in the area (Section.6), neither of which are easily accessible by affected communities. Affected people must claim for compensation within 60 days from the date of publication or shall be deemed to have waived their rights (Section.7(1)).

The Dayak have repeatedly called for their land rights to be respected and secured, especially over the last two decades, during which time conflicts between natives and the logging and plantation industries have intensified. The government has so far ignored these requests and continues to consider all NCL areas as "idle land" in need of large-scale development to be brought to the indigenous people so as to alleviate poverty. This argument was used to promote logging in the 1970s and is now used to justify the introduction of industrial tree plantations. In fact, the forests of Sarawak have been heavily exploited over the last 20 years, yet most of the people living in the interior are now worse off, indicating that the state government's rural development policies, based on income from forest exploitation, have failed. Those indigenous people who oppose logging argue that their security lies in respect of their land rights and that it is their disenfranchisement by government and corporate interests, irrespective of the legal situation, which has brought about their current dire position.

Through a series of amendments to the Sarawak Land Code over the last five years, the State Legislative Assembly has granted the Chief Minister powers to extinguish Native Customary Rights altogether. These amendments have been employed even though they may be unconstitutional and are being challenged as such in the courts.

Land rights conflicts are not restricted to Malaysia. In Cameroon, such conflicts are common and logging operations often conflict with village interests. The Cameroonian Ministry for Environment and Forestry was 'repeatedly blamed' by some concessionaires for not being willing or able to prevent the local people from 'uncontrolled' forest destruction for agricultural purposes.¹²⁴ In fact, the local people regarded the forest areas as part of their traditional village property, notwithstanding their legal status as State forests and the imposition of a forest concession.¹²⁵

Although there is some legal provision in Cameroon for the recognition of communal lands and traditional use rights, communal and privately-owned forests account for only about 2% of the national territory. Their exploitation and management can be undertaken only after authorisation from the Ministry. The Minister can suspend exploitation when it is considered a threat to the environment, and ownership rights can be suspended by the State and the land assigned to other purposes in the public interest.¹²⁶ Although traditional usufruct rights to hunt and gather are protected by law, they exist only as far as the government is willing to allow them: "So the traditional rights of local communities are recognised only until the State decides to change the land's function".¹²⁷

In Melanesia, meanwhile, the situation is more clearcut in theory, in that the State controls very little of the forest resource, the majority being held under constitutionally recognised custom tenure. However, in practice local people are still unsure of their rights to the land and forest resources once logging companies have acquired timber cutting rights. For example one landholder "having no copy of his logging agreement and unsure of his rights, was unwilling to proceed with the inspection [of a logging concession on his land] until the Provincial Secretary in Buala assured him he was entitled to access his own property".¹²⁸ In addition, there have been many reports of customary land being logged without permission or licence by logging companies, often where it is adjacent to a permitted logging area, leading to conflict, sometimes violent, between the logging companies and local communities.

In Cambodia, most of the areas that the state is now granting as timber concessions are common property areas to which communities have always had access to gather forest products. This access is now under threat or is being denied, causing significant hardship to local people and creating conflict.¹²⁹

In Guyana, the government claims that logging takes place with due regard for the rights of indigenous peoples in the country. It says that 'legitimate' indigenous lands are not included in logging areas, such lands being those recognized by the government.¹³⁰ Many communities in Guyana however do not have recognised rights to their lands, while those that do state almost unanimously that these lands are inadequate for basic subsistence and do not correspond to the full extent of their ancestral lands. They point out that the Amerindian Lands Commission, established as a condition of Guyana's independence in 1966 from Britain to identify indigenous lands, recommended that title be granted to 24,000 square miles out of 43,000 square miles identified by indigenous peoples as theirs. To date, the government has recognised title to less than 6,000 square miles, less than one-quarter of that recommended by the Commission and about one-seventh of that identified by indigenous peoples as theirs.¹³¹ In practice, therefore, logging does take place on indigenous lands.

The Guyanese government points to efforts to demarcate indigenous lands as evidence of its commitment to ensure that these lands are safeguarded from logging operations. However, indigenous peoples throughout Guyana have rejected government demarcation as arbitrary and imposed and have demanded that all outstanding land issues, including titles for communities without them and title extensions for others, be addressed prior to demarcation. Indigenous communities have even chased government surveyors off their lands to ensure that their lands are demarcated according to their rights under international law rather than by government definitions. As numerous complaints by Amerindian peoples testify, indigenous communities are routinely ignored when concessions for logging and mining are granted. Affected communities are not consulted and their approval is never sought, even if the villages are in the middle of the concession.¹³²

In Suriname, indigenous and Maroon rights to their ancestral territories are not recognised in any form in national legislation, making it the only state in the Western hemisphere in which indigenous peoples live which does not in some way recognise these rights legally. It also appears that, despite pressure from indigenous peoples and Maroons, the government has no intention of addressing this important human rights issue constructively.¹³³ Not only are they not willing to recognise indigenous and Maroon territorial rights, the government is also actively violating these rights by granting vast areas of the rainforest interior as concessions to multinational logging and mining companies and by licensing Brazilian small-scale miners to work legally in Suriname.

The present government gained most of its votes in the interior in the last election in 1996 by promising that land rights would be recognised and concessions would not be granted in indigenous and Maroon territories. But exactly what the government will do about land rights has yet to be officially stated. Various communities have recently reported that they have been threatened by government officials that if they speak about land rights their basic services will be cut off.

Almost all land in the interior of Suriname is presently classified as State land. The Government also claims all sub-surface and surface resources.¹³⁴ Indigenous peoples and Maroons are regarded by the Government as permissive occupiers of State land, without effective rights and title thereto. The primary legislation in Suriname concerning State land provides that indigenous and Maroon customary law rights to their villages and agricultural plots shall be respected, "unless there is a conflict with the general interest".¹³⁵ "General interest is also to be understood as the execution of any project within the framework of an approved development plan".¹³⁶ Consequently, mining, logging and other activities classified as being in the general interest are exempted from the requirement that indigenous and Maroon customary law rights be respected. The current land titling procedure, therefore, does not permit collective ownership of land and resources and provides no protection against logging, mining or other activities. Encroaching on forest peoples' territories severely restricts uses of land related to indigenous subsistence rights and cultural practices.¹³⁷


"The land belongs to the countless numbers of people who are dead, the few who are living and the multitude of those yet to be born".