Landmark Ruling Secures Native Land Rights

Surprise verdict could protect forests and communities around the world

By Harlan Thompson
May 23rd, 2001
From the Borneo Project

On May 12th, 2001, the High Court in Sarawak, a Malaysian state on the island of Borneo, issued an extraordinary ruling that could have sweeping consequences for indigenous land rights. After two years of litigation, the court upheld the customary rights of the Iban village Rumah Nor, finding the Borneo Paper and Pulp company did not have the right to destroy Rumah Nor's rainforest.

This decision - which in no uncertain terms expands the definition of customary lands to include rivers, streams and communal forests - is a significant precedent for native villagers seeking land rights in Malaysia. Prior to the ruling, only farmlands actively cultivated by forest dependent communities could be considered native customary lands.

Over the years, laws and legislation in Sarawak have chipped away at indigenous rights to ancestral lands, so indigenous groups have been overjoyed by the news. A prominent Malaysian lawyer commented, "The court decision was a very major victory in terms of the jurisprudence on native rights. Let's hope it hope that it will withstand any further appeals to the upper courts."

Immediately following the decision, both the Sarawak Land and Survey Department and Borneo Paper and Pulp company announced they would appeal the case. Yet in doing so, they will face significant pressure from indigenous Dayak groups who make up the majority in Sarawak and will likely make this a major election issue in coming months. If upheld, the ruling could have broad implications for native land rights struggles around the world, since legal precedents from British Commonwealth countries like Malaysia can be used in other Commonwealth countries.

The ruling

Two years ago, the Borneo Paper and Pulp Plantation (BPP) company began cutting down forests claimed by the Iban community of Rumah Nor. The BPP had been granted a license from Sarawak's Land and Survey Department to create a 1 million hectare plantation for raising fast growing tree species. Villagers from Rumah Nor were never informed or consulted about this, and when they discovered the damage to their land, they sued to stop the logging and claim damages.

Given that recent laws and court decisions have favored industrial developers over indigenous farmers, this decision handed down by High Court Judge Datuk Ian Chin Hon Chong comes as a shock. The High Court ruled that the BPP was not allowed to enter a disputed 672 hectare area, and placed an immediate injunction on the company from entering these lands. The BPP title to this area was declared null and void, and the Land and Survey Department was ordered to rectify the BPP land title to exclude this area. The judge furthermore ordered BPP to pay all court costs incurred by the villagers of Rumah Nor.

However, it was the legal reasoning of Judge Ian Chin that proved most encouraging for native groups. In a 96 page verdict, he ruled that indigenous land rights were in existence before any external power controlled Sarawak, and therefore such rights were natural rights and "not dependent for its existence on any legislation, executive or judicial declaration". He further ruled that these rights extended not only to areas farmed, but to all forests, rivers and streams within one half day's journey from a village longhouse, unless limited by the borders of other nearby villages.

Common practice in Sarawak requires communities to prove to outsiders their Native Customary Rights (NCR). As much as 50% of Sarawak's lands could be classified as NCR lands, but so far very few villages have cleared the legal hurdles needed to achieve official NCR status. Without official recognization, indigneous people are often treated like squatters on their own lands by loggers and plantation developers. Judge Chin, however, turned common practice on its head, ruling that the assumption should be that indigenous lands are NCR lands, and the onus will be on other claimants to prove that they are not.

When considering arguments raised by the defendants, Judge Chin appeared sympathetic to the plight of indigenous peoples. For instance, the defendants argued that since a logging company cut down most of the large trees on Rumah Nor's lands in the 1980's, the village had given their forest rights to that logging company. The judge disagreed, stating "we must not forget that the natives ... consist of not only adults but children as well, and it is inconceivable that such children can be deprived of their rights just because the adults decide to sell some or all of the timber from a forest." He also ruled that the cutting of trees in the 1980's was the destruction of valuable evidence determining how old the forest was, and that in future cases tree data would need to be collected and inquiries into land claims conducted before any logging could proceed. Currently, villagers often do not know their land is being logged until bulldozers and chainsaws are heard.

Reactions

Two hundred indigenous people were at the court when the lawyer for the plaintiffs, Baru Bian, read out the verdict. Many elders cried unashamedly. Village headman Nor Nyawai stated, "I am breathless and I simply cannot describe just how happy and relieved I feel right now." The indigenous community is euphoric, and villagers all over Sarawak are planning especially joyous celebrations for Gawai Dayak, the harvest festival held on June 1st.

Yet news of the case is spreading mainly by word of mouth, as Sarawak's mainstream media has refused to cover the court case. Most radio stations and one major newspaper, the Sarawak Tribune, have blacked out the story all together. The media silence is not surprising in Sarawak where most media outlets are owned by logging and plantation interests who would be adversely affected by the ruling if more villages assert their land rights.

The government announced its opposition to the ruling and will appeal the decision, since the Sarawak State Land and Survey Department is one of the defendants. The government opposition is not surprising given that Sarawak's Chief Minister has gained billions from handing out logging concessions, and the Environmental Minister is one of the largest logging concession holders in the state. In fact, many are wondering how far the government will go to oppose the ruling. The Appellate Court that will review the ruling ordinarily only looks at the finer details of the case and does not change the main thrust of the High Court's ruling, but they may face pressure to make major changes in this instance. In other cases in Malaysia, judges issuing rulings that strongly conflict with government interests have been forced to retire.

Judge Chin ruled that communities could lose their NCR rights if laws explicitly extinguish them, and if the government loses the appeal they may press hard to pass new laws doing just that. However, approximately half of Sarawak's population is indigenous, and so such steps would be unpopular. The ruling party has been beset by troubles lately, and can ill afford to alienate more voters. Elections will be held later this year, and already the opposition party Keadilan Sarawak has announced that they will make the government's opposition to the ruling a major issue in the upcoming campaign.

Maps were essential

The ruling would never have come about without years of hard work by local non-governmental organizations (NGO's) who have organized local communities and helped them understand and defend their legal rights. Rumah Nor was assisted by the Borneo Resources Institute (BRIMAS) and a legal team headed by lead council Baru Bian. A crucial piece of evidence in the case was a village map created by BRIMAS mapper Samy Anak Ising. Samy was cross examined for three days in the court room, as the defendants led by BPP questioned the methods, data and equipment he used to make the map. In the end, the judge declared, "the map he produced is as accurate as it can possibly be given the equipment he has."

The importance placed on the map in the judge's written ruling was a vindication for The Borneo Project's mapping program. Starting in 1995, The Berkeley, California based Borneo Project helped initiate a mapping program with several local NGO's, including BRIMAS, and Samy Ising was one of the many mappers trained by the Borneo Project.

This court case should greatly facilitate the use of maps in future cases. Judge Chin ruled that while the defendants "demanded perfection" from the map, such perfection was not necessary in proving who owned the disputed land area. Currently over 20 cases involving NCR claims are working their way through the Sarawak court system, and over 50 villages have been mapped. But the need for additional maps and lawsuits to prove NCR rights will undoubtedly grow in the wake of this ruling.

While the full implications of this case may not be known for a long time to come, the short term impacts have provided a boost to the indigenous and environmental movements, not only in Sarawak, but worldwide. Just as Judge Chin quoted precedents from Australia and Canada in making his ruling, so this decision may be used by native groups in any of the 54 countries belonging to the British Commonwealth. Defendants for Borneo Paper and Pulp argued in their case that "the natives are squatters" on their own traditional lands, and for far too long the government has been treating them as such. At least for now, that argument is no longer legally defensible.