1) SARAWAK

In the Malaysian Constitution (SS 161 A-6 and 7), special mention is made of Sarawak : are recognized as 'native' (bumiputera in Malay) the "a person who is citizen and either belongs to one of the races specified (...) as indigenous to the State or is of mixed blood deriving exclusively from those races". These indigenous races are :

"Bukitans, Bisayahs, Dusuns, Sea Dayaks, Land Dayaks, Kadayans, Kalabits, Kayans, Kenyahs (including Sabups and Sipengs), Kajangs (including Sekapans, Kejamans, Lahanans, Punans, Tanjongs and Kanowits), Lugats, Lisums, Malays, Melanos, Muruts, Penans, Sians, Tagals, Tabuns and Ukits."

Some of these populations, those who are non-Muslim aborigenes but are not Iban, Bidayuh or Melanay (the latter are Muslim) got together to form an association : Orang Ulu ('inland people' ; O.U.N.A., Orang Ulu Nation Association). The association specifies that :

"Orang Ulu includes Bukitan, Bisaya, Kayan, Kajang (including Sekapan, Kejaman, Lahanan, Punan, Tanjong and Kanowit), Kelabit, Kenyah (including Sebop, Seping, Kiput, Badang and Berawan), Lugat, Lisum, Murut (Lun Bawang), Penan, Sian, Tabun, Ukit, Saban."

These groups appear in official surveys under the heading 'other aborigenes' (SELING & LANGUB 1989).

Only the adat, the customary laws, of 'various Sarawak natives other than Malays or 'natives who have not converted to the Islamic faith' of two regions -divisions- (and some groups) have been recognized and registered in the various ordinances (Native Customary Laws ordinance 1955, Orang Ulu Customary Code of Fines 1957, 1959). The adat of other groups has still not been recognized despite the ordinance for the establishment of a Customary Laws Council (1977) (GALLA & LUHAT WAN DING, 1989).

* Sarawak people are subjected to the same laws as people of Malaysia. But Sarawak's land and forest policy is ruled by texts different from those that apply in Malaysia.

* Land regulations are in the 1958 Land Code, amended in 1979 by an Ordinance.

• There are 6 ways of obtaining tenure over land : (1) clearing virgin forest, (2) planting with fruit trees, (3) occupying or cultivating the land, (4) burial ground and shrine, (5) using land for rights of way, (6) any other legal method.

   

• All the land is classified in 5 categories :

• Native Customary Land is "land in which customary rights whether communal or otherwise have lawfully been created prior to the 1st January 1958". But the Minister may alter the status of land, bringing it down to a lower category, and the government is then free to use the land as it sees fit.

   

• State Land is "land for which no document of title has been issuedand all land which subsequent to the issue of a document of title may have been or may be forfeited or surrendered or resumed by the Government". The status of any stretch of land can be altered either by the Minister or by the Settlement Officers simply by putting an order in the Gazette. Disputing the order is only possible within the 3 months following its publication.

   

• Natives may not occupy or clear virgn forest and thereby attempt to establish customary rights on Interor Area Land without a written permit from a district Officer (Land Code, Part II section 10 (3)).

   

• The 1979 (Amendment) Ordinance made it an offence to build, clear, dig, enclose, or cultivate on State Land (Part VII section 209).

* Forests are governed by the 1953 Forests Ordinance, amended in 1979.

[lozenge] There are two major types of forests : Permanent Forests (37% of total area) controlled by the Forest Department, and State Land forests (66%) that are available for agriculture and other activities.

Types of forests	Categories	% 1984	% 1988
Permanent forests	Forest Reserves	9	35
	Protected Forests	25,5	15
	Communal Forests	0,05	?
Forests on state land		65,5	50

Source : HONG 1987 ; areas (%) in 1984.

• It is forbidden to enter, cultivate, hunt, fish and gather on the Reserves. In Protected Forests, customary tenure is forbidden but aborigines are allowed, if granted permission, to produce, fish and hunt. Communal Forests are certainly designed to provide for the basic needs in forest products of a settled community, but they only cover 0,05% of the whole national forested areas ! Theoretically the Minister can change a State Land Forest into a Communal Forest, by order in the Gazette, but also has the power to change the classification again, and the total area of Communal Forests thus went from 303 km² in 1968 to 56 km² in 1984.

   

• Forest exploitation is only possible with a license and can be carried out in any type of forest (including Reserves and Protected Forests).

   

• The 1953 Forest Ordinance has in effect forbidden the indigenous tradition of shifting cultivation and customary rights on the forests covered by the ordinance. As mentioned in the Forest Department's 1968 annual report : "The constitution of protected forests is directed against shifting cultivation" (p.75). The 1979 Amendment increases the power of the forest officials and allows them to prosecute aborigenes who might have been found felling trees or collecting forest products (Forest Reserve, Protected Forest and State Land). What is more, it limits the use indigenous populations might make of forests by declaring that clearing (for agriculture or other purposes), building, felling, burning, extracting trees, firewood or charcoal, are forbidden in Protected Forests (Part II section 21, Part III section 36).

   

• A new amendment in 1987 made it an offence to build blocades on roads leading to forest exploitations, and trespassers may be sentenced to a maximum of two years imprisonment (section 90b).

   

• The law thus seems to recognize the existence of customary rights over land but also includes many measures limiting the application of these rights. It also makes it very easy to alter the category in which land has been classified, land that has recognized customary rights over it, without the local inhabitants being aware that such a change is taking place.