Sarawak is the largest State of the Federation on Malaysia and is located on the island of Borneo. It is experiencing a rapid expansion of oil palm plantations and water resource exploitation through an extensive network of dams, both proposed and under construction. This has led to growing conflicts with the indigenous peoples. The Malaysian Constitution gives jurisdiction over land to constituent States and in Sarawak this has led to the emergence of a political elite, whose power rests on the exploitation of natural resources and which has dominated the political economy for the past 30 years.
Although the rugged and forested interior of Sarawak is mainly populated by indigenous peoples, referred to locally as ‘natives’ and Dayaks, who comprise the largest ethnic grouping in the country, these peoples have relatively little access to political power. Under customary law, the majority of the interior of Borneo is owned and controlled by community groups and complex customary laws regulate who and how lands are owned, regulated and transferred.
Malaysia has a plural legal regime, meaning that it accepts the simultaneous operation of distinct bodies of law, and custom is upheld under the Federal Constitution. Native authorities and courts are officially recognised in Sarawak and continue to administer community affairs and deliver local justice, meaning that custom is a living and active source of rights in Sarawak, both in law and in practice.
However, since the colonial period and progressively thereafter, through a series of laws and regulations, the Government of Sarawak has sought to limit the exercise of ‘Native Customary Rights’ in land, freezing their extension without permit and interpreting them as weakly secure use rights on State lands.
Moreover, although the Government admits that some 1.5 to 2.8 million hectares of land are subject to ‘Native Customary Rights’, it has not revealed where such lands are, meaning that most communities are unsure whether or what part of their lands are recognised under the Government’s limited interpretation of their rights.
Since natural resource-based development is a central plank of the Government’s economic policy, disputes over land are common. In a series of cases in the higher courts in Sarawak and Malaysia, judges have upheld native peoples’ land claims as consistent with the Malaysian Constitution and common law. These cases imply that the Government of Sarawak’s restrictive interpretation of ‘Native Customary Rights’ is incorrect. Consistent with international human rights law, the courts have accepted that indigenous peoples’ have rights in their lands on the basis of their customs and not as a result of grants by the State.
The palm oil sector in Malaysia is in a phase of rapid expansion now given further impetus by global demand for ‘bio-fuels’. With land on the Peninsula now in short supply, much of the planned expansion of the sector will take place in Sarawak. Sarawak has been experimenting with oil palm plantations for 30 years but early State-run schemes were less successful. The Government is now encouraging private sector expansion including on ‘Native Customary Lands’ and almost doubled the area under oil palms to 1 million hectares between 2007 and 2009, including planting on customary lands at a rate of 60,000 – 100,000 hectares per year.
Under the so-called Konsep Baru, the ‘New Concept’, native land owners are expected to surrender their lands to the State for 60 years to be developed as joint ventures with private companies, in which the State acts as Trustee on behalf of the customary owners. There is a lack of clarity about exactly how native landowners get benefits during these schemes and how they can reclaim their lands on the expiry of the lease.
Owing to conflicting interpretations of the extent of ‘Native Customary Rights’ and disputes about compensation, due process and promised benefits, there are now well over 100 cases in the courts of Sarawak filed on behalf of indigenous plaintiffs relating to disputes over land.
Referenced from Land is Life – Land Rights and Oil Palm Development in Sarawak, Marcus Colchester,Wee Aik Pang, Wong Meng Chuo and Thomas Jalong, Perkumpulan SawitWatch and Forest Peoples Programme, ISBN: 978-979-15188-3-3.