The Legal Difficulty of Sabahan Indigenous Groups to Claim Customary Territory

Words by Norman Harsono
Photos by Nanna Dybdal and Yeo Li-Sha

Many indigenous people in Sabah have lost their customary territory – land they’ve inhabited and utilised for generations – because they do not hold the necessary land titles. They lose their lands to corporate land grabs, state development, and population growth. This jeopardises the wellbeing if not survival of these indigenous groups as these lands are also their food source, water source, religious site, and cultural anchor.

Nasiri Sabiah has worked for the indigenous rights advocacy group, Partners of Community Organisation (PACOS), for ten years. He explains that what frequently happens is, as Sabah develops, indigenous groups may unexpectedly encounter a company or the government enter their customary land.

 

LandrightPIC1.JPGNasiri wearing his proud t-shirt

The people can retain their land “as long as they can prove that they were there before,” Nasiri explains.

However, there are many technical issues that indigenous groups face when claiming land. The main issue is that many such indigenous groups do not document their cultural and historical use of their lands as they rely on oral recitation to pass down knowledge. PACOS aids them by digging through historical archives for evidence of utilisation and by transcribing many of their stories before passing them onto a Commissioner of Oath who grills them with questions before verifying them as true. He adds that a lot of young people leave these communities, depriving them of the technical skills needed to perform such documentation and research. Lastly, there does not exist an official Malay or native language translation of these laws making it inaccessible for many indigenous people. PACOS themselves have only managed to properly translate certain sections of the Ordinance.

Admittedly, the laws of Sabah are more sympathetic to indigenous peoples than in Peninsular Malaysia as in they are a 60% majority. Sabah recognises customary territory as a part of Native Customary Rights Under the 1930 Sabah Land Ordinance issued during the British colonial era.

However, this land rights problem was exacerbated when the ordinance was amended by the Malaysian government such that claiming territory through a Communal Title also automatically entails accepting a joint venture with a company to ‘develop’ the land. In other words, the land ends up being used growing commercial crops such as palm oil. The profits are split 60% to the company and 40% to the community with the company allowed to deduct infrastructure costs such as roads from the community’s dividends. Nasiri reports that the average family receives a mere RM1200 per year from this arrangement.

 

2017-07-14-PHOTO-00000018 Palm oil from Sandakan.jpgPalm oil fruits harvested from Sandakan, Sabah

In a more practical sense, it is also too expensive for many of these indigenous to hire lawyers to fight their cases. PACOS itself only has two lawyers where one case may take as long as five years to resolve. Nasiri cites a Darinsok case they won last year that took fifteen years to resolve – the longest native customary rights case they’ve fought. Meanwhile, a SUHAKAM survey estimates that there are around six hundred such cases. Throughout this entire process, Nasiri reports that many indigenous groups also experience harassment from local police.

These cases have in so far been fought in federal-level civil courts. They do have a last resort option to take cases to the native court; the third and arguably least powerful court in Sabah after the civil and sharia court albeit being the most sympathetic to natives. Even then “who is in the native court?” asks Nasiri, “It is the head of the village and he is chosen by the government.”

Land rights is a common issue among indigenous groups around the world. It is one major indigenous right violation that is recognised in the preamble of the UN Declaration on Rights of Indigenous People. Despite being a major step in the global attempt to protect indigenous groups it is not a legally binding document.

“UNDRIP cannot force government to make policies but only set a standard”, Nasiri explains.


Norman once covered a political rally in Jakarta a  news reporter. It was uneventful until a frontline protester with a serious face stared him down. After a few minutes, the protester whipped out his mobile phone and asked Norman to take a photo of him with his friends. Human behaviour fascinates Norman.

 

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