Baru asks why does the Bill not seeking to penalise timber industries, plantation companies and dam builders

KUCHING, May 6, 2014: Ba'Kelalan State Assemblyman Baru Bian is asking why does the Sarawak Biodiversity Centre (Amendments) Bill not seeking to penalise the timber industries, plantation companies and dam builders for the destruction they have caused to the state's biodiversity resources.

"What I find most ironic about this piece of legislation is that while it seeks to protect our biological resources from exploitation by outsiders, there is virtually no provision in it or in any other of our laws to protect our biodiversity from destruction by the timber industries, plantation companies and dam builders.

"I propose that Timber Licences, Provisional Leases and other Licences should be made subject to this Ordinance," he said when taking part in the debate on the Bill in the State Legislative Assembly today.

The Bill sought to substituted Section 22 ‘Penalty for collection of protected resources’ to penalise those who collect protected resources for research and development or take such resources out of the state.

The preceding Section 21, ‘Protection of biological resources’ provides for notification by gazette of the declaration of any biological resources as protected resources.

"I hope the Minister can enlighten us as to how effective this Act has been since it was enacted, in terms the number of biological resources declared to be protected, and of the number of cases where offenders have been penalised or prosecuted," he said.

He said Malaysia is home to 15,000 flowering plants, and that the Kew Bulletin states that Sarawak has 12,000 species of plants.

"However, the nation's flora and fauna are under severe threat and have experienced a 70 per cent depletion of original growth.  

"The 2000 IUCN-World Conservation Union biodiversity report indicated that Malaysia has more endangered plant species than any other country in the world, numbered at 681.

"In 2007, the number had increased to 686 endangered plant species. In the 50 years up to the year 2000, about two per cent or about 170 of the estimated 8,500 species of flowering plants in Peninsular Malaysia became extinct," he said.

Baru quoted former University Malaya ecology department head Professor Dr E. Soepadmo as saying that only 40 per cent of Peninsula Malaysia’s natural forest-cover still exists and the proportion is even lower in Sabah and Sarawak.

"Sadly, the Malaysian rainforest, especially lowland rainforest, which is incredibly rich in biodiversity, is where the greatest amount of deforestation has taken place.

"Soepadmo warns that plant species with potential medical applications could also be lost forever if we do not take serious steps to protect our natural heritage.

"Similarly, Universiti Malaya Rimba Ilmu Co-ordinator Associate Professor Dr Wong Khoon Meng notes that regular disturbance to any forest system, such as logging or forest fires caused by people, will affect its biodiversity.

"But habitat loss, which occurs when a forested area is converted to other uses, such as plantation agriculture, is the main cause of extinction because there is no chance for rare and endangered species to survive once the natural habitat is destroyed.

"It is known that the crowns of jungle trees are where the biggest source of biological resources is found, that is, in the epiphytes, which grow there.

"Are logging companies made responsible for preserving these plants while they cut down our forests for timber?

"Are timber licences subject to these restrictions? Are plantation companies required to comply with such conservation practices?" he asked, adding that from reading the amendments and the Principal Ordinance they are not.

"Once the trees are felled, these epiphytes are left to die." 

"Similarly, the dams that have flooded huge areas of our jungles have been responsible for the destruction of a huge number of our trees and plants, destroying whole ecosystems and exterminating rich biodiversity. 

"Therefore on the one hand, we have this legislation to show that we are keen to protect our biological resources, while on the other hand, we allow massive destruction of the same resources by the logging companies, plantation companies and dam builders.

"Are we going to show our commitment to the preservation of our biological resources by subjecting these companies who have been responsible for the extinction of many of our plants and the destruction of our biodiversity to compliance with our conservation policies?

"If we do not do so, the work of this Biodiversity Centre will be an exercise in futility as we continue to lose more and more of our native plants.

"Traditional knowledge will be lost as the plants become more and more difficult to find. What rights will there be to protect then?" he asked.

The proposed subsection (bb) of section 6 also attracts Baru's attention which empowers the Sarawak Biodiversity Council "to ensure that prior informed consent is obtained from the natives where traditional knowledge associated with a biological resource is accessed and an agreement that includes benefit sharing based upon mutually agreed terms is entered into."

According to him, the traditional knowledge of each native community is passed down from many generations ago and would be known to many families within that particular ethnic group, some of whom may have moved on to other divisions within the state.

"Which family or clan would be entitled to hold the rights to the traditional knowledge, and hence the rights to share in the benefit?

"How would they prove their rights? As in NCR land matters, these rights and knowledge are similarly undocumented.

"Assuming that we can identify the group that holds the rights to the traditional knowledge, who would be the other signatory to the agreement?

"Would it be the Council? Who is going to be the arbiter if there are many overlapping claims, as is bound to happen? Would it be the Council?

"What if a biological resource is identified in Ba'Kelalan and given some protection and the same resource is found in Lundu will the person/s in Ba'Kelalan has the sole right over that biological resource or would they share the rights over that biological resource?

"How can this provision be practically enforced and executed?

"In my opinion, this section is too vague and I can foresee that implementation would be highly problematic, if not impossible.Thus the intention behind this section would be defeated.

"Probably workshops should be carried out after this to discuss these practical issues," he suggested.

Baru Bian proposes amendments to Sarawak Land Code

May 6, 2014

THE PROPOSED AMENDMENTS TO THE SARAWAK LAND CODE 2014

There are three main amendments sought by this Bill; firstly the definition to the term “Native Customary Land” under section 2 of the Sarawak Land Code (Cap. 81) 1958 (hereinafter referred to as “the Code”), secondly the additional to section 5, and thirdly the additional of Section 7A to the Code.

A.        AMENDMENT TO THE DEFINITON OF “NATIVE CUSTOMARY LAND” UNDER SECTION 2 OF THE SARAWAK LAND CODE 1958.

1.         Section 2 of the Land Code (Cap. 81) 1958 defines the term 'Native Customary Land' to mean -

           

(a)          land in which native customary rights, whether communal or otherwise, have lawfully been created prior to the 1 January 1958, and still subsist as such;

(b)          land from time to time comprised in a reserve to which section 6 applies; and

(c)        Interior Area Land upon which native customary rights have been lawfully created pursuant to a permit under section 10; (emphasis added). 

2.         Before the judgment of the landmark case of Nor Anak Nyawai & Ors v. Borneo Pulp Plantation Sdn Bhd & Ors [2001], it was the State Government’s view that Native Customary Land (“NCL”) means that area of land felled, farmed and occupied by the natives before the 1^st day of January 1958 and subsist as such to this day. In other words it is the settlement area which was farmed and lived on before the 1^st day of January 1958. So to the Government any virgin forest or lands cannot be deemed NCL. This view was challenged in this case of Nor anak Nyawai, in that NCL includes the territorial domain or the communal land of a native community commonly referred to as “pemakai menua” and their reserved forests land within their said “pemakai menua” commonly referred to as “pulau galau”, which in many instances are even virgin forests or lands. At page 776 (para f) of the judgment reported in the Current Law Journal [2001] to 779 some relevant excerpts, which are as follows:

“A pemakai menoa (also spelt pemakai menua), is an Iban term that refers to “a territorial domain of a longhouse community where customary rights to landresource was created by pioneering ancestors” (Dr. Dimbab Ngidang on EthicalValues of Sarawak Ethnic Groups, p. 33). Another description of it is in these words: “The family groups (bilek) join together to make a longhouse which, with the surrounding contiguous territory, make up the menoa. It includes besides farms and gardens, the water that runs through it and the forest roundabout it to the extent of half a day’s journey” (A.J.N. Richards on The Land Law and Adat, p. 24). Such a territory is chosen because of the presence of arable land, of rivers and forests from which life sustaining resources like water, fish, animals and forest products (including timber, wild vegetables, edible ferns, palm shoots, rattans, herbs or medicinal plants, fruit trees and bamboo) can be obtained. The evidence of the plaintiffs’ supports this and I need not go into them since that is not disputed. The pioneers of a longhouse community are usually relatives who banded together in search of a new territory and when this is found, the pioneers would build a longhouse with sufficient rooms arranged in a row, all joined together to accommodate the families. The longhouse will just expand with new families. It is within this territory, called the pemakai menoa, that each longhouse community has access to land for farming, called the temuda, to rivers for fishing and to jungles, called the galau or pulau galau, for the gathering of forest produce. It has boundary separating it from that of another longhouse. The boundary is reckoned by reference to mountains, ridges and rivers or other permanent features on the earth. “

“The more recent definition of a pemakai menoa, and which I accept to be equally accurate as those of the authors I have just referred to can be found in a paper presented at a seminar (called Seminar Pembangunan Tanah Pusaka Bumiputra on 29 September to 3 October 1994) by Tan Sri Datuk Gerunsin Lembat. He was the former president of the Majlis Adat Istiadat Sarawak and in that paper he said:

Pemakai menoa  is an area of land held by a distinct longhouse or village community, and includes farms, gardens, fruit groves, cemetery, water and forest within a defined boundary (garis menoa).

The purpose of creating a pemakai menoa involves the ritual ceremony of punggul menoa. After the ceremony has been performed, the first cutting of virgin jungle for settlement and farming can commence. From then onward, the community can establish its rights to the felled area, boundaries (garis menoa) are drawn between villages. These boundaries normally follow streams, watersheds, ridges and permanent landmarks. Pemakai menoa  includes cultivated land (tanah umai), old longhouse site

(tembawai) , cemetery (pendam)  and forest area (pulau). “

3.      The Superintendent of Lands & Surveys, Bintulu State appealed against the said decision of the High Court to the Court of Appeal in the case reference of Superintendent of Lands and Surveys, Bintulu v Nor Nyawai & Ors and another appeal [2005] 3 CLJ 555, and the appeal was allowed on the ground that there was no evidence to show that the disputed area was a pulau. But their Lordships at the Court of Appeal confirmed the customary law and concept of “pemakai menua”, “pulau galau” and other practices of the Ibans when their Lordships said at page 571 of the report:

“In respect of the other expositions of the law by the learned judge in relation to native customary rights we are inclined to endorse them. And briefly they are as follows:

(a)          that the common law respects the pre-existence of rights under native laws or customs though such rights may be taken away by clear an unambiguous words in a legislation;

(b)          that native customary rights do not owe their existence to statutes. They exist long before any legislation and the legislation is only relevant to determine how much of those native customary rights have been extinguished;

(c)          that the Sarawak Land Code ‘does not abrogate whatever native customary rights that exist before the passing of that legislation’. However natives are no longer able to claim new territory without a permit under s. 10 of that legislation from the Superintendent of Lands and Surveys’; and

(d)          that although the natives may not hold any title to the land and may be termed licencees, such licence ‘cannot be terminable at will. Theirs are native customary rights which can only be extinguished in accordance with the laws and this is after payment of compensation’.

4.      In the Federal Court’s case of Superintendent Of Land & Surveys [2007] 6 CLJ 509, the decisions in Nor anak Nyawai and another case coming from the State of Johore called the Adong’s Case, were challenged by the State Government of Sarawak. After referring to the relevant portion of the judgments in both cases at the Court of Appeal, the Federal Court concluded:

                        “As for the fifth question our answer is that we wholly agree with the view expressed inAdong bin Kuwau and Nor ak Nyawai that the common law respects the pre-existence of rights under native laws or customs.”

5.      In another Federal Court case of Bisi ak Jinggot v. Superintendent of Lands & Surveys, Kuching & 3 Ors,the Chief Judge of Sabah and Sarawak, (CJSS), Tan Sri Richard Melanjum affirmed the pemakai menoa concept when His Lordship referred to Nor anak Nyawai at paragraph 4 of His Lordship’s judgment:

“’pemakai menoa’ is a term givento an area of land selected by pioneers of a long house community who are usually related to each other for the construction of a longhouse with sufficient rooms arranged in a row, all joined together to accommodate the families. And the longhouse will just ‘expand to with new families’. And it is within the ‘pemakai menoa’ that the longhouse community will establish ‘temuda’ which is an area of land accessible for farming and ‘pulau’ or ‘pulau galau’ which is the forest area where there may be rivers for fishing and the jungles for gathering of forest produce. The other Iban terms are ‘tembawai’ for old longhouse site; ‘tanah umai’ for cultivated land within ‘pemakai menoa’ and ‘pendam’ is cemetery. However, ‘pemakai menoa’ has its boundary usually based on streams, watersheds, ridges and permanent marks, separating it from another longhouse community.” (see: Superintendent of Lands & Surveys, Bintulu v Nor anak Nyawai & Ors and Another Appeal [2006] 1 MLJ 256 [COA].

6.      Under paragraph 21 of His Lordship judgment, CJSS further said:

“In respect of the intended purpose, NCL were created and existed by and for the natives in Sarawak. NCL are basically meant:

i.       for farming (‘temuda/tanah umai’) on the land within ‘pemakai menoa’ that is ‘anarea of land held by a distinct longhouse or village community, and includes farms, gardens, fruit groves, cemetery, water and forest within a defined boundary (garis menoa)’,

ii.      for fishing in the rivers therein; and

iii.     for the gathering of forest produce such as bamboo. ‘damar’ (resin) and timber for building boats and houses from the jungles (‘pulau’ or ‘pulau galau’).

7.      Ever since the decision in Nor anak Nyawai in 2001, we have no less than 10 cases affirming this concept of‘pemakai menoa’ and ‘pulau galau’ coming out of the High Court and the Court of Appeal in Sarawak.

B.      AMENDMENT TO SECTION 5 OF THE SLC.

8.      It has been found in many cases where section 5(3) (4) are being used to extinguish NCR over NCL for public purposes the NCL owners are not consulted and given opportunity to air their response to such acquisition. In most cases the NCL owners only found out long after the process of the acquisition is gazetted; most of the time only when the project commenced on the ground. Active consultation with the affected natives must be done and if possible their consent obtained to avoid any future hindrances to the project.

C.      NEW SECTION 7A

9.      This section is in response to the decision in the Federal Court’s case of Bisi Jinggot @ Hilary Bisi Jinggot, which prohibits the transfer of NCR land even between the same native group but the buyer coming from another Kampong. I know there are a lot of people who disagreed to this decision as it appears to be in contradiction with some of the natives’ customs in Sarawak and secondly the sale of NCL had been on going in Sarawak with the approval of the Land and Surveys Department. Therefore the amendment is necessary just to ensure that what has been practiced all this while is made clear through legislation.