To deprive the natives of their NCR over the land without compensation being paid to the natives whose forbears had been on the land under their system of customary laws long before anyone of us set foot on the soil, should be unheard of after nearly 60 years of statehood.
We are conscious of the fact that money is only as useful as the thing you exchange it for. Of what use could they put the compensation sum to, as and when it is assessed and paid out to the natives? The lifestyle of the natives is such that they live off the land and are one with the land in a dynamic and balanced ecosystem that ensures the protection of the rich fauna and flora life of the jungle and forest. Who are we to say that our lifestyle is superior to theirs? Isn’t the stature of statehood measured by how one treats the most vulnerable in society whose rights are protected both under the Federal and State Constitution and the SLC?
We now have a system of land law where NCR land may be disregarded by the State under the presumption that all land without a title issued is State Land under s.5(7) SLC and a final title issued that is indefeasible [cannot be taken away] to an enterprise, whether it be for them to log for timber, to plant and harvest oil palm or for any development.
They can in turn charge the final titles to the bank for financing and immediately monetise the land alienated to them and all we can do is to say to the natives:
“Sorry but there is nothing else we can do other than to order damages to be paid to you. More than that you risk being sued for trespass if you continue to remain on the land. You must get out of the land now! We shall talk of compensation later.”
There is something grievously wrong with the equation …. the State is under a fiduciary duty to preserve, protect, promote and indeed to defend the rights of the indigenous and native people of the land against deprivation of their livelihood which is inextricably tied to the land.
To be deprived of their NCR land is traumatic enough; to have to vacate the land without compensation or damages being paid as their case meanders its way through the process of the Courts would be to rub salt on open wounds. The Malay proverb may resonate with us in describing the plight of the natives: “Sudah jatuh ditimpa tangga” which translated literally would mean “Having fallen, one is being hit by a falling ladder!”
This excoriating condemnation of the conduct of Sarawak’s State Government towards native land rights over the past 60 years of statehood was written not by some eco-campaigner or indigenous rights NGO, but by the judges of Malaysia’s Federal Court of Appeal.
It is worth re-reading to understand the shame that should attach to the greedy politicians who have abused their powers and looted the state to fill their pockets, in particular the family of the former chief minister and present Gaga Governor, Abdul Taib Mahmud.
The court observed that it was not tasked with discerning if corrupt collusion and self interest were behind the handing out of timber and plantation licences in the land grab cases before them, but made clear that was the suspicion.
And, indeed, a whole body of research by Sarawak Report, published over ten years ago, makes clear that corruption was indeed the motivating factor in these very cases.
The judgement last week finally determined two of Sarawak’s most significant and long running land grab cases (cited in the above articles) which saw different outcomes after years of winding through the courts. One ended in a stunning victory for the dwellers of their lands whilst the other will see only pain and eviction without compensation.
In common is the fact, recognised by the federal court itself, that there has been no justice in either case.
For example, whilst the dispute had dragged slowly through the courts in the successful suit the state government saw fit to nonetheless convert the rightly contested Provisional Licence into a Full Licence.
This should never have happened, says the court, because it meant the licence could never be rescinded whatever the outcome of the suit. This enabled the crony company to raise money from CIMB Bank both to cover the cost of the pepper corn premium charged and to pay for the logging and plantation of the land that raised billions for the ‘lucky’ licence holders, who just happened to include the crony state minister Naroden Majais, a former employee of Taib himself, and Taib’s own sister, Raziah Geneid.
The noble judges show from their remarks that they are every bit as outraged as Sarawak Report by such a disgraceful abuse of power and the disgusting and illegal treatment of native customary land owners by the state authorities.
Likewise, the unsuccessful case also involved a corrupt concession to Taib’s sister Raziah and, although unmentioned by the court, the entire background to the hundreds of land grab cases in Sarawak is, of course, the vast and corrupt string of concessions made to Taib family members and their cronies under his watch – as any reader of this site well knows.
Development of the State or Personal Enrichment?
Conveniently, Taib had appointed himself as the ‘Land Custody & Development Authority (LCDA)’ boss (one of several key positions he simultaneously held) in order to supervise those mega-handouts of native lands, to his sister relatives, his key political allies and business cronies, from the moment he gained power in 1981.
During the lengthy federal court ruling on the successful case, achieved by the villagers of Gedong (led by Nikodemus anak Singai and lawyer Dominique Ng) against the logging and palm oil concessions handed to the companies Indranika Sdn Bhd (controlled by Naroden Majais) and Lambang Sinar Mas (controlled by Raziah) the judges time and again expressed their disdain for the conduct of the Sarawak State Government in its trampling of native rights.
It was “next to impossible“, says the judgement, “for the natives to prove that the State is conniving with private enterprises to have prime land alienated for logging or agriculture purpose”.
Yet, the sarcasm speaks for itself:
“We hear that Indranika Jaya is as clean and clear as a tabula rasa – no stain of any improper or oblique motive – other than an application for a State Lease to be alienated for the purpose of the cultivation of oil palm”
The dodgy nature of that Indranika concession, together with the enormous lands that went to the twin company Hydroflow was, as everyone in Sarawak knows, documented a full twelve years ago in a series of exposes by Sarawak Report.
Huge stretches of native land were transferred through these and other companies to the ex-LCDA staff member, Naroden Majais, whom Taib had later appointed to a safe seat in the State Assembly as minister for ‘Entrepreneur and Small, Medium Enterprise (SME) Development’.
Naroden’s personal entrepreneurial skills soon manifested in an opulent mansion and lifestyle noted in Kuching. After all, back in 2011, Sarawak Report’s research of leaked land records (which Taib had sought to keep secret given his plunder of the state) showed that Naroden had acquired some 15,000 hectares of land for logging and palm plantations for a paltry premium of RM5.7m.
At the going sale price of equivalent lands by Taib’s own brother the actual worth of such an area was over a billion ringgit at that time. And that was AFTER the valuable timber was removed.
Sarawak Report detailed in its report how the natives had been forced into a ‘joint venture’ cooperative on their own lands as Taib forced his land grab through, whereby they would be offered an alleged 30% share of the company but no voting rights or directorship control.
Much fanfare was made in the Taib family owned Sarawak Tribune of an annual dividend from the palm oil sales that year – of RM575,400 – to those local native landowners. That sum worked out as RM200 per family for the year in return for the ruination and plunder of the areas they had depended on for generations.
Below is how the equally disgusted judges described the injury done by the state government’s decision to break the clear rules regarding Provisional Leases, especially when the lease had been contested.
These rules insist that following the granting of a provisional licence the beneficiaries must conduct a survey of the land to check there are no conflicting interests. If there are already areas of Native Customary Land within that provisional lease then these must be excluded from the final Full Licence area.
Naroden and Raziah’s companies had failed to do that survey and claimed there were no NCR rights on the land, which proved to be untrue. Instead of demanding to see the survey and putting on hold the licence pending the outcome of the court decision, Taib’s government had seen fit to rush through a granting of the Full Licence anyway to Indranika, Lambang Sinar Mas and their collaborators.
These crony companies then sued the impoverished natives for trespassing on the land they had lived on for generations, whilst set about tearing down the trees and raping the resources. Now that the natives have proven their case in a David and Goliath struggle through the courts, the land has been destroyed.
This was wrong, the courts says (you bet it was):
Generally a final State Lease is not issued until a final survey is completed or done on the land. Here as may be surmised from the above “RESTRICTIONS AND SPECIAL CONDITIONS” in (iv) above, the final survey still had not been completed and so one wonders why the rush to issue the final State Lease title when even with the Provisional Leases Indranika Jaya had no issue monetising it and using it as a security for a loan of RM26,826,062.96 from CIMB Islamic Bank Berhad for which charge a was created on 29.11.2007.
Surely the State must avoid any perception that it was in a rush to speed up the issuance of a final State Lease in prioritising commercial interest of private developers of the State Leases to the often fragile and fragmented rights of the natives asserting their claim to NCR land over an amorphous area…..
As they say for some people, perception is reality. We are only raising questions that we are troubled by and as the State and its agencies are not before us in this appeal, we make no findings on why the State Leases were issued before the Nikodemus’ NCR 2007 Suit was concluded in the High Court with a finding that the disputed land is encumbered with NCR.
We can only hope that no final State Leases are issued in the future when, as it is, the case was still before the High Court for a determination of the natives’ NCR over the disputed land
Taib had handed out these Indranika concessions in Sedilu-Gedong Land District way back in 2007, without the proper notifications required under the law (naturally) yet was as soon as they learnt of the greedy land grab Nikodemus and his longhouse people raced to contest the matter with the help of opposition lawyers who were fighting the numerous cases in the state.
Fifteen long years later, the ultimate court in the matter has ruled in favour (after many questionable setbacks in the lower courts) confirming their land rights, their right to compensation and, indeed, punitive damages against the state government for the lawless abuse of its powers and its fiduciary duties towards the very people whom it was elected to protect.
Those damages are yet to be assessed, however they ought by rights to amount to billions of ringgit which is the cash value that was taken out of those native lands. As the court thundered:
“one would have thought that as the State has a fiduciary duty to promote, protect and preserve NCR over native customary land, it would be farcical to proceed to issue final State Lease titles for land which NCR claims by the natives are already before the Court.
Even though the State and its agencies are not before us in this appeal which does not involve them, we cannot help but make some observations without making any definitive findings; all these against the backdrop of Indranika Jaya strenuously stressing that they have no control over how the State and its agencies may want to process and proceed with their application for a lease of State Land [of course the company had control, given the world knows it was hand in glove and indeed one and the same as Abdul Taib Mahmud who controlled the government] …..
We thus have this anomaly and a likely miscarriage of justice when the natives who had been dispossessed and deprived of their NCR over their native customary land are still not compensated whereas as in this case, even before 2007 when they filed their suit in Court, the private enterprise has entered into possession of the land and cultivated it and reaped profits from it with the help of bank loans secured over the subject land in question.
Such a state of affairs cannot be allowed to continue when the State itself suffers no sanction by disregarding the NCR over land claimed by the natives
The court may not be tasked with judging the corruption it readily acknowledges lies behind this case, but under a reforming government the MACC should. Could the powerful number of seats held by GPS in the so-called coalition government be behind the slow moves in that direction?
All this has made the courageous and determined efforts of Nikodemus, his fellow villagers and lawyers all the more remarkable a success. After years of costly litigation and aggressive counter litigation, set backs and cruel demands for fines the native people have finally asserted their rights but lost their lands.
The court at least expressed hope this example of native strength and determination and the ultimate failure by the authorities – along with a major penalty – might at last deter the egregious behaviour of the Sarawak government towards its people, which the judgement wearily observed has happened time and again in the hundreds of similar cases across the state.
The constitutional protection of no acquisition without compensation is even more imperative for the natives who often have to battle with the State and its agencies and private enterprises in a David and Goliath battle, with only their sling and 5 stones picked perhaps from the river, in a case where they have been dispossessed and others have come to occupy their land
Sadly, for the residents of Kampung Usahajaya Tukau, the chances of compensation for Taib family looting have gone, since they had not been granted earlier land rights for the place they made their home many years ago. The Miri neighbourhood is designated State Land and Taib was in charge of the state and all its secretive handout for three and a half decades.
This may be the home where many of them were born, indeed families have lived there for generations built their houses and ploughed the fields. Yet they now stand to be thrown off lands and to see their houses raised to the ground without a cent of compensation or a shred of support from the state as to where they should move to next.
The area has became hugely valuable as the oil town has expanded, which means that Raziah has wanted her hands on it to develop alongside the very many other hugely lucrative major plots she has kindly received at peppercorn premiums from her brother over the years.
The Miri Marriott Hotel, for example, was developed by Raziah’s company Kumpulan Parabena in which her brother Taib and other family members own a healthy chunk. To build their ‘modern style hotel’ project the couple happily knocked down the historic centre of the town having been handed the valuable area once again by Taib.
Usahajaya stood in the path of Raziah’s next big project to develop commercial and residential land by Miri airport, so it was simply arranged for the plots in question to be issued to her major holding company Kumpulan Parabena by her brother (who himself has shares in Kumpulan Parabena) given he was also in charge of the Land & Survey Department.
The villagers have also fought this case for years. However, for them there was a negative decision because the state had at no point granted them rights over the lands, as with the pre-independence granting of NCR status to the Gedong community of Nikodemus.
As Taib’s lazy, greedy nieces were recorded sniggering in that notorious video, these people are indeed determined under law to be ‘squatters’ on their lands. They are to be evicted, their homes razed, their fields concreted for a Raziah car park and they will receive nothing from the state in return as Raziah reaps the riches.
As the judges said, the matter of corruption was not before them and it would be hard for the natives to prove that it was so. However, there are plenty of questions to be asked about the mass handouts of state land by the man entrusted with authority, namely Taib Mahmud.
Why was there no open consultation on the benefits of this development? Why was there no open tender? Why was the process kept secret? Why was the price of all these concessions so far below the market value? Why did these concessions mainly go to Taib’s own sister and to a man who used to be his minion at the LCDA and is now his trusted political henchman?
As the judges said themselves, there is no justice if the people are forced to abide by laws when the state government itself is lawless.