COMMENT We, the undersigned Sarawak civil society organisations, are very disappointed and appalled with the Federal Court’s decision in Kuching, Sarawak, on Dec 20 on the case of Tuai Rumah Sandah Anak Tabau vs Director of Forest and State Government of Sarawak.

The Federal Court allowed the appeal of the Forest Department and the state government, thus negating the claims of native customary rights (NCR) of the Dayaks over their territorial domains (pemakai menoa) and communal forest reserves (pulau).

We are gravely concerned with the decision of the Federal Court and we strongly disagree with the said decision.

This crucial judgment has set back years of advocacy in trying to get the state government to recognise the NCR claims of the Dayaks on their pemakai menoa and pulau.

This Federal Court decision is not the solution to all the NCR issues facing the indigenous peoples in Sarawak and will only create further conflicts between the indigenous communities and the private sector and authorities.

We are disappointed that three of the five panel judges held that pemakai menoa and pulau are not found in the statutes or written laws in Sarawak therefore could not have the force of law.

This decision clearly shows that the judges are not well-versed in the customs (adat) of the indigenous peoples in Sarawak.

Furthermore, all the five judges in the panel are from peninsular Malaysia and not even one from Sarawak or Sabah.

Of all the five judges, only one dissented while three others allowed the appeal and another retired before he could deliver his judgment.

For a balanced judgment, on NCR cases should be presided over by judges who are not only learned about the law but also about the adat as well.

As was written in the Facebook post of Nicholas Bawin, who was also one of the expert witnesses on the Iban adat in this case, “Though not spelt out, or included in any written laws, the two terminologies (pemakai menoa and pulau) not only had been spoken in words but being put into practice before any statutes or written laws were in use.

"As regards to Tusun Tunggu and Adat Iban 1993, there are both not comprehensive. Any other adat though not included in the statutes above but still practised by the community remain the adat of the community concerned… who had practised this adat of pemakai menoa and pulau galau since time immemorial."

The state government has shown that it does not respect indigenous peoples rights to their lands, territories and resources.

State restricts indigenous peoples claims

The state government restricts the indigenous peoples claims on NCR by saying that it only recognises NCR and that this is confined to cultivated areas (temuda), which have been continuously occupied prior to 1958.

Here again the state government fails to understand the concept of swidden agriculture (slash and burn agriculture).

The indigenous peoples have to rotate their cultivated areas after a certain number of years and let the previous cultivated lands fallow in order to replenish the fertility of the soil.

Therefore, to continuously farm the land since 1958 is not possible due to the condition of the soil and most of the temuda existing now are cultivated after 1958.

The decision of the Federal Court has serious implications on the rights of the indigenous peoples, not only in Sarawak but throughout Malaysia.

It implies the lack of or no respect to adat, cultures and ways of life of the Dayaks and other indigenous groups throughout Malaysia.

It threatens the major source of livelihood, socio-economic wellbeing, political identity and dignity of the indigenous peoples in Malaysia.

It could increase conflicts over customary rights lands and resources in Sarawak and Malaysia as a whole.

As a consequence, the Federal Court decision deprives the indigenous peoples of their rights to access their customary lands and resources, which will eventually lead to the dispossession of their land thus further lead them to poverty.

It is through the practice of the adat of pemakai menoa and pulau that the indigenous peoples have contributed to the conservation of the forests.

Now, this right has been taken away from them and as a consequence, our forests and customary lands are now open to widespread indiscriminate commercial exploitation.

In view of the far-reaching implications to befall the millions of indigenous peoples in Sarawak and Malaysia, we therefore urge:

1) That the judiciary reviews this decision by way of judicial review as filed by the counsel for the respondents and the panel judges for the judicial review be balanced with senior judges from Sabah and Sarawak;

2) That all the Dayak elected representatives irrespective of their political affiliations and Dayak community leaders i.e. community chiefs and headmen uphold, defend and protect our adat. This is their sacred and utmost important duties and responsibilities, failing which they have failed the community;

3) That the State Legislature immediately passes a motion to amend the existing laws to incorporate pemakai menoa and pulau or definitions similar to the two terminologies based on the concept as is practised by the indigenous peoples in Sarawak; and

4) That the various civil society organisations and non-governmental organisations concerned to join in solidarity with the indigenous peoples to demand that the state and federal governments respect, recognise, restore and protect indigenous peoples rights, especially the adat and customary rights to their lands, resources and territorial domains.

This statement is endorsed and supported by:
1. Jaringan Tanah Hak Adat Bangsa Asal Sarawak (Tahabas)
2. Jaringan Orang Asal SeMalaysia (Joas)
3. Save Sarawak Rivers Network (Save Rivers)
4. Gerakan Anak Sarawak (Gasak)
5. Sarawak Dayak Iban Association (Sadia)
6. Borneo Resources Institute, Malaysia (Brimas)
7. Sarawak Indigenous Lawyers Alliance (Sila)
8. Communities Information and Communication Centre (Cicom)
9. Baram Protection Action Committee (Bpac)
10. Integrated Development for Eco-friendly and Appropriate Lifestyle (Ideal)