Baru Bian come across as a media recluse-if you compare with some other Opposition politicians who come out with 5-6 press releases a day! But he does have a loud message-now, in his own words, here:
“ Baru Bian will bring the change that Sarawak desperately needs. He will return the trees, the lands and the rivers to the people. Corruption will stop. Taib will continue to hand over the State’s wealth and resources to Putrajaya and the preferred elite. Baru will not steal. Thirty years is enough! The time is now! BERUBAHLAH! “
When I graduated with a law degree in the 1980s, I was filled with youthful idealism and dreamed of becoming an effective and useful citizen of this free country. My then girlfriend (now my wife) encouraged me to take up the challenge in Proverbs 31: 8-9: “Speak up for those who cannot speak for themselves, for the rights of all who are destitute. Speak up and judge fairly, defend the rights of the poor and needy.” This ‘wise saying’ became the guiding principle and foundation of my career as a lawyer.
After practicing in Kuala Lumpur for about two years, I returned to Sarawak in June 1988 with the primary intention of getting involved with the issues faced by the natives of Sarawak over their forests and native customary right (NCR) lands. Little did I realize then that such legal battles would become a part of my life and the norm of my legal practice-to fight for the preservation and protection of native lands against loggers, quarry operators, tree planters, oil palm plantation owners and housing developers.
For the native forests is their source of life and the land their very foundation. To them, both forest and land represent ‘life’ itself. These forests, virgin or otherwise, are called ‘pemakai menoa’ or simply ‘menua’. Pemakai menoa is an area of land held by a distinct longhouse or village community, which include farms, gardens, fruit groves, cemetery, water source and forest within a defined boundary (garis menoa) normally following streams, watersheds, ridges and permanent landmarks. Within the boundary of the ‘menua’, you may find farming land called ‘temuda’ and virgin forests called ‘pulau’. Temuda includes land deliberately left to lie fallow for varying periods of time (25 years or more) for the soil to regain fertility and for the regeneration of forest produce. The pulau is specifically preserved for certain vital purposes: to ensure a steady supply of natural resources like rattan, wild fruits and timber; to protect and preserve water catchments areas and for the hunting of wild animals. For the natives, this is the most logical way to sustain and manage the forests and lands for the sake of future generations.
In the mid-1980s, the Sarawak State Government launched the so-called ‘politics of development’. The rationale behind the policy was to eradicate poverty among the natives by allowing their ‘idle’ land to be developed by outsiders or investors into large oil-palm plantations or other enterprises on the basis of shared equity. This inevitably led to tension between the Government and the natives who felt that it was an act of intrusion that deprived them of their rights. The Government’s action may have had some justification but it was undermined by two important factors: conflicting definitions of what constitute Native Customary Rights (NCR) or Native Customary Land (NCL) and blatant disregard for local sentiments and customs in the implementation of the policy. According to the Government, only farm land (temuda) cultivated before 1 January 1958 are recognized as NCL; the natives, however, take the view that NCL includes pemakai menua, pulau and temuda created before 1 January 1958 under the provisions of the Land Code of Sarawak. The Government regards any uncultivated land or virgin forests as state land, and therefore pulaus are not NCL. Herein lies the dispute: many logging and quarry licences, oil palm plantation and tree planting leases issued to investors encroach onto pulaus, water catchment areas, an even farm lands or temuda.
In the late 1980s, the plight of the Penans over the destruction of their forests by unscrupulous timber operators took centre stage internationally, thanks to the efforts of Swiss activist Bruno Manser, also known as ‘White Tarzan’ (Manser went missing in the jungles in May 2000 and has been declared officially dead by a Court in his home country). But the other natives were fighting their own battles against loggers or timber contractors without much publicity from the media. My first land rights case was to represent my own relatives in a High Court case against six logging operators who had encroached onto NCL in the Lawas District. The case was eventually settled amicably between the parties after a physical blockade was organized by the natives.
All over the State, the Penans and other native groups also staged similar blockades against these licenses and operators to protect their forests and NCL. These blockades are acts of desperation that reflects the hopelessness that natives feel. In most cases, they are also a last resort to prevent the immediate destruction of their lands and lives. In 1990, due to the wide publicity given to this issue, the International Tropical Timber Organisation (ITTO) sent a team to Sarawak to investigate the impact of the logging industry on the lives of the natives. I had the privilege of meeting the team twice and aired my views on the matter. I emphasized that half of the problems would have been solved if the licensees respect and recognize the rights of natives over their lands and forests, and carry out proper negotiations with the natives in the hope of attaining mutual benefits. My advice went unheeded. Nothing much has changed since then.
It was and still is my conviction that the blatant disregard of native rights over their lands and forests is not only unlawful and improper, but also morally wrong. This conviction is based not only on my understanding of the relevant laws, but also of God’s command to man to be responsible for the upkeep of the environment. The psalmist declares in Psalm 24:1, “The earth is the Lord’s and everything in it.” Psalm 115:6 says, “The highest heaven belongs to the Lord; but the earth he has given to man.” In other words, the earth belongs to God because he made it, and to us because he has given it to us. Not that we have absolute rights or control over it, but we are to rule over it on his behalf. In legal terms, we are mere tenants while God is the Landlord. Unfortunately, there is very little teaching in churches today on what I call the ‘fiduciary responsibility’ or trust endowed upon man by God the Creator-a charge “to fill the earth and subdue it” given from the very beginning. As God’s representatives in the creaturely realm, we are stewards of God’s creation. We are not to exploit, waste or despoil creation, but are to care for it and use it in the service of God and man.
I have always wondered why it is NGOs like Greenpeace or Friends of the Earth that are at the forefront on this vital issue. Why is it that there is no response from the Christian community-not even a whisper?
While attending a conference in Japan in 1991 on the land rights issue in Sarawak, I was moved by the commitment and zealousness shown by non-Christian NGOs. They publicly defended and fought for the cause of the Penans in Sarawak; they even fasted one day during the conference. To my relief in mid-2004, The Human Rights Commission of Malaysia (SUHAKAM) made a declaration that the issue of native rights over land in Sarawak is a human rights issue and expressed grave concern over any violation of this right.
My personal reading of the warnings and teachings of the prophets against injustice in the time of Amos and Habakkuk-in particular, the outright oppression of the poor and defenseless-have created in me a resolve to continue on the path I took 17 years ago. And in the words of the great poet Robert Frost, I have no regrets taking the less travelled road.
In a recent incident, some natives were stripped naked and locked in a police cell for a night, they were released the next day without any explanation. This was an outright violation of human dignity and an act of oppression as the natives were rightfully protesting against the destruction of their crops and vegetable gardens the day before by contractors of a developer who was given a lease to develop the surrounding lands for an oil palm plantation. At the latest dialogue with SUHAKAM in Kuching in April 2004, natives expressed confusion as to what amounts to a criminal act. They noted that investors or companies need only to lodge a trespass report, and the police would promptly apprehend the natives. But when natives complain of violations of their lands, the police are slow to act. Often their response is, “Leave it to the court.” According to Borneo Post on 25 November 2004, SUHAKAM found that there were about 100 police reports lodged by the natives against companies trespassing on native lands in Lundu, Kuching alone; the police not only took no action but those who made the reports were interrogated like criminals. Where is the justice in this?
Many years ago, the police force was taken to court for the unlawful arrest of 42 Kayan natives from a village in the upper Baram River, for protesting against the intrusion by loggers upon their native customary lands. They were remanded for 14 days at Marudi police lock-up without a valid remand order. The police lost the case. At least two other cases involving natives and police shooting that occurred in Sarawak in the last six years remain outstanding. To many of us natives, the land is indeed our life, our flesh and blood. Without it, it is as good as taking away the lifeline, not only of the present generation but of the future generations as well.
In March 2001, I derived great satisfaction from the judgment handed down by the High Court in Kuching in the landmark case referred to as the Nor Nyawai’s case. In that case, about 900 hectares of native customary land belonging to the Ibans in the Bintulu area had been included in the provisional lease granted to a company for the purpose of planting acacia trees for paper production. The High Court went against the Government’s definition and understanding of NCL, and expanded it to include not only farmland (temuda) cultivated before 1 January 1958, but also territorial domain (pemakai menua) which consists of hunting and fishing grounds for natives and preserved forests areas (pulau) within the territorial domain surrounding their village. Throughout the trial, which lasted six weeks, the testimony of witnesses secured by the opposing team surprisingly fortified the case in favour of the natives, confirming the arguments regarding native customs and adat. The Defendants immediately appealed against the High Court judgment. The appeal was heard in March 2004, and the parties are now awaiting the decision of the Court of Appeal. I urge you to pray for a just and fair judgment-one that is in conformity with the law.
For now, Nor Nyawai sets the legal precedent on NCR issues in Sarawak. I hope it will be the catalyst to invoke changes in the law accompanied by strong political will to address the land rights issue of the natives. This is my prayer to the Lord: “Let justice roll on like a river, righteousness like a never-failing stream, in Sarawak the Land of the Hornbills, now and forever.”
Postscript: The appeal by the State Government was allowed on the ground that there was no concrete evidence to support the natives’ claim that the area in dispute was a pulau. Nevertheless the customary and legal concept of what comprises NCR over land had been affirmed by their Lordships. Shortly after the decision of Nor Nyawai in the High Court, another case originated from Miri, Sarawak, referred to as Madeli Salleh v Superintendent of Lands & Surveys & Anor  3 CLJ 697 (Madeli’s Case) was pending in the Court of Appeal. Having lost in the High Court, the appellant, a Malay (considered a native under the laws of Sarawak) argued and referred to the High Court’s decision in Nor Nyawai, adopted the legal concept and arguments and won. The State Government appealed to the apex Court, the Federal Court of Malaysia. Because Madeli’s case relied wholly on the decision in Nor Nyawai, the State Government specifically requested the Federal Court to review Nor Nyawai decision and argued that Nor Nyawai was wrongly decided. In 2007, the Federal Court dismissed the State Government’s appeal and affirmed the decision in Nor Nyawai. The Sarawak State’s Government made a second attempt to reverse the decision in Nor Nyawai by applying to the Federal Court for a review of the earlier Federal Court’s decision but to no avail, thus settling and upholding once and for all the decision of Nor Nyawai. —- Barubian @ http://www.barubian.net