DON’T APPEAL NCR CASES, SAYS SUHAKAM

Don’t appeal NCR cases, says Suhakam

KUALA LUMPUR May 29, 2012: The Government should not appeal court decisions which favour and recognise the customary and land rights of the orang asli in the peninsula and indigenous people in Sabah and Sarawak.

“In my view, if the Government is serious about respecting the land rights of indigenous peoples, it should not have appealed in some of the cases,” said Suhakam commissioner Jannie Lasimbang.

Among seven successful cases last year were the courts’ affirmation that:

• > Native customary rights (NCR) to land prevails under the common law and the state’s interests/rights must be subject to native rights;
• > Indigenous peoples have the right to be on land over which they exert NCR, even in forest reserves established under the Sabah Forest Enactment 1968;
• > Pemakai menoa (territorial domain) is recognised under NCR in Sarawak, meaning government agencies cannot enter, clear or carry out works on any part of the villagers’ customary land; and
• > The acquittal of three orang asli of stealing oil palm from Risda on land which they considered to be customary for foraging.

Jannie said this when asked whether the cases listed in Suhakam’s 2011 Annual Report were a positive development with regard to upholding native customary land rights.

Jannie, who is also the Chair-Rapporteur of the United Nations Expert Mechanism on the Rights of Indigenous Peoples, said the successful cases cited were significant and should set precedents.

“They are also important in giving a moral boost to indigenous peoples’ struggle for land rights and to bring about positive change to policies and laws in relation to such rights.”

Pointing out Suhakam had only highlighted the important cases, she said more courts in the peninsula had ruled in favour of orang asli rights than in Sabah and Sarawak.

In two unsuccessful cases, the Federal Court upheld the decision that NCR was extinguished for the Bakun Hydroelectric Project (Bato Bagi) and for a pulpwood mill which was never built (Jalang).

It said Sections 4 and 5(3) of the Sarawak Land Code (SLC) on extinguishment of NCR did not violate the Federal Constitution.

However, the court offered an “alternative remedy” for those who lost ancestral land to the state.

It said that although the SLC only mentions “compensation” and not “adequate compensation” as in the Constitution, the intention underlying the two provisions could not be distinguished, that is, compensation must mean adequate, fair or sufficient compensation.

By SHAILA KOSHY