Press Statement: 28 April 2008

INTERNATIONAL FACT FINDING MISSION FOR NCR LAND RIGHTS

The International fact finding team consisting of Justice Pana Chand Jain of Centre for Community Economics and Development Consultants Society (CECOEDECON) from India, Ravadee Prasertcharoensuk of Sustainable Development Foundation (SDF) from Thailand and Debra Erenberg of Rainforest Action Network (RAN) from the United States visited over 19 communities consisting of 70 villages and long houses and met with about 825 people from the north to central and south of Sarawak and found that there was continued and systemic organized aggression on indigenous peoples land and rights.

The IFFM team established through interviews with the people, through documented evidence provided by the people and through evidence found in the form of graves, fruit trees and cultivated land that the land areas claimed by the people are native customary rights to land (NCR). There is a pre-existing right.

The team is of the opinion that since the lands are native customary lands through continuous customary practices of cultivation for generations, the land cannot be taken away from the indigenous peoples by the state government nor be leased out to private companies for plantations. This strategy and action constitutes gross violation of indigenous peoples’ rights to NCR land.

The Sarawak Land Code [CAP81] clearly recognizes the NCR lands and has defined the elements that give recognition to native customary rights to land. Further to this the Federal Court decision of Madeli Salleh vs government of Sarawak states very clearly that the customary rights of inhabitants were recognized and accepted by the British crown when it governed Sarawak. It became part of common law. These customary rights therefore are part of common law and thus must be recognized and protected.

Land is life and guarantees the peoples livelihood. The Federal constitution ensures the right to life and livelihood. Thus when the land of the indigenous people are taken away, then their livelihood is gone. As a consequence, it violates the constitutional rights of the indigenous peoples.

Therefore, the IFFM team reiterates that the indigenous peoples struggle to their land is legitimate. It is the responsibility of the state and federal governments to recognize the NCR to land and livelihood. The state can no longer lease indigenous peoples land to lease out for plantations or contract farming to companies.

The current intensive and extensive violations of the NCR land is bringing about devastating impact on the lives of the indigenous peoples. The development of oil palm plantations at a rate of 7% covering more than 40% of land in Sarawak has tremendously reduced food production; destroyed the rivers where communities depended on the fish; the pollution of the rivers, particularly with highly hazardous pesticides and the environment has affected the health of communities with increase in diseases.

The insatiable expansion of this monocrop has destroyed the forests with the resultant loss of biodiversity that has even further affected the dependence of the indigenous communities for their livelihood. With the imminent global crisis on food, the indigenous communities will further face impoverishment and poverty.

The use of palm oil for agrofuel is a threat to food production and is one of the contributing factors of the current global food crisis. The increase demand for agrofuel has led to intensive expansion which has brought about deforestation, consequently impacting on climate change. It is crucial that Sarawak protects the rainforest as the last few rainforests left in the world.

We are very concerned that the increased violence and harassment on the indigenous communities especially on the leaders by the companies involved in expanding the plantations. Such form of violence can only intensify the conflict without a due process and a people centered conflict resolution. It therefore demands people’s participation through a democratic process for peaceful resolution.

Signatories:
Nicholas Mujah
Secretary General, Sarawak Dayak Iban Association (SADIA)

Irene Fernandez
Director, Tenaganita

Sarojeni Rengam
Executive Director, Pesticide Action Network Asia & the Pacific (PAN AP)
Co-director, People’s Coalition on Food Sovereignty (PCFS)

Background Information

The state of Sarawak is the largest state in the Malaysian federation located in the island of Borneo. Relatively under populated, one of the greatest assets of the state is land. Of the 2.2 million people in Sarawak, 60% belong to indigenous groups that are collectively known as the Dayak people who primarily inhabit the countryside having settled in the area for centuries. It is in the exercise of NCR over land rights that has brought the Dayak community in conflict with the oil palm industry and the state government. Until recently, NCR land rights was granted both de-jure and de-facto recognition under the Sarawak Land Code of 1958. A series of amendments to the Sarawak Land Code in 2000 further limited the scope of interpretation of NCR land rights and the exercise of the same.

RECOMMENDATIONS OF IFFM

Preamble:
To recognize and acknowledge pre-existing rights of indigenous people to their lands. These rights cannot and shall not be extinguished by any law or institution.

To The Government

1.	The federal government of Malaysia shall undertake to revise inconsistent existing laws in order to abide by Article 5 of the Federal Constitution of Malaysia, which enshrines the guarantee of right to life for every inhabitant of its land.
2.	To uphold Native Customary Rights (NCR) as guaranteed under the Sarawak Land Code (1958) and to recognize the NCR status of all affected parties who can prove the existence of their claim to these rights under “Adat”.
3.	The government of the state of Sarawak shall respect and abide by the case precedent established by the Federal Court of Malaysia’s decision of Madeli Salleh vs government of Sarawak, which states very clearly that the customary rights of inhabitants were recognized and accepted by the British crown when it governed Sarawak. It became part of common law and therefore, shall be recognized as being a fundamental right.
4.	The government of the state of Sarawak shall undertake to cease the issuance of “provisional leases” (PL) for NCR disputed land with immediate effect.
5.	The federal government of Malaysia shall recognize the relevance of all covenants and instruments on human rights and make haste to ratify and to conform to all these said charters.
6.	The Declaration on the Rights of Indigenous People (DRIP), which was accepted by the United Nations in September 2007, serves as guidelines to government on protected areas globally as it clearly calls for the recognition of the rights of indigenous people with regard to their lands on territories and resources that falls within protected areas, and shall be taken into account in addition to other world conservation unions.
7.	The government of the state of Sarawak shall undertake to provide protection for the safety of indigenous people to stop them from all forms of harassment, intimidation and threats of physical and bodily harm that arises from land disputes.
8.	In instances before NCR land is requested for commercial development via partnerships with governmental agencies and/or private sector initiatives, it shall be an imperative condition that free, fair, prior and informed consent be obtained from the affected communities in accordance to the principles of transparency, the principle of right of access to information and the principle of the inherent right to know by all parties involved.

To The Companies

9.	The Principles & Criteria (P&C) for Sustainable Palm Oil Production established by the Roundtable on Sustainable Palm Oil (RSPO) shall be the mechanism to regulate the oil palm industry. Adherence to the P&C shall be mandatory.
10.	Food crops, including palm oil, shall not be used as a source of agrofuel at the expense of food production.
11.	Companies shall recognize and uphold NCR and the assertion of such indigenous people’s rights on their lands and territories.

To The Global Community

12.	12.International NGOs and media groups should be engaged to educate the public about abuses perpetrated by oil palm companies and the state government on:
	(a) Indigenous communities’ right to life
	(b) Destruction of forest reserves, biodiversities and the wildlife
	(c) Negative impacts of agrofuels
13.	Solicit international support for indigenous people by initiating an online petition to champion their struggle.