Maps aid in landmark decision to protect indigenous rainforests

On May 12th, 2001, the High Court in Sarawak, a Malaysian state on the island of Borneo, issued an extraordinary ruling that could have sweeping consequences for indigenous land rights around the world. After two years of litigation, the court upheld the customary rights of the Iban village Rumah Nor, finding the Borneo Pulp and Paper company (BPP) did not have the right to destroy Rumah Nor's rainforest.

This decision-which in no uncertain terms expands the definition of customary lands to include rivers, streams and communal forests -sets a significant precedent for native villagers seeking land rights in Malaysia. Prior to the ruling, only farmlands actively cultivated by forest dependent communities could be considered native customary lands.

Laws and legislation in Sarawak have chipped away at native rights to ancestral lands over the years. This recent decision has surprised and delighted indigenous groups. Meena Raman, a prominent Malaysian lawyer commented, "The court decision is a very major victory in terms of the jurisprudence on native rights. Let's hope that it will withstand any further appeals to the upper courts."

Immediately following the decision, both the Sarawak Land and Survey Department and Borneo Pulp and Paper company announced they would appeal the case. Yet in doing so, they will face significant pressure from indigenous Dayak groups who make up the majority in Sarawak and will likely make this a major election issue in coming months.

If upheld, the ruling could have broad implications for native land rights struggles around the world. Since legal precedents from British Commonwealth countries such Malaysia can be used in other Commonwealth countries, this case could be used to protect First Nations' lands in Canada or Aboriginal lands in Australia.

MAPS PROVE ESSENTIAL

The ruling would never have come about without years of hard work by local non-governmental organizations (NGO's) who have organized local communities and helped them understand and defend their legal rights. Rumah Nor was assisted by the Borneo Resources Institute (BRIMAS) and a legal team headed by lead council Baru Bian. A crucial piece of evidence in the case was a village map created by BRIMAS mapper Samy Anak Ising. Samy was cross examined for three days in the court room. In the end, High Court Judge Datuk Ian Chin Hon Chong ruled that while the defendants "demanded perfection" from the map, "such perfection was not necessary in proving who owned the land." He added that, "the map he produced is as accurate as it can possibly be given the equipment he has."

The importance of the map in the judge's ruling is vindication for The Borneo Project's mapping program. Over the past seven years, The Borneo Project has trained dozens of local mappers who have helped more than 50 villages map their lands. Samy Ising was one of many trained by Borneo Project volunteers.

This court ruling raises the stakes for community mapping. Currently over 20 native land cases are working their way through the Sarawak courts and the need for additional maps to prove native land rights in court has never been greater.

THE RULING

Two years ago, the Borneo Pulp and Paper Plantation (BPP) company began cutting down forests claimed by the Iban community of Rumah Nor. BPP had been granted a license from Sarawak's Land and Survey Department to create a one million hectare plantation to raise fast-growing tree species. Villagers from Rumah Nor were never informed or consulted about this, and when they discovered the harm done to their land, they sued to stop the logging and claim damages.

Given that recent laws and court decisions have favored industrial developers over indigenous farmers, the decision by the High Court comes as a shock. Judge Chin ruled that the BPP was no longer allowed to enter a disputed 672 hectare area and that BPP title to this area was null and void. He further ordered the Sarawak Land and Survey Department to rectify the BPP land title to exclude this area. Finally, BPP was ordered to pay all court costs incurred by Rumah Nor.

However, it was the legal reasoning of Judge Ian Chin that proved most encouraging for native groups. In a 96 page verdict, he ruled that indigenous land rights were in existence before any external power controlled Sarawak, and therefore such rights were natural rights and "not dependent for its existence on any legislation, executive or judicial declaration." He further ruled that these rights extended not only to areas farmed, but to all forests, rivers and streams within one half day's journey from a village longhouse, unless limited by the borders of other nearby villages.

Common practice in Sarawak requires communities to prove to outsiders their Native Customary Rights (NCR). As much as 50% of Sarawak's lands could be classified as NCR lands, but very few villages have cleared the legal hurdles needed to achieve official NCR status. Without official recognition, indigenous people are often treated like squatters on their own lands by loggers and plantation developers. Judge Chin, however, turned common practice on its head, ruling that land should be assumed to be NCR land, and the onus should be on other claimants to prove that they are not.

When considering arguments raised by the defendants, Judge Chin appeared sympathetic to the plight of indigenous people. For instance, the defendants argued that since a logging company cut down most of the large trees on Rumah Nor's lands in the 1980's, the village had already surrendered their forest rights to that logging company. The judge disagreed, stating, "...we must not forget that the natives consist of not only adults but children as well, and it is inconceivable that such children can be deprived of their rights just because the adults decide to sell some or all of the timber from a forest." He also ruled that the cutting of trees in the 1980's was the destruction of valuable evidence for determining the age of the forest, and that in future cases tree data would need to be collected and inquiries into land claims conducted before any logging could proceed. Currently, villagers often do not know their land is being logged until bulldozers and chainsaws are within earshot.

REACTIONS

Two hundred indigenous people were at the court when the lawyer for the plaintiffs, Baru Bian, read out the verdict. Many elders cried with relief. Village headman Nor Nyawai stated, "I am breathless and I simply cannot describe how happy and relieved I feel right now." The indigenous community is euphoric, and after the ruling villagers all over Sarawak participated in joyous celebrations for Gawai Dayak, the harvest festival held on June 1st.

News of the case is spreading largely through word of mouth, as mainstream media sources have down-played the decision. One major newspaper, the Sarawak Tribune, has blacked out the story all together. Yet media silence is not surprising in Sarawak, where most news outlets are owned by logging and plantation interests. Timber tycoons and politicians including Sarawak's Chief Minister have gained billions from logging and plantation development on native lands. This decision severely threatens future access to these areas.

Both BPP and the Sarawak Land and Survey Department announced their intention to appeal the decision. While the Appellate Court usually refrains from changing the main thrust of High Court decisions, they will face heavy pressure to overturn this ruling. In past cases in Malaysia, judges issuing rulings that strongly conflict with government interests have been forced to retire. In Sarawak, many wonder how far the government is willing to go to promote corporate profits at the expense of native rights. The appeal process will be a good test.

Approximately half of Sarawak's population is indigenous, so many steps by the government to oppose the ruling could be politically unwise. The opposition party Keadilan Sarawak has announced that they intend to make government opposition to the ruling a major issue in the election scheduled for later this year. Beset by troubles lately, the ruling party can ill afford to further alienate voters. Stepping across party lines, Sidi Munan, a leader in the ruling coalition, stated that all lands subject to native customary rights need to be excluded from industrial leases. "This will solve part of the problem over land," he said. An Iban himself, Munan represents a growing number of indigenous politicians who are dissatisfied with Sarawak's unfair treatment of native land rights.

While the full implications of this case may not be known for a long time to come, the short-term impacts have provided a boost to the indigenous and environmental movements, not only in Sarawak, but worldwide. Just as Judge Chin quoted precedents from Australia and Canada in making his ruling, this decision may be used by native groups in any of the 54 countries belonging to the British Commonwealth. Defendants for Borneo Pulp and Paper argued in their case that "the natives are squatters" on the land. While this argument mirrors government treatment of native people's land rights, thanks to Judge Chin, that argument is no longer legally defensible.