Talking Points. Topic: Land-related Problems in Sabah.

Illustration 1: Tan Sri Simon Sipaun

Date: Monday 30 January 2012. Time: 2 pm. [ Speaking time 20 minutes followed by 10 minutes for questions and answers ] Venue: School of Social Sciences, UMS. Mr. Chairman, Mr. Moderator, Paper presenters,

Participants, Ladies and gentlemen. The topic originally assigned to me was Land Rights, Native Rights and Human Rights : The Proposed Kaiduan Dam and the Violation of Sabah State and Native Rights by Outsiders which is quite a mouthful. I am not privy to the background information leading to the proposed dam. I also have no access to detailed and statistical information regarding alleged violation of rights by outsiders. I therefore feel that it would be more appropriate and meaningful if I utilize this forum to share with you some of my thoughts, observations and perceptions on land-related problems based on my personal experience especially during the 10 years that I was with the Malaysian Human Rights Commission, popularly known as Suhakam. I will also make some specific suggestions on how some of these problems could be resolved. Following my presentation I will be delighted to respond to

questions, views and comments from the floor. 2. For your information, I was appointed as Suhakam Commissioner with effect from 24 April, 2000. I was elected its Vice-Chairman with effect from 13 October, 2003 until 25 April, 2010. During the period Suhakam Sabah Office organized a programme called Suhakam Bersama Rakyat in 29 different districts throughout Sabah. It was essentially a road show to create awareness of human rights and to hear and receive complaints from the general public. I do not remember visiting any district in which land related problems were not raised. For 10 long years Suhakam had been listening and receiving a litany of grouses and complaints. During the same period Suhakam had been referring the complaints together with its recommendations to the relevant State Government departments and agencies. Some of the problems were attended to and resolved. Unfortunately, the majority remain unresolved until today. I am happy that Suhakam continues to focus on land matters

and is now in the midst of conducting a National Land Inquiry throughout the country. Suhakam deserves to be congratulated for this initiative. For the record this is the first inquiry of its kind to be conducted by Suhakam. As part of the National Inquiry a public consultation was carried out by Suhakam in Sabah from 17 June to 5 July last year [2011]. A total of 2,875 people attended the consultation exercise. 407 people submitted land related complaints in writing either individually or as a group. 3. Land and forest come under the full jurisdiction of the State Government. People especially in the rural areas are very much dependent on land for their livelihood. The relationship between people and land is very close, almost sacred. If the relationship is disturbed, a very emotional response is triggered. The literacy standard of the rural people also tends to be generally low. This being the case, their understanding of government legislations, rules, regulations,procedures, policies

etc is very limited at best. Poverty is also common and the standard of living is low. Their access to health and educational facilities, if any, is very limited. So is their access to legal remedy. They cannot afford lawyers when they are left with no other option. When we hear of them winning cases in court, more often than not they would be defended by lawyers who offer their services on a pro bono basis. Article 3 of the Universal Declaration of Human Rights provides that everyone has the right to life, liberty and security of person. Without life there will be no one to enjoy any right. The life of the people who depend on land for survival is threatened when his right to land is violated. Right to life is the mother of all rights. I have once described the Sabah situation as the weak, voiceless, poor and marginalized were being punished and victimized whilst the strong and well-connected were being assisted. I was particularly thinking of the people who are experiencing problems associated with land issues.

4. Accordingly Suhakam Sabah Office organized several forums, roundtable discussions, dialogues, meetings etc on land matters. I remember a forum held in KK on 16 August 2004 on Native Customary Land Rights. Suhakam expected between 40 and 60 participants. As it turned out, the forum attracted more than 500 very enthusiastic participants. This reflected the gravity and seriousness of land-related problems in Sabah. 5. Land issues in Sabah can be divided into 3 broad categories as follows: i} For the lack of better term I call the first category administrative. This includes lack of response or delay in responding to land applications, later applications being entertained or approved at the expense of earlier ones, delay in surveying etc. One of the main causes of this problem is related to the work culture and attitude of civil servants. Let me give a couple of examples. Haji Rashid Bin Burut from Sepanggar came to the Suhakam Office in KK for assistance on 20 December, 2004. At the time

he was 69 years of age. His 7.68 acre land was acquired compulsorily by the State Government for a low cost housing project on 15 September 1973 to be implemented by the Lembaga Pembangunan Perumahan dan Bandar [LPPB]. He was compensated with another piece of land of equivalent size. His complaint was that every time he went to the LPPB he was advised to go to the Land and Survey Department and vice-versa. He was told by both agencies that the title of the land as his compensation was not ready. This went on for 31 years ! This is hard to believe but true. Then he heard of an organization called Suhakam and someone suggested to him to bring his case to Suhakam. Immediately Suhakam took up his case. Usually government departments and agencies are quite responsive to Suhakam because they are afraid that cases affecting their organizations may end up in the newspapers. Within 2 days Suhakam was informed that the mans land title had been waiting for collection for a long time. The only

problem was the officers who met with Haji Rashid never bothered to check the actual position. I suspect the easiest way to get rid of him every time he appeared was to give him the standard reply geran belum ada lagi. The second example is associated with the Desa Monteki incident in Kundasang. This involved a 74-acre piece of land which had been occupied and cultivated by villagers beginning in 1985. In 1989 they submitted their land applications based on native customary land rights. To their dismay, the same piece of land had already been alienated to a company, Desa Highlands Sdn Bhd, which submitted its application only in 1992 which was much later. To add misery into injury, the company was assisted by the police to evict the villagers. In the process 18 villagers were remanded for 14 days. Based on their allegation of violation of human rights during detention Suhakam conducted a public inquiry from 11 to 14 February and from 4 to 6 March 2004. I am given to understand that

there is no indication that the land had been developed by the company. If that is the case the State Government should examine the terms and conditions for alienation to ascertain if they have been complied with. If not there could be grounds for the land to be reverted to State land and the original settlers should be given top priority. Similar cases are quite widespread throughout Sabah. ii} The second category is related to forest reserves, Sabah parks, water conservation areas, settlement schemes and large scale commercial developments. The main complaints are that people have settled in the respective areas long before they were gazetted for their respective use. iii} The third category is a combination of categories i] and ii]. These are mostly combination between administrative and settlement scheme, commercial projects, commercial intrusions, forest reserves, Sabah parks and dam constructions. There are also cases involving forest reserves and

settlement schemes such as areas which were taken over by SFI. 6. Why do land-related problems continue to persist? It is not as if no one has ever suggested how the problems could be minimized or even eliminated. In fact recommendations after recommendations have been submitted to the State relevant authorities. Unfortunately, at the same time the problems continue to subsist and more often than not get more complicated in nature judging from the complaints received by Suhakam alone. Other agencies also receive complaints on landrelated issues. These include the Federal Complaints Bureau, State Complaints Bureau, Land and Survey Department, Forest Department, Ministers, political and community leaders etc. I believe the answer is that there is lack of political will and usually personal and vested interests prevailing over general and public interests. 7. In conclusion, let me make the following suggestions:-

i) Civil servants involved in land and forest administration should have a more caring attitude, be human rights compliant and observe and practice the golden rule do unto others what you would like others do unto you. This could be achieved through suitably designed training program. ii) The Sabah Land Ordinance (Cap 68) (SFO) should be reviewed and amended to eliminate ambiguity and confusion. A workshop could be organized to bring together experts, complainants representatives and other interested parties to identify the changes needed. For example, Section 13 of the SLO provides enquiry as to native rights. It states upon the receipt of any application for un-alienated country land (ie state land) it shall be the duty of the collector to publish a notice calling upon any claimant to native customary rights in such land who is not yet in possession of a registered documentary title to make or send in a statement of his claim within a

date to be specified in the notice. However the law does not specify the method how the collector should display the notice. He could place the notice in an obscure place where no one would notice it. iii) Multiple land applications should not be entertained in respect of the same piece of land. If the first application is rejected the applicant should be informed the reason for rejection before the next application is considered. Section 70(i) of the SLO actually provides for this but obviously not complied with in practice. ( elaborate, if necessary) iv) Assistant Collectors of Land Revenue should not be allowed to stay in the same place longer than 3 years. v) An independent mediator should be appointed to examine and make recommendations how to resolve outstanding land disputes. vi) An independent expert should be engaged to identify the root causes of the problems related to land and forest and make recommendations to

resolve them. vii) The capability and capacity of officers and staff involved in land and forest administration and management should be upgraded on a regular and continuous basis and making them more human rights compliant. viii) There should be zero tolerance stance on corruption in all the relevant departments and agencies. ix) An independent committee should be appointed to look into the grouses and complaints of those whose applications for land have been rejected. x) The valuation section in the Land and Survey Department should be separated to operate as a separate department in its own right. xi) The rural communitys understanding of legislations and policies associated with land and forest should be upgraded by having road shows throughout the State. xii) Land and forest administration and

management should be made more transparent and close consultations with the affected community should be carried out as and when a project is planned and implemented such as the construction of dams, gazettement of forest reserves, water catchments, wild life conservation, Sabah parks, settlement schemes, commercial and agricultural projects etc. xiii) Enforcement authorities should take immediate action as soon as encroachment occurs and not wait for settlers to be fully established and in some cases when the crops such as palm oil and fruit trees are already ready for harvesting. xiv) The State Government must ensure that in any gazettement exercise no human habitation exists and included in the area to be gazetted. In other words it should be pro-active and not re-active. xv) In cases of land being compulsorily acquired by government, compensation should be paid without undue delay.

8. Let me stop here as I think I have consumed my 20 minutes. However I will be happy to respond to questions from the floor, if any. Thank you for your kind attention.