Time for Sarawak natives to bring out the tiger in them?

By Apang

The High Court rejects the state government’s application for a stay of the ground-breaking Agi judgment. NCR landowners are not to be denied the fruits of litigation.

Harvest time arrives early in 2010 for the Native Customary Rights (NCR) landowners of Rumah Agi in the Sebauh district of Bintulu, Sarawak. The traditional rice harvesting has been supplemented by the yield of oil palm for the Iban folks of Rumah Agi this year.

The High Court in Kuching declared on January 21 that part of the lands given to Lembaga Tabung Haji, and subsequently contracted to a Sabah-based oil-palm plantation company, are NCR lands.

With hundreds of hectares of the NCR lands bearing ripening oil palm fruits, Rumah Agi Ibans have been busy harvesting, to claim back what they had lost. The Ibans have fought long and hard to exert their customary rights over their lands, which were first destroyed by loggers, and then grabbed by a government-corporation partnership.

However, this early harvest must be put in the context of a decade-long battle in court, and a 14-year struggle since the provisional lease over their NCR lands was issued by the Sarawak government in 1996.

In addition, immediately after the High Court judgment, all the losing defendants in the Agi lawsuit – the oil palm plantation contractors,the  provisional-lease landowners (Tabung Haji) and the Sarawak Government – filed an application with the Kuching High Court for a Stay Order on the January 21 judgment, to prevent the land from being surrendered to the fifteen Iban communities, pending appeal.

The High Court threw out the Stay Application on February 23, dismissing the flimsy arguments by the state government, Tabung Haji and Ladang Sawit Bintulu. The Iban communities are jubilant.

Downloadable Full Judgment –  AGI STAY JUDGMENT

Companies’ condescending attitude exposed

The arguments put forward by the companies and the Sarawak Attorney-General, through their highly-paid lawyers, speak volumes of the attitude and mentality of the Sarawak Barisan Nasional (BN) government, the companies and their legal advisors.

We ought to digest some of the key arguments used in the unsuccessful application for the Stay Order.

Sarawak BN’s partner companies insult Ibans

Let’s reproduce the four key grounds put forward by the oil-palm companies, partners to the state BN government. The companies were calling for a stay of judgment, so that the NCR land is not handed back immediately to the rightful Iban landowners.

The oil-palm companies argued that:

• the Iban plaintiffs would not be able to reinstate the estate in its original condition, or status quo;
• there would be damage to the oil palm trees, estate properties, main office and all other properties;
• the status quo of the present condition of the estate should be maintained at least until final determination of the Appeal, in order to avoid irreparable damage to the oil palm trees already planted;
• the consequent damages suffered by the companies would not be quantifiable with money.

What do the above arguments tell us about the attitude of the companies and their lawyers? How are we to interpret the above?

For a start, the companies insulted the traditional landowners, even though the landowners’ ancestors were farmers long before any of the defendants and their lawyers was born!

In essence, the Ibans were said to be unable to manage the oil palm plantation. In the imagination of the government and companies, the Ibans are savages who would destroy properties, and the Ibans cannot recognise the fact that they can derive continuing income from the fruit-bearing trees.

These three grounds of the Stay Application clearly reveal the condescending mentality of many sections of Sarawakian society towards the Dayak people.

As for the last argument, perhaps we in turn can be condescending towards the companies and their lawyers: by asking them to clarify which aspect of their plantation, an economic entity, cannot be quantified by money? Do these lawyers think the judge and the rest of us Sarawakians are three-year-old toddlers?

Ironically, the unquantifiable damages were of course suffered by the Iban NCR landowners, and not the rich companies. The Ibans’ traditions, culture, and customs were destroyed, together with their economic lifeline, to make way for the so-called “unquantifiable” plantation.

The landowners are perfectly capable of managing the estate, and capable of hiring consultants, if necessary. They are neither incapable nor savage, as the grounds of the application imply.

“Bigoted and misplaced”

As for the companies’ claims that a Muslim prayer room or surau on the NCR lands might be at risk without a stay of judgment, High Court Judge Linton Albert’s conclusion was entirely appropriate: do not try to bring your divisive religious bigotry to our shores!

The judge said this allegation that the surau might be damaged, leading to social unrest, was “most regrettably, an ill-conceived religious slant”. This argument relied on by the companies “must be deprecated in no uncertain terms because religious and social unrest have never happened in the state of Sarawak.”

“The greatest disservice anyone can do,” the judge continued, “is to parrot the propensity in other shores to perceive every irritant or inconvenience, real or imagined, as a threat to the survival of race and religion.

“This is something we can do without. The bigoted attempt to raise sympathy evoking (religious) matters is futile and woefully misplaced,” he said, to the delight of decent Sarawakians.

Sarawak BN Government’s arrogance

As for the Sarawak Government (the 4^th and 5^th defendants), among its few attempts at legal argument was one which revealed the BN’s arrogance, in paragraph 7 (g) of its application:

“The 4^th and 5^th Defendants have the option of exercising their statutory powers to extinguish the native customary rights (if any) of the plaintiffs over the area ordered to be excised or excluded, and unless the judgment is stayed, the rectification of the provisional leases and the possession of the said land by the Plaintiffs, would deprived the 4^th and 5^th Defendants of their rights and authority to exercise the powers conferred by Section 5(3) and (4) of the Land Code to extinguish such native rights so as to dispense with rectification of the Provisional Leases and the eviction of the registered proprietors therefrom which could give rise to further legal complications.”

Allow me to reproduce the reply by lawyer for the Iban plaintiffs, See Chee How, to close this article:

“The above is not ‘special circumstances’ as it was always open to the government to recognise the rights of the local natives over the disputed lands and offer them compensation.

“To now assert that they want a stay of the judgment in order to extinguish the rights of the natives tends to treat this Honorable Forum with contempt and nothing more than a surveying house for native lands.

“In any event, this ground reeks of ‘arrogance’ on the part of the Government, to put the natives through unnecessary expensive litigation when it is always open to the government to compensate the natives for their land.

“The application could be dismissed purely on this ground alone as it exhibits “mala fide” (bad faith) and contemptuous conduct of the applicants,” he said.

The judge was not amused by the state government’s stance, of attempting to use the government’s administrative powers to negate the High Court’s January 21 instructions.

“The fact that that is relied on as a ground indicates that the 4^th and 5^th Defendants are not above invoking the statutory power to frustrate the consequential order. It stands to reason, therefore, that on this ground alone, the stay ought to be refused because the court should not act in vain,” the judge ruled.

Long road ahead but bountiful harvesting now

As usual, this latest court victory is far from the end of the story. The defendants have already appealed, and another protracted legal battle will follow.

In the meantime, though, Rumah Agi NCR landowners have reported a bountiful harvest of oil palm fruits!

Hornbill Unleashed thanks Messrs Baru Bian Advocates and Solicitors for making the court papers available for public enjoyment.