Divers Paths to Justice - English - Forest Peoples Programme

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Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast Asiaclaim customary rights to but on other vacant State land, and 3) issuance ofcommunal titles might be contingent on community leaders agreeing toenter in joint commercial ventures between communities and State or quasi-State agencies aimed at developing commercial agriculture.In sum, from the perspective of native peoples it could be argued that thenew communal titles are not full titles that recognise customary land rights.Instead communal titles can be seen as a way to control the nature ofagricultural development on native lands and to limit individuals’ ability tomake their own decisions regarding land development. Furthermore, sincethese titles cannot be sold, they appear to ensure that natives will stay inmarginal positions on their land. It could be argued that these communaltitles are a very limited form of ownership that serves the State’s interestmore than native peoples’ interest.The explanation for the need for communal titles over native titles isexplained in an article called “Musa Aman’s stroke of Genius”. The articlebegins:Chief minister (sic) Musa Aman wants to give land tothousands of extremely poor landless native villagers. But hefaces a dilemma: the land is sold for a song to smooth-talkingbusinessmen as soon as his government has given it to them.The villagers leave their home to spend their money in towns.Having spent it all, they are poor and landless again as they aredisplaced by new landowners. His solution: his Stategovernment will give villagers thousands of hectares ofagricultural land. They will get a communal title… whichgives them joint-ownership of the property. They can developthe land but cannot sell it. 50Just as colonial treatment of native peoples was based on the notion thatnatives needed to be protected from the vulgarities of the commercial world,today’s politicians in Sabah believe native peoples will be quickly dupedout of their land by more savvy businessmen if they are not protected by the50 Insight Sabah 2010101
Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast AsiaState.Turning again to newspaper coverage, we can see that natives have beenquick to draw attention to these shortcomings in communal title and jointventures. One article explains the conflicts over native land rights asfollows:Today, the natives of Sabah have to compete for landownership with the powerful and politically connectedcorporations, and have often become victims of acquisition ofState land by government agencies. These include SAFODA,SLDB … and corporations that are eyeing land resources andjoint ventures with private companies under the guise of publicpurpose and development. 51In general, native peoples seeking recognition of native customary landrights rejected the offer of the Department of Land and Survey forcommunal title since it restricted their rights to sell the land and potentiallyrelocated them, as in the case of Tongod, to “steep and hilly terrain unfit forcultivation”. 52This is not to say that no native will benefit from the communal titles. Thereis potential in this opportunity. Yet as Malaysia’s Human RightsCommissioner, Jannie Lasimbang has commented, there are many “greyareas” in the communal land titles that need clarification. 53ConclusionIn this paper I have shown how native customary laws were treated by the51 Kaung 2011SAFODA (Sabah Forestry Development Authority) and SLDB (Sabah LandDevelopment Board) are semi-governmental agencies in Sabah with the mission todevelop the forestry and agricultural sector.52 Kaung 201153 New Sabah Times 2010b102
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Divers Paths to Justice - English - Forest Peoples Programme

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