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 Asiapre-existing rights to lands, based on their customary practices as evidencedby their existence as a community surviving on the land. It also recognisedthe customary tenure involving the pemakai menoa. The term pemakaimenoa refers to an area of land held by a distinct longhouse or villagecommunity exercised within a garis menoa – territorial boundaries betweenvillages marked by rivers, hills, clumps of trees or other natural features.Under Iban custom, each longhouse has a territory over which a communityexercises control. The pemakai menoa includes: the tana umai (cultivatedlands- farms and gardens), temuda (formerly cultivated lands at variousstages of young wild growth), tembawai (old longhouse sites) and pulaugalau, a forest reserve or land that is left uncultivated, which includes anarea of forest whether wholly or partially surrounded by temuda forcommunal use. Such communal use areas include those for the supply ofnatural resources such as rattan and other jungle produce, water catchmentareas, hunting and fishing areas, and land reserved to honour a distinguished(deceased) person. A pulau may be owned by a single village or sharedbetween two or more village communities.The recognition of the Iban customary practice of pemakai menoa wassignificant because it epitomised the existence of traditional forms ofoccupation, albeit not specifically enumerated under the five limbs of s 5 ofthe Land Code. Despite increasing comprehensive regulatory legislation,Ian Chin J found that customary rights associated with the terms temuda,pulau and pemakai menoa had not been abolished by the code or any otherstatute but had survived through the Brooke orders and ordinances of thecolonial period up to the present day. The Ibans were acknowledged to be“rightfully in possession of … [their customary land] right”.On appeal, the defendants contended that those rights must be recognisedby statute. They argued that recognition of NCR under the Land Code 1958had to be through the creation of temuda (the felling of virgin jungle forcultivation and left to grow into secondary jungle) and not simply byroaming or foraging. It was also argued that the terms pulau and pemakaimenoa did not appear in any of the statutes, nor in the codified Iban Adat.53
Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast AsiaOn July 9 2005, the Court of Appeal granted the appellants’ appeal againstthe grant of compensation to the plaintiffs 43 on the grounds of insufficientproof of occupation in the disputed area. It was acknowledged, however,that they had satisfied the test for NCR in the adjacent area. It appears thatthe proof required was that of actual ‘cultivated areas’ or temuda withoutreference to other aspects of the traditional methods of occupation. Notably,the Court of Appeal 44 did not refute the High Court’s finding that the Ibanconcept of pemakai menoa did exist.This case is a clear illustration of how the body of indigenous traditionalknowledge that relates to the social and physical aspects of indigenousexistence, and to ceremonial practices that govern their relationship with theland within their own peculiar cultural practices, may not necessarily becontained in written codes. Often, as was the case in Nor Nyawai, theevidence took the form of oral narratives and stories of occupation. In manyinstances, the evidence of indigenous occupation and connection with theland would be evidenced in their narratives, the indigenous taxonomy ofrivers and sites on the land, stories, songs and ballads. Their songs andstories speak of peoples’ proprietary rights, responsibilities on the land andtell of regimes that govern relationships to the land. 45 These provide anindigenous perspective that must be given weight, even in litigation. Thisbrings us to the evidentiary standards required to prove customs in whichrights are anchored. Clearly, “stories matter.”In the celebrated Canadian Supreme Court case of Delgamuukw v British43 Superintendent of Lands and Surveys, Bintulu v Nor Anak Nyawai and Ors.‘Borneo Pulp wins Appeal Case on NCR Land’, The Sarawak Tribune, Saturday, 9July 2005, 3.44[2006] 1 MLJ 25645 Borrows J (2001) writes on the importance of oral history as a valuable source ofinformation about a peoples’ past. Despite its value, there are particular challengeswith regard to admissibility and interpretation. He highlights the need for the courtsto be sensitive to the factual, social and psychological context within which alitigation arises. A judicial inquiry in context is necessary so that oral history isplaced on equal footing with other types of evidence.54
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Divers Paths to Justice - English - Forest Peoples Programme

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