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 AsiaIn the following section on colonial land laws I examine four key momentsin Company rule regarding legal pluralism and native land rights. I begin inthe 1880s, tracing the emergence of legal pluralism under Company rule ascolonial officers tried to grapple with the inconvenience of native landrights while simultaneously trying to encourage European plantationagriculture. Next, I provide a case study from 1889 of a Dutch-ownedtobacco plantation that illustrates how the Company’s efforts to protectnative land rights, while nurturing the growth of commercial plantations,fell far short of the written policy. In the third section I explore the mannerin which Company officers convinced themselves that they had completed afull settlement of all native land rights in the early part of the twentiethcentury, despite clear indications to the contrary. Finally, I will brieflyillustrate how continued colonial paternalism was expressed in colonialpolicies in the mid 1900s that limited the natives’ ability to sell their landsto non-natives without approval of the State.The emergence of legal pluralism in the land codeWilliam Treacher, the first Governor of North Borneo, devoted much of hisattention to the abolition of slavery in the territory. His preoccupation withthis matter was in large part due to the urging of the Court of Directors andthe anti-slavery lobby in Britain. Consequently he gave scant attention toformulating land laws. 3 The first two pieces of land legislation that Treacherintroduced, Proclamation 23 of 1881 and the Land Proclamation of 1885,entirely failed to understand native customary rights to land. The onlymention of native rights to land occurred in Articles 26 and 27 of the 1885document, in which Treacher placed the ultimate authority over land in thehands of the State by refusing to allow natives to buy or sell land toforeigners, unless such transactions were mediated by the State. 4In many ways the 1885 Proclamation did more damage to native land rightsthan subsequent, more comprehensive legislation. This first law set thestage for later laws and established unequivocally that the State was the3 Black 1983:55-604 JSBRAS 1885:15883
Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast Asiaultimate authority over land. Furthermore, based on this proclamation,native rights to land would subsequently have to be arbitrated by the Stateand made compliant with the State’s broader agenda of economic growth.In 1888, Charles Creagh replaced Treacher as Governor. Creagh had seen aversion of the Torren’s system of land registration in operation in Perak andother Malay States. He urged for the adoption of the Torren’s system inNorth Borneo and called for urgent measures to protect native rights toland. 5 The resulting legislation, “Native Rights to Land” (Proclamation IIIof 1889), focused primarily on how native rights to land would be settledwhen applications by foreigners for “waste land” were received. Thelegislation stated that as soon as the boundaries of the land application weredefined, it was the duty of the district officer to inform the native chiefs inthe area about the new foreign application for land. They should then submitto the district officer all native claims that existed in the area under theforeign application. Once the district officers had received these claims inwriting, a land registry would be compiled and native lands would besurveyed and delineated with boundary markers.If native rights were determined to be legitimate by the district officer, theycould be settled in one of two ways, both requiring government sanction.5 Black 1983:109The Torren’s system of land registration was developed in the 1850s for use in SouthAustralia. It involved title to land by registration rather than by deed; land registerswere maintained by the government. Land in the registers should be accuratelydescribed and the records should to be kept up-to-date. In principle a title or deedwould be issued eventually to all the owners of lands on the register. One of thebenefits of this system from the State’s perspective was that it quickly – and with theleast amount of expense on the part of the State – produced revenue in the form ofland taxes (Wong 1975: 16-20). Furthermore, the Torren’s system was perceived asthe most appropriate way to register land in a largely illiterate society. As onecolonial officer in North Borneo wrote, ‘A man of the smallest intelligence andeducation can buy, sell, and mortgage land without the intervention of a lawyer. It isthis fact that makes the Torren’s system eminently suitable in countries where manylandowners are Natives or Chinese’ (A. C. Pearson, ‘Report on land administration’,1909, CO 874/796).84
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