Press statement on communal title & native title

The recent public discussions on the communal title system, PACOS agrees with the statement of former Lands and Survey Department legal adviser and registrar, Mr.Kevin Joibi, that the system can be misused to the detriment of Sabah's indigenous communities. Communities we work with, have experienced this misuse first hand, and one example would be the Murut community in Kampung Bigor, Nabawan. The villagers in Bigor experienced several of the situations brought up by Mr.Kevin Joibi.

In Bigor, the joint venture (JV) agreement tied up with the communal title was in English, and the contents were not translated or explained. Instead, the JV developer offered community members RM2,000.00 to sign it. They informed the community that they were signing to acknowledge the receipt of the money. The villagers only found out that the document was the JV agreement when development work started. The developer logged the Bigor area, including the villagers’ paddy fields, rubber plantation, fruit orchards, and water catchments. The land clearing also polluted the community's river. When the villagers protested the destruction of their food and water sources, the developer reported to the police that the villagers were preventing the developer from working. The police then responded by arresting several community members and kept them in lock-up for two weeks. The developer also prohibited the community from planting anything on their land. Now, the villagers have to go out to buy food because their previous farms and fishing areas were destroyed. They also have to depend on rain for drinking water, and the muddy river water for bathing and washing clothes. There is no doubt that the situation caused by the communal title caused a massive loss for the community of Kg. Bigor.

PACOS initially supported the communal title system under the pre-2009 version of section 76 of the Sabah Land Ordinance. Initially, the law was worded to allow communities to decide how to manage their territory within the title. However, an amendment to section 76 was made in 2009, which allowed communal titles to be “planned” by the State Government. This amendment was unclear and gave no information as to what ”plans” the government may impose. The “planning” imposed by then Sabah State Government was to tie up communal titles with one-sided JV agreements like that seen in Bigor. The JV developers then use the JV agreement as an excuse to exclude communities from their NCR territories and extract the natural resources there. By doing so, the government removed communities' freedom to plan and develop their lands at their own pace. It also exposed their territories to exploitation by irresponsible developers. This implementation is why PACOS now opposes the current communal title system.

PACOS initially supported the communal title system under the pre-2009 version of section 76 of the Sabah Land Ordinance. Initially, the law was worded to allow communities to decide how to manage their territory within the title. However, an amendment to section 76 was made in 2009, which allowed communal titles to be “planned” by the State Government. This amendment was unclear and gave no information as to what ”plans” the government may impose. The “planning” imposed by then Sabah State Government was to tie up communal titles with one-sided JV agreements like that seen in Bigor. The JV developers then use the JV agreement as an excuse to exclude communities from their NCR territories and extract the natural resources there. By doing so, the government removed communities' freedom to plan and develop their lands at their own pace. It also exposed their territories to exploitation by irresponsible developers. This implementation is why PACOS now opposes the current communal title system.

It is good that the Warisan Plus State Government has stopped issuing communal titles. However, the vague law that allows for this abuse to be repeated continues to exist without clear guidance. It is still open for misuse by any future state government administration.

Related to this, the State government must create a comprehensive policy regarding native customary rights (NCR) land. It is not enough to claim that an internal standard operating procedure (SOP) exists without making it accessible for public scrutiny. The law regarding NCR is found in the Sabah Land Ordinance. The courts have provided numerous guidelines on how to interpret these laws. However, these judicial guidelines do not seem to reach the department officers on the ground. Communities continue to experience hardships when their NCR claims are handled contrary to what has been decided in courts. Only after expending time and legal costs by appealing to the Court are these mishandlings solved. This situation shows an apparent weakness in the current system. Further, it strengthens the need for comprehensive guidance from the State Government.

The recent distribution of land titles also shows that the title issuance process can be completed without the extreme delays. However, the State Government must update its policy regarding the title conditions of native titles. At the moment, the title conditions focus too much on clearing and developing their lands. Communities continue to feel pressured by threats of land officers that their titles would be revoked if they do not do this. This policy ignores land use that does not involve clearings, such as water catchments and forest produce. The destruction of these natural resources due to the development-focused title conditions harm not only the title owners, but also the State as a whole. Many of these resources are used needed by the broader population. Water catchments, for example, supply water to a community and the State’s river system, which is pumped and treated for urban communities. If water catchments located in native titles are cleared for due to the title conditions, it impacts how much can be extracted from the rivers. When this leads to water shortages, mega projects such as dams are then proposed as a solution to this issue, to the detriment of rural communities, and the State's biodiversity.

Research has recognised that most biodiverse and abundant forests are located in Indigenous Peoples territories as a result of their unique resource management systems as their lives are closely knit with the environment. Unsustainable land development will lead to the loss of culture, traditional knowledge, and the health of these communities.