NATIVE landowners in Sabah have only themselves to blame if they eventually end up landless and are forced to seek refuge in the shanty towns littering urban areas. Ignorance of the law is no excuse and inaction in the face of encroachments onto their land is the sure path to landlessness.
This is the stark reminder that land rights and green activist, Kong Hong Ming, has for participants at well-attended training workshops and seminars for native landowners conducted by Pacos (Partners of Community Organisations) Trust Sabah.
Kong was also briefly a state minister during the BN administration (1994-1996) and is presently the Sabah PKR deputy chief.
“Simply doing nothing and hoping that those who want to take your land away will disappear one day is not an option,” said Kong at the end of a two-day Pacos workshop over the weekend in Kota Kinabalu for 200 native landowners from all over the state and a delegation of Orang Asli from Perak.
“You as the native landowners must take the initiative and fight for your land and rights. Don't expect someone else to do it for you. That will prove very costly in the long run.”
Kong, a senior practicing lawyer himself and formerly an engineer with the government for 10 years, advised native landowners not to immediately seek the help of lawyers or the courts to press their land claims. These are the last options, not the first, added Kong.
“Even worse, there are people who keep running to this legislator or that legislator, getting them to write letters here and there. Nothing will come from all this. Don't go to the political parties and waste your time. They are not familiar with the issues involved.”
Fought many legal battles, won only one
Citing from his own experience as a lawyer, he said that he had fought many battles in court on behalf of native landowners.
The judgment of Justice Ian Chin in the Rambilin case decided in September 2007 was the first landmark decision on NCR claim for the natives of Sabah.
(Justice Ian Chin also delivered another landmark judgment in NCR in the Nor case in Sarawak which was upheld by the Federal Court)
In this case, justice Ian Chin ruled in favour of his client Madam Rambilin Binte Ambit, a widow left some land by her late husband.
“This is the first time that a big company lost against a small landowner,” continued Kong.
“The difference between the Rambilin case and the other cases is that in the former I based it on common law from Malaysia, from Australia and many other countries. In the other cases, I based it on the Land Ordinance, which is a deadender for native landowners when it comes to taking on the big companies.”
Kong cautioned against native landowners rushing to judgment by using common law arguments but rather consider it as the last resort assuming other aspects of their cases are in order.
Kong explained that to establish native customary rights (NCR) over land that doesn't belong to a private party or the state, a claimant must have had a house erected on the land in question and dwelt there for at least three years, undertaken agricultural activities for a similar length of time and planted at least 50 trees to a hectare.
“This is all you need to do to establish your claim as natives to NCR,” explained Kong who fears at the back of his mind that somehow things may be too late for far too many people in the state. “NCR land can also be passed down under Section 15 of the Land Ordinance.
“Remember that you (native landowners) have been here in Sabah long before Malaysia, before the British, before the British North Borneo Chartered Company and certainly before any government was formed. You have your 'adat' (customary rites) to protect you. The constitution allows space for 'adat'.”
Establishing NCR claims is not enough however, warned Kong, “and constant and consistent efforts must be undertaken to maintain the validity of any such claims in the face of encroachments by other individuals, companies and even the government. There will be attempts to divide you. Stay united and think of the future of your children, grandchildren and generations to come.”
Practical steps to hold on to NCR land
Three steps must be taken to ensure that NCR claims are not eroded by the passage of time, encroachments and inaction on the part of native landowners, according to Kong:
1. 'Bantahan' (protest) to the Land Office in the case of encroachment by parties who don't have a NCR claim to the land in question;
2. Ask the Land Office officially in writing, as per the proper format, for a 'siasatan awam' (public inquiry); and
3. As a last resort approach the courts.
“Get the Land Office to acknowledge receipt of every written communication with them,” advised Kong.
“Files and documents can go missing and Land Office staff may be on the take from others who are after your land. This has been proven in many cases in the past.”
The Land Office, said Kong, can and may ignore requests for a public inquiry “owing to ignorance, apathy, pressure from people after NCR land or because of its reliance on the Land Ordinance only.”
However, native landowners need not worry. All they need to do is to make three attempts, at three-month intervals, to have a public inquiry held and, in the event of repeated failure, approach the courts.
“There are lawyers who can help you with matters like these,” said Kong. “I myself have handled many cases. In none of the cases have I taken even a single sen – the kampung people are too poor – nor taken even an inch of land in return.”
Kong rushed to assure the surprised gathering that his only interest in the matter, as a social activist, was “to ensure that the natives don't end up losing their land to become refugees in their own country and squatters in the shantytowns in urban areas populated by illegal immigrants”.
“All this will happen, if they are not already happening, if you are not very careful,” predicted Kong bleakly.
“In the worst case scenario, short of the confiscation of your land without anything in return, you are entitled to compensation under the law.”
'You're nothing without your land'
