COMMENT: PACOS only supports communal title based on NCR (native customary rights). After the 2009 amendment to section 76 of the Land Ordinance, there are now two types of communal title in the law: one based on land planned by the state government, and the other based on customary tenure or NCR.
It is the state-planned communal title, which incorporates a development scheme using joint-ventures, that is being referred to as “unpopular”. Among the criticism PACOS has against this type of communal title is that these joint-venture companies use unscrupulous tactics to trick communities into signing the joint-venture agreement.
The companies would give money and ask the locals to sign an “acknowledgement” of receipt. The company then misrepresents these signatures to mean that the community agrees to the terms of the joint-venture.
Some of these companies also do not respect the wishes of communities regarding areas the community wants to conserve like water catchments. Often a joint-venture company will destroy the village’s only source of water or pollute their river, despite promising earlier that they would not.
All of this is so that these companies are able to exploit the community’s NCR land for profit under the disguise of “poverty-eradication”. As such, we view it as a new form of land-grabbing by these companies facilitated by the State Government (who also chooses which company implements the joint-venture in a state-planned communal title).
The other criticism about the state-planned communal titles is that it allows for actual villagers to be excluded from their own land. If you are friends with the current government, then your name is added to the communal title. If they perceive you as a threat or nuisance, your name is excluded, even though your family has lived there for seven generations.
Shafie Apdal’s statement that “when we give you the land, it won’t be just empty land” is misguided. The Parti Warisan Sabah president cannot “give” something that already belongs to the community. Communal title is a recognition of an existing right, not the creation of something new that can be “given” out like a hand-out.
That he says “it won’t be just empty land” also shows that he does not understand what NCR is. Sometimes, what is perceived by some as “empty” land is actually NCR land that a community purposefully does not open because it is the community water catchment, hunting ground or source of non-timber forest produce.
The communal title that PACOS supports is one based on NCR.
When a communal title is based on NCR, a person cannot be excluded from the title because they have proven their right to be there through the NCR claim process. An NCR-based communal title also puts the decision about development back into the hands of the community.
Whether or not a community wants to develop an area of their territory or to conserve it (thus remaining as Shafie puts it “empty land”) should be decided by the community, not forced upon by the government. When that decision is made by the community, only then should the State Government step in to see how it can support the community’s decision.
Although PACOS is glad that Shafie identifies the current development scheme as problematic, his counter proposal does not solve the real problem.
As long as the 2009 amendment stands, it provides power to whichever party in control of the state government to simply declare an area as state-planned communal title with the same or worse weaknesses as the current scheme.
• PACOS TRUST is a community-based organization dedicated towards supporting indigenous communities in Sabah