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Boniface, Dorne --- "Indigenous People of Sarawak: Under Threat" [1989] AboriginalLawB 50; (1989) 1(40) Aboriginal Law Bulletin 10


Indigenous People of Sarawak: Under Threat

by Dorne Boniface

Sarawak is the northern part of what used to be called Borneo. It is now a state of Malaysia and the indigenous people of Sarawak make up about 50% of the population.

There are many indigenous people in Sarawak: the Kenyah, Kayan, Kelabit and Penan are but a few of the tribal groups. Most of these people now live in longhouse settlements along the huge rivers such as the Baram, Keluan and Limbang. They hunt in the tribal customary forests around the longhouses, fish in the rivers and grow fruit and rice padi. Only a few Penan live the traditional life of hunting and gathering in the wild unlogged forests remote from `civilisation'.

The indigenous people are entirely dependent on the forest and its resources for their daily subsistence, obtaining wood for their homes, boats, hunting implements and tools, and food and medicines from the forest's flora and fauna. These people are barely part of the cash economy, trading rattan products for cloth, salt and flour. The maintenance of the forest ecosystem is thus necessary for their survival and existence.

Rights relating to land lie within the jurisdiction of the Sarawak State Government. Matters relating to the environment, however, are subject to joint Federal (Malaysian) and State (Sarawak) Government responsibility concurrently, under the Schedule to the Malaysian Constitution.

Logging in Sarawak is big business; it is Sarawak's most important earner for GDP. A slowing down of logging in peninsular Malaysia has been compensated by increases in logging in Sarawak. The Sarawak Government grants logging concessions to companies to log specific areas. Corruption in regard to logging concessions is notorious. In 1987 a political conflict facilitated leakage of information to the press which confirmed that, no matter which political party was in power, logging concessions were given to prominent politicians and their relatives and friends.

The indigenous tribal people are suffering from this corruption. They complain that their tribal customary land is not recognised by the logging companies. Logging activity scares the animals away to more remote inaccessible areas of the forests and has polluted the rivers with soil runoff and debris. Logging company bulldozers have driven down fruit trees and rice padi in an effort to demoralise and subdue the longhouses. Food in many areas has become scarce. I was in Sarawak at Christmas at a Kayan longhouse and, although I was received with customary royal hospitality, these devout Christians had only a little pig meat and some rice for their Christmas feast.

The Tribal people want the logging to stop. Representations and protests have been made repeatedly but unsuccessfully to the Sarawak and Malaysian Governments. Blockading of logging roads which penetrate the tribal peoples' forests has been resorted to as a means of preventing the rapid logging and destruction of tribal customary land.

The Malaysian legal system has been employed against them. The Penal Code Ordinance, encompassing all the usual criminal offences, has been supplemented by an amendment of November 1987 to the Sarawak Forestry Ordinance making all forms of obstruction and blockade within a logging licence area a criminal offence liable to a 2 year goal penalty or a fine of $6,000 (Aust $3,000). Many lawyers argue that this amendment is ultra vires the Malaysian Constitution because it does not take into account rights to land vested in the tribal people, since tribal customary rights to land are recognised in the Land Code and Article 13 of the Malaysian Constitution.

Nevertheless arrests have continued. The latest information (September 1989) received from Friends of the Earth in Malaysia indicates that hundreds of the tribal people (both men and women) have recently been arrested. They have all been held for the maximum remand period of 14 days. The law authorises an arrested person to be remanded only if criminal investigations are pending. Criminal investigation of the blockades would be minimal, even if it were to be carried out. Further remand should be ordered only a few days at a time and, if investigations cannot be completed, a fresh order for remand should be obtained. Each case for remand should be treated separately and due consideration should be given to the facts and circumstances of each case. Neither the spirit nor the letter of the law has been complied with. To make matters worse, the tribal people are crowded in small cells with little food and water provided. Cells in some areas are infested with mosquitoes, a matter of grave significance, considering the fact that Sarawak is renowned in medical circles for its incidence of Malaria.

There is much to support the allegation that the Malaysian and Sarawak legal system is being used as an instrument to oppress the tribal people. Many of those charged under the Penal Code have had the charges withdrawn after the matter was listed on a number of occasions. The tribal people on bail have had to come long distances at great expense to themselves and their families on many occasions, to face the charges which were adjourned and relisted, then finally withdrawn. I went to Sarawak in December at the request of LAWASIA to observe the trial of five Penan men. This trial was adjourned because an interpreter had not been arranged; some months later the charges were apparently withdrawn.

Forty-two Kayan persons have filed a civil action against a timber company and the State of Sarawak in an attempt to obtain tribal customary land status of the land surrounding their longhouse. The pleadings have been lodged and the matter is inching toward a hearing. If successful and if the outcome does not take too long, one area of tribal customary land may be saved. The logging is rapid and relentless and the mill of justice grinds so slowly that the ultimate outcome remains uncertain.

Intertwined in the struggle to obtain land-rights for the indigenous tribes in Sarawak and to preserve the environment, is the right of these people to continue to carry on a life style which has sustained them for many generations - the right to grow food, and collect and hunt food on land was recognised by the Rajas and by the British (who were succeeded by the Malaysia State) as tribal customary land. If the rights to tribal land are continued to be abrogated by the logging licences and the rights of timber companies the destruction of the livelihood of the tribal people will result. Food in some areas is already critically scarce, malnutrition and disease caused by lack of protein and medicinal plants is already prevalent in the Penan.

These factors force one to pose the question: IS GENOCIDE OCCURRING IN SARAWAK?


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