One dominating corporation has been repeatedly put on the spotlight for displacing indigenous communities in Sarawak. Yet it is business as usual for IOI. On 31 March 2010, the Kayan community of Long Teran Kanan, Tinjar, Miri won their class action suit against plantation giant, IOI and the Sarawak State Government. However they have yet to receive any compensation for the damage they have borne and IOI continues to trespass and harvest oil palm on their land.
In 1997, the Kayan community of Long Teran Kanan, Tinjar, Miri, filed a suit against the Land Custody Development Authority (LCDA), IOI Pelita Plantation Sdn Bhd (formerly known as Rinwood Pelita Plantation Sdn Bhd) (IOI) and the Government of the State of Sarawak (State Government) for encroachment on their land. They sought, inter alia, a declaration from the Court that they possessed the native customary rights (NCR) over their native customary land area at Long Teran Kanan, Miri.
12 years later, on 31 March 2010, the High Court of Miri declared that the villagers, represented by Lah Anyie and 3 others in a class action suit, possessed the NCR over their native customary land which was granted to IOI by the State Government. The Court ruled that the Provisional Leases (for Lot 3 and 8 Dulit Land District – the plot in contention) issued by the State Government to LCDA and IOI were null and void. The Court went further to declare that the Provisional Leases were bad and in breach of the law as the State Government never extinguished the villagers’ NCR and compensated them in accordance with Section 15 of the Sarawak Land Code.
As at the time that this article was written, LCDA, IOI and the State Government had filed an appeal against the decision of the High Court (this is despite IOI’s promise not to appeal should they lose the case – the same was communicated to the community by an IOI Research Controller during a meeting in November 2009).
While the villagers have won their case, no compensation has been made for the damages incurred and IOI continues to trespass and harvest oil palm illegally on their land. The struggle of the Kayan community to defend their NCR over their land continues.
The RSPO is a body which monitors the palm oil industry through a certification standard. It was conceived in 2004 with the objective to promote “the growth and use of sustainable oil palm products through credible global standards and engagement of stakeholders” (see their website at www.rspo.org). It is a non-profit association based in Zurich, Switzerland, and the secretariat is currently based in Kuala Lumpur, Malaysia with satellite office at Jakarta, Indonesia.
IOI is a prominent and founding member of the RSPO.
Organisations and individuals become members of RSPO so that they can contribute constructively to the efforts in promoting the growth and use of sustainable palm oil products. Compliance with RSPO Principles and Criteria will mean that the production of palm oil materials meet the world’s most stringent criteria for sustainable production.
The Preamble to the RSPO Principles and Criteria (a copy of the Principles and Criteria can be downloaded at the website) states:
Sustainable palm oil production is comprised of legal, economically viable, environmentally appropriate and socially beneficial management and operations. This is delivered through the application of the following set of principles and criteria, and the accompanying indicators and guidance.
This Document defines indicators and guidance for each criterion. Indicators are specific pieces of objective evidence that must be in place to demonstrate or verify that the criterion is being met. Guidance consists of useful information to help the grower/miller and auditor understand what the criterion means in practice, including in some cases specific guidance for national interpretation of the criterion and for application by smallholders.
A perusal of the 8 principles in the RSPO Principles and Criteria shows that it has adopted some of the human rights principles relating to indigenous rights. Under Principle 2 (Compliance with applicable laws and regulations), Criteria 2.3 states that “use of the land for oil palm does not diminish the legal rights, or customary rights, of other users, without their free, prior and informed consent.” Under Principle 6 (Responsible consideration of employees and individuals and communities affected by growers and millers), Criteria 6.4 states “any negotiations concerning the compensation for loss of legal or customary rights are dealt with through a documented system that enables indigenous peoples, local communities and other stakeholders to express their views through their own representative institutions.”
Members of RSPO meet up regularly to discuss the best practice to sustain palm oil production. The next meeting and Annual General Assembly of RSPO Members are scheduled to be held from 8 – 11 November 2010 in Jakarta, Indonesia.
On 22 – 24 August 2010, I was invited to participate in a field visit to further document the land conflict between the Kayan people of Long Teran Kanan with IOI. The entourage included a representative from Tenaganita, Grassroots Consulting, The NutGraph, Sarawak Indigenous Lawyers Association (SILA), and Sarawak Dayak Iban Association (SADIA).
We did field investigations, interviews with community representatives affected by the conflict and documented evidence of breaches of RSPO certification by IOI. The land conflict not only affected the environment, but it also affected the human lives of the community. We also met with Harrison Ngau, the lawyer who acted for the people of Long Teran Kanan. During our introductory talk, we discussed at length the problems faced by the native people of Sarawak in recognising their rights over their native lands. We held dialogues every night with the community during our stay at the long house.
On the last day of the trip, we managed to see IOI’s Tegai Estate Management to have a meeting for the community to communicate their grievances and for the team to highlight to IOI their findings and to follow-up on the previous action plan outlined and agreed upon between IOI and the community since the last meeting in November 2009. To date, IOI has not responded to any of the action plans and the community continues to suffer as IOI has failed to deliver its promise.
The story of Long Teran Kanan is not an isolated incident. It is one of the many stories which reflect the reality of what is happening on the ground throughout Sarawak due to the destructive, illegal and irresponsible manner in which oil palm companies expand their plantation hectarage which involved mostly customary lands. More often than not, oil palm companies grabbed community lands without prior consent and compensation to the rightful owners. At the last count, there are currently 203 cases which involved NCR in Sarawak.
It is a sad state of affairs when the state government is slow in giving assistance to the native people in recognising their rights. The state government is more interested in backing industrial interest over the native peoples like the Penan and Iban. In both cases, the state government was eager to invest in projects involving their land and to send the military and police to crush local opposition.
Article 5 of the Federal Constitution provides:
No person may be deprived of life or personal liberty save in accordance with law
Article 3 of the Universal Declaration of Human Rights states:
Everyone has the right to life, liberty and security of person
On 13 September 2007, the United Nation adopted the Declaration on the Rights of Indigenious People. Some of the relevant articles are:
Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognised in the Charter of the United Nation, the Universal Declaration of Human Rights and international human rights law
Indigenous peoples have the right to self-determination. By virtue of that rights they freely determine their political status and freely pursue their economic, social and cultural development
Indigenous individuals have the rights to life, physical and mental integrity, liberty and security of person
Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture
Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return
During the trip, I was humbled by the villagers’ courage and spirit in facing adversity to defend their lands. I think it is important that we give due recognition to the native peoples of their customary rights over their land. They were the pioneers, and to deny their rights is to cut them from their heritage and livelihood. Many times during the interviews with the community, they expressed their fear of losing their land, which is the main source of their income and the inheritance for their future generation.
If the current trend continues, Sarawak is en route to losing its forest, its dwelling people and its diverse cultural heritage. The people have nothing if they are displaced from the land. Future generations are affected by our actions today. It is my hope that plantation companies will actually start practising their corporate social responsibility on the ground. Members of RSPO who fail to adhere to the Principles and Criteria and its certification requirements, and yet continue with their business-as-usual plantation activities, should be sanctioned, prevented from attending subsequent meetings, and denied any certification until they can show that they have complied with the Principles and Criteria.
LB: Seira Sacha is emotionally invested in this article being part Melanau, a native tribe of Sarawak. Though you may not see her parading in a baju baldo with intricate tribal patterns or brandishing a warrior weapon, her native tendencies are apparent when screaming seemingly argumentative conversations with her mother on the telephone.
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