Letter to Bernard

Datuk Bernard Giluk Dompok
Minister of Plantation Industries
and Commodities Malaysia
Ministry of Plantation Industries and Commodities Malaysia
No. 15, 3rd Floor
Persiaran Perdana, Precinct 2
62654 Putrajaya
Malaysia
Tel 603 88803302
Fax 603 88878222
Email: Bernard@kppk.gov.my

9th December 2010

Your Excellency,

We were very grateful for the discussion held with the Royal Institute for International Affairs (RIIA) in Chatham House last month in which you addressed several concerns raised about the situation of the forests and peoples of Sarawak.

Owing to the late receipt of an invitation we were not able to make the meeting but Dr. Jon Buckrell of RIIA kindly presented our concerns and reported to us your responses to them and he informed us that you would be willing to receive further follow up in writing.

As noted on our behalf by Jon at the meeting, the Forest Peoples Programme has been studying the experience of indigenous peoples on the palm oil frontier for over 20 years and in great detail over the past 7 years. This has included detailed surveys of the situation in Sarawak including the collection of testimonies from communities affected by palm oil developments carried out with SawitWatch.1

This research shows the following:
the current laws in Sarawak do not adequately recognise or respect the customary rights of the native peoples to their lands and territories and the natural resources pertaining to them
by contrast the courts in Sarawak, the High Court in Kuching and the Supreme Court in Kuala Lumpur have all found that indeed the native peoples do have strong rights in their lands based on custom and these pertain even where the government has not explicitly recognised these rights through permits or land grants
despite many such judgements recognising these rights, the government has not taken steps to revise the laws or the way it recognises land rights
disputes between communities and companies are thus increasing
of the hundreds of cases currently before the Sarawak courts relating to native peoples' rights to land, no less than 56 cases directly concern palm oil. In almost all these cases the Government of Sarawak or its various agencies are also named as defendants for their role in allocating lands to the companies in violation of the communities’ rights in land.
the lack of recognition of customary rights in land, the lack of the communities' free, prior and informed consent to the occupation of their lands by palm oil companies and the continuing conflicts that result mean that palm oil is being developed in Sarawak both contrary to international human rights norms and contrary to the standards of the Roundtable on Sustainable Palm Oil
this situation requires that the government acts to reform the palm oil sector and the land laws in Sarawak.

Our questions for the Government were therefore:
will the government act to reform the laws and recognise the native peoples' rights in land as the courts require?
will the government delay the hand out of further permits overlapping areas claimed by indigenous peoples while these reforms are undertaken?
what will the government do to resolve the current conflicts between the native peoples and the palm oil companies?

Jon has reported your response in the following terms:
The government realises that there are problems;
That they are in the process of demarcating native lands which should help avoid disputes in future;
That he chairs a cabinet committee looking at these (and other) issues – he is native himself;
That the government is actively trying to resolve disputes between natives and palm oil companies;
There are no plans for palm oil expansion in Malaysia.

Thank you for these constructive responses. To follow up we have the following additional queries.

We are most encouraged that the government is now planning to demarcate native lands and would be grateful for any further information you can share about this process including the legal or customary rights basis on which the extent of lands are being determined? Is this policy being pursued in all Malaysian States and if not could you tell where this policy is and is not being pursued?
What procedures is the cabinet committee pursuing to address the problems in the Sarawak Land Code and its amendments which are contrary to the judgments of the courts?
Does the government accept that the indigenous peoples have the right to give or withhold their free, prior and informed consent to proposed palm oil operations on their lands?

We are however puzzled by your last reported response which appears to contradict other information provided by the government according to which not only are oil palm estates rapidly expanding in Sarawak but that this is the express policy of the government.

For example, on 30th November 2010, The Star Business reported Development Minister Datuk Dr James Masing as stating that the Sarawak government not only planned to double oil palm but also to cut red tape to make oil palm planting easier including an ‘aggressive development’ of NCR land (see Annex 1). It appears that this is not just policy but actual practice. For example, 6th December 2010, Malaysiakini reported new clearance for oil palm on Pulau Bruit near Sibu in the name of Jaya Tiasa Holdings Bhd. This area is reported to be the customary land of Iban communities and also to be peatland. If so, the use of this land for oil palm is bound to lead heightened green house gas emissions.

We would be grateful if you could therefore clarify what exactly are the policies and plans of the Sarawak government with respect to the expansion of oil palm and how these relate to the Federal policies and plans with respect to oil palm and indigenous peoples.

We look forward to receiving your replies to these questions

Yours sincerely

Dr. Marcus Colchester
Director
Forest Peoples Programme (UK)

Norman Jiwan
Head of Department on Social and Environmental Risk Mitigation
SawitWatch (Indonesia)


Annex 1:
The Star Online > Business
Tuesday November 30, 2010
Sarawak to double oil palm plantation area
By JACK WONG jackwong@thestar.com.my

KUCHING: Sarawak, which recorded its fastest pace in opening up land for oil palm cultivation in the past one year, targets to double its plantation area to two million hectares.

State Land Development Minister Datuk Dr James Masing was optimistic that the new target could be reached by 2020, making Sarawak the biggest crude palm oil producing state in Malaysia.

STATE LAND DEVELOPMENT MINISTER DATUK DR JAMES MASING: Sarawak is the last frontier for oil palm cultivation Sarawak is the last frontier for oil palm cultivation as land has become scarce in Peninsular Malaysia. Sarawak still has a lot of land to be opened up, he told StarBiz yesterday.

Masing said there was an estimated 1.5 million ha of native customary rights (NCR) land, mostly under-utilised and without titles, and that the Sarawak government had identified several large tracts of state land for plantation projects.

As at June this year, he said, the area planted with oil palm in Sarawak had reached 920,000ha compared with 840,000ha a year ago.

Sarawak registered the highest increase of 4.17% (in new planted area) compared with 0.45% in Peninsular Malaysia and 1.27% in Sabah. About 77% of the plantations in Sarawak are mature, he added.

Private plantations made up about 80% of the total planted area. The major planters include Rimbunan Hijau Group, Ta Ann Holdings Bhd, Samling Group, Lembaga Tabung Haji and Boustead Group while the new investors are conglomerates like Sime Darby Bhd and IOI Corp Bhd.

The Sarawak government's earlier target was to achieve one million ha of plantation by next month.
Masing said Sarawak's crude and processed palm oil exports were worth RM4.56bil last year.

He said the palm oil industry had emerged as the state's third-largest foreign exchange earner after petroleum and liquified natural gas.

Sarawak, the first to imposed sales tax on palm oil in 2002, collected RM126mil from planters in the first six months of this year. Last year's collection of RM207mil was more than 10 times compared with RM20.1mil in 2002.

Masing said there was a strong interest from private investors and landowners to develop NCR land on joint-venture basis. However, he admitted that his ministry had been slow to facilitate the projects' implementation.

He said the ministry was bogged down by red tapes and a lack of coordination. The ministry's officials, he said, were now working to streamline the approval system to make it speedier, and to remove the red tapes.

Although the government has approved more than 720,000ha of NCR land for joint-venture development, barely some 50,000ha has been planted due to the slow process to create the land bank and to execute the joint ventures.

There is a need to look into a more aggressive development of the NCR land. My ministry is requesting the Federal Government to consider our request for funds to assist in the development of the land.

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