Sometimes, laws can look great, especially one focused on protecting the environment. But what we sometimes miss is how it affects the inhabitants within that place. This is what happened in Sipadan, an island off the coast of Sabah.
In 2004, the state secretary issued an order to the inhabitants of Sipadan to demolish all structures and to vacate the island. There were two native families staying at the island; one family was headed by Abdul Rauf, the other by Haji Abdillah. Both families weren’t happy with this order.
Seven years before that, everyone on the island was barred from collecting turtle eggs. Now they can’t even stay there. They felt that this is unfair, and infringed on their rights on the island as natives (basically, the original inhabitants of the island). So they sued the Sabah government, by claiming the Native Customary Rights (NCR) that they’ve had for generations on the island.
To understand this, we will need to go back in time...
They were given permission before Sabah was even ‘Sabah’.
Historically, both Abdul Rauf and Haji Abdillah are descendants of high ranking officers of the Sultanate of Sulu. Back in 1878, when Sipadan island is ruled by the sultanate of Sulu, the most profitable commodity that can be harvested on the island are turtle eggs (the boba shops of that century). The Sultan of Sulu managed the rights to collect turtle eggs on the island, by granting the rights himself.
Abdul Rauf and Haji Abdillah’s ancestors were both granted the rights to collect turtle eggs. The right is heritable, and they have been doing it up until 1997, when the government declared the island as protected area under The Protected Areas Order 1959.
Since they have been collecting turtle eggs for centuries, they decided to bring up their native customary rights to the court. This continuation of their forefather’s livelihood will be the main argument for their case.
Now, you might wonder what is Native Customary Rights (NCR)? The NCR protects the native’s land by allowing them to claim the land as their own. In Sabah, the Native Customary Rights is recognised and enshrined in Section 15 of The Sabah Land Ordinance. The law works by recognising their right to stay, based on evidence that they have been staying there for generations.
Abdul Rauf and Haji Abdillah both claimed that they have NCR over the island, as they fulfilled the conditions set out in Section 15(d) and (e) of The Sabah Land Ordinance that is continuous occupation (staying on the land) and agriculture activity.
For this case, both families decided to use their turtle egg collecting history as the argument to establish their NCR claim on the island.
The court decided to combine both their cases into one trial
To summarize, the families filed separate lawsuits but it is only at the highest court that decided to have a joint hearing for both families – basically hearing both cases together – since their arguments to claim their NCR are similar enough. We’ll break the final judgement from the highest court into three separate points:
- Both families turtle egg claim,
- Abdul Rauf’s claim; and
- Haji Abdillah’s claim.
Both families claimed that they have used the land for agriculture activity, that is collecting turtle eggs. However, the families claims were rejected by the court, due to the fact that The Sabah Land Ordinance doesn’t recognise collecting turtle eggs as agriculture activity. In Section 15(d) of The Sabah Land Ordinance, it only recognises that land used for farming or rearing animals can only be established as NCR. As you might know, collecting eggs on the beach is not farming or rearing animals.
However, they only needed to fulfill one of the requirements of the NCR in The Sabah Land Ordinance, to establish NCR. Both families claimed that they have fulfilled Section 15(e) of The Sabah Land Ordinance, where NCR can be established if you have continuously occupied the land.
But the court disagreed. Just because the families were collecting eggs there for centuries, it doesn't mean that they occupied the island. The court decided that it is insufficient to support their claim that they have continuously occupied the island. There must be more evidence to support their claim.
The court then looked into each family’s evidence separately, to decide whether they still have a case.
Abdul Rauf was not able to provide more evidence that his family have continuously occupied the island for three years, as per the requirement in Section 15(e) of The Sabah Land Ordinance.
This is where Abdul Rauf’s NCR claim fails as he could not prove that he stayed on the island other than his occupation as turtle egg collectors. He did not have any permanent structures set up on the island to support his claim.
Fortunately for Haji Abdillah, he was able to prove that his family has inherited a ‘rumah warisan’ and a coconut orchard from his ancestors. The existence of the ‘rumah warisan’ and the coconut orchard helped convinced the court that the requirement of continuous occupation has been established.
Haji Abdillah could have made his NCR claim before the island was declared as a Protected Area. However, he made a mistake by not registering his land to the Sabah state government earlier. The state government did not issue any land titles to confirm that he owns the land, which means the land now belongs to the state. This would come under Section 84 of The Sabah Land Ordinance, which states that the land that are not registered would become the state’s land.
The new status of Sipadan Island as a protected area complicates Haji Abdillah’s claim. Due to Section 9 of The Protected Areas Order 1959, the Federal Government now controls all activities on the island and no one is allowed to be on the island without the permission of the Federal Government. He cannot claim the island now because the state government has no power to issue any land titles to him as the land now belongs to the Federal Government
We might all agree that it is unfair for the families to lose their main income and their native land. So did the courts, who decided that the families should receive some compensation.
Conclusion: Complicated – Haji Abdillah could have NCR claim over the island but he lost the NCR claim.
But only one family received compensation
In the end, the court decided that the two families should not get any compensation for their loss of income as turtle egg collectors. It may seem unfair, but the court decided that it doesn’t make sense to give compensation, when the sale and consumption of turtle eggs were made illegal by Section 87(4) of The Sabah Wildlife Conservation Enactment 1997.
Only Haji Abdillah’s family was given compensation for their loss of NCR claim on the island, as he could prove that he had stayed on the island. Abdul Rauf’s family could not prove their case, and so they did not receive anything.
In the end, both families are now off the island, and barred from collecting turtle eggs. Despite having lived there for centuries and having a claim, they weren’t able to fully prove it in court to fulfill the requirements of NCR. Haji Abdillah could have made a claim, but lost on technicality, because he didn’t register his land before this. Sadly, Abdul Rauf’s family had to accept that they will get no compensation.
The ruling may seem harsh, but with the change of time, laws will change too. Changes intended for long term benefits can sometimes cause losses in the short term. Due to the need to protect Sipadan as a sanctuary, the law might cause some groups to lose their livelihood, and in this case, even their generational land. Whether this is right or wrong, that is up to you to decide.