MAC: Mines and Communities

Borneo tribe loses Bakun dam case

Published by MAC on 2011-09-19
Source: Summit Daily, Jurist

Rio Tinto & Chinalco implicated in deal

A tribal group in the Malaysian state of Sarawak has lost a decade-long struggle to assert that a massive government land seizure violated its rights.

The tribe had tried to overturn a decision which opened the way for the notorious Bakun dam project in the 1990s.

In May this year, China's biggest aluminium producer, Chinalco, was reported to have sealed a deal with a Malaysian tycoon to secure access to Bakun's hydropower.

Four years earlier, Rio Tinto  also signed a similar agreement. See: Malaysians alerted to Rio's record & London Calling on a damnable deal

Editorial note: Chinalco is the biggest single shareholder in Rio Tinto. See: London Calling sees Rio Tinto take it on the Chinalco

Borneo tribe loses land case in top Malaysia court

Sean Yoong

Summit Daily

8 September 2011

Members of an indigenous tribe in Borneo lost a case in Malaysia's top court Thursday challenging the state's seizure of land to build a massive dam.

The verdict capped a decade-long legal struggle by a group of villagers who claim authorities in Malaysia's eastern Sarawak state unlawfully wrested away land occupied by their ancestors for generations.

Land rights are a key concern for Malaysia's indigenous people, many of whom say they have been pushed from their homes with insufficient compensation by state governments to make way for development.

The Federal Court dismissed an appeal by tribal villagers who said the Sarawak administration violated their constitutional rights by taking over land in the late 1990s to construct the Bakun Dam, a 7 billion ringgit ($2.3 billion) hydroelectric project that created reservoir roughly the size of Singapore.

Many indigenous tribes in Sarawak and elsewhere in Malaysia do not formally own land, enabling authorities to easily acquire forest territories where they live, grow crops and hunt.

Rights activists insist the tribes deserve more protection in areas they have occupied for thousands of years.

The Federal Court's verdict left uncertainty over about 100 other land rights lawsuits filed by other indigenous Malaysians in Sarawak, said Mohideen Abdul Kader, an official with Friends of the Earth Malaysia, a nongovernment group.

"We are very disappointed that the court did not make a clear stand," Mohideen said. "This was a golden opportunity for the highest court to consider questions of constitutionality very clearly and clarify the issue."

One member of the three-judge Federal Court panel said the Sarawak government had not violated indigenous rights, while the other two based their ruling mainly on technicalities.

The Bakun Dam triggered wide criticism from the start from environmentalists because it displaced thousands of people and flooded an area of at least 260 square miles (680 square kilometers). Officials have defended the dam as necessary to handle rising power demand. It is expected to start operations within months following many delays in construction work.

Activists say that while numerous villagers forced out by the Bakun Dam had received monetary compensation, it was not a fair amount for the size and value of the land.

Malaysia court rules against indigenous people in land rights suit

Michael Haggerson


September 2011

The three-judge Malaysian Federal Court on Thursday ruled unanimously against indigenous people fighting against the Sarawak government's seizure of land to build a dam. The court had agreed to hear the suit in March.

The ruling caps a more than decade-long legal battle  which began when the Sarawak government started seizing land in 1997. Almost USD $2.3 billion has been spent on the Bakun Dam project which has created a reservoir approximately 260 square miles large.

Two of the judges refused to answer whether the seizure was unconstitutional and instead dismissed the appeal on the grounds that the issues "were not raised or properly canvassed before the court." The judges stated that if the plaintiffs were not satisfied with the amount of compensation then that is a matter for arbitration, not for the court. The third judge dismissed the appeal on the grounds that the seizure was constitutional.

The Center for Orang Asli Concerns expressed disappointment in the ruling . Counsel for the plaintiffs were disappointed that the constitutional issues were not resolved, but looked forward to resolving the issues in future suits. There are currently more than 100 unresolved land rights suits filed by indigenous people in Malaysia's lower courts.

In December, the US government pledged to support the UN Declaration on the Rights of Indigenous Peoples, a non-binding UN treaty expressing support for the rights of indigenous peoples. The US was the last member to lend its support to the treaty. In August 2010, UN Secretary General Ban Ki-moon called on governments to improve the living conditions of indigenous peoples and support the UN Declaration on the Rights of Indigenous Peoples.

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