Brian Long

Institute of Geography & IDS

Roskilde University

PO Box 260

DK-4000 Roskilde

Denmark

E-mail: blong@ruc.dk

Jonas Henriques

Institute of Geography & IDS

Roskilde University

PO Box 260

DK-4000 Roskilde

Denmark

E-mail: jonhen@um.dk;

Heidi Skov Andersen

Dept. of Political Science

Aarhus University

Nordre Ringgade 1

DK-8000 Århus C

Denmark

E-mail: haskov@hotmail.com

Quentin Gausset

Dept. of Anthropology

University of Copenhagen

Frederiksholms Kanal 4

DK-1220 København K

Denmark

E-mail: quentin.gausset@mail1.anthro.ku.dk

Kelvin Egay

Faculty of Social Science

Universiti Malaysia, Sarawak

MY-94300 Kota Samarahan

Sarawak

Malaysia

E-mail: ejkelvin@mailhost.unimas.my

The establishment of a National Park often causes conflicts between national administrations and local populations when access to forest products and land becomes restricted. These conflicts often stem from different definitions of land tenure. What is seen as a legitimate and traditional use for some is seen as an encroachment of property for others. In the Dusun village of Tikolod (Tambunan district), the Land Tenure Ordinance, based on a secure ownership of land, is slowly replacing the traditional Adat, which used to define the use rights attached to communal land. Villagers have accepted the new rules of the Land Ordinance and have officially applied for titles concerning all the land available in the area. They have internalized a new definition of property and the fact that land exists in a limited quantity. The boundaries of the CRNP are therefore unlikely to be encroached on for purpose of cultivation by these communities. However, the Adat continues to play an important role in defining the land-use strategies of the farmers, both on private land and on state property, where people continue to practice hunting and gathering of non-timber forest products.

The Crocker Range National Park (CRNP) was established in 1984, in order to protect a water catchment supplying clean drinking water to the West Coast and Interior of Sabah. In addition, the biodiversity and the protection of rare species were also chief concerns. It is surrounded by Dusun and Murut communities, with a fast growing population mainly practicing shifting agriculture. The establishment of national parks often denies access to forest products to local communities, which in turn cause conflict over access to the resources placed within the boundaries of these parks (Cleary & Eaton 1996: 106). These conflicts often stem from divergence in local and state attitudes towards resource management and land use practises reflected in attitudes towards land tenure (see also Doolittle 1999). This divergence, in turn, often explains encroachments of national parks boundaries. In this context, it is important to understand the present system of land tenure (of use-rights, property, and inheritance of land), in the communities living around CRNP, in order to explain the acceptance of - or eventual conflict over - park boundaries.

Today, the system of land tenure in Tikolod is characterised by a negotiated coexistence between the Sabah Land Ordinance and the traditional Adat rules (a customary system of rules, norms and values). By negotiated coexistence, we refer to a situation where two sets of rule coexist side-by-side, influence and complete each other, and sometimes compete with each other (for a discussion of this subject, see Doolittle 1999). The Land Ordinance, although it is partly based on the recognition of customary rights, is taking precedence over the traditional system. It is slowly replacing the Adat, allowing land to be privatised, inherited, and commoditised. On the other hand, the Adat still prevail on land for which a title has not been granted.

This article aims at addressing this question in the village of Tikolod, in Tambunan District. Tikolod is a Dusun village consisting of four hamlets situated in a river valley stretching from the main road between Tambunan and Keningau to CRNP. The ridges on each side of the valley demark the Tikolod area, so in fact the Tikolod village area is defined by the physical boundaries of the landscape (topography and infrastructure). The largest hamlet has around 40 households and the three other hamlets have around 10 households each. In the late 1970s, there were only around 100 people in the village. Today, there are about 470 people. This dramatic increase is partly caused by migration from Kionop village located within the boundaries of what is today CRNP. Small-scale farming is the main income in the area supplemented with some handicraft production. All the land in Tikolod Area is categorised as Native Customary Land. That means that only those people who are ‘native’ to a given area can apply for this type of land, hence only Dusun speaking people can apply for tracts of land in this precise area. Today all land has been applied for in Tikolod, although not all the land has yet been granted a title.

The methods used during this research were based on participatory mapping techniques as well as semi-structured interviews. In our research, besides looking at various interests within Tikolod village, we interviewed a number of government agencies and authorities in relation to possible conflicts over access to areas within the CRNP boundary. These were Sabah Parks - CRNP manager, District Officer in Tambunan and the Department of Agriculture in Tambunan and finally PACOS Trust (an NGO working with community resource management issues). Not all these institutions were directly related to CRNP, but when dealing with land tenure, institutions dealing indirectly as well as directly with the allocation of resources in a given area, become interesting.

Often, different interpretations of legitimacy and rules concerning the use of resources in national parks result in misunderstandings between the national park administration and the local people (Clearly and Eaton 1996: 106; Colchester 1994; Dove 1998). This can be in relation to a range of aspects such as land use practices (shifting cultivation), land tenure issues or property relations.

First, the primary forest can be considered a resource in many ways and from many perspectives. It can be a resource for hunting and non-timber forest products, for potential farmland (small-scale economic activity), for timber extraction and plantation farming (large-scale economic activity), for biodiversity, for clean water, and for Eco-tourism (see Cleary and Easton 1996; and also Doolittle 1999). On one hand, the area within what is now the CRNP has traditionally been a resource for hunting and collecting (although most non-timber forest products are collected in secondary forest), and an area with potential farmland. It should be mentioned however, that neither hunting nor collecting of non-timber forest products seemed to be particular widespread in Tikolod, due to the uneasy access to these areas and to the abundance of farmland. There is therefore no great need for collecting or hunting, since these activities often are done in pursuit of additional income for poorer households. Hence, the combination of excess arable land and the distance to the Park weights heavily on the cost-benefit of such activities. On the other hand, Sabah Parks consider the area in CRNP of great importance in relation to the protection of a water catchment area supplying clean drinking water to the West Coast and Interior of Sabah. CRNP can also be said to be a source of great biodiversity and a protective site for Rafflesia spp. (the worlds largest flower). Large portions of the work conducted by various research teams in relation to the 99 XPDC could be seen as a manifestation of the keen interest in maintaining and cataloguing the great biodiversity of the area. Because of this, keen interest to protect the biodiversity of the park, Sabah Parks would like to control the traditional use of the resources within the park.

Secondly, this restrictive attitude is partly based on the idea that local communities are involved in environmentally damaging agricultural practices, through its shifting cultivation, or slash and burn techniques (see for example discussions in King 1996; Lundberg 1993; MacKinnon and Sumardja 1996). These techniques involve the clearing of land for cultivation and this could include removing pristine rainforest. In order to avoid this ‘damaging practice’ it is argued that the state authorities are best suited in the role of stewarding the land designated for protection, hence local communities are prohibited access to the areas within the Park boundaries. Yet, this point of view is challenged by another narrative, which is often put forth by local NGOs and the indigenous peoples themselves. This position argues that local people are the best stewards of their land, since their local knowledge is adapted to it and since they have a strong interest in sustaining its use (Redford 1991; Schlegel 1998).

A third misunderstanding stems from the different local and state definitions of land property and rights. Before the Land Ordinance was introduced, land tenure in Tikolod was determined by the Adat. It is not possible to give a precise description of the Adat in precolonial time, since this system is flexible, varies from village to village, and changes over time. However, we find it important to point out some central elements from the Adat, which are of special interest for this study.

The Adat functioned as a holistic system of rules and customs that determined how the land should be opened, and what kind of rights there were to the land itself and to its cultivation. Our interviews with the inhabitants of Tikolod showed us that there were two different categories of land under the rule of the Adat; ‘ordinary’ land and sacred ‘pesaka’ land, the latter actually referring to other items besides land. For the purpose of the article we have chosen to focus on land, not differentiating between sacred and non-sacred land, hence solely focusing on what we have termed ‘ordinary’ land.

Arable land has traditionally been the communal property of the village. According to the Adat, all the members of the Tikolod community had the right to use the land for cultivation, but access to this land was forbidden to outsiders. The term communal here does not refer to land as communal in the sense that everybody could just cultivate any land within the community, but rather communal in the sense that people from other communities were excluded (see Birgegård 1993). Hence, the Adat gave the villagers the use right to the land, meaning that they could freely open up land and start cultivating it. However, opening up land did not mean that the farmer could keep this land forever or sell it. Opening up land meant that the farmer had the sovereign right to cultivate the land. This right he kept for as long as he continued to cultivate the land. Once the farmer abandoned the cultivation of a piece of land, anybody could use it. However, the fruits trees and crops that had been planted by the cultivator continued to belong to him.

The procedure for acquiring land under the Adat entailed that the headman was conferred with before opening the land and cultivating it. By doing this, the individual farmer ensured that nobody else had a claim to the land in question. However, the consent of the headman was only to ensure that one claim did not coincide with another claim. The claims to the land itself, or rather to the right to cultivate the land, were obtained through the investment of labour (for a discussion of this subject, see Rose 1984). By working the land, one obtained customary tenure to the land.

The present law about access to land in Tikolod, the Land Ordinance, is a leftover from British rule. In the Land Ordinance access to and ownership of land is partly based on British law, and partly on the local customs. The latter was included in what was termed Native Customary Law (section 15 in the Land Ordinance, Part I, pp.14).

Before one can understand the reason behind the initial efforts to codify Native Customary Law, one has to understand the need for such a codification. In the case of Sabah, as with so many other colonies, the need for revenue and acreage for cash crop production was a prime mover of such efforts. In other words, it was a need for commodification of agricultural production and access to resources that set off the process of codification.

The early codification of tenure rights in Sabah is according to Cleary (1992), a result of the emergence cash crop cultivation of tobacco and rubber. The aim of the North Borneo Chartered Company was to make profit. Soon after the Chartered Company had established its rule in North Borneo it was realised that to obtain revenue, in the form of land sales for plantation production, there was a need to clarify legally what was its to sell, and what belonged to the natives (Cleary 1992).

However, there were some complications. Firstly, European viewed land as a commodity, which was privately owned, but most land in Sabah was held communally and could not be sold. Another difficulty arose from the fact that the system of shifting cultivation made it difficult to know what land actually belonged to a given community. The Forestry Department in North Borneo (at that time interested in timber and not conservation) was hostile to the practice of shifting cultivation. The Forest officers, as well as Survey officers, began a policy of encouraging the indigenous population to move from shifting cultivation to ladang cultivation (permanent wet-rice cultivation). This was coupled with a decision to impose an annual rent on shifting cultivation, at the same per unit rate as that of permanent cultivation (Cleary 1992). Finally, there were added complications stemming from the fact that the native system of land uses also included ownership of certain valuable trees and plants (Cleary 1992). In order to overcome this, the Chartered Company set out to not only demarcate, but also define what customary tenure implied.

However, the registration of land was set up to be on an individual basis, and in return for a title to the land, should pay an annual quit-rent. Then after a three-year period, land not applied for would befall the state (Sabah State Archives, Secretariat Files1928 in Cleary 1992: 173). This land could then be alienated and sold to European investors, and that was the main purpose of the codification itself. However, the codes also served as protection for the indigenous population against European settlers, protecting native customary land against those seeking land.

After independence, the Sabah State developed a Land Ordinance very similar to the British Land codes. There has been little or no development in the land codes over time. Of course, the Land Ordinance is a much more thorough specification of land codes, but the core elements dealing with native customary rights have not changed much.

The essential point in the Land Ordinance is that claims are made through titled grants and not through the investment of labour. The grants of titles to property allow people to sell or mortgage their property. To get the title that proves this type of ownership, the farmers must make a claim on the property. However, the land application procedure is very long. In Tikolod, this was highlighted by the fact that many farmers were cultivating land that they had applied for, but still did not have the title for. To get an understanding of the effect this has had on the rights and strategies of the farmers, we will describe the land application procedures and discuss the kind of ownership and rights associated with the different stages in the land application procedure.

The application procedure can be divided into three stages. In the first stage, the (native) farmer acquires an application form at the District Office. The filled in application form is given to the District Office with a drawn map showing where the land is situated. The farmers can do this by themselves but the vast majority chooses to consult the village headman at this stage. The headman goes with the farmers to the plot desired and helps them to draw the map, which must be handed in with the application. The headman usually also signs the application form. By consulting the village headman, the farmers make sure that no one else has applied for the same piece of land. Thus, already at this first stage the farmers get some kind of security that they will be the future owners of the land.

Once the application is given to the District Office, a number of different departments will get the application for approval. Only when the application is approved by all the departments can it be brought before the Land Utilisation Committee. Often the application process is stalled at this stage, simply because one or more of the departments does not deal with the application. The District Officer in Tambunan District mentioned this as an important problem for the farmers and recognised that the farmers were not aware that they could speed up the process just by showing up at the different departments. In Tikolod, it seemed that most of the farmers who applied for land after the early 1980’s, where still waiting for a title to this land. This of course is not an optimal situation for the farmers, since they cannot make use of the privileges that follows with the title (such as access to credit and extension services).

When the Land Utilisation Committee has approved the application, it is handed over to the Land and Survey Department, where it has to get an authorisation to be surveyed. As soon as this authorisation is given, the land can be surveyed. This is also a bottleneck since it takes up to ten years to get the land surveyed by the Land and Survey Department. Nevertheless, in response to the bottleneck in the second stage, the farmers seem to be aware that paying a private company to survey the land can speed up the process at this stage (according to some informants). Once the land has been surveyed, the title can be given. In instances where more people are applying for the same piece of land, it is almost always the first applicant who gets the title. An exception to this will be discussed in the following.

When somebody applies for a plot of land, all conflicts relating to this land will be dealt with in accordance to the Land Ordinance. This however, does not mean that the Adat has no longer any importance in determining rights to land. As mentioned before section 15 in the Land Ordinance is a codified version of some customary practises, which means that parts of the Adat are incorporated into the Native Customary Rights in the Land Ordinance. Consequently, the right to the land at the time of the application is determined by the Adat. If a farmer is applying for a piece of land that someone else is cultivating, the right to cultivate the land will still be with the cultivator. This brings us back to the notion of property as described by Rose (1984), because the validity of claims to property made through the investment of labour is apparently still applicable. If the one cultivating the land subsequent applies for the same piece of land, he will get the title. However, although the Adat is incorporated into the Native Customary Rights this does not mean that they are the same. Since the Adat system is different from place to place, the Native Customary Rights can only be seen to represent a few central aspects common to the Adat, but it is not capable in capturing the complexity of the Adat.

However, if no one has established a right according to the Adat at the time of applying, the land will be given to the applicant. If a farmer opens a piece of land that has been applied by another person, the rights to cultivate the land remain with the applicant. This is well exemplified in the following case:

One of the leading farmers in Tikolod had applied for a piece of land quite far from the village. He did not have any special connection to the land. Hence, he had never cultivated the land, and he did not open the land to cultivate it after he applied for it either. One day someone had told him that the land had been opened by another farmer (he did not know this because he did not visit the plot of land he had applied for on a frequent basis). The encroaching farmer was apparently not aware that the land could not just be opened and cultivated, probably because he did not know that the land had been applied for. As always in disputes over land where the involved parties are not able to solving the matter themselves, the case was brought before the headman. The result was that the encroaching farmer had to leave the land, but since he only planted hill rice, which is a short-term crop, he could wait until after he harvested the crop. We asked what would have happened if the encroaching farmer had been cultivating perennial crops like fruit trees, and we were told that the involved parties would probably agree on sharing the fruits in the future, and that this was according to the Adat. Another way of solving it could be that the owner of the title would pay compensation for labour invested by the encroaching farmer and then gain full possession of the perennial crops grown.

In this case, the matter was solved by the headman based on his knowledge of both the Adat and the Land Ordinance. If the headman had not been able to solve the matter, it would have proceeded to the Native Court and on to the District Officer. This implies that conflicts are first sought solved in the local society, thereby drawing on people with knowledge of the local customs. However, this does not mean that conflicts are first sought solved according to the Adat. The latter case shows that the Land Ordinance overrules the Adat, not just in theory but also in practice. Still it is important to point out that the Adat plays an important role in peoples minds, and hence in constituting their perception of how to act in land questions.

The introduction of the Land Ordinance has not meant a complete shift in the land tenure of Tikolod. Although it was officially introduced in the beginning of the last century, land tenure of Tikolod was still dominated by the Adat at the time of independence in 1963. It was not until the decades following independence that the Land Ordinance grew in importance in determining people’s relations to land. In 1998 the last property, nearest to the CRNP, was applied for, meaning that there was no more remaining land to apply for. Hereafter the only possibility the villagers had of getting access to more land was by cultivating the Native Reserve in Tikolod. The Native Reserve land (not to be mistaken with Native Customary Land) cannot be divided into individual titles. The title, as it were, is given to the community as a whole. Customary rules apply to the utilisation of the Native Reserve land; hence claims to plots of land for cultivation is established through investment of labour. However, perennial crops were not allowed to be cultivated there since it would have established long term private use-rights on communal land.

Because of the dominating role that the Land Ordinance has come to play in land acquisition in Tikolod, the concept of land security has changed becoming more complex. Although all farmers seemed to acknowledge that title to the land could be acquired through the Land Ordinance, and that titled land bestowed a strong sense of security, some farmers still tried to secure their land by following the Adat. This can be illustrated by an example from Tikolod. One farmer had applied for three plots of land. Having only acquired a title for two of the plots, he continued to practise shifting cultivation within the plot of land for which title had not yet been acquired. He explained that he was afraid that he would loose the right to the land if he did not cultivate it continuously. According to the Adat, continuous cultivation was one way of getting and keeping right to property. Although he clearly had adopted the practices from the Land Ordinance by applying for title to the three plots of land, his action also showed that he was still thinking in terms of the Adat. The continued cultivation of the land did not make the land his "private property", but in this way, he could keep others from using the land and thereby upholding his own claims to it.

According to the Land Ordinance, this behaviour is difficult to understand since the first applicant will be granted the title to the property, unless someone else can make claims to the land according to the Native Customary Rights at the time of applying. However, this behaviour makes sense in the context of the Adat, since property claims are made by working the land.

The above mentioned is an example of the "everyday resistance", or negotiation of rule, towards the statutory law, i.e. the Land Ordinance. It shows the way in which statutory law intermingles with the Adat in daily practice (see also Doolittle 1999). The Adat still plays a role in the present land tenure system, primarily for land for which nobody has applied. It can also explain the behaviour of some farmers, who prefer to farm the land for which they have not received a title rather than the one they have title to. Secondly, the examples shows that people have internalised the new set of rules, and have engaged in a race to get as many titles as possible. People apply for more land than they actually need, as the first to apply gets the most – if nobody used the land in question.

With the application of the Land Ordinance, the security of land tenureship has dramatically changed. Traditionally land could not be sold, since land was not considered a commodity. It was owned communally and accessible to any member of the community. In Tikolod, land was plentiful, and attracted many new migrants who settled in the community. Nevertheless, it seems that all the farmers are now thinking and acting within the frames set by the Land Ordinance; land with a title is securely owned and can thus be sold or mortgaged (although there has only been one instance of selling land in Tikolod). Moreover, securing a title to property opens up the possibility of obtaining credit. In Tikolod, title to land gives the farmers the possibility of getting subsidies to certain types of crops. However, these elements are rarely mentioned by the farmers when talking about getting a title to property. Securing the future of ones children is a much stronger reason for obtaining a title. Hence, land is not so much considered a commodity as it is considered an element of security for ones heirs.

Consequently, all the land in Tikolod has now been applied for. The security of access to land, which used to exist at a communal level, has now been privatised and is to be found at the level of the family instead of the community. Formerly, it was easy for outsiders who had relatives in Tikolod to establish themselves in this village and borrow land since, according to the Adat, you have to lend land to your relatives if they do not have any land themselves. Even outsiders from the village Kionop, which was situated inside CRNP, could establish themselves in Tikolod, although most of them did not have any relatives in Tikolod. Today, however, the situation has changed as all the land has been applied for. This means that newcomers can no longer find new land to open for cultivation and certainly not obtain any titles to. A villager originating from the village of Kionop told us how she had to engage in a long and tough discussion at a village meeting to be able to borrow some land. This, she said, would not have happened before the Land Ordinance was introduced, because there was enough land for everybody to cultivate.

The land tenure system in Tikolod is not only constituted by the Land Ordinance, but also by elements of the Adat. The coexistence of the Adat and the Land Ordinance is complex and dynamic, and it is not possible to make clear definitions regarding which of them that apply to a given situation. However, our study showed that the Land Ordinance is playing a dominating role. The changed conceptualisation of access and rights to land that was implied by the Land Ordinance had largely been adopted by the inhabitants of Tikolod. This was evident in the villagers expressing their support to systems of ownership that made it possible to secure the future of their children through inheritance. Furthermore, it was obvious in the villagers’ relation to the CRNP. It seemed to be an accepted fact that the park was not accessible to the villagers, since it was the property of someone else (i.e. State of Sabah). Hence, they knew where the boundaries to the park were placed and they accepted these boundaries. Although all land was applied for and most people expressed wishes to acquire more land, nobody mentioned the possibility of cultivating or applying for land within the park.

With regard to the CRNP, this internalisation of the notion of private property in Tikolod means that the probability of encroachment by the villagers is not very big. However, this strong position of the Land Ordinance may be challenged by an increase in the size of the population. With the establishment of the CRNP, the area is increasingly being left void of land for which title can be obtained. This means that an increase in population size, either because of immigration or because of an increased birth rate, can put further pressure on the land. A possible consequence of this could be an intensification of the agricultural production, which would put further pressure on the environment.

As a form "everyday resistance", local people continue to hunt and collect plants for all purposes within national parks, including the CRNP. Villagers will knowingly violate statutory laws that do not facilitate their everyday needs for survival (for a discussion of this subject, see Doolittle 1999). Even if people internalise private ownership of land, it is only valid for agricultural use. When taking other uses into consideration (such as hunting and gathering), the Adat is still taking precedence over the land ordinance. In other words, people can still hunt and collect wild products on each other's titled land, and in the CRNP. This is not seen as an encroachment. Therefore, the Adat still plays an important role here. The acceptance of land ordinance prevent only the agricultural encroachment, not the other types (not yet, at least, although it might come later). Although hunting and collecting plants does not seem to be a widespread phenomenon in Tikolod, it is still taking place, and it could increase, if people’s needs are not met in the form of arable land.

In everyday life, customary law and statutory law intermingle in various ways. ‘Technology of rule’ is negotiated in these ways (see Doolittle 1999). The notion of private property has certainly been internalised, but whenever uncertainties appear, Adat rules will apply. In order to establish security a person must turn to the system of rule that supplies this sense of security, albeit, if needs are not met, boundary or no boundary, people will be inclined to encroach on the Park. However, the population density being still low, this is not a behaviour, which is currently taking place in the Tikolod community.

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