(Un)Making Mulu: Contested Territories, Frontier Dynamics and Legalization in Sarawak, Malaysia

Wageningen University - Social Sciences Sociology of Development and Change Group - WUR

(Un)making Mulu: Contested territories, frontier dynamics and legalization in Sarawak, Malaysia

December 2019

MSc. Organic Agriculture (MOA) Jonas Kramp Sustainable Food Systems Robert Fletcher

Thesis code: SDC-80436

Abstract Privileging the role of statutory institutions in transformations of land control patterns gets in the way of understanding the complexities of such changes. This thesis therefore unpacks the interplay of land control ‘mechanisms’ (i.e. territorialization, frontier dynamics and legalization) in a grounded case study and demonstrates that a variety of other actors are involved in ‘making territory’. I trace in this regard the historical formation of land control patterns in Mulu, located in the Malaysian state of Sarawak on the island of Borneo, by looking at the emergence of new state spaces, resource frontiers and legislation. Customary land tenure of the local population is positioned centrally to show how land control mechanisms in Mulu have co-produced a certain spatial-territorial configuration over a period of roughly 40 years. By doing so I aim to illustrate how such processes materialized through accounts of the lived experiences of my interlocutors in the field. This thesis argues in this respect that territorialization is negotiated between state and non-state actors and complicates this further by highlighting that different territorial projects overlap and interact. Secondly, I show that the neoliberalization of the ecotourism and palm oil sectors intertwine with a neo-patrimonial rationality in Mulu to form a hybrid, neoliberal-influenced mode of governance of natural resources. Lastly, I contend that an understanding of legalization as a straightforward process obscures the variety of actors, interests and processes that shape the final product of legalization. By developing these three related arguments this thesis aims to contribute to scholarly debates about state formation and resource governance in Sarawak and beyond.

Acknowledgements I remain greatly indebted to Mr. Andrea Fadani and the organization Fiat Panis which have provided generous funding to support my field work in Sarawak, Malaysia. Initially I set out to study the link between land control and food sovereignty but during my field work found that ‘land sovereignty’ was the central concern of the local population rather than sovereignty in the food system. I hope that insights generated by this thesis, about agrarian change in Mulu, can benefit other analyses that engage with topics such as food security or the so far unexplored political project of food sovereignty in Sarawak. I want to express my gratitude as well to my supervisor Robert Fletcher who has guided me through the entire second year of my Masters programme, always offering help and advice and beyond that he has been a source of enthusiasm that has inspired me. Ida Theilade has made possible this field work as she was the link to connect me to the Bruno Manser Fonds who took me in warmly and which generously supported my thesis by making me familiar with the research site before going into the field, which included me in internal discussions and allowed me to get insights in their work on the ground with different communities in Sarawak, and which supported me in every way imaginable. In particular, I thank one person that best remains anonymous which has been my gatekeeper in Mulu and which has left a lasting impression on me through his/her dedication. I would also like to express my deepest gratitude to the whole team of SAVE Rivers for taking me in as part of their family and for passing on their positive energy that has been one of the biggest pleasures of my field work. I thank Abraham as well for his witty cheerfulness, hospitality and support to connect me to Jayl Langub through whose help this thesis has benefited greatly. During my stay in Kuching conversations with Poline Bala and Kelvin Egay have beyond that allowed me to see my data with new eyes. I also thank Miro Born for his friendship as well as for his enthusiasm for Sociology and ethnographic methods.

Lastly and most deeply I want to express my gratitude to all the activists and people from Mulu I encountered during my field work. I cannot sufficiently thank those who have allowed me to stay in their homes and express my gratitude to those who have shared their stories with me. Without Dayang this thesis would have been impossible.

Abbreviations

BMF Bruno Manser Fonds

EU European Union

FELDA Federal Land Development Authority

ITTO International Tropical Timber Organization

IUCN International Union for Conservation of Nature

NCR Native Customary Rights

NGO Non-Governmental Organization

RGS Royal Geographical Society

RM Malaysian Ringgit

SALCRA Sarawak Land Consolidation and Rehabilitation Authority

SDN. BHD. Sendirian Berhad (Incorporated)

SFC Sarawak Forestry Corporation

SLDB Sarawak Land Development Board

TPA Totally Protected Area

UNESCO United Nations Educational, Scientific and Cultural Organization

UNIMAS Universiti Malaysia Sarawak

USD United States Dollar

WHC World Heritage Comittee

WWF World Wide Fund For Nature

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Table of contents Abstract ...... i Acknowledgements ...... ii Abbreviations ...... iii List of figures and tables...... vi 1 Introduction ...... 1 2 Theoretical framework ...... 3 2.1 Putting land control into context: state-society relations, rights and legal pluralism ...... 3 2.1.1 State-society relations – ‘public authority from below’ ...... 4 2.1.2 Linking authority to rights ...... 4 2.1.3 Legal pluralism ...... 5 2.2 (Un)making land control through territorialization, frontier dynamics and legalization ...... 6 2.2.1 Territorialization ...... 6 2.2.2 Frontier dynamics ...... 7 2.2.3 Legalization ...... 9 2.3 Main research question ...... 10 3 Approach ...... 10 3.1 The field – a controversial object of study and limited access...... 10 3.2 Ethnography and Borneo ...... 11 3.3 Research methods ...... 12 4 Results ...... 13 4.1 Charting state territorialization in Sarawak ...... 13 4.1.1 The ‘early days’ and the Brooke period (1841-1946) ...... 13 4.1.2 British rule (1946-1963) ...... 15 4.1.3 After Sarawak’s independence (1963-today) ...... 16 4.2 The discovery and transformation of Mulu ...... 17 4.2.1 Life and landscape before the park ...... 17 4.2.2 The expedition to discover the park ...... 21 4.2.3 Rupture and transformation ...... 23 4.3 Making sense of Mulu’s emerging frontier and its repercussions ...... 26 4.3.1 The ancestral land of Berawan and Tering ...... 27 4.3.2 Frontier dynamics – the local scramble for land and ecotourism in Mulu ...... 28 4.4 A troubled political project – localizing the oil palm frontier and its corresponding territorialization ...... 32 4.4.1 Sarawak’s oil palm frontier and its manifestation in Mulu ...... 32 4.4.2 Patronage and frontier politics (‘divide and conquer’) in Mulu’s frontier space ...... 35

4.4.3 Becoming visible – from (counter-)territorialization to legalization ...... 38 4.5 Irreconcilable territorial projects and transient frontier assemblages ...... 42 4.5.1 Fragmentation of government agencies and patronage – remaking the park ...... 42 4.5.2 Imaginative projects ...... 43 4.5.3 Shaping frontier imaginations ...... 46 4.5.4 Neoliberalization – another common thread ...... 47 5 Conclusion ...... 49 References ...... 52 Appendices ...... 60 Appendix 1 ...... 60 Appendix 2 ...... 61 Appendix 3 ...... 90 Appendix 4 ...... 91 Appendix 5 ...... 92

List of figures and tables

Figure 1: Distribution of Western and Eastern Penan in Sarawak (Brosius 2006) ...... 19 Figure 2: Location of Long Terawan and Mulu (Forest Department 1992) ...... 20 Figure 3: Zonation plan published in the park’s management plan (1993-1995) (Forest Department 1992) ...... 22 Figure 4: Migration of Berawan/Tering up the Melinau river (Proctor 1979) ...... 27 Figure 5: Position of Lot 2 & Lot 3 on NCR land of Penan and Berawan/Tering (BMF 2019) ...... 35 Figure 6: Proposed Penan settlement reserve (Kedit 1978) ...... 60 Figure 7: Statement by Director of Forest that no timber license was granted to Radiant Lagoon (Photo: Jonas Kramp) ...... 90 Figure 8: Map showing the territory claimed by villagers of Batu Bungan around 1998 (Source: Friends of the Earth Malaysia) ...... 91

Table 1: Movement of the Berawan/Tering up the Melinau river (Proctor 1979) ...... 27

1 Introduction The landscapes of Mulu, located in the interior of Sarawak, Malaysia, have become a symbol in the contemporary environmental politics of Malaysian Borneo. Since roughly four decades, the state of Sarawak and its previously forested interior regions have been heavily logged, turning large swathes of once primary forests into degraded, secondary forests and oil palm landscapes (Brosius 1999, Majid Cooke 2002). The Gunung Mulu National Park, gazetted in 1974, remains an island within Sarawak that has seen its forests diminished, leaving only 14.6%1 of primary forests intact (Gaveau et al. 2014). Mulu’s location historically contributed to its inaccessibility from the coastal settlements and it was only in 1977 that Mulu was ‘discovered’ by science to explore the Mulu national park on the ground. This moment of discovery will be the entry point of this thesis as it has deeply transformed the lives of Mulu’s inhabitants and their relationship with the landscape. Nomadic Penan groups became sedentary, Berawan and Tering villagers migrated to Mulu and established a new village, a tourist industry in and around the national park began to flourish and access to land and control over it changed with new territorial configurations.

Despite the Mulu park’s status as a Totally Protected Area (TPA), logging activities have not halted in the immediate vicinity of the park. In December 2018 an area of about 4440 hectares, only a few kilometers West of the park, was partly clear-cut as it was reserved for cultivating oil palm in 2008 under a provisional lease agreement between the company Radiant Lagoon Sdn Bhd2 and the state government’s Land and Survey Department. Local villagers mobilized against this rural development project by setting up road blocks to stop unauthorized logging activities on their native customary rights (NCR) land. In Sarawak around 20-25% of the total land area is claimed as NCR land on which villagers traditionally practice extensive semi-subsistence farming (Andersen et al. 2016). Officially demarcated and allocated land and resource rights are still largely absent in the resource rich northwest of Borneo (including Mulu) where much of the rural Dayak population occupies land, formally considered to be state-owned land, under customary tenure (Barney 2004). Drawing on this rich history of Mulu’s changing land control, from its ‘discovery’ to recent contestations, I trace the negotiations among a wide variety of actors in the production of this region’s territorial configuration. By doing so I aim to contribute to a better understanding of territorialization (‘from below’) in Sarawak.

Territorialization – “the creation of systems of resource control, rights, authorities, jurisdictions, and their spatial representations” (Rasmussen and Lund 2018b, 388) – is central to land governance in the post-colonial context. Territorialization can be problematic as it is directed at transforming spatial arrangements, thus altering the lived experience of local resource users which may result in a loss of place and livelihood (Kumar and Kerr 2013). However, this must not always be the case as Vandergeest and Peluso (1995) have shown. Yet such reconfigurations, to whatever extent, inscribe new power relations onto land and other resources as territorialization “produces a bundle of powers and mechanisms for restricting access”(Peluso and Lund 2011). While territorialization has been discussed widely in a variety of contexts (Vandergeest and Peluso 1995, Corson 2011, Peluso 2018, Rasmussen and Lund 2018b), studies on its concrete manifestations in Sarawak, Malaysia, remain largely absent. The few existing studies have so far focused on the overall (and hampered) development of Sarawak’s forestry sector (Peluso and Vandergeest 2001), on the ‘politics of development’3 that have turned ‘idle’ and ‘unproductive’ land and other resources into capital while stabilizing ‘backward’ shifting

1 Until 2010 2 From here on referred to as Radiant Lagoon 3 The slogan ‘politics of development’ (politik pembangunan) was introduced by Abdul Taib Mahmud to describe his policies geared to modernize Sarawak and to exploit its resources allegedly for the benefit of all Sarawakians (King 1993). 1 cultivation practices (Majid Cooke 2002, 2003, 2006, Cramb 2007, Cramb and Sujang 2013, Fox et al. 2009) and resistance to such territorial projects (Barney 2004, Bissonnette 2011). This thesis therefore aims to add to this literature by grounding territorialization in a case study to show its political, economic, legal and social entanglements that shape the processes outcome as different actors within and outside of government institutions aim to ‘make territory’ based on different rationales. I highlight in this regard the territorializing capabilities of a variety of non-state actors. Hence, the main argument of this thesis is that territorialization in Sarawak is co-produced by an assemblage of actors that operate within and outside of formal state institutions and across different scales. Moreover, different territorialization projects interact with one another. By examining two competing territorial projects (i.e. national park and oil palm plantation) this thesis furthermore aims to highlight that state territorialization in Sarawak is based on different modes of governance and is incoherent as it has opened up room for villagers to more effectively lay claim to their customary land. To secure their land rights, villagers have countered the territorial project of an oil palm plantation by setting up road blocks and have later engaged in legal protests and campaigning to formalize their claim to NCR land. Legalization of land rights and territorialization are both examined as contested processes to highlight the changing character of (non-)state territorialization. To illuminate the fragmented and unfinished character of socio-spatial order in Mulu I integrate other ‘land control mechanisms’ to suggest that the final product is a fragmented and dynamic regime of land control in which different scales interact and modes of governance intertwine.

In the first chapter I describe the relationship between the Penan hunter gatherers and their environment in the area which is now known as the Mulu national park. In the following I illustrate how the ‘discovery’ of Mulu has ruptured local land tenure of Penan and how this moment of change has set into motion different processes that have led to ethnic division as recently settled Penan and Berawan and Tering of a nearby village have claimed valuable land near the national park. Contrasting the establishment of the Gunong Mulu National Park and the development of ecotourism in Mulu, the next chapter introduces the agro-industrial and export-oriented production of palm oil and localizes an emerging palm oil frontier space in the immediate vicinity of the Mulu national park which challenges local land control of Mulu’s villagers and sparks resistance. The following chapter then traces as to how the two state projects of ecotourism and palm oil production relate to one another. I conclude that in the territorialization from below literature insufficient attention has been given to inconsistencies in (overlapping) territorialization projects and to the role of non-state actors in navigating the process of neoliberalization to secure their customary land rights.

2 Theoretical framework The usurpation of space usually dissolves existing property systems, and challenges prevailing land rights. The subsequent land control is a complex cocktail of commodification, enclosure, dispossession, formalisation, and legalisation. This is no picnic. (Lund 2019)

This thesis and its theoretical framework evolve around a pivotal focus on access to land4 (Ribot and Peluso 2003) and land control. Therefore, I begin by outlining the concept of land control (by including access) from a perspective that highlights the processual character of control regimes and their complex entanglements. Land control is contextualized by embedding the concept in the process of state formation. The ‘making of the state’ (Lund 2016) will be understood from a perspective of institutional and legal pluralism (‘public authority from below perspective’).

Looking at land control, its dynamic context, and the strategies of stakeholders in (re)producing it, is the purpose of this research project. This inevitably raises questions about how different legal orders, power relations, and accumulation processes intersect in space and how these constellations crystalize and change over time. Therefore, the following framework introduces three ‘mechanisms’ of land control: (1) territorialization, (2) frontier dynamics, and (3) legalization. On the ground, these mechanisms work in conjunction as frontier dynamics unmake spatial order, territorialization establishes it and legalization works as a source of legitimacy for the two.

2.1 Putting land control into context: state-society relations, rights and legal pluralism Land control implies a historical dimension which directs our attention to the different strategies that actors employ to hold onto land (Peluso and Lund 2011). Stressing this dimension of the concept, Peluso and Lund (2011, 668) define land control as the “practices that fix or consolidate forms of access, claiming, and exclusions for some time”. Central to this definition, but only implicitly stated, is the idea that access and claims to land as well as exclusions from it are always bound up with the exercise of power and authority5 (Sikor and Lund 2009). In Sarawak, as in many other post-colonial contexts, land control has often been drastically reconfigured since the implantation of new colonial regimes that claimed and asserted territorial control over vast areas. New forms of land control, often fragmented and impartial, subsequently surfaced, underpinned by the territorial claim of emerging modern states. Lund (2016) asserts that one needs to disperse with ahistorical state theories based on ideal types (e.g. Weberian rational-bureaucratic model) when empirically investigating land control through changing relations of power and authority. It is rather useful to focus on the construction of authority of statutory and non-statutory institutions alike to show that land control is produced and contested by a variety of actors with different interests. Embedding land control in a historical context and focusing on power relations and authority thus helps to unveil state-society (or state-ethnic minority) relations. Furthermore, it allows to better understand the process of state formation (Lund 2016). The following sections therefore view state-society relations through a lens that focuses on the production of public authority – by statutory and non-statutory institutions alike.

4 Ribot and Peluso (2003) define access as “the ability to derive benefits from things” widening the scope from classical rights-based definitions. 5 This thesis builds on a Weberian notion of authority as an “instance of power which seeks at least a minimum of voluntary compliance and thus is legitimated in some way” (Lund 2006, 678). 3

2.1.1 State-society relations – ‘public authority from below’ The position of the state relative to society has been a major and longstanding object of inquiry in the social sciences. Despite attempts to define the state by distinguishing it from civil society, the boundary between the two concepts appears elusive, porous and mobile/dynamic (Lestrelin 2011, Mitchell 1991). Scholars have for example focused on the structure of the state (e.g. Mitchell (1991)), on the project of government (e.g. Foucault (1991)), and in a more empirical fashion on the (un)successful implementation of the latter project (e.g. Li (1999)), suggesting that “if there is indeed some sort of boundary between the state and society, this boundary is politically constructed, constantly remolded by power struggles and permeable to all sorts of social forces” (Lestrelin 2011, 313). This point is especially visible in the post-colonial context, where contestations over legitimate authority are prevalent as statutory institutions compete not seldomly with customary institutions over control of land and other resources.

Decentering public authority, commonly thought of as a property fixed to a central state, and understanding it as processual (i.e. contested over time) and pluralistic (i.e. existing in different institutions, be they statutory or not) opens up room for the study of state-society relations in conflict affected regions (Hoffman and Kirk 2013). Following such a conceptualization of public authority leads us to understand the state as always in the making (Lund 2016). Hoffman and Kirk (2013) have named this approach and the body of literature loosely assembled behind this idea the public authority from below perspective. Authors of this approach tend to focus on the local level and the contentious character of public authority in everyday life with an interest in “how public authority is exercised and institutionalised through everyday social encounters” (Hoffman and Kirk 2013, 10). Approaching public authority in this way complicates and blurs the boundaries between state/society, public/private, and formal/informal.

An intimate connection between the above dualisms remains however as claims to public authority by politico-legal institutional actors derive their legitimacy from references to the notion of the state (Hoffman and Kirk 2013). Paradoxically, statehood can be “effectively propelled by institutions which challenge the state but depend on the idea of it to do so” (Lund 2006, 689). This idea is largely shared among the authors of the public authority from below perspective who describe a “co-existence of multiple public authorities, linked to multiple spaces of authority within the public sphere, ‘each giving their own meaning to authority and political power’” (Hoffman and Kirk 2013, 12). Bierschenk and De Sardan (1997) use the word power poles to describe these polycentric interactions and negotiations over the distribution of public services which in competition or coalition result in the making of the state (Bierschenk and De Sardan 1997, Migdal and Schlichte 2005).

Land as well as other natural resources are central for the process of state formation (Lund 2016, Diepart and Dupuis 2014), and for the (re)production of authority, as they mediate state-society relations. The next section therefore shows how rights to natural resources are connected to authority.

2.1.2 Linking authority to rights State power, according to the public authority from below literature, must be understood as a quality of an institution (‘stateness’) that is able to define and enforce collectively binding decisions over a part of society (Lund 2011). Control exercised by any institutional actor with such quality, furthermore, does not represent pre-existing authority, it produces it (Lund 2016).

[T]he ability to entitle and disenfranchise people with regard to property, to establish the conditions under which they hold that property — together with the ability to define who

belongs and who does not, and to establish and uphold rank, privilege and social servitude in its many forms — is constitutive of state power (Lund 2016, 1200)

Understanding the state as always in the making, or in other words, political authority as (re)produced through defining and enforcing rights, brings into focus the dialectic relation of rights and authority. As described, authority is (re)produced through successfully sanctioning rights. The other way around, claims to rights may invoke public authority, in statutory and non-statutory institutions alike (Lund 2016). “[W]hen institutions recognize claims to property or citizenship, they themselves become recognized by the claimants of these rights” (Eilenberg and Lund 2017). One can conclude from this, that authority and rights are co-constitutive, contemporaneous and are conceptually tied together by recognition6 (Lund 2016).

Based on these ideas, Lund (2016) suggests studying the social production of property and citizenship through ‘social contracts’ – e.g. formed in contestations over land control. He adds that looking at property (what we have) and citizenship (who we are) enables a concrete understanding of the dynamics of authority and state formation (Lund 2016).

The former, property, is understood as more than private property and the often-used description of control thereof as ownership (Lund 2016). Property can thus not be reduced to its economic or legal dimension as it is multifunctional (e.g. identity, religious connotations, political power, etc.) and due to its relational character exists in “changing constellations of property relationships that form network-like structures” (von Benda-Beckmann, von Benda-Beckmann, and Wiber 2006, 1). Lund (2016, 1206) therefore conceptualizes property “as a legitimized claim to something of value [(e.g. land)] sanctioned by some form of political authority”.

In this conceptualization, citizenship is understood as more than formal national citizenship (full legal, social and political rights) for which reason it is defined as the “meaningful membership of an organized political body” (Lund 2016, 1205) and drawing on Arendt (1973) as the right to have rights. National citizenship in its essence is, according to Lund (2016, 6), “one of several configurations of socially constructed collective identities or group membership based on criteria of status such as ethnicity, gender, religion, seniority, caste, profession, etc.”. In the context of institutional and legal pluralism this loose conceptualization allows for a better understanding of engagements between institutional actors and their relations to a political body.

2.1.3 Legal pluralism Legal pluralism is characterized by the co-existence of more than one normative or legal order in a social field (Griffiths 1986). These orders make up a structural framework of norms, rules or conventions that allows actors to exercise and sanction collectively binding decisions (Tchatchoua- Djomo 2018). Legal orders concur with power poles that exercise authority, for example in regard to property and citizenship. In plural settings, different forms of ordering co-exist such as statutory law, customary law (in the Malaysian context the adat), religious law, development project regulations and other local or hybrid norms (Meinzen-Dick and Pradhan 2002). In regard to land rights, legal plurality can mean that rights not only differ in character and distribution over rightsholders but that land itself may be defined differently in different legal systems. Hence, in some cases individuals may base their

6 Drawing on Honneth (1996) recognition is used here in the sense of simple legal recognition, however, with emphasis on an effective recognition that is able to define and enforce claims as rights (Lund 2016). 5 claims to rights on one or another of these legal frameworks, referred to as “forum shopping” (von Benda-Beckmann 1981). When studying legal orderings at the local level, they are often characterized by blurred boundaries and are not as easily separable as actors may “consciously and unconsciously draw on existing social and cultural arrangements to shape institutions in response to changing situations” (Fokou and Bonfoh 2016, 534). Consequently, bricolage, or the piecing together of institutions, may result in hybrid institutional arrangements which blend formal with informal rules (De Koning and Cleaver 2012). Therefore, it is not only the state that is fragmented and in the making, but also law has to be seen as ‘laws’ which are selectively referred to and exercised by different actors in an institutionally plural context rather than solely by statutory institutions through a centralized system. Moreover, plural legal systems are interconnected and ever changing within their historical context (Merry 1988).

After linking land control to the contested process of state formation – understood within the contexts of institutional and legal pluralism – we must now turn to the mechanisms through which land control operates.

2.2 (Un)making land control through territorialization, frontier dynamics and legalization As stated by Lund (2019, 117) “land control is a complex cocktail of commodification, enclosure, dispossession, [territorialization], formalisation, and legalisation". The following sections of the theoretical framework therefore discuss and organize these processes into different ‘land control mechanisms’ through which power has worked in the past and remains to operate in the present. The framework is structured into mechanisms that establish spatial control (i.e. territorialization), those that unmake it (i.e. frontier dynamics) and the legal processes (i.e. legalization) that work in conjunction with this set of dynamics.

2.2.1 Territorialization State territorialization, the idea of the state as a political organization that seeks to exert control over people and resources through “the creation of systems of resource control, rights, authorities, jurisdictions, and their spatial representations” (Rasmussen and Lund 2018b, 388), is not a new phenomenon in many developing countries in the Global South. Vandergeest and Peluso (1995) for example have famously shown how states’ territorialization attempts and measures are translated into state defined policies and institutions, to justify, legitimize and enforce spatial control, while excluding or including people within particular geographic boundaries. While some have focused in the wider discussion on external territorialization, and the development of sovereignty’s spatial extent (Elden 2009, Sassen 2008), others have focused on the internal territorial strategies of states to establish control inside their boundaries (Vandergeest and Peluso 1995). Only recently, growing attention has been given to non-state actors in the territorialization literature and their role in making territory (Baird 2009, Peluso 2005, 2009, Roth 2008, Corson 2011, Eilenberg 2012). If state territorialization is directly opposed, authors refer to this phenomenon as counter-territorialization (Isager and Ivarsson 2002, Lestrelin 2011, Bryant 2002).

Corson (2011) traces back the concept of internal territorialization from Sack (1986) who understood territoriality “as an individual and adaptive behavior, to argue that territoriality is socially and

6 geographically rooted7”(Corson 2011, 705). Sack (1986, 19) thus defined territoriality as “an attempt by an individual or group to affect, influence or control people, phenomena, and relationships by delimiting and asserting control over a geographic area”. This idea provided the ground for Vandergeest and Peluso (1995) to develop their now widely used concept of internal territorialization. This thesis as well draws upon this concept to examine internal territorialization in Sarawak.

According to Vandergeest and Peluso (1995, 387) internal territorialization is the process in which modern states “divide their territories into complex and overlapping political and economic zones, rearrange people and resources within these units, and create regulations delineating how and by whom these areas can be used”. Vandergeest and Peluso (1995) showed that state territorialization works through boundary making and mapping, allocating rights to ‘private actors’, and defining specific resource uses within specified boundaries (Corson 2011). Expanding this definition, this thesis understands internal territorialization as “a dynamic, negotiated, and historically contingent process that transpires through negotiations and interactions among state and non-state actors” (Corson 2011, 704-705). Starting from these conceptualizations this thesis explores amongst other things how villagers have initially countered territorialization and have later joined forces with other non-state actors to co-produce state territorialization in a sovereign moment. Territorialization is in this sense “an uneven process, which can vary across localities, depending on the actual enforcement of boundaries, police power of states or other authorities, and the historical, political, and ecological characteristics of the landscape” (Corson 2011, 707). Furthermore, land control by means of (counter- )territorialization does not only establish control over property but also entails a subjectivation process that creates new subjectivities8 as new territorialities produce and maintain power relations between and among subjects and authorities (Peluso and Lund 2011). Hence, new property relations often force new relations between subjects and (non-)statutory authorities (Peluso and Lund 2011, Agrawal 2005).

Additionally, ‘state’ territorialization in Sarawak must be understood in the context of the state’s unfolding neoliberalization9 of environmental management (McCarthy and Cramb 2009, Parreñas 2018) as the neoliberalization of the forestry sector, for example, has called up a range of (semi)private actors that shape territorialization. Looking at the process of neoliberalization then draws our attention to those dynamics in land control that aim to unmake spatial orders to accumulate capital. The next section therefore deals with frontiers and their destructive dynamics.

2.2.2 Frontier dynamics Sarawak has been labelled the last frontier of Malaysia. Many scholars have invoked the notion of the frontier to illuminate the transformations of rural areas throughout Southeast Asia (Barney 2009, Dressler, Fletcher, and Fabinyi 2018, Diepart and Sem 2018, Tsing 2005). Frontier spaces have mushroomed too across Sarawak – co-produced by the process of state formation. However, rather than delineating a geo-political separation of physical space, frontier spaces construct a contact zone or epistemological and political distinction between civilization and the wild (Rasmussen and Lund 2018b). Anna Tsing has famously described this phenomenon in the Indonesian context of Kalimantan:

7 This was a “ground-breaking challenge to biological determinists, who approached territoriality as an individual and adaptive behavior” (Corson 2011, 705). 8 e.g. see Malhi (2011) for the Malaysian peninsular 9 The concept of neoliberalism/neoliberalization has been extensively debated in academia (for an overview see for example Collier (2012) or Fletcher and Büscher (2017)), however, pinning down the term has been troublesome. I rely in this thesis on Castree (2008) and his key tenets of neoliberalization (see Chapter 4.5.4). 7

A frontier is an edge of space and time: a zone of not yet – not yet mapped, not yet regulated. It is a zone of unmapping: even in its planning, a frontier is imagined as unplanned. Frontiers aren’t just discovered at the edge; they are projects in making geographical and temporal experience (Tsing 2005, 28-29)

Frontier spaces indicate where new resources and commodities come into being and may thus be described in their basic form as: “epistemological, discursive and political operations [that enable] powerful actors to turn nature into economic commodities” (Rasmussen and Lund 2018b, 391). The dynamics of such projects “dissolve existing social orders – property relations, political jurisdictions, rights, and social contracts” (Rasmussen and Lund 2018b, 388) – of a location, making room for new. According to Tsing (2005) frontiers produce wildness, e.g. imaginations of wilderness, that provide a conceptual frame for creating unpeopled and lawless spaces. Building on Tsing (2005), in their recent work Cons and Eilenberg (2019, 12) and colleagues urge for an understanding of the frontier as an imaginative zone – i.e. an entanglement “anchored in the imaginative, the material, the known and the unknown” that goes beyond frontiers merely being conceived in terms of resource discovery and exploitation. To capture “the intertwined materialities, actors, cultural logics, spatial dynamics, ecologies, and political economic processes that produce particular places as resource frontiers” the authors employ frontier assemblage10 as an analytic and descriptive term.

While frontier dynamics in such assemblages unmake spatial control, territorialization establishes it. In concert, then, both sets of dynamics “bound spaces and identities and create new kinds of environmental subjects, who produce, accept, or contest new sorts of common sense (Gramsci 1971)” (Peluso and Lund 2011, 677). In the Sarawakian context, resource frontiers have been assembled and accelerated by logging ventures and economic development policy which have paved the way for the commodification of resources (e.g. timber and land), their privatization and enclosure, as well as other forms of primitive accumulation11 – by largely domestic capital (Leigh 2002).

Frontier moments and the emerging forms of land control are especially related to a capitalist appropriation of space and the dispossession of local landholders (Rasmussen and Lund 2018b). Nevertheless, enclosure, and subsequent land control, for accumulation processes does not simply ‘occur’ (as argued above); it is rather mediated by institutions, legal processes and regulations (Brad et al. 2015). Territorialization and frontier dynamics therefore need to be seen as co-constitutive (Rasmussen and Lund 2018b) as this allows a better understanding of shifts in land control and of how exactly dispossession materializes on the ground (Kenney-Lazar 2018, 2012). Territorial struggles, according to Boelens et al. (2016, 8), “therefore, entwine battles over natural resources with struggles over meaning, norms, knowledge, decision-making authority, and discourses”. Legalization as the last mechanism of land control aims to capture in this regard how law works at the interface of the material and discursive realms as well as its function in Sarawak’s political economy.

10 Cons and Eilenberg (2019, 5) base their ideas of assemblage on framings employed in Anthropology and Geography to map “historically contingent convergences and the ways they often coalesce in objects, spaces, and landscapes”. Assemblage is thus a device to capture messiness and contingency of one’s empirical inquiries into frontier zones. 11 “The valorization of nature, i.e., the incorporation of non-capitalist areas into the capitalist mode of production, is a precondition for the control of land and the subsequent accumulation process (Altvater 1993, Görg 2004). Marx (1867/1990) referred to this development as primitive accumulation (Ursprüngliche Akkumulation), describing ‘the historical process of divorcing the producer from the means of production’ in the course of the transition from feudalism to capitalism. In analyzing contemporary politics, Harvey (2003) conceptualizes this process as ‘accumulation by dispossession’” (Brad et al. 2015, 101). 8

2.2.3 Legalization The […] law works as a discourse and practice that not only bounds itself, through practices of legal ‘closure’, but also polices the spheres of politics and the economy while mediating their interrelation (Barkan 2011, 603)

Boone (2014, 4) similarly argues that “[i]n all political economies, property rights lie at the confluence of the political-legal order and the economic order” as property rights establish a socio-political relation (through mutual recognition) and furthermore are a central component of relations of production. Property regimes surrounding land or land tenure regimes essentially “define the manner and terms under which rights in land are granted, held, enforced, contested, and transferred” (Boone 2014, 4).

Regarding the formalization of such oftentimes ‘informal’ property regimes, Otto and Hoekema (2012, 12) define land tenure legalization as “a process whereby possession (including use) and management of a tract of land are incorporated into a national legal system – either directly, or indirectly through recognition of community-based rights and authorities – whereby the rights and obligations of the individuals and entities concerned are defined”. In the context of institutional and legal pluralism legalization needs to be understood, beyond this definition, as to function inversely as a process that has led historically, since the introduction of private property, to dispossession and exclusion. In that sense, “we should ask who makes [and who contests law and why], in which structures, through which agents, and for what purposes” (Barzilai 2008, 416).

Looking for example at colonial histories illustrates how law and legitimate authority have worked in close collaboration to overturn customary land tenure arrangements. Colonial power increased and was consolidated on the basis of legal codes that legitimated the ruler’s territorial expansions as lawful acts. Hence, a new exclusionary property regime based on private property was legalized and institutionalized12. Such legalization differs from the one described above in that it does not aim to trace and incorporate local land tenure but rather (partly) erases and simplifies such arrangements (Scott 1998). Legalization, by the politico-legal institutions of colonial power, did not take into account how land was managed in detail and has thus in the Sarawakian example perpetuated a false idea of unoccupied land as ‘idle’ (Majid Cooke 2006).

Even though land control has always been legally desired by Sarawak’s government, on the ground, it has been contested throughout the state’s post-colonial history. Peluso and Lund (2011, 674) note in this regard: “[e]fforts to formalize, legalize, and legitimate may all help to make decisions and power stick. However, the long term ‘stickiness’ depends on more than law. As we know, hegemony is neither static nor unchallenged; it is tentative, temporary, and incomplete (Gramsci 1971)”. The process of legalization is in this regard connected to and influenced by a variety of extra-legal means and processes (e.g. market, violence or the threat of it, etc. (Hall, Hirsch, and Li 2011)). Yet in the context of the capitalist state, “abstract, formal, universal law is the truth of subjects: it is knowledge (in the service of capital) which constitutes juridical-political subjects and which establishes the difference between private and public” (Poulantzas 2000, 89). Lund (2018) elaborates that “law is both a solvent and solidifier”, referring to its ability, when working in the service of powerful interests, to (de)stabilize socio-spatial orders. However, references to ‘the law’ are also often pertinent in discourses of those dispossessed (e.g. native customary rights in Mulu) who on the one hand aim to protect their material possessions but simultaneously reinforce state power through reference to the dominant legal system.

12 In the Indonesian context, Pichler (2015) refers to this phenomenon as legal dispossession (here understood as a part of legalization), a set of state strategies that aim to establish land control.

This thesis aims to unravel such processes in the region of Mulu in which legalization interacts with territorialization and frontier dynamics to establish new patterns of land control. To investigate Mulu’s complex regime of land control I have formulated the following research questions.

2.3 Main research question How have different land control mechanisms employed by different institutional actors shaped (and have been shaped by) local land control strategies of Penan and Berawan communities in the context of a national park and a large-scale oil palm concession on native customary land?

Sub-questions

1. How have customary land rights in Mulu evolved over time? 2. Which actors and institutions are involved in the conflict and at what scales? 3. Which strategies do different stakeholders employ to access and control land? 4. How have claims to property and citizenship rights worked to (re)constitute the public authority of politico-legal institutional actors and how has their authority in turn (re)produced property rights and/or political subjectivities?

3 Approach The following chapter lays out the qualitative approach on which this thesis builds. I begin by introducing the field in which I conducted my research and point to the difficulties in regard to accessing some of the groups and their perspectives. The next section deals with ethnographic research, which has informed this thesis, and reflects on the history of this approach in Borneo and its relation to my research. Lastly, I discuss the methods which I have employed to gather data during my field work.

3.1 The field – a controversial object of study and limited access To explore the above research questions, I conducted two months of field work in Sarawak, Malaysia. My primary field sites were the villages Batu Bungan and Kampung13 Sungai Melinau in Mulu (in that order). Customary land rights, the foundation of my object of study, are controversial in nature, hence my gatekeepers advised me to not reveal my identity but to act like a tourist of the nearby national park. Furthermore, I did not hold any official research permission for which reason I ran the risk of being fined or worse. Therefore, I stayed as a ‘tourist’ in Kampung Sungai Melinau in guesthouses of Tering families that were part of the resistance against an enclosure for an oil palm plantation14. However, when conducting interviews and observing community mapping sessions in Batu Bungan I stayed with the family of the village’s headman whom I had met in Basel, Switzerland, in the office of the Bruno Manser Fonds (BMF), a Swiss NGO fighting for Penan land rights. The BMF introduced me to the Penan and Berawan/Tering gatekeepers and one of the BMF’s members generously supported

13 Kampung (village) is used here to indicate the settlement near the Melinau river as Sungai means river in Kampung Sungai Melinau. 14 I did not go to Long Terawan to conduct interviews out of security reasons and depended on my gate keeper to organize interview partners for the semi-structured interviews that I had planned. 10 me during my field work in Mulu. In Basel I discussed the ethical issues of my thesis, for example dangers for my interviewees emanating from conducting interviews etc., with gatekeepers and staff of the BMF and again before and during field work. Especially important were here the agreement of the community representatives and of one activist in particular who has a long personal history with Sarawak’s government authorities. The prospect that my research might generate data that could be used for a law suit furthermore made this research project relevant for NGOs and villagers. In the community of Batu Bungan I conducted interviews with the help of my research assistant Dayang Ukau, the daughter of Batu Bungan’s village chief, who translated between Penan and English. The interviews with my Berawan and Tering interlocutors were done in English without translation. As some of my informants had moved away from Mulu to work in Miri, the next ‘big’ city, I was able to conduct two of my interviews there. Due to the described constraints of my field work I stayed overall approximately one month in Mulu which I visited three times over the two months. In-between visits I planned my next interviews and spoke to informants in Miri and Kuching, Sarawak’s capital.

My research was in this regard determined by the network through which I have acquired access to the field, i.e. through the BMF, an environmental NGO that is often perceived akin to an ‘enemy of the state’. A major challenge was therefore to get access to other perspectives in the conflict in order to triangulate the collected data. Through my network and position in the field I was ultimately unable to interview local authorities that had welcomed a plantation project on land claimed as native customary land by communities in Mulu, other government officials (e.g. Forest Department) and the company Radiant Lagoon. My research therefore does not sufficiently represent the variety of perspectives of actors that play a role in Mulu’s land governance. I am aware of this shortcoming which has cautioned my ideas in the process of writing.

3.2 Ethnography and Borneo To study a piece of empirical reality from the proposed theoretical (public authority from below) perspective I employed an ethnographic approach. Ethnography – understood as “social research based on the close-up, on-the-ground observation of people and institutions in real time and space, in which the investigator embeds herself near (or within) the phenomenon so as to detect how and why agents on the scene act, think and feel the way they do” (Wacquant 2003, 5) – involves the researcher participating as a data producer. The particular characteristics of the ethnographer, in that regard, mediate the research (such as in any other research). This is to say that – as the researcher is the “research instrument par excellence” (Hammersley and Atkinson 2007, 17) – her or his social position, networks and habitus are strongly implicated within all stages of the fieldwork and research process. A difference in positionality (of researcher and researched) certainly does not only affect the researcher and the way she/he participates and observes, but vis-à-vis also the object of the study. Hammersley and Atkinson (2007) therefore understand ethnography as a reflexive process that recognizes how one’s research and theories are part of and influence one’s object of study.

Reflecting on the concepts and categories I used to build my thesis made me encounter a fundamental dilemma during my research which troubled my writing process about state formation, ‘customary rights’ and statutory recognition. I am focusing here on the issue of ‘writing ethnicity’ in Sarawak and Borneo, i.e. the reification of dominant categories and bounded ethnic groups instead of representing communities in their complexities (Metcalf 2010). Ethnographic research in the Bornean context has long been an instrument to order ethnic groups into a neat system with ever smaller categories of ‘races’, ‘tribes’, ‘subtribes’, ‘clans’, etc. (Fanselow 2014) – see for example Haddon (1901) or Hose and McDougall (1912). Ethnicity in Sarawak is thus considerably a product of exploration, missionization and colonization (Rousseau 1990). For example, in my thesis I describe how a ‘Penan’ village was 11 established through government-led settlement in order to constitute a national park on an ‘undiscovered’ piece of nature. By the same token the ethnic identity of the settled groups as ‘Penan’ was reified. The dilemma of my research has therefore been to abandon complexity for the sake of describing how ‘Penan’, ‘Berawan’ and ‘Tering’ have fought to become visible as ethnic groups that are recognized by statutory institutions as formal rights holders. My thesis has in this regard contributed to simplifying and reproducing notions of ‘ethnic communities’. However, where possible, I have attempted to show that Batu Bungan, Long Iman, Kampung Sungai Melinau and Long Terawan are by no means homogenous communities.

3.3 Research methods During the two months of field work I collected qualitative data mainly in two close-by villages, Batu Bungan and Kampung Sungai Melinau. During my stay in Batu Bungan I conducted a number of 13 semi-structured household interviews to understand the perceptions of my interlocutors pertaining to changes in land access, resource use and to get a sense of their lived experiences. With my Berawan and Tering informants I conducted interviews under the same rationale but was only able to record 5 interviews due to the constraints mentioned above15. I was able to conduct one interview with the lawyer of the villagers. The method of the interview itself was based on Kaufmann (2015) and his verstehendes Interview (understanding interview), an in-depth interview and “soft toolkit” that is structured by a guide but encourages to (intensively) connect with the interviewee by using a conversational approach (to reduce hierarchy), empathy (to understand the interviewees cognitive structures) and spontaneity (to go off protocol in order to dig deeper). Verstehen, is presented by Kaufmann (2015) only as an instrument which needs to be later submitted to interpretations and explanations in order to integrate empirical data and theory in a ‘grounded theory’. Understanding was not as easy as I expected it to be, for example due to the quality of translations during the interviews with my Penan interlocutors. However, I did succeed in some cases to establish a connection with the interviewee. I also failed twice. With my Berawan/Tering interlocutors it was much easier to establish a connection and to have long intensive conversations in English. Complementary to the interviews (transcripts and notes) I used field notes to record observations and interpretations. Finally, I went through some of the interviews to pick out pieces that were thereupon transcribed in Penan and later translated into English for a higher accuracy of the interview texts. The focus during all transcriptions and translations was more on the content than on the linguistics. Moreover, to protect the identities of my interlocutors I have given Christian names to those cited in this thesis.

To triangulate my data with other perspectives I briefly visited Long Iman a village located only a short boat ride downriver. Also, during my stay in Miri, the largest city up the Baram river, I had the chance to speak to environmental activists and local NGOs, representatives of international organizations and to witness a press conference of the Mulu villagers to file their law suit. My thesis is furthermore informed by conversations with scientists from the Universiti Malaysia Sarawak (UNIMAS) and an expert on the Penan. Visiting the BMF in Basel and accompanying members of the BMF has furthermore been insightful to understand the work of the organization and their relationship with the communities in Sarawak. Participant observation and informal interviews thus make up a central part of the research that furthermore helped to contextualize the positions and interests of my interlocutors.

15 However, some Berawan/Tering informants from Kampung Sungai Melinau and one from Long Terawan even conversed with me on a number of occasions. 12

The research also includes relevant documents and grey literature on the Mulu case gathered from the Bruno Manser Fonds, in the field, for example from informants, and from the internet (e.g. reports). Furthermore, to situate this case study into a broader context I included legal and land policy documents as well as relevant scientific literature in the course of an extensive literature review.

4 Results In the following I begin by tracing the history of territorialization in Sarawak through different periods of rule. After this contextualization I zoom in on my case study to describe how different mechanisms of land control have unfolded to transform the region of Mulu. I begin by illustrating how Mulu was ‘discovered’ by science and how its forests were in turn territorialized with the establishment of a national park. The following chapter picks up after the Penan’s exclusion from their customary territory by showing how a frontier space in Mulu expanded as a tourist industry for ecotourism developed. Contrasting conservation via ecotourism, the next chapter introduces and localizes the agro-industrial and export-oriented production of palm oil in Mulu and discusses how different mechanisms of land control intertwine in the resistance of villagers to this territorial project. The subsequent chapter further ties ecotourism and palm oil production together by looking at frontier imaginations, discursive operations and different modes of governance that link together conservation and resource extraction.

4.1 Charting state territorialization in Sarawak The following chapter outlines the process of state formation in Sarawak by focusing on internal territorialization. The chapter begins with the Brooke regime (1841-1946) and their expansion of Sarawak as well as the legislative groundwork for internal territorialization that was laid out during this period. I continue with a discussion of the period of British rule (1946-1963) and the newly introduced legislation that is relevant to land matters until today as during this period Sarawak’s forests slowly became politicized through government administration. The chapter closes with the recent and ongoing period after Sarawak’s independence (1963-today) and its dominant mode of making territory.

4.1.1 The ‘early days’ and the Brooke period (1841-1946) State regulations and sanctions are rather recent phenomena in Mulu. However, in Sarawak, state control16 over land and resources has played an important role since pre-colonial times. During previous periods, “tribal areas in Borneo existed within around, beside, and outside” (Walker 2016, 108) early coastal and riverine Malay states, contesting the latter’s control over resources. Subsequently, with colonialism, state territorial aspirations in Northern Borneo grew as new ideas about sovereignty and land control entered and enhanced the coercive capacities of an emerging modern state (Walker 2016). The era of European colonialism in Sarawak began in 1841 with the arrival

16 E.g. from the Sukadana and Banjarmassin sultanates of Brunei (Walker 2016) 13 of James Brooke17, the first ‘White Rajah’18 who, on behalf of the sultan of Brunei, suppressed a rebellion in the now capital of Sarawak, Kuching. After successfully gaining control over the city, Brooke demanded to rule the Kuching area and after taking power followed an expansionist agenda that widened the Brooke rule (1841-1946) over the kingdom of Sarawak (Parreñas 2018). The arrival of James Brooke furthermore marked the formal incorporation of Sarawak into a global capitalist economy (Aeria 2005).

According to Aeria (2005), Brooke rule was built upon an autocratic political system modeled after Brunei’s state system which sought to co-opt loyal native allies and to restructure patronage networks. Initially, the Brookes targeted the practice of headhunting in order to suppress it in Sarawak. Native revolts were mercilessly crushed by the Rajahs who aimed to bring unruly Iban groups under state control – more or less successful (Parreñas 2018, Aeria 2005, Fox et al. 2009, Walker 2016). To tackle Iban affairs, it was suggested to stabilize their ‘destructive’ practice of swidden cultivation that was seen together with customary land tenure as backward and as an obstacle to economic progress (Cramb 2007). Regarding the control of cash crop production, the Brooke regime introduced species regulations for crops such as gambier, rubber and pepper and issued titles (e.g. registration, permits, leases, occupation tickets) (Majid Cooke 2002).

In the 1920s and 1930s the Brooke administration began to establish permanent forest reserves based on the model of the Malayan Forest Service under the rationale to stop the destructive agricultural practices of the natives. In the now famous Blue Report, published in 1935, Le Gros Clark writes: "legislation should be introduced to confine the operations of the shifting farmer to secondary forest" and "having classified all forest areas, legislation should then be introduced to prohibit the felling of virgin forest except for permanent forms of agriculture" (Le Gros Clark 1935, 31). While the earlier period of the White Rajah’s was marked by the expansion of the territorial boundaries of their kingdom the call for establishing forest reserves under the third Rajah Vyner Brooke can be seen as the first spatially comprehensive attempt of internal territorialization. Although the late Brooke administration introduced the administrative groundwork of forest categorizations – i.e. Forest Reserves in which no activities were allowed and the in 1934 subsequently introduced category of Protected Forest which only forbade shifting cultivation but allowed hunting and collection of non-timber forest products – the state had very limited capacity to enforce them19 (Cramb 2007).

Although Brooke state control did not penetrate substantially into Sarawak’s interior regions, the legal foundations for later state territorialization were charted as early as 1863 with the Land Order that established the state’s territorial domain by claiming government rights to all unoccupied waste lands while granting native territorial rights as qualifications on domain (Peluso and Vandergeest 2001). Interpretations of this order have been framed positively “as a clear concession by the Brookes to the native system of customary rights20”, but on the other hand (though not mutually exclusive) as a "progressive restriction of Dayak autonomy in land matters21" (Peluso and Vandergeest 2001, 779). Majid Cooke (2006, 25) has called the formalized misinterpretation of unoccupied land as ‘idle’ or

17 Walker (2002) argues that the Brooke state was not a colonial regime as Britain was not the ultimate source of its authority in Sarawak. However, the Brookes will be treated as a colonial regime in this thesis as James Brookes imperialism was motivated by and part of the overarching structures of colonialism (see Parreñas (2018)). 18 The title Rajah (monarch) comes from the British Raj where Rajahs ruled under the British Empires influence. The Brookes gave this title to themselves (Parreñas 2018). 19 The history of local government administration in Sarawak began with the establishment of the Kuching Sanitary Board in 1921 under Vyner Brooke, the third Rajah (Sarok 2013) 20 Legalization of legal pluralism (see Richards (1961); Porter (1967); Mooney (1989)) 21 See (Hong (1987); Cramb (1992, 6); (Kaur 1998, 32) 14

‘waste’ land “a fundamental error” which has “resulted in serious repercussions for local access and management regimes22”.

4.1.2 British rule (1946-1963) The 1863 Land Order was amplified by the 1958 Sarawak Land Code23, the hallmark of British colonial legacy (Fox et al. 2009). Similar to previous legislation the Land Code acknowledged the access rights of native communities but was ambivalent about the recognition of native ownership as the British colonial government asserted that all land without title became property of the Crown (Majid Cooke 2002). Native customary land could only be recognized with proof of occupation prior to the 01.01.1958 (following the methods spelled out in Section 5(2)24 of the Land Code). However, evidence of occupation (e.g. maps, records at district offices, certificates, etc.) is scarce in Sarawak and many communities were unaware of government edicts and continued to claim rights to land according to their customary law (adat) (Majid Cooke 2002). Although the Land Code legally acknowledges customary land rights, in practice they are often ignored and overridden for state development needs (Majid Cooke 2006, 2003). Besides the Land Code, the British administration also introduced a new framework that aimed to control land use of the local population through the following five categories: mixed zone, native area, native customary, reserved and interior area land (Majid Cooke 2002).

While the legalization of the British regime’s territorial claim framed the local population as ‘illegal squatters’ on Crown land (Majid Cooke 2002), the colonial government at the same time took action to restrict shifting cultivation. Forest land was for example to be protected from swidden expansion (beyond customary territory) by the Forest Ordinance 1953 which sought to reserve forest land for commercial purposes (Fox et al. 2009). By 1960 the British administration increased the area for forest reserves to 24%25 and imposed a ban together with the Land Code in 1958 on the logging of primary forest for swidden expansions (Fox et al. 2009). Together, forest Ordinance and Land Code strengthened institutions of private property over land vis-à-vis communal native rights (Aeria 2005). Although the British administration made increasing efforts to establish control over its territory, it was unable to effectively territorialize Sarawak’s forests due to weak operative capacities. However, the colonial administration: (1) normalized the notion of forests as separate biological entities with specific management requirements; (2) further separated between agricultural and forest species; and (3) defined and categorized forest species politically through scientific “discovery” and integrated them into species laws, policies and controls (Peluso and Vandergeest 2001). The following chapter shows in this regard how Mulu became a ‘political forest’ (Peluso and Vandergeest 2001), by means of enclosing territory and setting up an institutional framework for forest management – driven by the adventurous spirit of scientific discovery.

22 This error was further perpetuated by the Land Code Amendment in 2000 (Majid Cooke 2006, Fox et al. 2009) 23 Hereafter referred to as the Land Code 24 “Section 5 (2) of the Code states that customary rights were created by felling virgin jungle and occupying the land; planting fruit trees; occupying or cultivating land; using land for burial or to build a shrine; using land for right-of-way; and using land in other lawful methods. Section 5(2) allowed local people to enforce their own customary rules or adat on customary lands - lands held in common. These rights, however, were limited to farming, harvesting, and gathering, and specifically did not include the right of individual private property in land that could be alienated to whomever. Land could be transferred to others recognized as "natives," a category that excluded Europeans and Chinese. Natives in lawful occupation of customary land were declared as licensees of Crown Land (Porter 1967).” (Fox et al. 2009, 315) 25 Majid Cooke (1999) argues that the attempts to establish forest reserves by the understaffed and financially underequipped Forest Department were often thwarted by resistance of local groups. 15

4.1.3 After Sarawak’s independence (1963-today) The colonial periods in Sarawak were marked by a dominance of informal institutions and the Rajahs’ and British attempts to establish a formal state system. To consolidate formal state power both regimes co-opted local strongmen (Hazis 2013). According to Aeria (2005), the incorporation of informal institutions, and the consequent blurring of public and private interests, entrenched both authoritarian and patronage politics within the state26. Patronage politics thus continued to play an important role in the country’s new institutional frameworks, for example in the after independence established Ministry of Development and Forestry (Aeria 2005). This ministry emerged as a pivotal political tool for the ‘systematic disbursement of political patronage’ as it had the responsibility to issue profitable logging concessions (Aeria 2005).

After 1970, under Chief Minister Abdul Rahman Yakub, an estimated 1.25 million hectares of logging concessions were allegedly distributed, worth USD 4.2 – USD 9 billion (Aeria 2005). The issuance of timber concessions was supported by national policies such as the New Economic Policy (later National Development Plan) that allowed to strengthen the state government’s power base and a political elite, for example by undermining the influence of powerful Chinese timber tycoons (Aeria 2005). The practice of issuing timber licenses to relatives and political allies continued under Abdul Taib Mahmud, a nephew of Abdul Rahman Yakub. While both Chief Ministers, their families, and timber contractors were able to accumulate immense wealth for personal gains, the population of Sarawak did not benefit as villagers’ living standards remained roughly on the same level (Aeria 2005).

Resource extraction forms the foundation of the federal state’s economy. After the initial timber boom (mid 1970s – early 1990s) (Brosius 1999), resource extraction entered into a post logging era – i.e. an era of large-scale plantation development and commercial agriculture (Majid Cooke 2002). Sarawak’s powerful alliance of political elites and its clients in the forestry and agribusiness sector together transformed large parts of the state’s public and community land into private land (Cramb and Sujang 2013, Majid Cooke 2002, McCarthy and Cramb 2009). Oil palm plantations have exploded in a more than 40-fold expansion in the last 30 years. While in 1980 the area under cultivation was around 23.000 ha the current area planted constitutes over 1 million ha of which 91% are managed as large-scale estates (Cramb 2016). In 2012 the crop occupied 8.7% of the land area and 71.6% of the overall cultivated area in the state (Potter 2015). The government’s policy, especially under Chief Minister Taib Mahmud (1981-2014), sought to establish a dualistic conception of agrarian change in which a modern sector (“dynamic, large-scale, capital-intensive, technologically advanced” (Cramb 2016, 192)) drives the state’s economic development by drawing in the resources – land and labor – from a traditional sector (“small-scale, capital-constrained and technologically backward” (Cramb 2016, 192)). This political project has not only changed the territorial-institutional arrangements governing the expansion of oil palm but has additionally led to changes in the state’s law. Amendments to the Land Code, the centerpiece of Sarawak’s land legislation, for example (together with the development policy of Konsep Baru27) allowed an absorption of smallholders into the modern palm oil sector (Majid Cooke 2006, Cramb 2016). Statutory law (e.g. Land Code Amendment Bill of 2000 (Fox et al. 2009)) worked in this regard as a means to foster a model of development and agrarian transition that aims to transform a backward agricultural sector while installing government control over territory. However, the enduring expansion of the oil palm frontier and its territorial reconfigurations have faced resistance throughout Sarawak as in many cases local communities’ native customary rights (NCR) to land have

26 This system may best be described as neo-patrimonial. According to Médard (1982) and Erdmann and Engel (2007) neo-patrimonialism is characterized by a permeation of patrimonial structures (private) and rational- bureaucratic structures (public). Hereby, formal rules and norms are penetrated or superimposed by informal institutions (e.g. culture, traditions, customs, etc.). 27 See Chapter 4.4.1 16 been curtailed. Until today concessions to extract resources, mainly for timber and palm oil, constitute the dominant mode of territorialization in Sarawak28.

Changing modes of territorialization

In the Brooke period (1841-1946), territorialization was still in its infancy as the ‘White Rajahs’ aimed to establish state control primarily through cooptation of local strongmen and by controlling local practices such as headhunting and swidden agriculture. Legislation to control swidden expansion and cash crop production can be seen as the groundwork for first, comprehensive, attempts to internal territorialization in Sarawak. In the late Brooke period the third Rajah Vyner Brooke began to build an administrative system which in combination with earlier legislation passed under the Brookes and subsequently introduced legislation by the British Crown (1946-1963) gave shape to territorialization attempts based on ‘scientific expertise’ as a key instrument to control swidden expansion and to rationalize land use (Lestrelin, Castella, and Bourgoin 2012). However, formal institutions remained rather unsuccessful in substantially territorializing Sarawak’s interior regions. With the state’s independence in 1963 its primary mode of internal territorialization changed as market forces intensified and became a key instrument in Sarawak’s authoritarian and clientelist political system giving rise to recent resource booms and a reterritorialization of rural space.

4.2 The discovery and transformation of Mulu After setting the scene for the process of internal territorialization, this chapter begins by sketching out the lives of the Penan living in the area of what is now known as Mulu, previous to its enclosure for establishing a national park. I will examine the Penan’s relationship to the landscape with regard to their customary tenure system which has recently undergone a transformative process. This chapter aims in that sense to capture what was before and what followed after Mulu became a forest ‘discovered’ by science and regulated by the Forest Department29.

4.2.1 Life and landscape before the park With effect from the 01.08.1974 Mulu was officially constituted a national park, ‘Gunong Mulu National Park’ as published in the Sarawak Government Gazette No. 2853 under section 7(2). However, it was not until three years later that Mulu gained international attention. The now dominant description of this wide area as ‘Mulu’ had not existed then in the way that it does today (as a sub- district). Before 1974 and until 1977 the area of the national park and its immediate surrounding was mostly inhabited by nomadic and semi-nomadic Penan groups30 who rather referred to places (where they hunted or foraged under a system of resource stewardship) than using administrative territorial categories. Langub (2011) in this regard described the ways in which the Penan in and near Mulu (between what is now known as the Gunong Mulu National Park and the Pulong Tau National Park) establish their relationship with their environment.

28 Reserving forest to extract timber and palm oil has to be understood as part of the government’s aim to control the expansion of swiddens (Fox et al. 2009). Other territorial projects in Sarawak include resettlement schemes (Aeria 2016), joint ventures (see Chapter 4.4.1) (Majid Cooke 2002, Ngidang 2002) and conservation, as outlined, only to a smaller extent (Fox et al. 2009). 29 Later additionally managed by Borsarmulu Park Management Sdn. Bhd. and the Sarawak Forestry Corporation. I will return to the institutional change of the park’s management later. 30 According to the Forest Department, the number of Penan in Mulu in 1962 was approximately 651 (Forest Department 1992) 17

The Penan and their relationship with the landscape

Jonas: Do you remember the life in the forest?

Peter: Yes. Thank you for asking me that question. Because you wouldn’t know our [Penan] life, if you didn’t ask that kind of question. […] I remember all about the life while we were still living in the forest. It is still fresh in my mind. I was born at Ba Melinau but we first lived in the area of Ba Sanan […]. We were nomads and just followed the places where we knew we could find plenty of food such as uvut (sago31). Where there was much food, we started settling at that place. When there was good land for us to settle, then we did. […]. We started living as nomads, following the paths of our parents from different places until Ba Sanan. We just followed the rivers and the food sources we knew, like uvut.

The dominant feature of the landscape in the area is Gunong Mulu the highest mountain of a massif which towers over a lush evergreen rainforest (Hanbury-Tenison and Jermy 1979). Vegetation surrounding the mountainous area ranges from lowland forests through to upland montane forest and ericaceous shrubbery. The lower lying floodplains of the Melinau, Tarikan and Medalam rivers accommodate a rich alluvial forest (Jermy 1983). In this environment rivers “provide the framework32 [for the Penan] by which all manners of information are organized, historical, cultural, and ecological33 […] Rivers are not simply rivers; they have stories to tell, and they keep records of past events” (Langub 2011, 90-91). When moving through the forest, Penan use the river system and landmarks such as hills to locate their position as “[r]ivers are [seen as] akin to streets in an urban setting” (Langub 2011, 90). As (semi-)nomads, the Penan groups that hunted and gathered forest products in the area built smaller camp huts (lamin) on hill tops and in depressions in between hills. The vast network of such temporary settlements is linked by jungle trails (jalan toto) with resting places for example on hill tops and knolls with views of the landscape below (Langub 2011).

Depending on the amount of food available Penan groups stayed several weeks or months in one place. During their stay, seeds of past meals were left scattered around the campsite leading eventually to shoots of fruit trees which were then owned by that group (passed on to ancestors) and indicated a former settlement34. When deciding to move on, to build the next lamin in another place, the former campsite (la’a) became a ‘footprint’ (uban35) in the landscape (Langub 2011). The land surrounding the campsite (tana’ pengurip) is the foundation to sustain life as it provides food and other resources (e.g. needed to make handicrafts) for domestic use, for trade or to sell. In the foraging area, Penan groups claim forest resources such as wild sago, wild rubber, rattan and other useful trees used for making blowpipes, extracting the poison for their poisoned blowpipe darts, etc. The two most important

31 “Sago starch derived from the palm Eugeissona utilis has traditionally been the primary source of carbohydrates for Penan. It is this resource more than any other which determines the location of Penan camps and the frequency of their movement.” (Brosius 1991, 142) 32 During a mapping session of their native customary rights claim I observed that the Penan who joined to contribute missing information used the rivers to make sense of the abstract map. It was always through the river system that the people organized their mental model and were then able to give locations of specific places such as burial sites, etc. 33 (Brosius 1986, 174-175, 2001, 134-135) 34 For Penan, the landscape “connects the past to the present [and] the present to the future” (Langub 2011, 101). In the la’a, gravesites are besides ancestral fruit trees and other claimed resources evidence of former occupation and imbue the landscape with meaning and history. 35 See Brosius (2001) for a detailed discussion of the term uban 18 resources that are claimed are clusters of wild sago and clusters of wild rattan (Langub 2011). These claims are staked to a variety of resources in the tana’ pengurip and make up a system of resource tenure (molong) that has at its core the idea that the resources claimed need to be fostered for future use. Penan rights to land are in this sense established through molong of resources (Langub 2011). Together, the Penan’s system of resource tenure and the mosaic of former campsites have “in fact turned the landscape into a series of neighborhoods” (Langub 2011, 103).

It is only when one enters the forest that one begins to see, not a wilderness, but something very much like a neighborhood, a landscpae imbued with cultural significance, full of places that for one reason or another have meaning to the Penan. Some of these places are marked, others are marked only in the domain of memory. Some have direct relevance to subsistence, many others do not. Rather than “sacred” in some abstract sense, this significance that is often biographical and hugely personal: the place where one was nearly beaten by a pig, the site where one’s great grand-father was killed in a raid, a former camping site where fruit was plentiful, the mark made on a tree by a now-deceased favorite niece. Everywhere one goes in the forest, one hears stories both personal and fantastic. The biographies of individuals, both living and dead, are written in the landscape (Brosius 2001, 134).

The Penan and their relations to settled groups and the state

In Sarawak, Penan are divided into Eastern and Western Penan (Needham 1972). While the Western Penan generally inhabit the Balui watershed, the Eastern Penan are found near the watersheds of the Limbang and Baram rivers (see Figure 1). Although in the late 1950s 70-80% of the Penan still lived a nomadic life, the number of nomadic Penan dropped in the 1970s extremely as the government encouraged Penan groups to settle down. Today only a few hundred Penan continue to live a nomadic life (Brosius 2006).

Figure 1: Distribution of Western and Eastern Penan in Sarawak (Brosius 2006)

According to Brosius (2006), the interior of Sarawak can be broadly divided between two generalized groups of people. The first (Orang Ulu) dwells in long houses along rivers practicing swidden farming and the second lives as nomadic hunter gatherers, such as the Penan in Mulu traditionally have. In the regional economy of Mulu the Penan have occupied a niche as they traded in demand forest products with long house dwellers in meetings which were later continued under the Brooke and British administration (Brosius 2006). Such trade meetings were during the later periods overseen by a government official who made sure trades were done fairly (Hanbury-Tenison 2017). One of the nearest trading locations to the Penan in the region was on the mouth of the Melinau river36 where it flows into the Tutoh river. From downriver, Berawan and Tering attended these meetings to trade for forest products as they reportedly hunted along the rivers and did not penetrate into the forest deeply. (Brosius 2006, 285) writes, “Orang Ulu aristocrats who controlled this trade were proprietary about ‘‘their’’ Penan and jealously guarded their prerogatives to trade with certain groups. Virtually all historical accounts agree that goods were exchanged with Penan at usurious rates and that Penan were continuously in debt to longhouse patrons.”. In this thesis I will focus on the relationship between the Penan of Mulu and the Berawan and Tering of Long Terawan which is located approximately an hour by boat down the Tutoh river (see Figure 2).

Figure 2: Location of Long Terawan and Mulu (Forest Department 1992)

36 In a personal conversation, Kelvin Egay (an anthropologist from the Universiti Malaysia Sarawak) mentioned that a fort had been erected at this particular place of which nothing remained to see when I passed by on my way to Long Iman. 20

Penan relations with outside groups and government authorities37 were largely based on trade of forest products. However, the region also attracted expeditions as early as in the 1800s by traders and later explorers (e.g. Spencer St. John) who reported the existence of a large cave system. In 1961 G.E. Wilford, as part of a botanical expedition mounted by the Sarawak Forest Department, mapped some of Mulu’s caves and published his findings, suggesting that more of the caves could be explored (Anderson, Jermy, and Cranbrook 1982). The 1961 expedition furthermore proposed to constitute a national park which was approved in 1962. Three years later, in 1965 the intention to constitute a national park was published in the Sarawak Government Gazette (SOC 2019). Between 1962 and 1970 the Resident and District office in Miri and Baram, respectively, carried out an investigation of claims against the national park. On behalf of the area’s natives, penghulu38 Baya Malang negotiated the boundary of the planned national park39 (SOC 2019). According to my informants, the penghulu initially gave permission to zone the park from the foot of the hill but after being asked for an extension he agreed to the Melinau river as being the boundary. Even though the position of the penghulu is regarded as ceremonial in the formal political system of Sarawak and is meant to only administer local customs (Sarok 2013) it then allowed to effectively claim land as the natives, and thereby co-produced the territory of the national park.

4.2.2 The expedition to discover the park We all fell under the spell of the forest. It is overwhelmingly luxuriant, a noisy cacophony of sound and endless variations of green. Mystery lurks behind the foliage: an infinity of undiscovered teeming life; plants, animals, and insects new to science, waiting to be discovered (Hanbury-Tenison 2017, 90)

The expedition to study and survey the newly gazetted Gunong Mulu National Park in 1977/8 was one of the largest expeditions the Royal Geographical Society (RGS) had ever mounted. With support of the Sarawak government’s Forest Department, the expedition lasted 15 months, comprised 115 scientists and attracted a local workforce of Berawan and Tering from Long Terawan and Penan from the surrounding area (Jermy 1983). Overall, Jermy (1983, 6) writes, “over 2500 plants have been identified, 60 mammals, including the world's smallest, Savi's pygmy shrew, over 260 birds, including all Borneo's eight hornbill species, and 320 fish. Insects may number 12,000 species and fungi over 8000”. This ‘great discovery’ of Mulu’s biodiversity, caves and landscape eventually led to the park’s nomination and award of the title as UNESCO World Heritage Site in 2000 as it:

• […] is an area of exceptional natural beauty, with striking primary forest, karst terrain, mountains, waterfalls and the largest caves on earth […] • […] is an outstanding example of major changes in the earth’s history […] • […] provides significant scientific opportunities to study theories on the origins of cave fauna with over 200 species recorded, including many troglobitic species and it displays outstanding examples of ongoing ecological and biological processes […]

37 Hanbury-Tenison (2017) writes that his Penan friend Nyapun made the acquaintance of Fred Sanderson, a Eurasian Australian, with whom he ‘hunted’ Japanese soldiers in 1945 during the short period of Japanese occupation. Nyapun reported that he had later encountered the infamous explorer Tom Harrison who had also fought the Japanese occupants. After some years passed, Rodney Needham, an anthropologist who studied the Penan in Sarawak arrived in Mulu and travelled together with Nyapun for some time (Hanbury-Tenison 2017). 38 Title for a traditional leader whose jurisdiction is only over a region/area (Sarok 2013) 39 It is not clear from my sources if the penghulu consulted all Penan groups. Speaking from a logistical point of view this might have been difficult as the groups were spread out over a large area. Long house dwellers moreover looked down upon the Penan. 21

• […] supports one of the richest assemblages of flora to be found in any area of comparable size in the world […] (UNESCO 2019)

The expedition to Mulu did not merely have an impact on several academic disciplines, but on the ground set into motion change with the order to build base camp near the Melinau river. The arrival of the RGS expedition made territorialization tangible. What had previously been seen as unoccupied state land by the Sarawak government was now to become legible (Scott 1998) and conserved as a totally protected area (TPA) with a detailed list of species to be safeguarded. Therefore, in 1979 members of the RGS expedition, and later the Forest Department, produced a Management and Development Plan of the Gunong Mulu National Park which delineated specific zones and uses within the newly drawn boundaries (see Figure 3). As a result of the research conducted in Mulu the management plan proposed a Penan Reserve in the area between Lutut river, the true left bank of the Melinau to Long Melinau and turning to towards Tutoh and Bersanan river straight to the Brunei border (see Appendix 1). However, the Penan reserve was never realized. In his late biographical work Finding Eden, the leader of the RGS expedition to Mulu, Robin Hanbury-Tenison, reflects about the impact their venture had on the Penan that had previously lived in what is now a national park. “Our meeting changed everything for them” (Hanbury-Tenison 2017, 77).

Figure 3: Zonation plan published in the park’s management plan (1993-1995) (Forest Department 1992)

4.2.3 Rupture and transformation

Peter: During the time of Tuan40 Robin we lived around here [near Batu Bungan]. He brought us from Ba Litut and Ba Besanan then we were here and were asked to settle41. “It’s good if you all learn how to farm and I will tell everyone that comes here to be good and kind to all of you” Robin said.

Jonas: Did you agree with what Robin told you?

Peter: Since he said that there will be someone who is willing to help us one day, we just agreed. Robin also said that this area will be developed as a Park. We replied that we were worrying that if one day this area will be a Park then it must be difficult for us to go to the places that we want to go to. We said this because we were used to the life in the forest. And added, if you say that the development of the Park will control our activities, this will make us disagree with what you have said. Robin told us that since the Park is on your land, you all will have the right on doing whatever you like. Although there was no written proof of what he promised we trusted his words and hoped all will go well.

For the Penan the delineation of the national park’s boundaries as a TPA and sedentarization meant profound change for their relationship with the landscape and their life. Lund (2016, 1202) frames abrupt changes as ‘ruptures’; in his words, ruptures “are ‘open moments’ when opportunities and risks multiply, when the scope of outcomes widens, and when new structural scaffolding is erected”. Abrupt change, according to Lund (2016), particularly allows one to observe and analyze how rights and authority are established through new ‘social contracts of mutual recognition’ which link together claimants of rights and those institutions with the political authority to turn claims into rights. ‘Robin’, the friend of the Penan, occupies in this sense an interesting position as he was not an agent of the government although closely collaborating with state authorities such as the Forest Department. However, his promise that Penan land rights will be recognized worked to persuade some of the Penan groups to become sedentary42 and thereby helped to insert state authority into Mulu, initially through the Forest Department. The expansion of state spaces, according to Majid Cooke (2006), always requires some degree of persuasion. In the case of Mulu it was not the state government itself driving such expansion. It was rather the spirit of scientific discovery of the Royal Geographical Society which aligned with the government’s, particularly the Forest Department’s, desire to make legible and control its domain (Scott 1998). The parks territorialization, initiated with its entry into the Sarawak Gazette but put into effect through the expedition of the RGS, created new local property systems, institutions and rights and established jurisdiction over the area. The resulting ‘social contract of mutual recognition’ between Penan and the Forest Department was in this regard mediated by members of the expedition, particularly its leader Robin Hanbury-Tenison. In a song to his friend Robin, Nyapun, a Penan who approached the expedition, flatteringly described their relationship on

40 Tuan used to be a title of nobility in Sarawak but is sometimes also translated as Mr. 41 According to another informant the gathering where Robin spoke to the Penan families of Nyapun, Jeluman, Seng, Tua, Balan, Beluluk and Losin was at Camp 5 (camp for trekking tours in the park). 42 According to some informants some Penan families stayed behind in the forest and only after observing their friends, followed them into a settled life.

18.07.1978. The below fragments of Nyapun’s song gives to some extent insight into his perception of the outsiders that came to Mulu and into how ‘persuasion’ might have occurred.

Since you came here from England you have brought a good life to us with medicines and by caring for sick people, even sending them to the hospital [by helicopter] when they are sick. We have thought of you as kings, because no one has understood and cared for us before (Hanbury-Tenison 2017, 78)

Before, whenever we the leaders told everyone what to do they never followed us. Now you have taught us how to co-operate and now they listen to their leaders and work together (Hanbury-Tenison 2017, 79)

The social and political organization of the Penan and changing patterns of resource use

With sedentarization the social organization of the settled Penan in Mulu was transformed from smaller atomistic groups, usually the size of one family which moved independently through the landscape, into a village agglomeration with a political system. Needham (1953, 102; 186), referring to Penan living as nomadic hunter gatherers, asserts that “[t]here is no political organization of the Penan people” and that “[a]ge is the object of the only sort of hierarchical respect that the Penan recognize”. Since settling down, first near Sungai Pala in the Melinau Paku area (see Figure 4 in chapter 4.3.1), and later (1980-1982) building their new permanent homes in Batu Bungan, the past egalitarian organization of Penan groups has undergone a transformative process. The settled Penan for example integrated the formal political system by introducing a headman as their village representative.

Settling down furthermore entailed learning the practice of swidden agriculture which meant engaging with the landscape and other Penan families in the village in new ways, for example through shared labor on their paddy fields. Furthermore, practicing swidden agriculture introduced the concept of individually owned plots for farming which now remain inside the family through inheritance. Most of the Penan’s swidden plots are located north of Batu Bungan (see Appendix 4). Penan land tenure has in this regard become a mixture of communally owned land on which individuals have acquired use rights for agricultural land, by clearing it. New farmers43 initially only planted paddy and tapioca but later also cultivated sago, fruit trees and other crops. Use rights may be handed over if the person that had acquired the land by clearing it agrees to a transfer, which may take place under a variety of terms. Customary resource tenure of the Penan has in this regard shifted from an extensive system based on molong to a more intensive hybrid form of resource use that now incorporates swidden farming.

Looking at the changes of Penan resource use patterns reveals their changed relationship with the landscape and therefore, their changed lived experience. According to my Penan informants the men still hunt and collect sago for the household’s consumption besides farming. The women still gather rattan and other non-timber forest products44. However, resource use and resource tenure changed as the Penan always return to the village making it more difficult, or virtually impossible for some (e.g. those with responsibilities in the village), to hunt or forage in faraway places. Most of my male

43 My interlocutors stressed the difficulty of learning how to farm and while some of them learned basic skills from members of the expedition in 1977/8 the later arrivals taught themselves by observing others and trial and error. The Penan shared seeds so that new arrivals could start a farm as well. Jayl Langub mentioned in a private conversation that initial plans to establish a center for agricultural extension services never materialized. 44 While men teach their sons about the forest, mothers do not take their daughters into the forest when gathering rattan, etc. 24 informants stated that they missed the old life in the jungle and therefore spent days, sometimes several weeks, on hunting trips in the forest.

Boundaries, rules and the new normal

Together, sedentarization and the enclosure of territory for the Gunong Mulu National Park reorganized the Penan’s previous socio-spatial configuration in Mulu with its system of resource tenure. In this period, what Peluso and Vandergeest (2001) call the ‘political forest’ – “land states declare as forest” (Peluso and Vandergeest 2001, 762) – can be seen as the driver of change and the dominant mode of territorialization (of forest resources and use patterns). However, the project of the political forest has not only territorialized Mulu’s forests but has also integrated them into legal frameworks. The constitution of the Gunong Mulu National Park and supportive legislation therefore legalized a new political-geographical order without granting full access and use rights to Penan groups. The promised protection of Penan land, through the Forest Department which initially managed the park, was never realized as the plan for a Penan Reserve with secure land rights never materialized. Instead, the Forest Department imposed regulations and granted limited resource use rights in the new territorial configuration45. During my interviews with Penan households I noticed that many of my interlocutors seemed to be uncomfortable with the new rules and regulations, misunderstood them or even fundamentally disagreed with them.

Park After three hunting incidents in close proximity of visitors in the Park, we Manager: called a meeting with SFC [Sarawak Forestry Corporation] and the community. We discussed the issues of hunting thoroughly, from areas to hunt, announcing the intention to hunt (at SFC), species etc. It is therefore interesting that statements are made that they do not know how to go about business of hunting. […] At the meeting is was made very clear that hunting practices continues in the same fashion it always did, BUT it remains the responsibility of the community in managing the practice safely and sustainably. If not, the entire tourism economy that is sustaining more than 60% of Mulu communities directly/indirectly, will be placed in jeopardy.

John: It is our freedom to go hunting. But, in this life we are controlled by the authorities. There are many places that we want to enter, but we can’t. It’s like living life in a cage.

Paul: We can't enter the national park area for hunting. Actually, the Penan are allowed to hunt in the park but we can't log any trees there.

Bryan: […] the government said that we can't hunt in the national park. The Penan are allowed to hunt with the blowpipe but not if the tourists see you or if the Forest Department is around. Tourists might get scared if they see us.

Peter: Last Tuesday there was a meeting about the rules when hunting in the Park. […] We are worried because they [the park] said that we can’t hunt, enter or walk anymore in the park area. […] If they [rules] will be implemented, what will happen

45 Penan are allowed to hunt pig and deer, to fish and to collect forest products. They also have the privilege to cut trees for poles, firewood and for building temporary huts. It is not permitted to hunt protected species such as hornbills, sun bears etc. (Forest Department 1992). 25

to our children? They won’t have places to practice hunting. We don’t want that to happen because we don’t want to lose our identity and to lose our history of our late grandparents.

The imposed rules such as having to register with the authorities or restrictions to only certain areas where hunting is permitted caused some confusion and misunderstandings among my interlocutors. While some still hunt in the park the majority said they prefer to go to places that lay outside the boundaries. The newly drawn boundaries and subsequent installation of state control in the park (initially through the Forest Department) in that sense not only led to physical and structural change in Mulu but also subtly carried the state’s project of ‘civilizing’ its citizens through cultural transformation (Majid Cooke 2006). Most notably, through the notion of a modern sedentary life46, through the construction of a strong sense of state identity (as Sarawakians) (Aeria 2013) and through Christianization which replaced animism47 (on spirits see (Langub 2011, 102)). Territorialization unfolded in that sense in an emerging frontier space in which “ideas about who can make use of what kinds of resources and the cultural understandings of these landscapes have systematically been undermined, dismantled and erased by a number of legal [and] discursive operations” (Rasmussen and Lund 2018a, 3). Mulu’s ‘discovery’ can in this regard be considered a frontier moment in which resources for new forms of appropriation were ‘freed up’ while old social orders were dissolved (Rasmussen and Lund 2018b).

In section 4.3.2 I will return to the Gunong Mulu National Park in order to describe the institutional change of its management and its role in the recent enclosure for an oil palm plantation. The next chapter deals with the period after 1977/8 and illustrates how frontier dynamics and the described rupture in local land tenure triggered a dispute between newly settled Penan and the Berawan and Tering of Long Terawan. It shows in this regard how the process of territorialization in Mulu has been shaped by a local scramble for land.

4.3 Making sense of Mulu’s emerging frontier and its repercussions This chapter aims to widen the scope of the discussion beyond the territorial enclosure of the Gunung Mulu National Park in order to capture how an emerging frontier space in Mulu has affected the interethnic relationship of Penan and Berawan/Tering villagers and how conservation efforts, after the expedition, soon shifted towards a model based on ecotourism. I begin with a brief chronology of the settlement history of the people of Long Terawan to highlight the territorial claim of Berawan and Tering villagers. The subsequent sections illustrate the overlapping claims of the different actors in the local scramble for land that was sparked by Mulu’s frontier moment. The chapter closes by showing how despite a conflict over access to land, among the locals, ecotourism development established a common ground between Penan and Berawan/Tering in Mulu’s frontier space.

46 The Forest Department writes in its 1992 management plan that it aims to move Penan away from their destructive lifestyle. For example through wage labor in or outside the park. 47 For a discussion of animism in Borneo see Venz (2017) 26

4.3.1 The ancestral land of Berawan and Tering 1863-1886 – Moving up the Melinau river

The following table describes the movement of Berawan and Tering settlers up the Melinau river between 1863 and and 1886 (see Figure 4):

Table 1: Movement of the Berawan/Tering up the Melinau river (Proctor 1979)

Settlement Year Place

1st 1863 Sungai Panas, Melinau river

2nd 1865 Sungai Pala, Melinau river

3rd 1867 Melinau Melinau, Paku river

4th 1870 Sungai Lupa, Melinau river

5th 1879 Batu Bungan, Melinau river

6th 1881 Sungai Berar, Melinau river

7th 1886 Melinau gorge, Melinau river

Figure 4: Migration of Berawan/Tering up the Melinau river (Proctor 1979)

1895-1946 – Prohibition of headhunting and Japanese invasion

In 1895 the Berawan/Tering moved back, down the Melinau river and up the Tutoh towards Baram river until Long Bruang. The land cleared for swiddens in the Melinau area had regenerated until 1932 when Edward Shackleton, a British geographer, visited Mulu (BMF n.d.). He mistook the regrown ‘secondary forest’ as ‘primary forest’ (see (Proctor 1979)). During the Japanese invasion of Sarawak, in 1944, the long house at Long Bruang was burned down as a reprisal for the natives’ involvement in the war. The next settlement was built the same year, in Long Beluko, and was moved to Long Terawan only two years later, in 1946. Until the expedition, almost three decades later, the residents of Long Terawan did not farm in the Melinau area (BMF n.d.).

After the 1977/8 expedition to the Gunong Mulu National Park

In 1977/8 the RGS expedition to Mulu employed several Berawan and Tering of Long Terawan as porters, guides and builders (Hanbury-Tenison 2017). According to my informants, several villagers from Long Terawan erected smaller huts during this period near the national park for farming and as accommodation while working for the expedition. With the development of Mulu as a tourist destination around 1983, Berawan and Tering from Long Terawan started to build larger houses near the entrance of the park (BMF n.d.). Some reportedly relocated their smaller farmhouses closer to the entrance of the park as more tourists arrived and needed accommodation. The national park’s establishment created a small economy that catered to tourists and attracted further migrants from Long Terawan as labor was needed to build houses and to provide food (Forest Department 1992). Conservation shifted in this regard swiftly from an initial focus, to protect Mulu’s biodiversity through a totally protected area – and the consequent spatial exclusion of the local population – to a more flexible model (Büscher and Fletcher 2015) that included the local population to some extent. One rationale behind the inclusion of villagers as labor (i.e. boatmen, guides, porters, offices, etc.), as stated by the Forest Department, was to reduce the pressure on resources in the national park (Forest Department 1992).

4.3.2 Frontier dynamics – the local scramble for land and ecotourism in Mulu The exploration and establishment of the Gunong Mulu National Park created a frontier space in Mulu as state territorialization always “works in tandem with its conceptual opposite: frontier dynamics. Frontier dynamics is a shorthand for the destruction and elimination of existing social orders, property and citizenship rights, and other social contracts. Frontier dynamics names a process that obscures and dismisses previous resource use and disenfranchises those who hitherto have benefited from resource access” (Lund and Rachman 2018, 419). Frontier dynamics in Mulu furthermore created “resources”, i.e. turned nature into economic commodities. For example, the spatial aesthetics of Mulu’s ‘spectacular’ landscapes. Land itself, too, was valorized48 and became scarce in the park’s vicinity, through: (1) enclosure (by the national park and for tourism); (2) the regions development as a destination for ecotourism; (3) the settlement of Penan on land also claimed by Berawan and Tering (see Figure 5 below in section 4.4.1).

48 “Valorization can be seen as a gradual process that includes (1) the exploration and definition of a particular resource […]; (2) the construction of exclusive property rights […]; (3) the actual extraction of the resource; (4) the commodification of the resource (which implies infrastructure like roads, harbours, refineries, etc.); as well as (5) the monetization of the resource on the regional, national or world market (Altvater and Mahnkopf, 131)” (Pichler 2015, 4-5) 28

Interethnic exclusions near the national park’s boundary

Claims to land by Penan and Berawan/Tering have overlapped since the latter moved up the Melinau river. However, sedentarization, the valorization of land near the park’s entrance, and the demand for labor and resources of Mulu’s slowly growing tourist economy led to a conflict over land between the people of Long Terawan (Berawan/Tering) and Batu Bungan (Penan). Berawan and Tering recited the above outlined history of their ancestors to stake their claim to land in Mulu as their NCR land. My Penan informants in Batu Bungan and Long Iman (a Penan village near the national Park) on the other hand reported that the land had always belonged to the Penan, before the Berawan and Tering had moved up the Melinau. In Long Iman, I was furthermore told that the group which had migrated up the Melinau was, in fact, not related to the Berawan/Tering of Long Terawan – debunking the Berawan/Tering NCR claim. Nevertheless, Berawan/Tering migration to Mulu in 1983 led to the displacement of some Penan who saw their newly acquired swidden land taken away by new settlers from Long Terawan.

Jonas: Did you have your land taken away by the Berawan?

Peter: Yes. So far, I have lost three pieces of land, they were grabbed by the Berawan.

[…]

Jonas: Did you inform any authority?

Peter: Yes. We complained to the penghulu then, but he just ignored our complaint.

Jonas: Who was the penghulu?

Peter: The penghulu was a Berawan, his name is penghulu Laing. […] My land that had a house on it was also taken, as well as my land in the Getumau area – also grabbed by them. Also, the land near the graveyard. All this land is actually my land, but they took it all. They [Berawan and Tering] […] started to move here to find a job and initially only wanted to stay for a short period of time. For this reason, they started building a settlement on land that had no one living on it. […] But it is ours. We also don’t know how to solve these cases because they [Berawan and Tering] have already settled and have made a living on our land. […] When I think back, I can say that Penan people are among the very good, very kind people. To whatever races we are friendly and don’t like to become enemies. […] We are a kind group. So, when it comes to the land cases, we don’t know how to deal with them. But we love the land, we remember our past life through it. But we just kept silent. We don’t want to become violent in order to defend the land that was grabbed by them.

In the local scramble for land, dominant Berawan and Tering settlers have successfully carved out land and excluded Penan farmers from it near the entrance of the national park. From the 1980s onwards a small village emerged on this land, now called Kampung Sungai Melinau. Rasmussen and Lund

(2018b, 393) note in this regard that “[w]hen new resources are discovered or become valuable, landscapes change and new opportunities arise; new frontiers emerge and the interest in the (re)territorialization of space becomes acute.

Mulu’s frontier assemblage – ecotourism and wilderness

After the national park’s enclosure, state territorialization in Mulu’s frontier took on a different form as land outside the park was territorialized for commercial development. Contemporaneously, Berawan reasserted control over their NCR land in Mulu and thereby aimed to shape the production of state territory on the true left side of the Melinau. In 1990 Mulu’s airport was constructed on NCR land without any prior consultation or compensation (BMF n.d.). Only one year later, in December, the next pieces of land were developed without consultation or compensation, this time for the Royal Mulu Resort (now Marriot Hotel), and the road connecting airport, hotel and national park49. These smaller enclosures of communal land were protested in 1992 by local groups of Berawan and Tering (BMF n.d.). In 1993 the conflict intensified, leading to further protests (e.g. blockades), arrests, and the forced resignation of a (Berawan) penghulu on 31.03., through written notice. On 13.08.1993 the protesters filed a lawsuit against the provisional lease agreements that had been issued by the Sarawak government and the Land and Survey Department, to the company Borsarmulu Resort Sdn. Bhd. on their NCR land to build a hotel (BMF n.d.). The concessions to enclose and develop properties in Mulu not only valorized land in the area but also better integrated the region into a wider capitalist economy and Sarawak’s patronage networks50 (Aeria 2005). In regard to the process of capitalist expansion Fletcher (2011) contends that tourism development constitutes a major form of such expansion, based on a number of spatial, temporal and environmental fixes51. Ecotourism “in its quest specifically for relatively undeveloped areas, can be viewed as the epitome of [a spatial fix]” by “exporting excess capital to a new geographical location where it can be reinvested in novel development” (Fletcher 2011, 449).

Mulu’s landscape and its hunting grounds were slowly turned into a tourist attraction. Despite resistance to smaller enclosures on their NCR land, many Berawan, Tering and Penan did not oppose the idea of developing Mulu into a destination for ecotourism. Many hoped to increase their income, for example through employment in the national park, by becoming a small homestay owner, by selling handicrafts, or by working in the Royal Mulu Resort52. Jessop et al. (1988, 268) claim that “any substantive unity which a state system might possess derives from specific political projects and struggles to impose unity or coherence on that system”. In Mulu, the conflicting interests of Penan and

49 According to Sarawak Report (2010) infrastructure development, including the Royal Mulu Resort, was partially financed by public sector funds which were channeled into private corporations with majority shareholders of Sarawak’s elite (including Chief Minister Abdul Taib Mahmud). 50 The three companies: Borsarmulu Park Enterprise Sdn. Bhd., Borsarmulu Park Management Sdn. Bhd., and Borsarmulu Resort Sdn. Bhd. have been connected to Mesti Bersatu Sdn. Bhd. an investment holding of which the majority shareholder and director is Abdul Taib Mahmud, Sarawak’s former Chief Minister (Sarawak Report 2014) 51 See Fletcher (2011) for further discussion of ecotourism and its specific fixes to alleviate a capitalist crisis of overproduction 52 The village of Kampung Sungei Melinau has developed the most as many of the Berawan and Tering run small guesthouses, have opened restaurants, run a supermarket and even offer alternative trips and events to those offered by the national park. While Berawan and Tering have reported to have stopped farming on their faraway fields, the Penan of Batu Bungan and Long Iman continue to cultivate rice and other crops, hunt and gather non- timber forest products for making handicrafts. Only in Long Iman did I hear of a homestay for tourists, to have an ‘authentic experience’ in a Penan hunter-gatherer village. Previous resource use patterns have in this regard changed more for Berawan and Tering than for Penan villagers. 30

Berawan/Tering have found common ground despite substantial differences as they aligned with the political project of developing a tourism industry. New political subjectivities have in this process been produced through consensus, new labour relations and villagers’ recognition of the institutional framework (i.e. government authorities, Borsarmulu Park Sdn. Bhd., Borsamulu Resort Sdn. Bhd., etc.) that governs accumulation in the tourism sector in Mulu. Although the idea of developing a tourism industry has successfully been universalized, it has only partially integrated subaltern interests (Pichler 2015).

Ultimately, ‘frontiers create wildness so that some – and not others – may reap their rewards’ (Tsing 2005, 27).

Ideas of wilderness and of Mulu as an untouched place were already conjured up by early explorers but especially by the expedition to Mulu in 1977/853. Such ideas have since become part of an ideology that is reproduced by the national park and the wider tourist industry who advertise Mulu as a destination for ecotourism. The museum of the national park goes so far as displaying information to tourists that frames Sarawak’s logging industry as a sustainable enterprise. Such images stand in sharp contrast with recent developments in Mulu which will be discussed in the following chapter. Masking Mulu’s frontier as sustainable has created a dissonance between the perceptions of tourists who visit Mulu and the lived experiences of my Berawan, Tering and Penan interlocutors. All of the tourists I spoke to had little idea about the magnitude and history of Sarawak’s deforestation and knew nothing of the logging operations for a planned oil palm plantation located only a few kilometers away.

Forestry reform and the neoliberalization of the national park’s management

The Forest Department of Sarawak has played a key role in Mulu since the first expeditions to ‘uncover’ Mulu’s terrains. In this early stage the department in cooperation with the expedition group of the Royal Geographical Society territorialized Mulu’s forest and established itself as the managing entity for the years to come. According to Aeria (2005) neoliberal ideas entered Sarawak in the late 1980s to early 1990s leading to reforms in the domain of natural resource management as profitable public corporations were privatized and subsequently run by key politicians (or their clients) themselves. Sparked by the recommendations of an International Tropical Timber Organization (ITTO) study, Sarawak’s forestry sector has been subject to reforms as well that have aimed to restructure the Forest Department by creating a new entity in 2003, the Sarawak Forestry Corporation54 (SFC) (Chan 2008), that will, according to the manager of the Gunung Mulu National Park, ultimately be formalized as a department for national parks and wildlife.

Demands for forests to be managed sustainably have been at the core of relatively recent institutional re-invention in Sarawak, Malaysia. A largely traditional Forest Department has had most of its operational roles supplanted by a more dynamic corporation that operates largely according to private sector principles. Under an innovative institutional arrangement, most of the SFC’s staff are employed in a private company [Sarawak Forestry Corporation Sdn. Bhd.] created, and indirectly owned, by the Government of Sarawak (Chan 2008).

Core functions of the newly established SFC are amongst others the management of TPAs and the conservation of wildlife (SFC 2019). As operational functions pertaining to national parks resided now

53 These images are for example prevalent in descriptions of Mulu in Robin Hanbury-Tenison’s (2017) book Finding Eden 54 SFC works as an agent of the government and is governed by the Sarawak Forestry Corporation Ordinance 1995 31 within the SFC, the management structure of the Gunung Mulu National Park changed as well. According to the park manager there are currently two entities directly involved in the management of the park. Until 2002 the park was only managed by the Forest Department (World Heritage 2002). The Forest Department has retreated however to the extent that it now only receives quarterly reports from the private company Borsarmulu Sdn. Bhd. which manages the tourism zone of the park since 2002. According to the park manager Borsarmulu Sdn. Bhd. also functions to uphold the park’s world heritage status. The second entity is the SFC which (since 2003) manages the second of the two zones, the wilderness zone, which makes up over 90% of the park’s area (Gunung Mulu National Park 2019). The park itself was not privatized even though key management functions are in the hands of private corporations that act as agents of the government. Moreover, with Mulu’s recognition as a ‘World Heritage Site’ new institutions (e.g. United Nations Educational, Scientific and Cultural Organization (UNESCO), World Heritage Committee (WHC) and International Union for Conservation of Nature(IUCN)) and new regulatory frameworks (e.g. to uphold standard as a World Heritage Site) were integrated into the management of the park (e.g. through monitoring etc.). Corson (2011) suggests that the involvement of ‘non-state’ international organizations is characteristic for neoliberal governance. Additionally, the park’s move towards ‘efficient management’ through streamlining its management structure and partial privatization has gone hand in hand with the marketization of Mulu’s landscape aiming to conserve the latter through a more flexible model based on ecotourism. Mulu’s transformations thus neatly fit in with what scholars have described as frontiers of neoliberal conservation (Büscher, Dressler, and Fletcher 2014). In turn, the park’s mode of territorialization shifted with its recent re-territorialization under new management entities and with new zoning of jurisdictions. According to Igoe and Brockington (2007, 441) neoliberal conservation arenas thus often become “transnationalised spaces, governed according to the needs and agendas of transnational networks of actors and institutions”. Mulu’s protected area too has been partly transnationalized after becoming a ‘World Heritage Site’.

4.4 A troubled political project – localizing the oil palm frontier and its corresponding territorialization The following chapter introduces the agro-industrial and export-oriented production of palm oil as a second political project (Pichler 2015), besides tourism development, that aspired to transform Mulu’s spatial-territorial configuration. First, I will roughly sketch out the expansion of Sarawak’s oil palm frontier and its territorializing effects across the federal state. In the subsequent sections I discuss the particulars of Mulu’s frontier moment for palm oil production; the central focus lies here on how different fragments of sovereignty have or have not cohered in response. In this regard, I will show how the local population of Mulu has initially countered state territorialization (i.e. an enclosure for a large-scale plantation), whereas counter-territorialization has later fed into, and shaped, the process of state territorialization as resistance was legalized.

4.4.1 Sarawak’s oil palm frontier and its manifestation in Mulu Oil palm plantations in Sarawak have mushroomed across the state with the overall area expanding more than 40-fold since the last 30 years (Cramb 2016). This remarkable transformation has occurred with a rapid conversion of agricultural lands, fallows and formerly forested areas into oil palm plantations (McCarthy and Cramb 2009). Much of the expansion of oil palm in Sarawak has converted state forests (80%) into oil palm plantations; however, new expansions have also taken place on land

32 claimed as NCR land55 (Andersen et al. 2016). While the area under cultivation comprised approximately 23.000 ha in 1980, the current area planted constitutes over 1 million ha of which 91% are managed as large-scale estates (Cramb 2016). The rapid expansion of the palm oil frontier in Sarawak has followed a global demand (especially from growing economies in South and East Asia) for vegetable oils. However, “the dominant mode of oil palm expansion in Sarawak has been driven not primarily by technical or market imperatives but by the exercise of state power to maximize opportunities for surplus extraction and political patronage” (Cramb 2016, 192). According to McCarthy and Cramb (2009) the palm oil boom in Sarawak has been rendered possible by oil palms low production costs, the key of the sectors profitability.

In the crop’s expansion in Sarawak, resources and people have been mobilized in different modes of production ranging from independent smallholder plantations, over joint venture schemes, to large estates (Cramb and McCarthy 2016). However, the government’s policy, especially under Chief Minister Taib Mahmud56 (1981-2014), has imposed a dualistic conception of agrarian change in which a modern sector (“dynamic, large-scale, capital-intensive, technologically advanced” (Cramb 2016, 192)) drives the state’s economic development by drawing in the resources – land and labor – from a traditional sector (“small-scale, capital-constrained and technologically backward” (Cramb 2016, 192)). Policy narratives have framed NCR land on which people often practice extensive semi-subsistence farming as ‘idle’ or ‘waste’ land that should be put under development. Such narratives continue to obscure extensive agricultural land use systems in palm oil frontiers as well as they aim to contrast these ‘marginal’ and ‘backward’ arrangements with modern estate agriculture (McCarthy and Cramb 2009). In consequence, large scale estates (private and state owned) have become the dominant mode of production in Sarawak (Cramb and McCarthy 2016).

Territorialization has accompanied the mushrooming frontier zones in Sarawak. In the 1970s and 80s the expansion of oil palm was driven most importantly by the Sarawak Land Development Board (SLDB), established in 1972, and the Sarawak Land Consolidation and Rehabilitation Authority (SALCRA), established in 1976 (McCarthy and Cramb 2009). Both government agencies had different approaches to including smallholder into oil palm production. SLDB focused on opening up land (mainly on forest reserves designated for agricultural use) for resettlement, based on a model used in Peninsular Malaysia57 that aimed to modernize new settlements and rid them from “the constraints of customary attitudes and practices” (McCarthy and Cramb 2009, 118). In the early stage of this project, titles were issued to settlers once they had repaid the costs for developing their land (e.g. for pepper or cocoa plantations). The approach of SALCRA on the other hand sought to develop NCR land under a scheme that similarly issued titles after repayment of development costs. Through loans from public funds or development financiers SALCRA established large-scale plantations on NCR land. Participants were integrated into the workforce of these plantations with relatively low wages (McCarthy and Cramb 2009, Andersen et al. 2016). However, from the 1990s on SLDB and SALCRA were both overshadowed by a rapid expansion of oil palm (and other crops) through development of privately- owned plantations, or to a smaller extent through government brokered joint ventures with customary landholders (Cramb 2007).

55 Approximately 20-25% of land in Sarawak is claimed as NCR land (Andersen et al. 2016) 56 “Malaysia’s constitution entrusts land administration to the states and in Sarawak land allocation and classification is carried out by the State Planning Authority, an agency under the Chief Minister’s Office, together with the state-level Ministry of Resource Planning and Environment and its subsidiary departments, notably the Land and Survey Department. The Chief Minister has controlled all these organizations and enjoyed almost unrestricted discretion in matters of land classification and allocating concessions to use land (Aeria 2002)” (Hamilton-Hart 2017, 4) 57 For a discussion of FELDA see Fold (2000) 33

A shift to neoliberal policies already began in the 1980s as both SLDB and SALCRA were perceived as inefficient and were opened to reform58. Greater emphasis was now put on private sector participation in land development. After SLDB had made major losses it was contracted to Sime-Darby, a commercial plantation company, and was restructured (e.g. drastic reduction of staff) in turn (McCarthy and Cramb 2009). The privatization process saw in 2000 the transfer of over 24000 ha (13 oil palm estates) to Sarawak Plantation Bhd., of which the Sarawak government acquired 100%, which were then purchased by clients of the political regime. The privatization process was completed in 2007 with Sarawak Plantation Bhd.’s enlistment on the Kuala Lumpur Stock Exchange. SLDB’s original purpose was never achieved while the institutional arrangement of SLDB was in the process refurbished to serve powerful interests (McCarthy and Cramb 2009). SALCRA was similarly subjected to a restructuring process (i.e. management changes), albeit to a lesser extent, under a neoliberal policy agenda, after it was prognosed that SALCRA, just like SLDB, would not recover its losses. SALCRA was on these grounds confined from further expansions and received less funding. However, SALCRA has remained a public sector institution, unlike SLDB, with around 14000 landholders in 395 villages on over 45000 ha of oil palm (McCarthy and Cramb 2009).

McCarthy and Cramb (2009, 119) argue that “[t]he privatisation of the SLDB schemes and the containment of SALCRA to the more densely settled districts of southern Sarawak can be seen as clearing the way for a third and more radical approach to engaging customary landholders in oil palm development”. Konsep Baru, or the “New Concept”, has sought to promote a joint venture scheme in which customary land holders are persuaded to transfer their land rights to the Land Custody and Development Authority (LCDA) which then establishes a joint venture firm a private sector partner (McCarthy and Cramb 2009). Landholders do not receive a title to their NCR land but receive payments according to the area contributed to the joint venture and are offered only a low wage for selling their labor to the private plantation company. However, McCarthy and Cramb (2009, 119) conclude:

Although much of the debate about oil palm expansion in Sarawak has focused on the various types of government scheme described above, most of the expansion in the past two decades has been due to private plantation companies, with significant financial spin-offs to the political elite in Sarawak’s pervasive patron–client network. Thus the neoliberal policy narrative has provided a smokescreen for the rapid and far-reaching privatisation and concentration of both public and communal land resources.

In Mulu too, this dominant form of the oil palm expansion has manifested in two provisional lease agreements issued by the Sarawak Land and Survey Department for 99 years over a total area of 4440 ha (see Figure 5), to the company Radiant Lagoon Sdn. Bhd. on NCR land of Berawan, Tering and Penan villagers (BMF 2019). Although the concessions for Lot 2 Tutoh Land District (3017 ha) and Lot 3 Apoh Land District (1423 ha) were granted on the 03.12.2008, they were only realized about ten years later in or around December 2018 (BMF 2019). Both lease agreements were granted at an annual rent payment of RM 11.101 (USD 2683) (Lot 2: RM 7.543 (USD 1823); and Lot 3: RM 3.558 (USD 860)). This amounts to only RM 2,5 (USD 0,60) per hectare (BMF 2019). The Bruno Manser Fonds and Sarawak Report (2019) have leaked documents that link both provisional leases to key figures in Sarawak’s patronage system. Mahmud Abu Bekir Taib, the son of former Chief Minister and now Governor Abdul Taib Mahmud was identified as the controlling shareholder of Radiant Lagoon from 11.06.2010 until 21.02.2018 before selling his shares to the company Onlyee Plantations, now Radiant Lagoon's parent

58 “In 1980, the area of oil palm in Sarawak was only 22 750 ha, of which 79% was in government land schemes (primarily SLDB and SALCRA), 17% in (semi-) private estates, and 4% in smallholdings. By 2006, the total area was 581 000 ha, with 79% now in private estates (some with part public ownership), 18% in government schemes (including 6% in joint venture schemes), and 3% in smallholdings” (McCarthy and Cramb 2009) 34 company (BMF 2019). Onlyee Plantation’s majority shareholder Yee Ming Sen is also the owner of the Double Dynasty group which sells its palm oil to major companies such as Nestlé, P&G, Unilever, Mondelez, etc. (Mighty Earth 2019). Kenney-Lazar (2018, 686) contends that “[t]he political relationship between plantation investors and state actors and institutions at different scales partly governs the capacity for investors to secure land via dispossession”. The next section therefore turns to the local scale and to the institutional context in which dispossession unfolded.

Figure 5: Position of Lot 2 & Lot 3 on NCR land of Penan and Berawan/Tering (BMF 2019)

4.4.2 Patronage and frontier politics (‘divide and conquer’) in Mulu’s frontier space As it stands now, Mulu’s palm oil frontier has emerged as suddenly as it has begun to vanish – after only a few months. While operations to clear-cut the concession area began as early as December 2018, the conversion was stopped by the end of March 201959. According to my informants from Long Terawan and Kampung Sungei Melinau no one, except a few people on the inside, had, previous to the logging operations, known about the plan to turn their NCR land into a plantation to produce palm oil.

59 According to my informants Radiant Lagoon has recently (October) started to take down the on-site nursery and to move seedlings to a new site near Mukah, also in Sarawak. 35

Adam: Yes, this was the date when the bulldozers came […] I set up a blockade right away. We went there to ask them: What are you doing? Where do you want to go? […] So, these things [plans for plantation project] should be discussed in the longhouse first, before you go and bulldoze. That’s it.

Adam: In the beginning it was very interesting how this thing [plantation] came about, when the tycoon authorized these certain people to manage it [plantation] for him.

In their Statement of Claim (see Appendix 2) submitted to the High Court of Sarawak, the plaintiffs representing the Penan, Berawan and Tering remarked:

Unknown to the Plaintiffs initially, the 6th [Herbert Lawai Epoi60], 7th [Edmund Abang61] and 9th [Ugum Jalong62] Defendants had on the 5th November 201[8] met with the employees, contractors, subcontractors or persons representatives of the 1st Defendant Company [Radiant Lagoon Sdn. Bhd.] in a hotel in Miri to discuss the proposal of the 1st Defendant Company to “start a 4,000 hectares Oil Palm Plantation in Ulu Tutoh (Mulu)” (SOC 2019, 12)

This information only came to light after Radiant Lagoon had encroached on NCR land of the Berawan and Tering. Photos of maps and other documents of the planned project circulated in groups of the messenger app WhattsApp with allegations that the two headmen Edmund Abang and Ugum Jalong had sold village land to Radiant Lagoon.

Jonas: Did you talk to your headman [Edmund Abang]?

Adam: Yeah, I recorded his voice then. He said I will go and talk to them [company] to ask them to stop. That’s what he said. But in the end, they kept on... he was not telling the truth.

Jonas: When was he telling the truth?

Adam: Only when he started to realize that we are getting stronger each day and then he started telling the truth about what was going on and how it should be managed. But it was too late. We told him before they encroached into our area, we should have discussed whether we agree or not […]. That’s not how things should be done.

Jonas: What was his response to this?

Adam: Well, that they have a compensation, that’s what he told us and a few of them [Berawan and Tering] started to move out [were paid off]. We still kept on and didn’t give up about it because I thought in the long term and it will give us a very bad impact. That’s why I keep on telling my friends this is not good for the next generation to come – not good for all of us. They will lose their land, the river will be polluted, there will be no fish, no rattan and whatever you want to get from that area.

60 Penghulu 61 Village chief of Long Terawan 62 Village chief of Kampung Sungei Melinau 36

Only the Berawan and Tering communities of Long Terawan and Kampung Sungai Melinau were affected by the operations of Radiant Lagoon as the logging was stopped right before the border of the communal land of the Penan from Batu Bungan (see Figure 5). Together, locals from nearby villages set up road blocks and stopped the Indonesian laborers who were contracted to clear Lot 2 and 3 on behalf of Radiant Lagoon, which had no license to extract timber63 (Appendix 3). While the company had approached the two headmen of Long Terawan and Kampung Sungai Melinau, the Penan headman was not included in the initial secret discussions. Arguably this is due to the Penan’s history of opposing logging operations in the Baram region64. Another interpretation concerns the discrimination against Penan as a lower status ethnic group which is rooted in the history of Penan and other ethnic groups (see section 4.2.1). Thus the Penan in Mulu have not been admitted to the higher tiers of patron-client networks in the region through which development was negotiated without public notice65. In the co-optation of local strongmen Penan were in this sense selectively excluded by powerful interests.

According to my informants and the Bruno Manser Fonds, Edmund Abang and Ugum Jalong had accepted and split a bribe of around RM 800.000 (USD 193.000) from the company Radiant Lagoon in exchange for permission to establish an oil palm plantation on Berawan and Tering NCR land (BMF 2019). When the villagers of Long Terawan and Kampung Sungei Melinau saw their NCR land cleared, a ‘compensation’ was offered by the two headmen to those that had remained in the villages. Those households who hadn’t moved away (e.g. work in Miri, Marudi, etc.66) and still used land for farming were given RM ~3700, while other households received less or did not receive any payment. The Berawan and Tering activists who I spoke to had all refused to accept any compensation payment from their headmen and explained that ever since this split over the plantation project their communities had changed. One described living in Long Terawan as ‘awkward’ as he now didn’t talk to nor greeted family and once close friends.

Jonas: Was the protest small in the beginning, and then grew, or was it the other way around?

Adam: In the beginning we started big then start to move smaller and now again big.

Jonas: Why did the protest become smaller in the middle?

Adam: Because of the headman. He tried to influence them [villagers in Long Terawan], because they [two headmen] have the money. The compensation money was ready to be divided. So, then people started to

63 The clear-cut area (~730 ha) harvested approximately 30.000 m2 of timber with a market value of USD 10 million (BMF 2019). According to a member of the Bruno Manser Fonds, these estimates were conservative and based on the analysis of aerial images. 64 See for example Brosius (1997b) or SAM (2015) 65 Only later Radiant Lagoon offered the headman of Batu Bungan, a compensation payment which he refused to accept. Allegedly, two families have “sided with the company” in the Penan village of Batu Bungan. My interpretation is that they only did not actively support the protests as they were too afraid of opposing the government. 66 In Long Terawan ~90 apartments are only partially occupied as many have left, for example to Miri, Marudi, Kuala Lumpur, Brunei, New Zealand and Canada. In Kampung Sungei Melinau 30-40 single houses are occupied but many have found employment in the park or have started small businesses for which reason they have in many cases stopped planting rice (Burkhardt and Burkhardt 2017). 37

side with their side [company and headmen] and then they started to realize and then started to move back again.

My informants described the tactic of Radiant Lagoon as ‘divide and conquer’ which resonates with other studies on the strategies of oil palm companies to drive a wedge into communities (e.g. De Vos, Köhne, and Roth (2018)). Moreover, local authorities (such as the penghulu and the two headmen) have been used across Sarawak as a political tool to push through development projects and to undermine protests. The villagers of Long Terawan and Kampung Sungei Melinau complained in this regard that both headmen were installed against the villagers’ popular vote by higher levels of government.

Jonas: How did you decide who would become the new headman in the past?

Adam: He was elected in the old days. He would be nominated by the community, then we would select who is a ‘good man’ with ‘good behavior’ and a very ‘good person’. Then they [village] start to vote. That was the purpose, you see. Whoever can get the people together, that’s the one. It’s a lot of team work and lots of things have to be done [in the village].

4.4.3 Becoming visible – from (counter-)territorialization to legalization

Entzwei’ und gebiete! Tüchtig Wort; Verein’ und leite! Beßrer Hort.67 (Goethe 1949 [1814])

The ‘Mulu case’ needs to be seen in the historical context of a longstanding cooperation of Penan activists, their organization Keruan and the Bruno Manser Fonds (a Swiss advocacy NGO) in preparing land rights cases, mainly through community mapping, recording village genealogies and community mobilizations. In Batu Bungan too, Keruan and the Bruno Manser Fonds have employed a strategy that one the one hand has mobilized political resources for a political campaign while simultaneously preparing a court case against Radiant Lagoon. Some of the Penan living in Batu Bungan and Long Iman reported that they had protested against logging operations in the 1990s (SAM 2015, Hanbury-Tenison 2017) and were already familiar with the work of the Bruno Manser Fonds. Some were even members or supporters of Keruan. Therefore, both NGOs were immediately involved after news were heard that NCR land was cleared for an oil palm plantation that would soon encroach on Penan land68. Although the Bruno Manser Fonds has a long history of working with Penan communities it has only recently begun to collaborate with other ethnic groups such as with the Berawan and Tering (activists) of Long Terawan and Kampung Sungei Melinau. The Penan villages of the area, Long Iman and Ba Ubung, were also integrated into the campaign69. However, the focus village is Batu Bungan70. Together, NGOs and

67 My own translation of this short dictum: Divide and conquer! Proficient word; Unite and lead! Superior hoard 68 According to a member of the BMF, Batu Bungan’s headman had no interest of working together with the BMF before Radiant Lagoon’s encroachment. The BMF is just as other environmental NGOs (e.g. Sahabat Alam Malaysia) perceived as anti-government. 69 In the court case against Radiant Lagoon the Penan territory of Batu Bungan, Long Iman and Ba Ubung is combined into one major territory (see Figure 5). However, each village also claims a smaller territory (see Appendix 4). 70 The headman of Long Iman has not given his support to the Penan of Batu Bungan. A group of activists with ties to Keruan has therefore tried to mobilize the community to support blockades and to show up for example 38 villagers in this regard created intra and inter village networks, as well as with other Sarawakian activist groups (and lawyers), to better counter Radiant Lagoon’s oil palm enclosure71. Initial attempts by villagers to stop logging operations can be described as a form of directly countering state territorialization, however, what then followed shifted the direction of the protest movement – from stopping the immediate destruction of their ancestral land to legitimizing their land claim – through the channel of legalization. Legalization will be discussed here as a wider process that goes beyond mere efforts of statutory institutions to define and incorporate possession and management of a piece of land into a national legal system. This thesis examines the context in which legalization occurs, and the formers influence on the legalization process.

Recognition of claims by whom?

The protest movement to stop Radiant Lagoon’s enclosure has struggled for legitimation and for ‘the right to have rights’ (Arendt 1973). Villagers have aimed to become visible from the moment they set up blockades to stop Radiant Lagoon’s concession for an oil palm territory.

John: […] we referred to authorities like the forestry department, but they said ‘we can't take any actions. We can't help you all, it's not within our jurisdiction’. But we know that the forestry department can help us, but they talk like they can’t.

Villagers reported that they had first tried to solve the matter by bringing their case to authorities such as the penghulu, the District Office and police in Marudi, the Resident Office in Miri and the Forest Department. According to my informants, government authorities across different levels were not able to help. NGOs on the other hand provided support by building networks between communities on the ground and by bringing international attention to the ‘Mulu case’72. Through the Bruno Manser Fonds protesters also targeted institutional actors on higher levels such as during a Europe tour73 with visits to IUCN, UNESCO, the WHC in Sarawak, the European Union (EU), and the Embassy of Malaysia in London which would have been off-limits otherwise. To involve these actors the campaign brought attention to the villagers’ protest, their dispossession and to the illegal logging activities of Radiant Lagoon74. It also illustrated how the national parks biodiversity would be negatively impacted (e.g. the park’s bat populations) and how EU trade policies supported palm oil production and hence the destruction of Mulu in order to make their case relevant to higher-level authorities. In a nutshell, the aim of involving such institutional actors was to gain higher-level recognition of their claim to customary land as government institutions in Sarawak had failed to recognize the communities’ NCR claims. As tourism development in the national park is for example depended on its title as a world

to press conferences, the court case, etc. The Penan from Ba Ubung still live as nomads and are accordingly difficult to contact. 71 Brosius (1997b) has already pointed to this link between external influence and resistance dynamics in his comparison of Western and Eastern Penan (in their decision to resist logging, or not). In Mulu too external influence has played a pivotal role in shaping resistance patterns. 72 See Brosius (1997a) for a discussion of recursive Penan representations by environmental activists (same goes for representations of other ethnic groups in Sarawak). Representations of Mulu too build on political motives that have conjured up a certain image of the local population that does not capture local realities. 73 In May 2019 activists from Sarawak and two representatives of the Penan and Berawan/Tering were invited to Europe to take their protest to European and international institutions (The Star 2019b). 74 Campaign video: https://www.youtube.com/watch?v=d5lvceAajz0 39 heritage site (can be revoked if certain criteria aren’t met anymore75) such higher level authorities play an important role in influencing legalization, especially in a legal system that can be harnessed by powerful interests.

Lawyer: Then in the next meeting of the WHC they [World Heritage Committee] are going to get the state government to answer to these allegations. So now of course we have to get some experts. […] Her expertise is studying the behavior of bats and their migration patterns.

‘Becoming visible’ through initial non-compliance on the local level and through later mobilizing higher-level authorities may ostensibly appear as counter-territorialization – resisting the process of state territorialization. However, with the arrival of NGOs, resistance rather needs (counterintuitively) to be understood as ‘making territory with the state’76 as villagers’ efforts were redirected to legalize their resistance through statutory avenues. Moreover, even though the protest campaign has operated outside the court (and other statutory institutions) it is intimately tied to a discourse of legalization and thus to the formal recognition of native customary rights. Campaigning allowed villagers to become visible as rights subjects while NGOs simultaneously made legible77 the villagers’ claims to land through community mapping and recording village genealogies. Non-governmental actors have in this sense played an important role in the absence of government institutions’ recognition of the locals’ claim and in making the latter legible. Thus NGOs have, as Lund (2016) puts it, displayed a quality of ‘stateness’ as patterns of recognition (‘social contracts of mutual recognition’) were reconfigured through new arrangements between different ethnic groups, local and international organizations.

Sarawak’s legal environment and legalization

Hamilton-Hart (2017, 3) describes Sarawak’s legal system as a form of rule-by-law legalism “in which law is an instrument of government rather than a restraint on it”. Such legalism is improbable to curb powerful interests when power is extremely centralized as it is the case in Sarawak. Yet, it does open up legalized avenues of resistance for those contesting coercive property reallocations. Contestations remain however relatively unsuccessful as powerful interests have contemporaneously created legal covers, for example for large-scale land acquisitions (Hamilton-Hart 2017). Therefore, Hamilton-Hart (2017) contends that the legal environment shapes resistance patterns in Sarawak and other contexts of rule-by-law legalism.

Despite initial counter-territorialization, resistance has followed a path of making legible the communities’ claims and to ultimately solidify their rights through legalization. Therefore, protesters, Keruan and the Bruno Manser Fonds have followed what Hamilton-Hart (2017) terms legalized avenues of resistance, or simply put, legalization pathways. According to Hamilton-Hart (2017) legalization pathways are grounded in: (1) the common law principle of rights gained through effective

75 Corson (2011) notes in this regard that through funding, technical assistance and advocacy multilateral and other non-state actors in the conservation sector stake a claim to public authority. 76 Majid Cooke (2003) and Bissonnette (2011) on the other hand understand community mapping as a counter- hegemonic means to defy state representations and regulations of their territories. 77 Taylor (2008) contends that ‘visibility’ and ‘legibility’ need to be understood as a double-edged sword and as to stand in a dialectic relationship. While local representations of territorial claims may push through villagers’ interests vis-à-vis statutory institutions’, such representations, in practice, bring about similar products to government mapping and may lead to government control of resource use (Peluso 2005). 40 occupation; and (2) the constitutional recognition of native communities’ rights and of international law protecting indigenous peoples’ rights78. Within these trajectories the communities’ claim to NCR land has to be substantiated by enough evidence to turn their claim into a formally recognized right. Central evidence in such court cases are maps of NCR land provided by the communities. However, legalization efforts of communities have been countered by an instrumental use of the legal system. For example, legislation was passed by the Sarawak government that criminalized unauthorized map making79 (Hamilton-Hart 2017). In the Mulu case maps were created through community mapping, facilitated by the Bruno Manser Fonds. On the 06.08.2019 the High Court80 accepted the litigants’ maps albeit their unauthorized production81.

Jonas: Why does the court accept them? It would be easy for them to say, ‘we don't accept your map’.

Lawyer: […] So, the court is saying ‘look we can accept all this [evidence] unless you [government] go to the ground’. If the government goes to the ground, they have to prove that this is wrong [by producing an accurate map]. The only way to prove that it's wrong is by showing proof [of faultiness of villagers’ evidence].

According to a lawyer of the plaintiffs from Mulu, the Sarawak government may have criminalized map making, however, courts still accept community maps and if defendants wish to challenge such evidence, they need to produce a detailed map themselves. Therefore, community maps remain an important and viable tool for NCR claimants in the legalization process. Community mapping in Mulu goes back to early mapping session of the Penan’s claim in Batu Bungan by Sahabat Alam Malaysia (Friends of the Earth Malaysia) who across Sarawak produced basic community maps. The Bruno Manser Fonds recently built on these maps but produced more elaborate versions that make legible in more detail the Penan and Berawan/Tering claims.

Even though some litigants have successfully legalized their NCR claim, in many cases courts have dismissed claims or have taken extensive periods of time until presenting their ruling. Legal victories by communities have furthermore been undone by a lack of enforcement after rulings or by subsequent executive orders (Hamilton-Hart 2017). In Mulu, Radiant Lagoon destroyed a burial site of the Berawan/Tering when encroaching on their NCR land. Consequently, the company was sentenced by adat law, as agreed to by company, villagers, council of elders and district authorities, to pay a fine and to organize a ceremony according to the Berawan/Tering adat. While the ceremony took place on the 20.04.2019 the compensation was according to my informants never transferred. Moreover, my informants stated that they did not care about the money but thought that the legal victory had given them better security against their dispossession as the agreement indirectly recognized their overarching territorial claim. Villagers’ endeavors of locking their land into ‘durable structures of recognition’ (Lund 2018) have in this regard worked through different legal systems (case in High Court and adat ruling) as well as by becoming visible to higher level institutions with political resources. The

78 Court rulings have diverged in regard to the second pathway and an influential ruling decided that such rights could be overwritten by properly-made law (Hamilton-Hart 2017). 79 In another move, the State Planning Authority expropriated landholders based on an amendment that classified agricultural plantations as in the public interest (Hamilton-Hart 2017). 80 So far the hearings for the process have not started as the defendants have not yet answered to the plaintiffs statement of claim. 81 The defendants pointed this out in their statement of defense on the 26.08.2019. 41 latter strategy involved the national park and the wider institutional framework that governs natural resources within the park’s boundary, by linking the destruction of NCR land to the loss of biodiversity in the national park. Legalization, in this wider sense, must be understood as a complex political process shaped by statutory82 and non-statutory institutions that ultimately aim to solidify (or dissolve) a certain territorial order. Legalization of land tenure is inherently linked to political and economic processes (Boone 2014).

4.5 Irreconcilable territorial projects and transient frontier assemblages The preceding chapters have introduced and separately discussed two political projects in Mulu, ecotourism and palm oil production. Both projects, their frontier zones and territorializations have significant overlap in Mulu as previous chapters have already begun to suggest. Yet, this chapter will discuss in more detail as to how exactly these two projects have articulated with each other and what ambivalences and possibilities have arisen in their conversation. I begin by showing how institutional fragmentation, together with political patronage, have shaped the territorial boundary of the park in order to allow a provisional lease to Radiant Lagoon for Lot 2 on what was to be zoned as the park’s extension area. Returning to the notion of the frontier, the subsequent sections illustrate how conservation and palm oil production were attempted to be reconciled by presenting both projects as sustainable. I continue by showing how in Mulu’s frontier space territorial projects and their ‘imaginative zones’ have not only generated opportunities for the accumulation of capital but also for resistance. Finally, following the call of Fletcher (2013) and colleagues, I position both ecotourism and palm oil production in what Büscher and Davidov (2013) call the ecotourism-extraction nexus.

4.5.1 Fragmentation of government agencies and patronage – remaking the park Government institutions play a key role in Mulu’s land governance. However, the division of different tasks between different entities – conservation of TPAs by national park entities (see chapter 4.3.3), issuing of logging licenses (required before clearing the concession area) by Forest Department and issuing of provisional leases by Land and Survey Department – has produced an institutional fragmentation that has been exploited by powerful interests. I base this argument on collected documents of the planning process for Extension 1 on the north-western edge of the park83.

In his socio-ecological study of the Penan Kedit (1978)84 suggested that this extension area should be reserved for the Penan as a ‘Penan reserve/settlement area’. Kedit’s plan never materialized and the subsequent management plan by the Forest Department repurposed the area as an extension for the park (Forest Department 1992). Until 2011 this proposed extension was not realized by the Forest Department and only when submitting the proposal for Extension 1 to the government gazette, the Forest Department found out that a provisional lease had been granted to Radiant Lagoon in 2008 on part of the same area by the Land and Survey Department. According to (map) evidence in the court case, the extension area was consequently redrawn by the Forest Department in order to avoid an overlap between park extension and concession area. In 2012, the redrawn extension was formally gazetted as Extension 1.

82 As well as a variety of other factors within statutory domains (see for example Ubink (2009, 12)) 83 The argument lacks in this regard additional evidence as I did not have access to informants in government agencies involved in the process. 84 Peter Kedit a government ethnologist conducted this study as part of the 1977/8 expedition to Mulu 42

The Forest Department’s move to redraw the extension’s boundary appears questionable as its former plan to protect this area by integrating it with the park was undercut by its decision to allow and not interfere with the planned agricultural use by Radiant Lagoon. The management of the national park (SFC and Borsarmulu) did not question this decision, even though studies show the negative impacts of habitat fragmentation through palm oil plantations (Mohd-Azlan et al. 2019). Regarding Mulu’s national park the IUCN stated that oil palm plantations within a 25km radius should not be permitted as they would lead to habitat loss by reducing foraging grounds for bats and swiftlets (IUCN 2000). Moreover, transboundary conservation efforts to maintain a wildlife corridor between Malaysia (Mulu) and Brunei (Labi Hills) have been ignored with the provisional lease being granted on this area. The WWF sees a disconnect of TPAs (managed by SFC) from wider forest management (under Forest Department) as a cause for habitat fragmentation and warns that “TPAs could become green deserts” (WWF 2015). Sarawak’s fragmentation of government agencies has in this regard shaped the planning process for the parks Extension 1 and has allowed powerful interests to push through a provisional lease that according to the IUCN has negative effects on the park’s biodiversity. Therefore, I argue that Sarawak’s patronage system in combination with government agencies’ fragmentation have enabled palm oil development and conservation to coexist (for a short period) despite adverse effects of the former on the latter. In the following section I will show how the park has glossed over what could be described as two irreconcilable political projects.

4.5.2 Imaginative projects

Just as every developed country on earth has done, Sarawak has depended on its natural resources to expand the economy for the benefit of all its people.

As Sarawak’s timber industry has developed and become a very important part of the State’s economy, the Government has been very mindful of the need to develop this as an economically, environmentally and socially sustainable industry.

(Information Board in the Museum of the Gunong Mulu National Park see Appendix 5)

Logging has been presented by the park as a sustainable practice that has benefited Sarawak’s entire population85. As illustrated before, this is clearly not the case (Aeria 2005, Gaveau et al. 2014). Policy narratives of state and federal governments alike have similarly portrayed the production of palm oil as sustainable and furthermore as modern and to have lifted the rural population out of poverty (Andersen et al. 2016, Malaysiakini 2019, Cramb 2016). Following McCarthy and Cramb (2009) and Tsing (2005) this thesis focusses on the ‘imaginative projects’ such narratives reproduce and how such projects have shaped frontier dynamics in Mulu. According to Tsing (2005, 28-29) a frontier is “an edge of space and time: a zone of not yet – not yet mapped, not yet regulated. It is a zone of unmapping: even in its planning, a frontier is imagined as unplanned. Frontiers aren’t just discovered at the edge; they are projects in making geographical and temporal experience. Frontiers make wildness, entangling visions and vines and violence; their wildness is both material and imaginative”. Tsing urges one to think beyond frontiers merely conceived in terms of resource discovery and exploitation (Cons and Eilenberg 2019). The frontier is rather understood as an entanglement “anchored in the imaginative, the material, the known and the unknown” (Cons and Eilenberg 2019, 12). Drawing on the case of Laos, Barney (2009, 147) has introduced the notion of a ‘patchworked frontier’ “which indicates how new global resource sector investments […] interact with previous spatial regimes of resource governance, producing fragmented and overlapping mosaics of resource

85 See Brosius (1999) for how the discourse of ‘sustainable forest management’ has come about in Sarawak 43 governance and territorial control”. Mulu’s frontier too is characterized by an overlap of two frontier zones that aim to (re)produce different projects of government, namely conservation through ecotourism and oil palm production through a large-scale plantation. In the following I will illustrate that both political projects build on distinct imaginative projects, yet, both are tied together by frontier dynamics that follow a certain logic.

Imaginations underpinning and legitimizing the production of oil palm have been extensively written about in Sarawak (see for example McCarthy and Cramb (2009),Cramb (2011) and Andersen et al. (2016)). McCarthy and Cramb (2009) for example argue that policy narratives imagine the frontier through a particular vision of rural modernity based on a dualistic conception of an agrarian transition (Cramb 2016) (see Chapter 4.4.1). Surprisingly, In the Penan village of Batu Bungan, I encountered a related version of this narrative as well. One of my interlocutors was described by his neighbors as a supporter of Radiant Lagoon.

Ezekiel: Growing palm oil is a good thing for the country, but it’s not suitable for us. It’s not bad, yeah. They [government] are not bad. Because if you fly over to Miri and you look down there are very huge areas of plantations for palm oil. That means this thing [plantation] is not a bad thing. It’s a good thing. It’s good for the country when they grow them, when they plant them in a proper land.

Ezekiel framed the production of palm oil as something that was done for the prosperity of Sarawak and Malaysia. Yet, Ezekiel too rejected the plantation project on the Penan’s NCR land but was more careful to not be perceived as anti-development and therefore as anti-government. Also, Ezekiel had not participated in the blockades against Radiant Lagoon and was therefore seen by the protest group in Batu Bungan as an outsider. Protesters on the other hand fiercely contested narratives of prosperous development (related to oil palm and logging) that promote the so-called ‘politics of development86’ in Sarawak87.

To reconcile plantation development with the integrity of the national park and to ensure a sustainable co-existence of both projects, Urban Planning, Land Administration and Environment Assistant Minister Datuk Len Talif Salleh announced that no NCR area was included in the provisional lease and that a buffer zone around Mulu would be enlarged from 200m to 1km (The Star 2019a). This move by the assistant minister shows two things: (1) imagining the frontier as ‘sustainable’ led to new territorial efforts aiming to provide a material foundation (i.e. land) for this representation; and (2) a logic of further territorialization allows to unite both imaginative projects by dividing them through a ‘buffer zone’. By shifting the discussion into the discursive and conceptual realm of administration and planning, government agencies aimed to displace social and environmental concerns (Brosius 1999), thus glossing over the negative effects of the plantation in order to present plantation development in Sarawak as “a ‘lifeline’ for rural areas” (The Star 2019a). Furthermore, maps by government planners gave material shape to these selective displacements making both projects appear as to be able to coexist.

86 The slogan ‘politics of development’ (politik pembangunan) was introduced by Abdul Taib Mahmud to describe his policies geared to modernize Sarawak and to exploit its resources allegedly for the benefit of all Sarawakians (King 1993). 87 Other activists that supported the protesters shaped the narrative of the protests by linking it to this wider struggle against the ‘politics of development’. 44

Envisioning Radiant Lagoon’s plantation as socially and environmentally sustainable allows to reconcile palm oil production with the second imaginative project which underpins ecotourism. Herein, Mulu is predominantly portrayed as a place rich in natural beauty that has been undisturbed until the 1970s. In his book Finding Eden Hanbury-Tenison (2017) describes his discovery of a ‘hidden valley’ during the 1977/8 expedition. This personal and emotional moment led him to name it the garden of eden as he experienced the valley as an untouched, pure and paradise-like place. Perceptions of Mulu have in this sense been dominated by representations of outsiders that have conjured up images of pristine beauty and an abundance of species worthy of protection and to be mapped and studied by science. Penan representations of places in the park have not entirely ceased to exist but rather form an understory that slowly fades away with the Penan’s partial exclusion from the park.

The logic of ‘empty wilderness’ as a common ground

Frontier dynamics have tied both frontier zones together, not only by presenting them as ‘sustainable’ to allow further accumulation but also through their imagination as ‘wild’ resource rich spaces void of humans. However, such freely available frontier land must first be created; “produced where it did not exist before” (Barney 2009, 151). In order to erase previous territorial rights and institutions both frontier spaces produced wilderness to engineer enclosures, however, under different rationales and with distinct outcomes. Imaginaries of wilderness by early explorers in Mulu are closely tied to science as notions of undiscovered lifeforms have fueled the quest for scientific discovery. From the perspective of scientists and government planners the abundance of species and natural wealth needed to be safeguarded, what then legitimized the displacement of local people from the park. Perceptions of Mulu as a place of ‘adventure’ have ever since solidified in the area’s development for ecotourism and with the ongoing commodification of the parks landscape. Mulu’s landscape was in this regard not understood as a series of neighborhoods (Langub 2011) by scientists and planners but rather seen as ‘empty’. Yet, the expedition and local authorities, such as the penghulu, did involve concerns of some of the local population in the production of territorial boundaries (see Chapter 4.2.1). However, such concerns were framed in terms of ‘native customary rights’ a new category to grasp and make legible the multitude of customary practices of the local population in new forestry laws. Peluso and Vandergeest (2001) argue that the terms of future debates were in this regard shifted into the foresters’ discursive and conceptual realm – “i.e. the realm of the political forest” (Peluso and Vandergeest 2001, 791). Notions of forest laws and customary rights were thus normalized and in turn produced new illegalities shaping resource use and local perceptions of the forest (Peluso and Vandergeest 2001). I will return to this particular point in the next section to show that ruptures need to be seen in a historical context as they open up room for new possibilities.

The second, only partly realized enclosure, created an imaginative zone in which dominant policy narratives frame land as ‘idle’ and as ‘unproductive’. McCarthy and Cramb (2009, 113) argue that “policy narratives tend to see the frontier in terms of absences: the lack of productive land uses, forms of modernized agriculture, and a disciplined labour force”. The forest and swidden plots on the concession area given to Radiant Lagoon are in this vision to some extent seen as wilderness too, at the margin of the state, and ready to be exploited for commercial use – namely for the extraction of timber and palm oil. Frontier dynamics have in both cases created an ‘empty wilderness’88, i.e. a resource rich space void of local population and social order. Territorialization filled such emptiness in Mulu’s forest for example via new legislation that by the same token contained conceptions of ‘lawlessness’. Ideas of lawlessness must be understood here against the backdrop of Sarawak’s rule-

88 Bridge (2001) refers to this dialectic phenomenon of contemporaneous emptiness (unmapped and unpopulated) and abundance (of resources and opportunities) as ‘bountiful emptiness’. 45 by-law legalism in which powerful interests may (re)produce illegalities and legalize certain practices selectively. Cons and Eilenberg (2019) refer to this dynamic in frontiers as ‘legalized lawlessness’ which stresses the role of law as a solvent and solidifier (Lund 2018) that can be strategically applied in the production of such spaces of ‘empty wilderness’.

4.5.3 Shaping frontier imaginations Mulu has experienced two ruptures in recent years that have opened up new possibilities for capital to accumulate. However, recent change has also generated possibilities in unexpected ways for the local population. Cons and Eilenberg (2019) note in this regard that one needs to pay attention to the historical dimension of frontiers as different frontier spaces may converge in unexpected ways. The ‘gaze of science’ in Mulu’s first frontier zone has for example provided an opportunity for villagers to gain recognition of their NCR land as protesters and NGOs tapped into a discourse of biodiversity and habitat loss that permeates Mulu’s political forest. In turn villagers were able to draw greater attention to their dispossession and furthermore involved institutional actors with political resources to halt Radiant Lagoon’s enclosure. Protesters were thus able to harness a particular imagination of the frontier for their purposes. Non-state actors such as villagers and NGOs play in this regard not only an important role in co-producing territory but also in shaping the imaginative zones in Mulu’s frontier. However, dominant visions of Mulu were in the process of legalization and campaigning reinforced and continue to provide a powerful conceptual frame constraining the resource use of the local population. In Mulu’s frontier formation, the authority of institutions involved in the park’s governance has thus been directly and indirectly (re)produced by a transient assemblage of actors.

Frontier imaginations in Mulu aimed to and partly dissolved property and citizenship rights. Yet, these imaginations containing the displacement of the local population did not fully materialize (especially in the case of the plantation) and even co-produced a new sense of belonging, i.e. citizenship – as Sarawakians – among the local population. Protesting and bringing their case against Radiant Lagoon to court, made villagers become visible as rights-bearing subjects and thus played a major role in shaping their political subjectivities89. NGOs influenced this process in a crucial way as they ‘made legible’ (Scott 1998) villagers’ territory and demographics. I have therefore argued that NGOs acquired a quality of stateness albeit only transient as NGOs only provide their support for the period of protest and legal resistance. If successful in court, the case against Radiant Lagoon may lock the local population’s claim to NCR land into more durable structures of statutory recognition which would reinforce a sense of citizenship as Sarawakians among the villagers even more.

Anderson (2006) has described this connection between making legible (amongst other things90) a group of people, for example through census and map, and their concurrent imagination through such ‘technologies of knowing’91 as an ‘imagined community’ as the foundation of nationalism. Drawing on the metaphor of the glass house, Anderson (2006) described the colonial government’s intention in Indonesia to create an architecture of visibility based on a ‘totalizing classificatory grid’. Following the political authority from below perspective this argument can be applied on a smaller-scale as well in regard to the production of citizenship in Mulu by NGOs and villagers through map making and recording villagers’ genealogies. Anderson (2006) sees map and census as powerful representations

89 However, Tsing (1993, 26) notes in regard to such efforts and the underlying uneven relationship: “[a]s culturally “different” subjects they [marginals] can never be citizens; as culturally different “subjects”, they [marginals] can never escape citizenship”. 90 E.g. Other categorizations and standardizations such as print media, a centralized school system, etc. that create a shared identity 91 Or in Foucauldian terms ‘technologies of government’ (Rose-Redwood 2006) 46 that carry a peculiar kind of imagining in which people attach a sense of belonging to abstract representations – “[m]ap and census thus shaped the grammar which would in due course make possible 'Burma' and 'Burmese', 'Indonesia' and 'Indonesians'” (Anderson 2006, 185). Following the same logic in the process of community mapping, Penan, Tering and Berawan imagined their territory and themselves, respectively, as part of ‘Sarawak’ and as ‘Sarawakians’ – i.e. as part of an ‘imagined community’ (Anderson 2006). Imaginations of the frontier as empty have in this regard prompted a new sense of citizenship and regionalism among the protesters in Mulu as Sarawakians.

4.5.4 Neoliberalization – another common thread The previous sections have tied (industrial) palm oil production and (postindustrial) conservation in Mulu together, even though both projects ostensibly appear as to be at odds with one another. Following Fletcher (2013), I now look at the process of neoliberalization92 on a sectoral level to show that the production of palm oil and conservation through ecotourism are in fact ‘two sides of the same neoliberal coin’. Fletcher therefore speaks of a Janus-faced strategy that takes place in “an increasingly neoliberal political economic climate which mandates that interventions should be governed not through direct state regulation but through manipulation of the incentive structure within which stakeholders make decisions concerning appropriate resource use, in relation to which the state should intervene only to shape the conditions of the market rather than controlling resource allocation within the market itself” (Fletcher 2013, 80). In the above I have described the neoliberalization of conservation through re-regulations which entailed the semi-privatization of management entities in the conservation sector and which have promoted a ‘steering role’ of government agencies – i.e. in ecotourism as a market-based strategy for biodiversity conservation. Furthermore, ecotourism in Mulu has created incentives for locals, for example by integrating their labor into the market to reduce pressure on resources within the park’s boundaries (Forest Department 1992). However, the old state- centered approach to conservation through protected area enforcement remains relevant as it underlies and mixes with ecotourism as visible in the zoning of the park (see Chapter 4.3). Yet, neoliberalization in Sarawak not only pertains to the management of protected areas. McCarthy and Cramb (2009, 119) have shown how neoliberal ideas shaped the palm oil sector as they “provided a smokescreen for the rapid and far-reaching privatisation and concentration of both public and communal land resources” – the pretext being to leave rural economic ‘backwardness’ behind. Smallholders in Sarawak’s palm oil sector have however only been integrated by certain private sector driven plantation and joint venture schemes (see Chapter 4.4). At the same time, state-led rural development took a back seat93 as favorable market conditions were tailored for the appropriation of land by Sarawak’s political elite and their network of clients (McCarthy and Cramb 2009). Land development for oil palm production, for smallholders in particular, was accomplished under the “neoliberal eschewal of resource redistribution in favor of reliance on economic growth as the principle poverty alleviation strategy” (Fletcher 2013, 82). Nevertheless, government intervention into the market remained important in the form of provisional lease agreements and permits (granted or revoked) which are closely connected to Sarawakian patronage politics as illustrated in the case of Mulu.

92 Defining neoliberalism is not an easy task and I rely here on Castree (2008) to point to key tenets of neoliberalization, and neoliberal economics, i.e. processes of decentralization, deregulation, reregulation, marketization, privatization, and commodification. 93 As stated in Chapter 4.2, government intervention in form of agricultural extension and development services did not materialize as in many other parts of Sarawak. 47

Both accumulation strategies, underlying ecotourism and palm oil production development in Sarawak, have in that sense worked under a partially neoliberal mode of governance that: (1) has intensified the commodification of nature; (2) has established and corrected an incentive structure that manages resource use and distribution (e.g. incentives for villagers to work in park and incentives for smallholders to hand over land in plantation schemes); and (3) has transformed both sectors through re-regulation, by either formalizing a partially privatized management regime, in the case of ecotourism, or by reforming smallholders’ access through restructured government oil palm schemes. Yet, there is no common policy framework that integrates both political projects for instance in form of a larger sustainability agenda, etc. Specific manifestations of both projects are rather negotiated in local arenas such as in Mulu and are both to some extent based on a governance mode of clientelist- patronage. However, as described above, a neoliberal discourse of planners allowed then to erase the distinction between palm oil production and conservation by framing both as sustainable rural development initiatives. Neoliberal narratives and resource management have in this regard not only masked the expansion of Sarawak’s palm oil frontier (McCarthy and Cramb 2009) but have positioned a particular form of both ecotourism and palm oil production in what Büscher and Davidov (2013) refer to as an ‘ecotourism-extraction nexus’ – the intrinsic but also contested connection of extraction94 and ecotourism. However, by making this connection I do not wish to reduce Mulu’s frontier to its neoliberal characteristics but rather aim to show that neoliberalization plays an important role in the exacerbation “of the very conflicts between conservation and development priorities it ostensibly seeks to reconcile” (Fletcher 2013, 81). Other forms of governance remain prominent as Barney (2012, 28) contends that “neoliberalism is not currently the dominant mode of political or environmental regulation in much of rural Southeast Asia”. Barney (2012, 26) urges us to rather “think of neoliberal- influenced (but not necessarily neoliberal-dominated) state-society relations in Asia” as “rule through political repression, political assassination, kleptocracy, rent seizing, or clientelistic-patronage” remain important governance tools95. I return to the idea of neoliberalization in the following conclusions of this thesis to show how this process in Mulu’s territorial configuration as a by-product has provided traction (among other things) for local claims to customary land rights.

94 Following Fletcher (2013, 71) I broadly understand resource extraction here as to “include any activity entailing removal of natural resources from their site of origin and transformation into commodities for transport and sale elsewhere”. 95 Barney (2012) takes neo-patrimonialism as to be the overarching mode of governance for such tools. 48

5 Conclusion The preceding chapters have tried to disentangle the ‘complex cocktail’ of land control in Mulu by showing how over time frontier dynamics, territorializations and legalization have interacted through a variety of statutory and non-statutory actors across different scales. By introducing the Penan system of molong (resource tenure) and their relationship with the landscape this thesis began by illustrating how resource use has been shaped by frontier imaginations of Mulu as unexplored ‘wilderness’ and by the subsequent science and government driven establishment of a ‘political forest’ (Peluso and Vandergeest 2001) that territorialized forest resources and use patterns and imposed new species controls. The following chapter picked up after the Penan’s exclusion from their customary territory by showing how Mulu’s expanding frontier space and following territorializations for the development of tourism attracted a local workforce of Berawan and Tering from Long Terawan that settled near the entrance of the park. With the construction of houses for a new village, Kampung Sungai Melinau, and clearing land for farming plots the overlapping claims of Penan and Berawan/Tering to customary territory came into conflict as land was increasingly enclosed and became scarce in the park’s vicinity. However, the political project of ecotourism established a common ground between villagers from Batu Bungan and Kampung Sungai Melinau as well as a new set of institutions (changing over time) that governed accumulation in and outside the park’s boundaries. Since the early infrastructural developments of the 1990s Mulu was awarded the title ‘World Heritage Site’ and ecotourism took off in the totally protected area as a more flexible model for biodiversity conservation (Büscher and Fletcher 2015). Contrasting conservation in Mulu, the next chapter introduced the agro-industrial and export-oriented production of palm oil as a second political project (Pichler 2015). After describing Sarawak’s oil palm frontier and the sector’s neoliberal reform I have localized an emerging palm oil frontier space in Mulu in the national park’s immediate vicinity that has challenged local land control of Mulu’s villagers. I used this local contestation of state territorialization to highlight how villagers ‘made territory’ through an alliance of several actors across different scales initially countering state territorialization while later following a strategy of legal protest. This strategy however fed into the very process of state territorialization and continues to be shaped by the legal avenues drawn by powerful actors in Sarawak’s system of rule-by-law legalism (Hamilton-Hart 2017).

In my analysis of land control, i.e. of the “practices that fix or consolidate forms of access, claiming, and exclusions for some time” (Peluso and Lund 2011, 668), I have aimed to position centrally the marginalized role and lived experiences of my interlocutors. Tsing (1993) has described the paradoxical dilemma of being marginal as to be ‘outside the state’ while tying oneself at the same time to it. My thesis aims in that sense to illuminate the complex relations between marginalized ethnic minorities and statutory institutions. Due to the limitations of my field work described at the onset of this thesis I have fallen short of digging deep into the rich cultural dimension of how authority is produced on a micro-level. Nevertheless, my interviews with villagers, activists and a lawyer, observations and many conversations have allowed me to line the argument that territorialization – which I have used as a guiding concept in this thesis – is in fact not only a product of statutory institutions but is shaped and co-produced by a variety of non-statutory actors that ‘make territory’. This thesis thus aims to add to a growing literature of ‘territorialization from below’ (Peluso 2005, Roth 2008, Taylor 2008). Drawing on Lund (2016) and understanding political authority as fragmented and in the making I have traced the capacity of non-statutory actors to early boundary-making during the planning phase for the Gunong Mulu National Park. However, recently formed networks (against the dispossession of villagers by Radiant Lagoon) in which different ‘fragments of authority’ cohered, allowed villagers and NGOs to territorialize NCR land. Territorialization in Mulu also involved different scales (Brenner 1999) as multiple levels of government and different international organizations were involved in and influenced the conflict. Interestingly the incoherence of overlapping territorialized resource uses and 49 rights of park and plantation opened up room between both projects which villagers used to substantiate their claim to NCR in court (i.e. discussion over buffer zone and wildlife corridor). Territorialization is in this regard not only negotiated between a variety of statutory and non-statutory actors across scales but also among statutory actors that territorialize space under conflicting rationales. I suggest that territorialization from below needs to be understood in relation to the often- incomplete character of state territorialization projects as villagers may lay claim to land more effectively through internal inconsistencies of the latter (e.g. buffer as spatial technology). This thesis therefore aims to contribute to recent work on the fragmented production of territories96.

Building on this argument I showed that palm oil production and ecotourism were reconciled by discursive-imaginative and territorial means. Thus following Fletcher (2013) this thesis has framed the two political projects which ostensibly appear as to be diametrically opposed as a Janus-faced strategy in the neoliberalization of environmental management. However, this strategy has been contested by villagers who countered government agencies’ discourse of rural development by means of tapping into the same discursive and conceptual realm of (forest) administration to show on scientific grounds that the planned plantation was a threat to the park’s biodiversity (e.g. habitat loss). Recent territorialization in Mulu spurred by market-based resource management is in this regard structured by other modes of governance that either intertwine through contestations of the process (e.g. command-and-control by international organizations) or by clientelist-patronage rule that generally underlies natural resource governance in Sarawak as shown throughout this thesis. The neoliberalization of both sectors in Sarawak’s ecotourism-extraction nexus (Büscher and Davidov 2013) is in this regard still underpinned by and negotiated through neo-patrimonial structures (e.g. concessions only to clients) which have with more or less success shaped the process of neoliberalization for their benefit. Such convergences show that territorialization is in fact an important ground on which the contingent process of neoliberalization is negotiated between fragmented political projects and different rationalities of statutory and non-statutory actors across scales. Building on Corson (2011) I have shown that in Mulu too the neoliberalization of environmental governance has removed accountability of statutory institutions. However, I depart from Corson (2011) in that neoliberal conservation may also provide traction for local claims through transnational networks. Neoliberalization in this sense potentially enables the production of ‘stateness’ by such networks, to secure customary land rights, although with significant trade-offs for villagers through increased legibility and potentially increasing government control of resource use (Peluso 2005). By making this claim I do not wish to pronounce the benefits of market-based governance but rather aim to highlight the complexities of territorial configurations and the unexpected outcomes that may arise from convergences of a variety of processes. Rather than viewing neoliberalization as a linear process unfolding in Sarawak’s environmental governance the presented case study shows that neoliberalization responds to a variety of interests that seek territorial control.

The reorganization of territorial boundaries in Mulu and the villagers’ struggle to become visible furthermore created new political subjectivities. Contesting the process of state territorialization through legal protest has led to a revival of Sarawakian citizenship as protesters and their claim to NCR land became visible to statutory institutions97 as rights bearing subjects. As another result, by mobilizing the scientific discourse of species loss in their legal protest villagers recognized and reinforced the political authority of the park’s management and of dominant frontier imaginations of Mulu. Furthermore, although villagers and their network of supporters experienced a moment of ‘stateness’, efforts to territorialize their NCR land eventually fed into an overarching project of state territorialization through partly self-imposed legibility (Scott 1998) (i.e. through mapping and village

96 See Lukas and Peluso (2019) for a review of the limited literature of this genre. 97 By that I mean beyond the park management’s partial and strategic recognition of Penan access and use rights. 50 genealogies) and through legalization. Regarding legalization, Sarawak’s rule-by-law legalism (Hamilton-Hart 2017) has been a major obstacle as the state’s legal system functions as an instrument for powerful interests. However, transnational actors such as IUCN and UNESCO play a major role in Mulu’s conservation and influence government agencies’ decisions pertaining to the management of the national park. Legalization is thus not a straightforward process of formalization but is rather contested by a variety of statutory and non-statutory actors and strategies that shape the final product of legalization.

Understanding the state as ‘in the making’ (Lund 2016) has allowed me to critically evaluate the three ‘mechanisms’ of land control which I have used as analytical instruments throughout this thesis. My three main arguments, presented above, deal with the complexities of Sarawak’s process of state formation which is assembled by a variety of actors, interests and processes across different scales. Through my analysis of territorialization in Mulu I have aimed to contribute to the existing literature on internal territorialization in Sarawak which lacks grounded case studies and has not sufficiently discussed the role of ‘non-state’ actors especially not in regard to the negotiations between different territorial projects. A grounded analysis of the process of neoliberalization in Mulu has furthermore shown that neopatrimonialism is still pervasive as a mode of environmental governance. Sarawak’s spatial-territorial configurations therefore form hybrids in the dynamic process of state formation – influenced by neoliberalism, a fragmented state system, patronage, “grounded natural histories and social-landscapes” (Barney 2012, 27). The face of state formation in Sarawak has in this regard changed since the early days of the modern state from state power being highly contested by local strongmen to today’s system that has accommodated and entrenched strongmen politics however in constellations with a variety of new institutional actors and new rationalities that govern natural resources and therefore produce ‘stateness’ in such institutions (Lund 2016). According to scholars of Sarawak’s political system (Kadam-Kiai and Hazis 2013), further change looms and may materialize with a regime change on the state level which could potentially result in a ‘rupture’ (Lund 2016) with profound consequences for trajectories of land control, the process of neoliberalization and Sarawak’s jurisprudence. To study such change this thesis has aimed to, and urges to, unsettle views of conservation and palm oil production in Sarawak’s environmental governance as separate state projects. This connection is especially important in regard to recent promises of no more oil palm plantations and increased conservation efforts of the Sarawak government to have the EU lift its ban on Malaysian palm oil scheduled for 2030. The potential result would be a further greening of neoliberal policy narratives and would hence add another layer to the smokescreen that masks Sarawak’s unequal and predatory palm oil sector (McCarthy and Cramb 2009). I suggest that palm oil exports must in this sense be seen as a driver of future conservation efforts. So far, this dynamic remains unexplored and could generate fascinating insights for example in regard to the specific fixes that crop booms rely on for further accumulation. Thus linking booming resources to conservation may help to better understand how ecoutourism for example influences the boom-bust cycles of resources (e.g. palm oil production). Such studies could augment understandings that conservation goals generally delegitimize crop booms (Hall 2011).

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Appendices

Appendix 1

Figure 6: Proposed Penan settlement reserve (Kedit 1978)

Appendix 2

1. UKAU LUPUNG (WN KP 591009-13-5639)

2. NO NYAPON (WN KP 601004-13-5409)

3. JUANAIDI UKAU (WN KP 860902-52-6395)

4. RINAI AGAN (WN KP 680425-13-5800)

5. ZIKI WEE (WN KP 511225-13-5729)

6. OSEN TU’O (WN KP 670815-13-5591) (for Long Iman)

7. MUTANG TU’O (WN KP 640208-13-5373)

8. ULAN MAN (WN KP 510129-13-5206)

9. RICHARD ENGAN ANG (WN KP 540914-13-5495)

10. WILLIE KAJANG NGANG (WN KP 560606-13-5555)

11. PIMON LAGANG (WN KP 620710-13-5653)

12. DENNIS ALONG (WN KP 680518-13-5279)

13. GENESIS LHEKO (WN KP 870817-12-5158)

14. FRANCESSCA MERING WAN (WN KP 890908-13-6280)

[suing for themselves and on behalf of and representing all other families and villagers who are the proprietors, occupiers, holders, claimants and beneficiaries of the native customary rights land situated within and in the immediate vicinity of the Gunung Mulu National Park including the

Subject Land of this Suit the said Lot 2 Tutoh Land District and Lot 3 Apoh Land District, Baram, Miri, Sarawak] c/o Batu Bungan

Sungai Tutoh

98050 Baram … Plaintiffs

1. RADIANT LAGOON SDN. BHD.

(Company No. 787949)

Lot 2461, First Floor,

Boulevard Commercial Centre,

3km, Jalan Miri-Pujut,

98000 Miri, Sarawak … 1st Defendant

2. DIRECTOR OF FORESTS

Forests Department of Sarawak … 2nd Defendant

3. SUPERINTENDENT OF LANDS & SURVEY MIRI Lands & Survey Department Miri Division … 3rd Defendant

4. DIRECTOR OF LANDS & SURVEY SARAWAK … 4th Defendant

5. GOVERNMENT OF THE STATE OF SARAWAK … 5th Defendant

6. PENGHULU HERBERT LAWAI EPOI

(WN KP 470110-13-5085) … 6th Defendant

7. EDWARD ABANG (WN KP 561230-13-5771)

Ketua Kaum Kampung Long Terawan … 7th Defendant

8. UGUM JALONG (WN KP 550109-13-5053)

Ketua Kaum Kampung Sungai Melinau … 8th Defendant

9. GARRY HASSIM WAN (WN KP 661105-13-5453)

Ahli Majlis Daerah Marudi … 9th Defendant

STATEMENT OF CLAIM

The Parties

1. The Plaintiffs are residents in Batu Bungan, Ba Ubung (or Ubong), Long Terawan, Long/Sungai Melinau and Long Iman, are indigenous Penan, Kenyah Berawan/Tering ethnicity and are therefore natives of Sarawak.

2. The former nomadic and semi-nomadic Penan families in Sungai Abang had all moved to settled and or semi-settled in Long Iman. Amongst the formerly nomadic Penan families in Sungai Tapin (Tepen), 4 families have since settled in Long Meraan near Ba Ubung while the remaining 5 families are still nomadic and moving in the vicinity of Sungai Tapin (Tepen). The abovenamed Plaintiffs had consulted and have since received consent and support from the residents of the communities of Batu Belah, Long Panai, Long Terawan, Long Melinau and Kuala Tutoh (Long Kiput) for the intitutement and the proceeding of this legal action to establish, exert and exercise their native customary rights over the whole of the Subject Land situated and or located at Sungai Tutoh, Baram, now discovered to have been included in the provisional lease or lease of State Land issued and or registered in the name of the 1st Defendant company specifically described as Lot 2 Tutoh Land District and Lot 3 Apoh Land District (hereinafter referred to as “the Subject Land”), which has been and is shared, common and communal to the Plaintiffs and those of whom they represent herein.

3. The Plaintiffs are the proprietors, occupiers, holders, claimants and beneficiaries of native customary rights land situated at, including and not limited to, the Subject Land referred to herein, and they bring this action for themselves and on behalf of and representing all other families and villagers who are the proprietors, occupiers, holders, claimants and beneficiaries of the native customary rights land situated within and in the immediate vicinity of the Gunung Mulu National Park including the Subject Land situates at Sungai Tutoh, Baram, Sarawak. The native customary rights land are hereinafter collectively and severally referred to as “the said native customary rights Land”.

3.1 The native customary rights land or “Tana Pengurip” of the affected Penan communities represented by the abovenamed 1st, 2nd, 3rd, 4th, 5th and 6th Plaintiffs is more clearly shown on the Plan or Map attached hereto this Statement of Claim and marked as Exhibit “P1”.

3.2 The native customary rights land or “Late Nyan Bekerang” of the affected Berawan/Tering communities represented by the 7th, 8th, 9th, 10th, 11th and 12th Plaintiffs abovenamed is more clearly shown on the Plan or Map attached hereto this Statement of Claim and marked as Exhibit “P2”.

4. The Plaintiffs and those of whom they represent are descendants of the original pioneering proprietors, occupiers, holders, claimants and beneficiaries of native

customary rights land situated at, including and not limited to, the locality of Sungai Tutoh, Baram, more particularly the Subject Land referred to herein.

5. The portion of native customary rights land situated and or located at Sungai Tutoh, Baram, of which the Plaintiffs claim proprietorship, occupy, hold, beneficially interested and claim native customary rights are found to be wrongfully illegally and or negligently included in the provisional lease or lease of State Land issued and or registered in the name of the 1st Defendant company specifically described as Lot 2 Tutoh Land District and Lot 3 Apoh Land District.

6. The 1st Defendant is a company incorporated in Malaysia under the Companies Act 1965 and having its registered address at Lot 2461, 1st Floor, Boulevard Commercial Centre, 3km, Jalan Miri-Pujut, 98000 Miri, Sarawak, and a business address at No. 63-66, 1st Floor, Kueh Hock Kui Commercial Centre, Jalan Tun Ahmad Zaidi Adruce, 93150 Kuching, Sarawak.

7. The 2nd Defendant is the Director of Forests, Forests Department of Sarawak, having the powers and authorities stipulated in the Forests Ordinance, Sarawak, and purportedly in the course of exercising such powers and authorities had carried out such act conduct and deed complained hereinafter and/or failed refused and or neglected to perform such lawful and legal act conduct and deed stipulated in the relevant law/s of Sarawak and/or the common law applicable to the said 2nd Defendant and/or the 4th Defendant being the Government of the State of Sarawak.

8. The 3rd and 4th Defendants are the Superintendent of Lands & Survey Department for Miri Division and the Director of Lands & Survey Sarawak who are appointed under section 3(1) of the Sarawak Land Code (Cap. 81) and are having such powers and authorities stipulated therein. For reasons stated hereinafter, particularly but not limited to Paragraphs 16, 17, 18, 19, 20, 21, 22, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34 and 35 hereinbelow, the 3rd and 4th Defendants, together with the 2nd and 5th Defendants, have full knowledge of the existence of the Plaintiffs’ native customary rights of the said native customary rights land at all material time.

9. The 5th Defendant is the state government of the State of Sarawak and is the authority under which the 2nd, 3rd and 4th Defendants are subordinated.

10. The 6th Defendant was appointed and currently serving as a Penghulu while the 7th Defendant and the 8th Defendant were appointed and currently serving as Ketua Kaum of Kampung Long Terawan and Kampung Sungai Melinau respectively. The 6th Defendant has jurisdiction over some native communities in the Sungai Tutoh- Melinau area but has no jurisdictional authority over the Penan communities in the

same Sungai Tutoh-Melinau area. The 6th, 7th, 8th and 9th Defendants have had knowledge and ought to have knowledge that a separate Penghulu of the Penan ethnicity has been appointed to exercise jurisdictional authority over the Penan communities in the Sungai Tutoh-Melinau area. The 6th, 7th, 8th and 9th Defendants did not consult nor they invite the said Penghulu for their discussions concerning the Subject Land and affecting the Penan communities in the Sungai Tutoh-Melinau area. The 9th Defendant was appointed and is serving as a councilor or member of the Marudi District Council. All the 6th, 7th, 8th and 9th Defendants are members of the Berawan/Tering community of Kampung Long Terawan.

Provisional Leases/Leases of State Land

11. On 03.12.2008, 2 provisional leases/leases of State Land were registered and issued by the 3rd and or the 4th Defendants to the 1st Defendant company. Both the 2 provisional leases/leases of State Land affect 2 parcels of adjoining land in Sungai Tutoh, Baram and are described as Lot 2 Tutoh Land District and Lot 3 Apoh Land District respectively. Both the 2 provisional leases/leases of State Land were registered and issued for a term of 99 years, commencing on 03.12.2008 and expiring on 02.12.2107.

12. Lot 2 Tutoh Land District covers a land area measuring 3,017 hectares, more or less, and Lot 3 Apoh Land District covers a land area measuring 1,423 hectares, more or less.

13. The leased areas within the 2 provisional leases/leases of State Land described in the preceding paragraph, wholly encroaches upon the land of which the Plaintiffs claim and are exercising native customary rights.

14. Premised upon Paragraphs 16, 17, 18, 19, 20, 21 and 22 together with Paragraphs 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34 and 35 hereafter, the 3rd, 4th and 5th Defendants are aware of the existence of native customary rights on the leased areas within the 2 provisional leases/leases of State Land and that the Plaintiffs, who are the rightful owners and/or proprietors and/or licensees and/or claimants to/of the said native customary rights land would assert and exert their legal and beneficial rights to safeguard their interests and rights in accordance with the laws.

15. Despite the 3rd, 4th and 5th Defendants’ knowledge of the existence of the Plaintiffs’ native customary rights, the 3rd, 4th and 5th Defendants had made no attempt nor undertaken exercise for the extinguishment or determination of the Plaintiffs’ native customary rights over the land nor surrendering of the native customary rights by 65

the Plaintiffs in accordance with the law, prior to the registration and issuance of the 2 provisional leases/leases of State Land and the said registration and issuance was therefore fraudulent, wrongful, illegal and void.

Native Customary Rights Land of the Plaintiffs

16. At all materials times, the Plaintiffs have acquired and/or inherited and claimed native customary rights and/or native title and/or usufructuary rights over an area of land situated within and in the immediate vicinity of the Gunung Mulu National Park including the Subject Land situates at Sungai Tutoh, Baram, Sarawak, shown on the Plans or Maps marked as Exhibit “P1” and Exhibit “P2” and annexed herein hereto this Statement of Claim. Copies of Exhibit “P1” and Exhibit “P2” and or their identical, equal or alike were earlier furnished and or deposited with the offices authorities and agencies of the 2nd, 3th, 4th and 5th Defendants.

16.1 The Plaintiffs have acquired and/or inherited their rights, privileges, interests and/or title over the said native customary rights Land by virtue of and under the principle of the common law.

16.2 The Plaintiffs’ native customary rights over the said native customary rights Land are recognized by the Sarawak Land Code (Cap.81) and/or its predecessors and the said native customary rights was created and/or acquired prior to the 1st day of January 1958, and still subsist as such.

17. Early day Brooke and British administrators, including Charles Hose who served in Sarawak from 1884 to 1905, had written and documented extensively about the life and practices of the Plaintiffs’ ancestors and their occupation and subsistence on the land in this region including the watershed of the Baram and Limbang rivers and their tributaries.

18. The Plaintiffs’ native customary rights was expressly admitted by the predecessors of the 5th Defendant to have and is still subsisting over the land which with effect from 01.08.1974 was constituted a National Park known as the Gunung Mulu National Park. The relevant research and studies conducted with regards the constitution management and development of the Gunung Mulu National Park have shown authenticated and substantiated the existence and subsistence of the Plaintiffs’ native customary rights over the land in the vicinity of the Gunung Mulu National Park including but not limiting to the whole or a substantial part of the Subject Land.

19. The native customary land rights of the Plaintiffs was expressly and/or impliedly admitted by the predecessor of the 5th Defendant, existed and subsisted over the whole or a substantial part of the Subject Land, which was initially included as part of the Gunung Mulu National Park, the whole or a substantial part of the Subject Land was excised and excluded and the boundary of the Gunung Mulu National Park was revised as a result of the settlement of claims by the Residents of the (then) Fourth and Fifth divisions, as noted by the Management and Development Plan for Gunung Mulu National Park produced by the Royal Geographical Society for the Sarawak Government, that:

“Note that as a result of submission by Penghulu Baya Malang, representing the people living in the lower reaches of the Tutoh river, a substantial portion of the proposed park, lying between the Lutut river and a line drawn from Long Melinau directly to the Brunei border, was excised from the proposed Park.

Subsequently the Penghulu raised further objections to the constitution of the proposed Park.”

20. Further and/or in the alternative, as part of study for the Management Plan in proposing the Gunung Mulu National Park, a baseline survey was carried out during the period of the Royal Geographical Society/Sarawak Government expedition on the social structure and ecology of the Penan in 1977/1978. As a result of the research study, it was proposed that the tract of land, depicted in a locality map/plan, the area lying between Sungai Lutut, the left bank of Sungai Melinau to Long Melinau and turning towards Sungai Tutoh and Sungai Bersanan and direct to the Brunei border, be the Penan Settlement Reserves. A substantial part of the Subject Land falls within this Penan Settlement Reserves.

21. Further and in addition, the occupation and uses of the Subject Land by the Penan communities was documented in the records of “Penan trails” recorded in the Management and Development Plan of the Gunung Mulu National Park published by the Royal Geographical Society as a result of the Royal Geographical Society/Sarawak Government Expedition and Survey.

22. The Penan’s occupation of the subject land is also evinced by:

22.1 Established pathways used by Penan groups around the (Gunung Mulu National) Park [The Sarawak Museum Journal Vol XXX No. 54 (New Series) July 1982 Special Issue No. 2 (Reprint) Gunung Mulu National Park, Sarawak – An Account of its Environment and Biota being the results of The Royal Geographical Society / Sarawak Government Expedition and Survey 1977-1978 Part I, Chapter 11 An ecological survey of the Penan by Peter M. Kedit, page 225 - 279 at page 246], and

22.2 Gunung Mulu National Park – A Management and Development Plan, published by the Royal Geographical Society in 1982, page 341 Map 6 Penan Trails

23. In May 2019, the 1st Defendant had admitted guilt to encroaching unto the ancestral and customary rights land of the Berawan/Tering communities of Long Terawan in Long Gat and had destroyed the burial ground and desecrated numerous graves thereat as a result of its unlicensed and or illegal logging operations on the Subject Land in or about January 2019. The 1st Defendant had duly settled the “hukum Adet” (fine and restitutions for appeasement) in accordance with the provisions of the Adet Kayan-Kenyah 1994, paying RM100,450 in fine, 2 “Canang”, 2 “gong”, 2 “parang illang” and 4 pigs.

The Gunung Mulu National Park

24. In July 1961, a botanical expedition mounted by the Forest Department Sarawak to Gunung Mulu and the Melinau Limestone massif had indicated the potential of the area, recommended and submitted to the Conservator of Forests for consideration the proposals to constitute a national park. The proposals were approved by the Board of Trustees, National Parks and the Chief Secretary in July 1962 and the proposals were submitted to the Conservator of Forests to proceed with the constitution of the national park.

25. In 1965, the Governor in Council approved the publication of the Notice of Intention to create the Gunung Mulu National Park, which was subsequently published in the Sarawak Government Gazette.

26. Between 1962 to December 1970, investigation of claims against the National Park were carried out and undertaken by the Residents, District Officers and the Board of Trustees, National Parks, and settlement of claims were carried out and undertaken by the Residents of the then Fourth and Fifth administrative divisions. The boundary description of the National Park was revised, noting that:

Subsequently the Penghulu raised further objections to the constitution of the proposed Park.”

27. In August 1962, it was noted from the record of the District Office, Baram that “there are approximately 651 Penans occupying land between Sungai Melinau and the Sarawak/Brunei Border and along the Tutoh and its tributaries”.

28. In January 1971, the Resident of the Fourth Division indicated that the interests of the Tutuh peoples had been adequately safeguarded.

29. In December 1971, the new revised boundary description was prepared and approved by the then Director of Lands and Surveys.

30. In June 1972, the Governor in Council approved the final constitution of the National Park.

31. On 3 October 1974, the Gunung Mulu National Park was constituted by the publication in the Sarawak Government Gazette vide Notification No. 2852, covering an area of 204 sq. miles or 52,864 hectares. Describing its location, the published by the Royal Geographical Society in 1982 expressed:

“The Gunung Mulu National Park is located in Northern Sarawak, which is a Bornean State in Malaysia, the area in Northern Sarawak, approximately 4N of the equator and on Longitude 114E. It lies between the headwaters of the Tutuh River, a tributary of the Baram River, within the Fourth administrative Division of Sarawak, and the Medalam River, which is a tributary of the Limbang river within the Fifth Division. It thus spans the boundary, formed by a watershed, between the two administrative Divisions, though more than two-thirds of the area of the Park falls within the Fourth Division. The north-eastern boundary of the Park lies along the international boundary with the State of Brunei”.

32. The Gunung Mulu National Park has since been extended vide 2 Sarawak Government Gazette notifications: GN 3161/2011 dated 4 May 2011 for the Gunung Mulu National Park (Extension II) covering an area of 28,251 hectares approximately, and GN 2621/2012 dated 9 February 2012 the Gunung Mulu National Park (Extension I) extending and concerning the area measuring 4,555 hectares approximately.

33. The Plaintiffs were however not notified and or consulted prior to the proclamation constitution and or notification of the 2 Gunung Mulu National Park extensions even though it was and is expected foreseeable and anticipated that their explicit and unambiguous rights to the land will be and are affected abridged and or impaired by 69

the said 2 extensions. It was not revealed to the Plaintiffs the existence of the 2 provisional leases issued to the 1st Defendant over the Subject Land but there was ostensibly an deliberate effort of abstention and avoidance to exclude the whole or a part of the Subject Land from the Gunung Mulu National Park (Extension I).

34. From June 1977 to September 1978, the Royal Geographical Society/Sarawak Government expedition was organised to survey the Gunung Mulu National Park, as a result of which the <> was published by the Royal Geographical Society London, 1982. A substantial part of the field-work reports, studies and accounts of the expedition and survey were also published in a special two-part issue of the Sarawak Museum Journal - Gunung Mulu National Park, Sarawak – An Account of its Environment and Biota being the results of The Royal Geographical Society / Sarawak Government Expedition and Survey 1977-1978.

35. These publications are not only useful in providing an introduction and base-line for the scientific research and study of the Gunung Mulu National Park, but also provide an insight to the ecology of the indigenous communities living in and around the National Park.

World Heritage Site

36. The Gunung Mulu National Park was inscribed as a World Heritage Site in 2000.

37. Describing its outstanding universal value, the World Heritage Committee noted that the GMNP is important both for its high biodiversity and its karst features which is the most studied tropical karst area in the world. The 52,864ha park has 17 vegetation zones, exhibiting some 3,500 species of vascular plants, and its palm species are particularly rich, with 109 species in 20 genera noted. The park is dominated by Gunung Mulu, a 2,377m high pinnacle karst, said to be the most cavernous mountain in the world, with at least 295km of explored caves providing a major wildlife spectacle in terms of millions of cave swiftlets and bats. The Sarawak Chamber, 600m x 415m x 80m high, is the largest known cave chamber in the world.

38. The World Heritage Committee in its Report of the 24th Session had decided that the Gunung Mulu National Park is a site of outstanding universal value and it meets 4 of the 10 selection criteria. In its published excerpt, the Committee had noted that “the concentration of caves in Mulu's Melinau Formation with its geomorphic and structural characteristics is an outstanding feature which allows a greater understanding of Earth's history. The caves of Mulu are important for their classic features of underground geomorphology, demonstrating an evolutionary history of

more than 1.5 million years. One of the world's finest examples of the collapse process in Karstic terrain can be also found. GMNP provides outstanding scientific opportunities to study theories on the origins of cave faunas. With its deeply-incised canyons, wild rivers, rainforest- covered mountains, spectacular limestone pinnacles, cave passages and decorations, Mulu has outstanding scenic values. GMNP also provides significant natural habitat for a wide range of plant and animal diversity both above and below ground. It is botanically- rich in species and high in endemism, including one of the richest sites in the world for palm species”.

39. In its technical evaluation of GMNP’s World Heritage Nomination, the International Union for Conservation of Nature (IUCN) had, inter alia, identified logging around the Park and up to the boundary rivers and clearing felling to create oil palm estates as serious threats to its nomination under all four natural criteria for inscription on the World Heritage List. It has warned that logging felling of the forests have been cut up to the boundary rivers, led to erosion which has increased the silt-load of these rivers significantly altering the aquatic ecology. Further, any conversion of natural forests to oil palm plantations will inevitably lead to habitat loss for cave swiftlets and bats, that these species are known to forage for insects beyond a 25km radius from their nesting sites. The IUCN Technical Evaluation Report suggested that clear felling to create oil palm estates not be permitted within this 25km radius from the GMNP boundary.

40. Amongst the 4 expressed recommendations, the Bureau of the World Heritage Committee had then required the Sarawak State Government to recognize the need to minimise impacts of logging activities around the park and the effect of clear-felling on cave swiftlet and bat populations. It had also drawn the attention of the Sarawak State Government to the important buffer and corridor function of the adjacent protected forests in the Labi Hills in Brunei. The issuance of the provisional leases over the Subject Land for oil palm plantation is a blatant infringement and violation of the commitments of the 5th Defendant to create conserve and safeguard this important buffer and corridor between the GMNP and the adjacent Labi Forest Reserve in Brunei. The collaboration through the on-going Heart of Borneo (HOB) project is a commitment of the Governments of Malaysia and Brunei to establish a buffer zone to protect and safeguard the integrity and outstanding universal value of this World Heritage Site.

41. The 5th Defendant had refused failed and/or neglected and still refuse fail and/or neglect to notify the World Heritage Committee that it had alienated granted and or conveyed the Subject Land measuring 4,440 hectares approximately to the 1st Defendant company in 2008, despite the requirement duty and or obligation of the 5th Defendant to notify and inform the World Heritage Committee of significant developments with respect to land outside the boundary of the WHS and that they do not appear to be adversely impacting on the said WHS, and to give particular attention to these issues in their contribution to the periodic reporting process in

accordance with the Operational Guidelines stipulated. The records have shown that the 5th Defendant had made no attempt prior to or after the alienation grant and or conveyance of the Subject Land to the 1st Defendant company in their documents and reports submitted to the World Heritage Committee and still refuses fails and or neglects to notify and inform the Committee of this significant development of approving a large scale oil palm plantation project with respect to land outside the boundary of the WHS.

42. By alienating, granting and or conveying the Subject Land to the 1st Defendant company vide the 2 provisional leases enumerated and described hereinabove, the 5th Defendant has abrogated and reneged from its commitment expressed in the 24th Session of the World Heritage Committee to preserve the site.

43. Further, by not disclosing the fact that the Subject Land measuring 4,440 hectares approximately had been alienated granted and or conveyed to the 1st Defendant company, the 2nd and or the 5th Defendants have concealed the fact that they have intended the development of an oil palm plantation by the 1st Defendant Company and that the Outstanding Universal Value of the national park would be compromised and that the status of the property to remain on the World Heritage List would be jeopardized.

44. Despite its identification of renewed forestry activities, mineral exploration and mining, hydro development, etc outside the GMNP as significant potential threats to the relatively stable surrounding environment and the Outstanding Universal Value of the national park, the IUCN has been misinformed misrepresented and or misled into their conclusion in the Outlook Report 2017 that the current management of the National Park is effective in terms of protection of the Outstanding Universal Value of the park.

45. The IUCN has been further misinformed misrepresented and misled into its conclusion that the various authorities, including the Department of the 2nd Defendant, of the 5th Defendant and the Special Committee established for the park includes stakeholders from outside the park undertaking and performing the responsibilities of the 5th Defendant would be effective in providing early warning of any external threats and provides a forum for discussion of any apparent threat and to deal with any activities or proposed developments that might threaten the park from outside, that the IUCN had in its same Report wrongly and mistakenly concluded that “it is apparent that protection and management from threats outside the park have been very effective. Gunung Mulu National Park is an outstanding protected area in an excellent condition and with an effective professional management regime”.

The Encroachment and Impairment of the Plaintiffs’ native customary rights and native customary rights Land by the 1st Defendant

46. The Plaintiffs have had no knowledge of the alienation grant and conveyance of the Subject Land and issue provisional leases / leases of State land over the Subject Land to the 1st Defendant Company until some time in December 2017.

47. Unknown to the Plaintiffs initially, the 6th, 7th and 9th Defendants had on the 5th November 2017 met with the employees, contractors, subcontractors or persons representatives of the 1st Defendant Company in a hotel in Miri to discuss the proposal of the 1st Defendant Company to “start a 4,000 hectares Oil Palm Plantation in Ulu Tutoh (Mulu)”.

48. On 6 December 2017, the 1st Defendant Company had written a letter to the 6th, 7th and 9th Defendants and attached with it a plan or map prepared by the 3rd Defendant’s Department to indicate the locality of the Subject Land.

49. Photographs of the 1st Defendant Company’s letter and the plan or map prepared by the 3rd Defendant’s Department were in the same month being circulated in the village community of Long Terawan and came to the knowledge and possession of the Plaintiffs.

50. The 1st Defendant Company had reached agreement with the 6th, 7th, 8th and 9th Defendants jointly and severally, that a total sum of Ringgit Malaysia One Million Only was paid by the 1st Defendant Company to persons including the 6th, 7th, 8th and 9th Defendants and the village community committees (JKKK) of Long Terawan and Kampung Sungai Melinau to be distributed to “the Entitled Persons” who are “entitled to make ‘temudak’ claims and are affected by the development of the oil palm plantation” on the Subject Land. The 6th, 7th, 8th and 9th Defendants had illegally wrongly and without the consent of the Plaintiffs, misrepresented and wrongfully warranted and undertaken with the 1st Defendant Company, inter alia, that they are authorized by all the persons who are affected by the 1st Defendant Company’s development and operation of the oil palm plantation on the Subject Land and that the operation will not be hindered and or affected in any way by any person or party. The 1st Defendant Company had make payment of Four Hundred Thousand Ringgit each to the 2 village community committees (JKKK) in September 2018 and various sums between One Thousand Ringgit to Three Thousand Seven Hundred Ringgit were paid by the village community committees (JKKK) to certain individuals in Kampung Long Terawan and Kampung Sungai Melinau in or about June 2019.

51. The 6th, 7th, 8th and 9th Defendants had illegally wrongly and without the consent of the Plaintiffs, misrepresented and wrongfully warranted and undertaken with the 1st Defendant Company, inter alia, that they are authorized by all the persons who are affected by the 1st Defendant Company’s development and operation of the oil palm plantation on the Subject Land and that the operation will not be hindered and or affected in any way by any person or party.

52. The 1st Defendant Company had started forest clearing and tree felling works in or about January 2019, thus alerted and alarmed the Plaintiffs and those village communities other than Kampung Long Terawan and Kampung Sungai Melinau. Numerous complaints were lodged with the police stations and it was notified to the Plaintiffs that the 1st Defendant Company do not have licence and or permit from the 2nd Defendant to fell logs and clear the forests.

53. The 1st Defendant Company was also found to have encroached unto the ancestral and customary rights land of the Berawan/Tering communities of Long Terawan in Long Gat and had destroyed the burial ground and desecrated numerous graves thereat as a result of its logging operations on the Subject Land.

54. As a result of the intense protests and blockading of access roads in the Subject land by the Plaintiffs, the 1st Defendant Company has since temporarily ceased its operation on the Subject Land, save from removing the felled timber from their earlier logging operation.

Impairment of the Plaintiffs’ native customary rights and native customary rights Land by the issuance or registration of the Provisional Leases over the Subject Land

55. The issuance of the 2 provisional leases on 03.12.2008 by the 3rd and or 4th Defendants to the 1st Defendant Company, as stated in Paragraphs 11 through to 15 hereinabove, ignoring and or indifferent to the fact that the said Provisional Lease was granted for the areas of land which includes and comprises of native customary rights land claimed by the Plaintiffs, to which the 3rd and or 4th Defendants had and have knowledge, was wrongful, illegal and a grossly negligent or a blatant continuing abuse of power.

56. Paragraphs 17 through to 22 and paragraphs 24 through to 35 hereinabove are reiterated and repeated herein. In the entire process which included the proposing, considering or investigating and up to the constitution of the Gunung Mulu National Park, the rights and privileges of the Plaintiffs are expressly and/or impliedly admitted by the predecessor of the 5th Defendant, existed and subsisted over the whole or a substantial part of the Subject Land. Neither the 3th, 4th nor the 5th

Defendant have done any study or conducted any field investigation and thereby published research studies, reports and or other papers to contradict the papers, studies and reports published and identified and or cited hereinabove as evidence and proof of the existence of the Plaintiffs’ native customary rights and privileges unto the Subject Land.

57. The issuance of the 2 provisional leases by the 3rd and or 4th Defendants to the 1st Defendant Company are wrongful exercises of the powers of the 3rd and or 4th Defendants, either intentionally and or negligently, and thereby committing acts of breach of public duty and or misfeasance.

Particulars of breach of public duty and or misfeasance

58. The Plaintiffs repeat and reiterate Paragraphs 17 through to 22 and Paragraphs 24 through to 35 hereinabove hereto.

59. In the entire process which included the proposing, considering or investigating and up to the constitution of the Gunung Mulu National Park, the rights and privileges of the Plaintiffs are expressly and/or impliedly admitted by the predecessor of the 5th Defendant, existed and subsisted over the whole or a substantial part of the Subject Land, which was initially included as part of the Gunung Mulu National Park, the whole or a substantial part of the Subject Land was excised and excluded and the boundary of the Gunung Mulu National Park was revised as a result of the settlement of claims by the Residents of the (then) Fourth and Fifth divisions, as noted by the Management and Development Plan for Gunung Mulu National Park produced by the Royal geographical Society for the Sarawak Government, that:

Further, as a result of the research study the Royal Geographical Society/Sarawak Government expedition on the social structure and ecology of the Penan in 1977/1978, it was proposed that the tract of land, depicted in a locality map/plan, the area lying between Sungai Lutut, the left bank of Sungai Melinau to Long Melinau and turning towards Sungai Tutoh and Sungai Bersanan and direct to the Brunei border, be the Penan Settlement Reserves.

60. In the premise, the 3th, 4th and particularly the 5th Defendants had through their deeds and by their conducts expressly and impliedly acknowledged accepted and conceded the existence the Plaintiffs’ native customary rights over the Subject Land.

61. In the alternative, the 3th, 4th and particularly the 5th Defendants are bound by the decisions of their predecessors in giving express and/or implied acknowledgement acceptance concession and/or admission of the existence the Plaintiffs’ native customary rights over the Subject Land.

62. The 3th, 4th and the 5th Defendants knew or ought to have known that they are required by laws to extinguish terminate and or determine the Plaintiffs’ native customary rights over the Subject Land or cause the Plaintiffs to surrender such native customary rights over the Subject Land in accordance with the laws before they can alienate grant and or convey the Subject Land through their issuance of the 2 provisional leases over the Subject Land to the 1st Defendant Company.

63. The 3th, 4th and the 5th Defendants had, wilfully or otherwise, overlooked, ignored and or disregarded the existence the Plaintiffs’ native customary rights over the Subject Land in their issuance of the 2 provisional leases over the Subject Land to the 1st Defendant Company.

64. The 3th, 4th and the 5th Defendants knew or ought to have known that the issuance of the 2 provisional leases over the Subject Land without extinguishing terminating and or determining the Plaintiffs’ native customary rights over the Subject Land or cause the Plaintiffs to surrender such native customary rights over the Subject Land in accordance with the laws is an abuse of their public power or authority.

65. The 3th and 4th Defendants are public officers who are appointed under section 3(1) of the Sarawak Land Code (Cap. 81) and are having such powers and authorities stipulated therein.

66. The 3th, 4th and the 5th Defendants knew or ought to have known that they were abusing their public power or authority or were recklessly indifferent as to the limits to or restraints upon their public power or authority in their issuance of the 2 provisional leases over the Subject Land.

67. The 3th, 4th and the 5th Defendants knew or ought to have known that their issuance of the 2 provisional leases over the Subject Land would cause harm and damages to the Plaintiffs, that they were conscious and recklessly indifference to the probability of causing harm and damages to the Plaintiffs. 76

Issuance of the 2 Provisional Leases Unconstitutional Illegal and/or Wrongful

68. The issuance of the said 2 provisional lease by the 3th, 4th and the 5th Defendants in favour of the 1st Defendant Company was and is unconstitutional illegal and/or wrongful in so far as it abridges or impairs the Plaintiffs’ rights and/or title in or over their ancestral or native customary rights Land.

68.1 Since time immemorial, the ancestors of the Plaintiffs had established and maintained a comprehensive scheme by which through their laws, customs, tradition and practices, have determined the questions of ownership, land use management and occupation of land, forests and rivers within their said ancestral or native customary rights Land.

68.2 By their laws, customs, tradition and practices, they were entitled to the rights of ownership and/or use and/or occupation of the said ancestral or native customary rights Land and access to all the products therein, as well as to the hunting grounds and fishing waters. The Plaintiffs have exercised the aforesaid rights over the said ancestral or native customary rights Land since time immemorial until this day.

68.3 Therefore, the Plaintiffs had prior to the issuance of the said Provisional Lease, accrued and acquired vested native customary rights over the said ancestral or native customary rights Land.

68.4 For the reasons aforesaid, the said accrued rights could not be, and were never lawfully vested in the state government under article 47 of the constitution of the state of Sarawak or howsoever, otherwise.

68.5 No Provisional Lease/Lease of State Land could therefore be issued over the Plaintiffs’ said ancestral or native customary rights Land.

No Extinguishment Termination Determination of the Plaintiffs’ Native Customary Rights Over Subject Land

69. There was no extinguishment termination and or determination of the Plaintiffs’ ancestral or native customary rights within the land covered by the said 2 provisional leases before the same were issued to the 1st Defendant Company, whereas compensation in accordance with the Land Code of Sarawak and the Federal Constitution is required to be made or paid to the Plaintiffs to effect such 77

extinguishment. The issuance of the said 2 provisional leases in such circumstance was therefore unlawful, unconstitutional, and improper and henceforth, their issuance and grant were null and void.

69.1 The said 2 provisional leases were issued without the consent of the Plaintiffs, who are the rightful owners and/or proprietors and/or Licensees and/ or claimants of the said ancestral or native customary rights Land.

69.2 There was no extinguishment termination and or determination exercise being carried out under the provisions of the Land Code (Cap.81) Sarawak, 1958, by the 3rd and/or 4th Defendants, which is a legal and mandatory requirement before the alienation of State Land to any individual, group, corporation and/or institution.

69.3 The mandatory provisions of the Sarawak Land Code and/or the Federal Constitution on compensation were not followed by the 3th, 4th and the 5th Defendants.

69.4 Further and/or in the alternative, there was a breach of Article 13 of the Federal Constitution, in that there was deprivation of the Plaintiffs’ properties without adequate compensation.

70. Alternatively, the issuance of the said 2 provisional leases amounts to an extinguishment and/or termination of the Plaintiffs’ right in or over the said ancestral or native customary rights Land of which the extinguishment and/or termination are bad as, inter alia, they were not, and had not been done, by legislation designed specifically and clearly for that purpose.

71. Further and/or in the alternative, the Plaintiffs state that the issuance of the said 2 provisional leases by the 3rd and/or 4th Defendants was and is unconstitutional, as it contradicts the articles, provisions and/or spirit of the Federal Constitution.

72. Further and/or in the alternative, the provisions of the Land Code (Cap.81) in as far as they allow the issuance of the said 2 provisional leases over the said ancestral or native customary rights Land is unconstitutional.

73. Further and/or in the alternative, the Plaintiffs state that the terms of the said 2 provisional leases are subjected to the Plaintiffs’ native customary rights over the said ancestral or native customary rights Land. 78

Legitimate Expectation & Natural Justice

74. The Plaintiffs have a legitimate expectation that their rights, tradition, culture and livelihood will not be disrupted, extinguished, and/or restricted save in accordance with the laws.

74.1 It is the legitimate and reasonable expectations of the Plaintiffs that if the whole of any part of the subject Land be alienated and issued or registered with document(s) of title over the same, that the document(s) of title should be issued or registered in the names of the Plaintiffs.

74.2 The Plaintiffs’ rights were impaired without a right to be heard and/or a right to say “no” and/or object to the issuance of any provisional lease to the extinguishment determination and/or termination of their rights.

Relevant Consideration Not Taken Into Account

75. The 3th, 4th and the 5th Defendants had also acted unreasonably and had failed to take relevant matters into consideration when it issued the said 2 provisional leases.

Particulars

75.1 That the issuance of the said 2 provisional leases and the oil palm plantation operations and or activities would affect the rights and/or interests of the Plaintiffs, their immediate family members and their descendants and future generations to come.

75.2 That any oil palm plantation operations and or activities of the holders or proprietors of the provisional leases, their employees/servants and/or contractors/subcontractors within and/or over the said native customary rights land would cause irreparable damage to the said native customary rights land, the resources, environment and eco-system of the area, thereby affecting the lives and lifestyle of the Plaintiffs, their families and descendants who are and/or would be dependent on their said native customary rights land resources and rivers for their food and medicine, well-being and the very survival of themselves, their children and their communities.

Constitutional Issues

76. Further and in the alternative, the Plaintiffs aver that the issuance of the said 2 provisional leases by the 3th, 4th and the 5th Defendant have impaired the Plaintiffs’ rights to property in a manner which is discriminatory and unfair and based on criteria which is not made applicable to the right to property acquired and held by other native communities and non-natives. In its premise, the said legislation or any process exercised pursuant to it in so far as it affects the Plaintiffs’ rights, is unconstitutional and invalid as being in violation of Article 8 of the Federal Constitution (Equality before the Law).

77. Further and in the alternative, the issuance of the said 2 provisional leases was unconstitutional as they were issued in violation of Article 13 of the Federal Constitution (No confiscation of property without adequate compensation).

Particular

77.1 The issuance of the said Provisional Lease by the 3th, 4th and the 5th Defendants amounted to the compulsory acquisition of the Plaintiffs’ native customary rights Land but no provision for compensation in accordance with the law has been made nor have the Plaintiffs been paid any compensation.

78. Further and in the alternative, the acts as aforesaid of the 1st, 2nd, 3rd, 4th and 5th Defendants and the acts of the 1st Defendant Company’s contractors, subcontractors, employees, servants and/or agents and/or the provisions of law that impair the rights of the Plaintiffs to their native customary rights over land as hereinbefore referred to, are unconstitutional and void in that they violate, individually and/or cumulatively, Article 5 of the Federal Constitution which guarantees, inter alia, that no person shall be deprived of his life (which includes the right to livelihood) except in accordance with the laws.

Particulars

78.1 The Plaintiffs have been deprived of their land which is their sources of food, fish, medicines, and other forest produces which are substantially relied upon by the Plaintiffs for their sustenance.

78.2 The Plaintiffs have also been deprived of their sources of income from the produces and other forest produces which are substantially relied upon by the Plaintiffs for their sustenance.

79. The Plaintiffs aver that their rights to livelihood has been, and will continue to be seriously impaired by the aforesaid acts and provisions of the laws.

80. The Plaintiffs further aver that the impairing of their rights to livelihood by the aforesaid acts and provisions of the law is unjust, unfair and unreasonable and destructive of their economic, cultural and social system for their existence and therefore not in accordance with the laws.

81. Further and in the alternative, the Plaintiffs aver that the said 2 provisional leases is subject to the rights of the Plaintiffs in or over the said native customary rights Land and therefore the 1st Defendant Company cannot lawfully acquire any title or interests therein save that the native customary rights have been surrendered and or terminated or extinguished in accordance with the laws.

82 Further and in the alternative, the Plaintiffs aver that the issuance of the said 2 provisional leases in breach of section 8 and/or section 13 and/or section 15 of the Land Code (Cap.81) in that the Plaintiffs' said ancestral or native customary rights Land were alienated to the 1st Defendant Company without extinguishment termination and or determination of the Plaintiffs’ rights therein and without payment of compensation to them. In the premise, the issuance and or registration of the said 2 provisional leases was illegal, unlawful and void.

Estoppel

83. The 3th, 4th and 5th Defendants were estopped from issuing the 2 provisional leases/leases of State Land namely Lot 2 Tutoh Land District and Lot 3 Apoh Land District to the 1st Defendant company on 03.12.2008.

Particulars

83.1 On 03.12.2008, 2 provisional leases/leases of State Land were registered and issued by the 3rd and or the 4 Defendants to the 1st Defendant company. Both the 2 provisional leases/leases of State Land affect 2 parcels of adjoining land in Sungai Tutoh, Baram and are described as Lot 2 Tutoh Land District and Lot 3 Apoh Land District respectively. 81

83.2 Paragraphs 17 through to 22 and paragraphs 24 through to 35 hereinabove are reiterated and repeated herein. In the entire process which included the proposing, considering or investigating and up to the constitution of the Gunung Mulu National Park, the rights and privileges of the Plaintiffs are expressly and/or impliedly admitted by the predecessor of the 5th Defendant, existed and subsisted over the whole or a substantial part of the Subject Land, which was initially included as part of the Gunung Mulu National Park, the whole or a substantial part of the Subject Land was excised and excluded and the boundary of the Gunung Mulu National Park was revised as a result of the settlement of claims by the Residents of the (then) Fourth and Fifth divisions, as noted by the Management and Development Plan for Gunung Mulu National Park produced by the Royal Geographical Society for the Sarawak Government, that:

83.3 Further, as a result of the research study the Royal Geographical Society/Sarawak Government expedition on the social structure and ecology of the Penan in 1977/1978, it was proposed that the tract of land, depicted in a locality map/plan, the area lying between Sungai Lutut, the left bank of Sungai Melinau to Long Melinau and turning towards Sungai Tutoh and Sungai Bersanan and direct to the Brunei border, be the Penan Settlement Reserves.

83.4 In the premise, the 3th, 4th and particularly the 5th Defendants had through their deeds and by their conducts expressly and impliedly acknowledged accepted and conceded the existence the Plaintiffs’ native customary rights over the Subject Land.

83.5 In the alternative, the 3th, 4th and particularly the 5th Defendants are bound by the decisions of their predecessors in giving express and/or implied acknowledgement acceptance concession and/or admission of the existence the Plaintiffs’ native customary rights over the Subject Land.

83.6 The 3th, 4th and 5th Defendants were and are forbidden and precluded from denying the existence of the Plaintiffs’ native customary rights over the Subject Land and the 5th Defendant’s expressed and or implied acknowledgement of the Plaintiffs’ rights as enumerated herein above

estopped forbade and prohibited the 3th, 4th and 5th Defendants from denying contradicting or repudiating the existence of the Plaintiffs’ native customary rights over the Subject Land.

83.7 It is inequitable unreasonable and unjust for the 3th, 4th and 5th Defendants to ignore, disregard and or flout the existence of the Plaintiffs’ native customary rights over the Subject Land and without extinguishing or determining the native customary rights thereon thereto, to alienate the Subject Land and issue provisional leases / leases of State land over the Subject Land to the 1st Defendant Company.

83.8 The inequitable unreasonable and unjust undertakings of the 3th, 4th and 5th Defendants to alienate the Subject Land and issue provisional leases / leases of State land over the Subject Land to the 1st Defendant Company to divest deny and deprive the Plaintiffs of their rights and privileges have certainly occasioned and inflicted gross injustice to the Plaintiffs.

Illegal Wrongful Unconscionable and or Fraudulent Alienation of Subject Land and Issuance of Provisional Leases to the 1st Defendant Company

84. The alienation of the Subject Land and issuance of provisional leases to the 1st Defendant Company is illegal wrongful and or fraudulent.

Particulars of illegal wrongful and or fraudulent conduct

84.1 Referring to Paragraphs 16, 17, 18, 19, 21 and 22 hereinabove and repeating the same hereto, the 2nd, 3th, 4th and 5th Defendants have full knowledge of the existence of the Plaintiffs’ native customary rights over the Subject Land.

84.2 The 1st Defendant Company was incorporated on 11 September 2007. From its statutory filings with the Suruhanjaya Syarikat Malaysia (Companies Commission of Malaysia), the 1st Defendant Company have had not commenced any business activities since its incorporation until 2018.

84.3 No consideration was given conveyed and or provided for the grant alienation and conveyance of the Subject Land to the 1st Defendant Company.

84.5 The following remarks were inscribed on the “Print-out of Title” of Lot 2 Tutoh Land District:-

“Alienation of Land No. 80/2008

DLS’s approval ref: 74/HQ/AL/105/2005 (4D) dated 29.05.2008

(Miri ref: 7/Doss. No. 136/2007(B))”

84.6 Similar remarks appear on the “Print-out of Title” of Lot 3 Apoh Land District:-

“Alienation of Land No. 81/2008

DLS’s approval ref: 74/HQ/AL/105/2005 (4D) dated 29.05.2008

(Miri ref: 7/Doss. No. 136/2007(B))”

84.7 For both parcels of Land, the 4th Defendant, as the acronym “DLS” appears to infer, was approving a claim, request and or application made in 2005 at which time the 1st Defendant Company has yet to be incorporated.

84.8 In a document of the 3th and 4th Defendants’ Department which specified that both the parcels of Land were alienated granted and or conveyed to the 1st Defendant “Nama asal syarikat ialah Titanium Management Sdn. Bhd. (Payment in Kind)”. The official records of the Suruhanjaya Syarikat Malaysia (Companies Commission of Malaysia) have shown that the said Titanium Management Sdn. Bhd. is an “Existing” company and that there has never being any change of name of the company to that of the 1st Defendant at any time. On the other hand, there has been no official records of the Suruhanjaya Syarikat Malaysia (Companies Commission of Malaysia) to show that the 1st Defendant Company have had a “Last Old Name” of Titanium Management Sdn. Bhd.

84.9 In the circumstance that the alienation grant and or conveyance of the 2 parcels of Land (the Subject Land) was in consideration of works and or delivery or services by the said “Titanium Management Sdn Bhd”, the alienation grant and or conveyance was illegal wrongful unconscionable and or fraudulent in their conducts involving the 1st, 3rd, 4th and 5th Defendants.

84.10 It is also disturbing and sinister that the “Payment in Kind” for the Subject Land measuring 4,440 hectares was valued at a nominal rate of RM741 per hectare or RM300 per acre, constituting an unconscionable and a fraudulent conduct by the 3th, 4th and or the 5th Defendants, jointly or severally,

calculated or otherwise to the gross damages, losses, prejudice and detriment of the Plaintiffs.

85. The 6th, 7th, 8th and 9th Defendants are at all material times members of the Berawan/Tering community of Kampung Long Terawan.

86. The 6th, 7th, 8th and 9th Defendants knew and ought to have known that the indigenous Penan, Kenyah Berawan/Tering of the communities of Batu Bungan, Ba Ubung (or Ubong), Long Meraan, Sungai Abang, Sungai Tapin (Tepen), Long Terawan, Long/Sungai Melinau, Long Iman, Long Panai and Kuala Tutoh (Long Kiput) and that their residents villagers and members may exert and exercise their native customary rights over the whole of the Subject Land situated and or located at Sungai Tutoh, Baram, the Land which is shared, common and communal to all of them.

87. The 6th, 7th, 8th and 9th Defendants have not at any time obtain and or secure the permission consent and or agreement of all the residents villagers and members of the communities of Batu Bungan, Ba Ubung (or Ubong), Long Meraan, Sungai Abang, Sungai Tapin (Tepen), Long Terawan, Long Melinau, Long Iman, Long Panai and Kuala Tutoh (Long Kiput) to deal, transact and or surrender the native customary rights and or other rights and or privileges over and on the Subjected Land.

88. It was illegal, wrongful and acting without and or in excess of their authority for the 6th, 7th, 8th and 9th Defendants to meet with the employees, contractors, subcontractors or persons representatives of the 1st Defendant Company in a hotel in Miri on 5th November 2017 to discuss the proposal of the 1st Defendant Company to “start a 4,000 hectares Oil Palm Plantation in Ulu Tutoh (Mulu) and to express support of the said proposal to develop an oil palm plantation on the Subject land.

89. It was illegal, wrongful and deceiving for the 6th, 7th, 8th and 9th Defendants to wrongly represent and misrepresent to the 1st Defendant Company that only specified “Entitled Persons” of the Long Terawan and Long Melinau village communities have had native customary rights to the land within the Subject Land, illegally wrongly and without the consent of the Plaintiffs, caused to and misrepresented and wrongfully warranted and undertaken with the 1st Defendant Company, inter alia, that they are authorized by all the persons who are affected by the 1st Defendant Company’s development and operation of the oil palm plantation on the Subject Land and that the operation will not be hindered and or affected in any way by any person or party, and thereby entered into agreement with the 1st Defendant Company to pay compensation to these “Entitled Persons” who are

“entitled to make ‘temudak’ claims and are affected by the development of the oil palm plantation” on the Subject Land.

90. The illegal, wrongful and unauthorized acts and conducts of the 6th, 7th, 8th and 9th Defendants had contributed to the illegal and wrongful acts and conducts of the 1st Defendant Company to clear forest and tree felling works on the Subject Land in or about January 2019 and to encroached unto the ancestral and customary rights land of the Plaintiffs including the native customary rights land of the Berawan/Tering communities of Long Terawan in Long Gat which had destroyed the burial ground and desecrated numerous graves thereat as a result of its logging operations on the Subject Land, thereby causing the Plaintiffs to suffer irreparable damages and losses.

91. The Plaintiffs, in addition to the matters pleaded in the preceding paragraphs, further claim exemplary damages by reason of the conducts of the Defendants.

Particulars of conduct

91.1 The 3rd, 4th and 5th Defendants, despite express knowledge of the Plaintiffs native customary rights over the Subject Land, had issued the said 2 provisional leases to alienate grant and convey the Subject Land to the 1st Defendant Company and despite the Plaintiffs’ persistent protests had neglected, failed and or refused and still neglect, fail and or refuse to suspend and or revoke the said 2 provisional leases granted and issued to the 1st Defendant Company.

91.2 Such conduct is oppressive, arbitrary, illegal and/or unconstitutional.

91.3 Such conduct is also calculated to result in a profit for the previous and or the present owners of the 1st Defendant Company.

Relief

92. Wherefore the Plaintiffs claim against the 1st and/or 2nd and/or 3rd and/or 4th and/or 5th and/or 6th and/or 7th and/or 8th and/or 9th Defendants:

.i. A declaration order that the Plaintiffs had acquired and/or inherited native title and /or native customary rights over the area as claimed by the Plaintiffs referred to in the locality plans and or maps marked as Exhibits “P1” and “P2” and annexed hereto herein;

ii. A declaration that this native title and/or rights preclude the 3rd, 4th and or 5th Defendants from issuing and registering the said 2 provisional leases of Lot 2 Tutoh Land District and Lot 3 Apoh Land District thereby impairing or abridging the Plaintiffs’ said rights;

iii. A declaration that the acts and conducts of the 3rd, 4th and or 5th Defendants in issuing the said 2 provisional leases in so far as they impair the Plaintiffs native customary rights over the Plaintiffs' said ancestral or native customary rights Land, is wrong illegal unlawful bad and/or void;

iv. A Declaration that the issuance of the said 2 provisional leases to the 1st Defendant Company in as far as the extent of that area under the said Provisional Lease overlaps and/or cover the Plaintiffs’ said ancestral or native customary rights Land is unlawful, improper, unconstitutional and therefore null and void, for want of extinguishment termination and determination of the Plaintiffs’ native customary rights over the said ancestral or native customary rights Land;

v. Alternatively, a Declaration that the issuance of and the said 2 provisional leases was subject to the native title and/or native customary rights and/or usufructuary rights of the Plaintiffs in or over the said ancestral or native customary rights Land and that the said 2 provisional leases do not affect the Plaintiffs said title and/or rights therein;

vi. A Declaration that in issuing and granting the said 2 provisional leases as aforesaid, the 2nd, 3rd, 4th, and 5th Defendants are in breach of their public and fiduciary duty to the Plaintiffs and therefore the said 2 provisional leases was null and void;

vii. A Declaration that the issuance and granting of the said 2 provisional leases was in breach of the statutory provisions of the Land Code (Cap.81);

viii. A Declaration that the issuance and granting of the said 2 provisional leases is unlawful, improper, unconstitutional and therefore null and void;

87 ix. A Declaration that the area so included in the said 2 provisional leases as claimed by the Plaintiffs as part of their ancestral or native customary rights Land, the same be excised out of the area of land under the said 2 provisional leases;

x. A Declaration that the alienation, grant and or conveyance of the Subject Land to the 1st Defendant company vide the 2 provisional leases amounts to abrogating and reneging from the 5th Defendant’s commitment expressed in the 24th Session of the World Heritage Committee to preserve the site.

xi. A Declaration that the non-disclosure of the fact that the Subject Land measuring 4,440 hectares approximately had been alienated granted and or conveyed to the 1st Defendant company, the 5th Defendants have concealed the fact that they have intended the development of an oil palm plantation by the 1st Defendant Company and if implemented, the Outstanding Universal Value of the Gunung Mulu National Park (World Heritage Site) would be compromised and that the status of the property to remain on the World Heritage List would be jeopardized.

xii. A Declaration that the 3rd, 4th and or 5th Defendants are estopped from issuing and granting the said 2 provisional leases to the 1st Defendant Company.

xiii. A prohibitory injunction restraining the 1st Defendant Company, its contractors, subcontractors, employees, servants and/or workers from trespassing, clearing, using or occupying the Plaintiffs said ancestral or native customary rights Land;

xiv. A mandatory injunction against the 1st Defendant, its contractors, subcontractors, employees, servants and/or workers to cease operation and remove all structures, equipment and/or machineries from the Plaintiffs said ancestral or native customary rights Land forthwith;

xv. Damages

xvi. Exemplary damages, alternatively, aggravated damages;

xvii. Alternatively, an order that the damages be assessed accordingly;

xviii. Interests;

88 xix. Cost; and

xx. Such further and/or other relief this Honourable Court deems fit and just

Dated this the 5th day of August 2019.

Appendix 3

Figure 7: Statement by Director of Forest that no timber license was granted to Radiant Lagoon (Photo: Jonas Kramp)

Appendix 4

Figure

: Map showing the territory claimed by villagers of Batu Bungan Batu villagers of claimed by territory the showing Map :

around 1998 (Source: Friends of the Earth Malaysia) Earth the of Friends (Source: 1998 around

Appendix 5