Although local people generally perceive that farms, fallows, homesteads and what has been a traditional forest resource (often loosely referred to as ‘kampung land’) is ‘theirs’, the Land Ordinance 1930 states that the land and forest of this area continues to be vested in the government until such time as it is administratively classified as Native Title or some other provision under the ordinance. The British North Borneo Company, which was the architect of this land legislation, clearly intended for local people to have secure tenure over their lands to facilitate its productive and commercial use (Singh 2000: 241). It enshrined the right for any individual who is a native of Sabah to apply for Native Title over a maximum area of 20 acres. Today, most people hold official Land Application receipts for the claims that they have filed with the Department of Lands and Surveys, but nothing is truly secure until the title is in their hands. The department has the formidable task of deciding on the legitimacy of claims throughout Sabah, resolving conflicts, and surveying the land. Not surprisingly, applications typically take decades to process and approve, especially in the more remote areas. This contributes to a high level of impatience and frustration at the local level.

Whenever we visit the government offices, they tell us that the forest belongs to the government, and that we have no rights to the land of our ancestors. They say that if we want land we just have to apply for titles, but we’ve already done that years ago. Yet we are still waiting! (Long Pasia man at community meeting, 20 April 1999).

An area the size of the Ulu Padas State Land, with substantial forest cover, inevitably becomes the target of keen interest by external parties desiring to acquire forested land. In addition, without formal recognition of Lundayeh ownership of hinterland resources, there is no mandate for local people to exercise stewardship of these resources. From the mid-1990s, logging roads had already made the area accessible to recreational hunters and logging camps, and rivers were being fished by unsustainable means such as electricity and poison. At face value and from a conservation perspective, assisting the local community in securing ownership of this area was considered one way to exclude external logging interests, place the area under some form of communal management and include some provision for conservation. In addition to containing good samples of contiguous riverine oak chestnut and Agathis forest, the Ulu Padas State Land also contains several patches of rare kerangas forest. The longer the process of securing tenure was delayed, the greater the likelihood that logging contractors would obtain Temporary Occupation Licences to log the State Land through unscrupulous manoeuvrings of their own.

Upon cursory examination, the bureaucratic processes and rigid criteria related to land application appeared to be a significant obstacle. Land legislation had a tendency to mystify local people who have only partial understanding of the options available to them to secure both ancestral farmland and forest. In Ulu Padas, these difficulties were accentuated by the fact that the amount of land available to local people has been reduced, with sizeable areas now classified as government-owned and designated for commercial purposes. There were several other problematic aspects that required solutions, namely the strong bias towards the conversion of forest to agricultural use and the scant provision made for landholding institutions that would support traditional agriculture^[6] and maintain communally-owned forest reserves.

WWF-Malaysia’s work with the community was founded on the belief that providing advocacy and mediation between the local community and the state could bring improved security of tenure and an opportunity to defend the forest. With this objective in mind, time was devoted to obtaining a clearer understanding of customary claims to land and investigating ways to translate these collective claims into a format supported by the Land Ordinance. The underlying intention was to mediate the process of communicating tenure claims in ways that would be accepted by the government system.

In principle, while some would argue that the conversion of traditional rights into colonial terms oversimplifies the original fluid nature of traditional land use, in the interest of expediency it was clear that government officers could more readily work with proposals that were supported by existing legislation. With imminent threats facing this area, expediency was preferred to the pursuit of an ideological crusade for indigenous rights. In many ways this action seemed to be supported by the fact that local people themselves deferred to the authority of government, and used their understanding of the Land Ordinance (however rudimentary) in their interactions with government agencies. Therefore the approach was not altogether inconsistent with local people’s own acceptance of the legal framework of government.

Unfortunately, the initial assumption that assisting local people in securing tenure would be a straightforward matter of compiling a clear representation of customary tenure with which to seek the indulgence of government, proved to be naïve. We were soon to learn that customary claims were in fact a hotbed of contention. It was actually at village level that the full spectrum of conflict and irresolution emerged. Local people’s claims were notoriously contradictory, with various factions competing for land within the ‘community’ itself. The multiple and divergent claims to land proffered by the local population seemed to be motivated by individual advantage rather than an adherence to time-honoured land tenure orthodoxies. Defining customary claims in ways that would satisfy all members of the local community presented many problems. This quarrelsome scenario is a consequence of the historic origins of the community, now more complicated by the influences of modernity and nascent self-interest.

Traditionally, for the Lundayeh, in common with many other Borneo peoples (Appell 1986; Rousseau 1990), rights to a territory were held by a longhouse (Elmquist and Deegan 1974). Within this territory, any longhouse member could clear the forest to make a swidden. If an individual cleared a patch of forest with no known history of clearance, he and his descendants could lay claim to this land (Appell 1995). A hundred years ago, the Lundayeh settlement pattern in Ulu Padas was unlike that of the present day. The population was much larger and more widely dispersed in as many as nine longhouse hamlets (Hoare 2002: 31). Different longhouse groups had minimal interaction with each other, and clashes between them could be violent.

Prior to the arrival of Christian missionaries in the 1930s, the Lundayeh were one of Sabah’s most feared headhunting societies. The advent of Christianity in the Ulu Padas uplands gradually eroded customs, traditions and beliefs, and tended to have a unifying influence. Over time, the different longhouse groups (now pacified) became more centralised, yet the apparent unity of the community was still undeniably undermined by age-old divisions carried over from the past.

In the period since then, there has also been substantial population movement to and from Ulu Padas. In the 1950s, government relocation programs encouraged the isolated population to settle in the lowland for greater access to amenities and services. In those days, the Ulu Padas villages were several days' walk from the end of the furthest dirt road. This meant great difficulty in accessing modern needs and markets for forest products. Children had to walk to their boarding schools in Sipitang. Many families opted to resettle in the new lowland villages. Nevertheless, others found it difficult to adjust and returned to re-establish the present-day villages (Hoare 2002: 35). Since then, there has been the usual population movement according to family circumstances. The relative porosity of the border has also enabled relatives or brides to come from other Lundayeh groups in Kalimantan. Many of these ‘newcomers’ have lived here for decades, becoming an integral part of the community.

Today’s idyllic village of Long Pasia, with its central village leadership, church and school, is a relatively recent entity. Government centralisation policies to ensure more efficient administration (links to district government, agricultural schemes and subsidies), border security (army border scouts, immigration post) and provision of infrastructure and services (rural airport, clinic, primary school) have formalised the existence of the village as we know it. However, it is arguable that, despite appearances, and based on its disparate origins, the village might in spirit be more meaningfully viewed as several families cast together by history and circumstances. A superficial unity obscures the existence of enduring inter-family discord,^[7]in addition to the usual feuds, disagreements and personality clashes that tend to colour village affairs. This has undermined the ability of the Ulu Padas ‘community’ to initiate collective action for common objectives and hindered the smooth resolution of tenure claims.

In this transitional period opportunities arise to exploit ambiguities and confusion in translating customary claims into legal title. As Peluso observes, the ‘superimposition of statutory legal systems on customary systems creates new windows of opportunity for people to take advantage of multiple systems of claiming resources’ (1995: 401). In the specific case of Ulu Padas, this has been a divisive process in which some groups have sought to boost individual advantage at the expense of others. While the State Land area of 12 300 hectares might be considered sufficiently large for a population of just over 500, local people had yet to come to a consensus on how customary claims might be realigned to fit the land now allocated to them. The somewhat arbitrary boundaries drawn to differentiate Forest Reserve from State Land excluded large areas (more than 3000 hectares) encompassing the customary land of some of the family groups of the Ulu Padas community. Most of the land in the vicinity of the present village centre is claimed by a handful of families under the traditional system of ancestral land clearance. A narrow interpretation of customary rights would advantage those with claims within the State Land while disadvantaging those without.

The Department of Lands and Surveys' Ulu Padas files comprise a tangle of separate land application approaches spanning many years. Multiple individual and joint Land Applications of various sizes have been filed, many overlapping with each other several times over. In order to plump up the size of the claim, a common strategy has been to produce a long list of joint claimants. In addition, a great many claims are being made by urban Lundayeh who may have had an ancestor from this area but have no real connection with the area at the present time. Other claims are being made for land by non-Lundayeh, utilising the provision that allows Sabah citizens to apply for Country Leases for land development (or speculative) purposes.

There are contrasting points of view amongst the Lundayeh themselves over who has the right to claim land. For example, descendants of Lundayeh who resettled in other villages and towns maintain that they have legitimate ancestral claims to land. The ‘founding families’ that form the nucleus of the revived Ulu Padas villages believe that they have a greater claim as they returned and rebuilt the settlements through considerable hardship. They perceive the previous groups that left the village as having no claim under native customary law. People who leave their lands technically relinquish ancestral claims following a usufructuary principle in which land reverts to the community if its owners abandon the area. This is meant to optimise the allocation of land and resources to contemporary needs and current residents. Some dominant families are not prepared to reduce their claims to State Land to accommodate other families whose customary land does not fall within the designated State Land area. Finally, ‘newcomers’ (those that have either come from Indonesia or have returned to Ulu Padas from elsewhere over the past 25 years) are viewed by some as having no valid claim to land at all. For these families, the only option is to rent, borrow or buy land.

Although some applicants are clearly making excessive claims, without a clear and widely accepted understanding from the community of what a legitimate claim is, who legitimate claimants might be, or at least criteria to prioritise claims, it is not clear how a government land officer should begin. Instead of undertaking a joint initiative, different households or family groups were each pursuing applications separately. For some, this was a deliberate manoeuvre to exploit the lack of clarity regarding native customary rights to advantage their claims.

The jostling for advantage in the race to secure land tenure in this case calls instead for a combination of wealth, stature, and useful connections. Finding ways to lubricate the process and establish links with people in positions of influence has become a particular focus of people’s efforts. Regrettably, the bureaucratic government system in Sabah can be, and has been, subverted on occasion. Lacking confidence in the fairness of the system, local people have become convinced of the need to assure outcomes through more deliberate means.

External parties interested in logging forest on State land are only too willing to offer their assistance. A common strategy has involved ‘outside investors’ using their connections to speed up processing of their local partner’s Land Application in exchange for permission to apply for a Temporary Occupation Licence needed to conduct logging operations on State Land. Once the expensive surveys are carried out and the timber is removed, the land reverts to the Native Title holder. This procedure is potentially attractive to someone frustrated by the slow legal application process and eager to obtain a personal share of the proceeds from the sale of timber.

Participatory problem-analysis sessions conducted during the project inception phase in 1999 found the community to be chronically divided on tenure issues. Although there was genuine support for conserving forest resources and preserving the Lundayeh lifestyle, it was clear that certain parties were impatient to profit more directly from timber. It was common knowledge who the ‘dealmakers’ were and yet, to maintain appearances, the same individuals often railed openly against the evils of logging at public discussions. Adopting the emotive rhetoric of ancestral rights and dependence on the forest, they were concurrently pursuing their own projects such as securing road extensions to their farms, expanding cash-cropping orchards, and arranging for logging companies to operate on their land. To counter this, others claimed to be trying to secure large land areas through similar means, mainly to defend the communal forests from the destructive agenda of their neighbours.

Without a strong central leadership, there seemed to be an inability to mobilise a progressive course of collective action. It was becoming increasingly apparent that not everyone was being upfront about their plans and motivations. As ‘deal-making’ was perceived as being widespread and uncontrolled, more local people became convinced that they too needed to strive to get what they could while they could. Faced with this troubling scenario, many villagers conveyed their hopes that WWF-Malaysia, as an external entity, would take on the complex and uncomfortable task of ensuring the equitable distribution of land and conservation of communal forest. It was clear that a far more elaborate tenure solution was called for. Simply advocating the wholesale adoption of ‘traditional’ claims, even if such a thing could be defined, would likely lead to outcomes that neither supported wise resource management nor assured long-term community welfare.