Papar in 1910

The district of Papar (see Figure 1) is one of the three earliest settlements where the North Borneo Company first established its rule; the others were Sandakan (also known as Elopura) and Tempassuk. The Company Residency was set up by the Papar River, the largest river on the west coast of the state. The district was (is) populated by two main ethnic groups, the Bajau and the Dusun. The former were distributed in villages along the coast, particularly on the western side of the Papar River. Two major Bajau villages were Pengalat Besar and Pengalat Kecil. Most of the Bajau, who were Muslims, were either fishermen or engaged in small-scale farming and gardening. Numerous Dusun villages were situated on the Papar plains on the southern side of the Papar River; others were on both sides of the Papar River in the interior section of the river. The Dusun were originally pagan or animistic. However, with the introduction of the Roman Catholic mission in that area in the last two decades of the nineteenth century, many of the Dusun converted to Christianity (Catholicism). The Dusun were mostly farmers, and well-known paddy planters. Their skills in rice cultivation had resulted in Papar being known as the ‘rice bowl’ of the territory. It also reflected the close association of the Dusun with their lands. In describing the Dusun, Owen Rutter remarks, ‘The Dusuns are the predominant race in the whole state and predominate in the administrative districts of Labuk and Sugut, Kudat, Marudu, Tempasuk, Tuaran, Papar and Tambunan, (….) The Dusun usually describes himself generically as a tulun tindal (landsman) or, on the West Coast, particularly at Papar, as a Kadazan.’Footnote ² In describing the Dusun of Papar, Owen added, ‘This group embraces the Dusuns of Papar, Kimanis and Bongawan and is closely allied to the Membakut group.’Footnote ³

Figure 1. The district of Papar

As the district stretches to the south, one would encounter some Kedayan and Bisaya or even Brunei Malays, but their numbers remained small within the Papar district. The Chinese made up the third major group of the local population. Arriving en masse in the last decade of the nineteenth century, the Chinese were divided into three main groups. These were: first, shopkeepers who had followed the Company flag to establish themselves in Papar township; second, immigrant settlers who were brought into the state and given land for agriculture; and third, those brought in to work on the railway and, later, the rubber estates that sprang up in the area.

The opening of the area for the planting of cash crops such as rubber was directly associated with the advent of the North Borneo Company administration. It was mainly the opening of the rubber estates and the construction of the railway that brought the Dusun face-to-face with the question of encroachment and violation of their rights, especially pertaining to land and customary culture. The rubber estates and the railway were two major developments that significantly altered the administrative and economic landscape of the state. It is difficult to say which came first, for they were intertwined. The idea of railway construction was championed by a number of the major shareholders of the Chartered Company in London. Led by William Clarke Cowie, its managing director, the group believed that the construction of a railway would help to open up the west coast to British plantations and, at the same time, serve as an economic impetus for that part of the state. The idea was to construct a railway to eventually link the west and east coasts. This, however, failed to materialise. The railway started from Brunei Bay, at a small village later known as Weston, to Beaufort, before linking up with Papar and, finally, Jesselton in the north as the terminus. The project began in 1896 and was not completed until 1906.

Rubber seeds were introduced into the state during the 1890s. Among those responsible for helping to ensure that the crop would flourish was Henry Ridley, the very botanist who was known for his passion for rubber planting, earning him the title of ‘Mad Ridley’. Ridley also visited the state to provide advice to some rubber planters on the east coast.Footnote ⁴ The crop was first introduced at the experimental agricultural station at Silam, and later at Tenom. It came at a very crucial time when tobacco, once the mainstay of North Borneo's economy, was suffering from a massive drop in demand as a result of protective tariffs introduced by several countries, including the United States. By the time the trees were growing at the stations, it was apparent that this was the crop that could perhaps save the plantation economy of the state. As a result of its successful introduction, rubber became the main plantation crop. The government began by offering land at a generous premium and low quit-rent. Throughout its 60 years of rule over North Borneo from 1881–1941, the Company constantly advertised the availability of land and the attractive land premium rates as a way to attract investors. The Handbook of British North Borneo for 1890, for instance, had an entire chapter on land regulations.Footnote ⁵ As a result, many rubber companies began to take up land on the west coast, stretching from the Kudat Peninsula (Langkon Estate), to Bukit Padang Estate (which eventually emerged after the establishment of Jesselton in 1899), to Putatan and Lok Kawi estates, Papar Estate, Membakut Estate, and Mawao Estate in the south. From there, the railway turned towards Tenom and Melalap where huge estates such as the Manchester Rubber Estate, Melalap Estate and Sapong Estate had been established.

Most of the estates south of Jesselton were established along the railway line. Hence, when the Dusun of Papar began to feel that their land rights were being violated, they were, in many instances, facing the double menace of the rubber estates — whose owners constantly refused to listen to their appeals and reasoning — and the railway. They had no clue as to where to complain about the railway. But it was obvious that the Dusun of Papar felt that some of their lands had been forcefully taken away from them, either by the government or the estates. Those lands nearer the railway track were taken by the government and given to the railway. The estates had been granted land concessions which, in many cases, also included lands previously owned or used by the community, particularly for communal purposes, such as graveyards, grazing lands and for gathering. Others had had their land, usually planted with fruit trees, taken for failing to register it and have it surveyed as required by the 1903 Land Proclamation, a law which many simply did not understand.

The Chartered Company and its land law

Among the first actions of the Chartered Company during the initial stage of its administration was to introduce a series of laws and regulations relating to land issues. Until 1913 all the land laws were issued as Land Proclamations, each with the effect and ingredients of a proper land law. In promulgating these land laws and their subsequent amendments, the Company adhered as best as it could to the various articles of the Royal Charter granted to the Company by the British government in November 1881, particularly on issues pertaining to the welfare and rights of the natives. In general, the statutory law introduced by the Company recognised the position of native customs and native rights to communal lands. Among the first laws introduced by the Chartered Company were the Land Proclamations of 1883, 1885 and 1889. These, especially the 1885 and 1889 editions, emphasised the protection of native rights to lands; they stipulated that

These rights covered all lands under cultivation, fruit trees, grazing land, burial grounds, graves, native tracks and shrines. In the event of disputes, the rights were to be settled by either a reservation of land or payment of monetary compensation. The natives were granted the right to appeal to the Governor for compensation before the issue of the title deeds would be authorised.

While the Proclamations were favourable to the natives, the same could not be said of the attitude of the European planter community who had, since the turn of the century, begun to become increasingly influential, if not powerful. The planters formed the North Borneo Planters’ Association, which was later given a place in the State Legislative Council. While it was very noble on the part of the North Borneo Company administration to safeguard the natives’ rights to land based on customary rights, actual enforcement had caused many problems for the estates that were beginning to spring up in large numbers, particularly on the west coast. Many companies found the respect for customary native rights impractical under Western law; hence there was a tendency to ignore these rights. Such actions by the companies so worried the government, especially in the face of the rising number of plantation companies wanting to open up estates, that the government decided to act further to provide some safeguard of native rights.

In 1902, Governor Ernest Woodford Birch issued Proclamation IX of 1902, which was aimed at abolishing the poll-tax and establishing a system of native land tenure; the North Borneo Company administration introduced land titles for every landowner. ‘In order to confirm Natives in their present holdings and to encourage them to take up land for permanent methods of cultivation there shall be issued upon application to every native owner a certificate of tenure in perpetuity.’ Indigenous landowners were to make their applications to the District Officer or Land Officer, and ‘shall be dealt with without delay and as far as possible in the order in which they are received’.Footnote ⁷ In 1903, Governor E.P. Gueritz introduced the Land Proclamation of 1903 (A Proclamation to Amend the Law Relating to Land) which aimed at providing further protection for native rights to lands by the issuance of written titles to natives who were holding land under customary tenure. ‘The holders of land under customary tenure or under Proclamation IX of 1902, may exchange his title for one under the provisions of this proclamation on proof of his right and on payment of the fees prescribed for leases under this proclamation.’Footnote ⁸ More importantly, the same proclamation also further enhanced native rights to lands by stipulating, ‘It shall be the duty of the collector upon the receipt of any application for land to satisfy himself that no existing native rights would be infringed by the granting of such application’, and that ‘Native claims shall be taken down in writing by the native headman or by the Collector, and shall be decided by the Collector.’ The proclamation further explained the nature of native rights over lands, including burial grounds and shrines.Footnote ⁹ Gueritz's land proclamation also explicitly spelt out the terms which Europeans and foreigners should follow when dealing with natives over land issues by inserting two safeguards:

Governor Gueritz also authorised the voluntary acceptance of a written title by any native holding land under customary tenure. Thus began the task of a land settlement scheme aimed at surveying the native lands and preparing for title deeds to be issued to the natives. The plan, however, was not immediately welcomed by the natives. When the first settlement scheme team had completed its land surveying and issuing of title deeds for the Putatan (inclusive of Penampang) area, 3,000 individual title deeds were prepared. Most of these were left unclaimed in the District Office.Footnote ¹¹ This situation persisted for about two years before the natives began to take them seriously and claim the titles. Even though the alienation of land and the issuance of individual titles were initially resented, and in many ways contributed to the problems faced by the Dusun in Papar — the focus of this paper — they nevertheless had a lasting positive legacy. With the granting of individual titles, the North Borneo natives’ ownership of lands was recognised. This was not the case in Sarawak, where the Brooke administration only recognised communal lands, not individual titles. In this sense the Chartered Company's policy was more enlightened.

This situation began to change when more planting companies began to apply to take up land on the west coast. Suddenly, the natives began to see the importance of having written title deeds as a safeguard to their lands. They were also slowly becoming more amenable to the idea of paying quit-rent, something which was rather alien to them.

This change in attitude also saw a rise in native demand to have their lands surveyed, to the extent that by 1909 the survey teams were struggling to keep up with their assignments.Footnote ¹²

The alienation of land for rubber planting and other uses had started after the introduction of the 1903 Land Proclamation. Under this ordinance, the natives were encouraged to take out individual titles for their land. The ordinance did not cover communal and grazing land, however, a bone of contention for the Dusun of Papar in 1910. Initial Dusun resistance against the land alienation process soon evaporated when the benefit of having a land title was made clear to those who had obtained the titles. By the time such realisation came to the community, however, many had lost their lands to the rubber estates — the origin of the grievances that culminated in the petition. A severe staff shortage in the Chartered Company administration had also resulted in a delay in the issuing of land titles. When visiting the west coast to investigate the problem in 1907, Henry Walker, the Land Commissioner, reported:

The delay in issuing the land titles, coupled with reluctance by the Dusun to pay for the process of land alienation, resulted in plots remaining unmarked and later being sold to the rubber estates. A few weeks before the Papar Dusun submitted their petition, G.C. Woolley,Footnote ¹⁴ then Acting Land Commissioner, visited Papar to hear a land case. According to him: ‘Land office affairs here (Papar) seem to be in rather a chaos.’Footnote ¹⁵ Many Dusun who lived along the railway line found themselves losing their land and precious fruit trees. They also claimed to have suffered the loss of grazing lands and burial grounds. Negative feelings were mounting to the extent that they sought remedial action from the government. At the initial stage they sought the assistance of the District Officer, Edward Owen Rutter, who was not of much help.Footnote ¹⁶ When they complained to the Resident, E.H. Barraut, he also seems to have refused them. In fact, the meeting led to a stand-off between the Dusun and the Resident, whom they accused of being drunk when dealing with them. Even though the Chartered Company had dispatched its land officers to take a look at the situation, to the extent of preparing funds to pay compensation for fruit trees that were removed, or other losses, the Dusun were generally unhappy with such measures. Many felt the compensation was too meagre and that, in most cases, their complaints and pleas were not entertained. This caused the Dusun in Papar to unite and act initially through a petition to Sir John Anderson and, later, by engaging an English lawyer, R.B. Turner, to act on their behalf to seek redress for their plight.

The petition

The petition, dated 20 July 1910, finally arrived at the office of Sir John Anderson, the High Commissioner for the Federated Malay States and British Borneo — and also Governor of Singapore — in October 1910.Footnote ¹⁷ It sought the British government's intervention to redress what was regarded by the Dusun community as unjust treatment by the North Borneo Company administration. The petition was made by Simon Sindurang Bulakang, one of the principal Dusun headmen elected as the representative of the Papar Dusun to voice their grievances against what they considered the Chartered Company's indifference towards the way the newly opened Papar Rubber Estate (owned by Sablas [North Borneo] Rubber Company) had encroached upon their communal lands.Footnote ¹⁸ Simon was a Dusun from Kampung Kapinpinan in Papar, and a Roman Catholic. According to him, the petition was made after persistent complaints to the Chartered Company officials, particularly the District Officer at Beaufort, had come to naught. Thus, Simon was deputised by his community to go to Labuan to present the petition via the office of the Resident of Labuan.Footnote ¹⁹

The petition came in the wake of a rush by European enterprises for large tracts of land for the planting of rubber. In 1906, this development was concentrated mostly on the west coast, especially along the railway line that linked Jesselton with the interior. By 1909, 17 rubber estates were already being opened up, mainly at Menggatal, Papar, Beaufort and Tenom.Footnote ²⁰ Attracted by the positive growth of the rubber industry, the government alienated large tracts of land — some of it native communal land — for sale to these European companies.

The petition contained six major points:

1. 1. The Dusun community claimed to have settled in the area since time immemorial and that they understood their position as regards the transfer of sovereignty of the State from the Brunei Sultanate to the Chartered Company.

2. 2. The rubber estate had acquired land in the area from the Chartered Company without the Dusun community's knowledge.

3. 3. The rubber company had cut down fruit trees on their lands, but failed to pay compensation. In cases where compensation had been made, the amounts were not commensurate with the actual value.

4. 4. The rubber company had violated their customary rights by encroaching upon and clearing lands that were graveyards and, in the process, had damaged many burial jars (tajau).

5. 5. The Chartered Company had unjustly allowed its policemen to abuse their power by deliberately encouraging native livestock to wander into the fenced areas of the rubber estates or public land, hence often resulting in the animals being impounded and heavy fines imposed upon the owners of the livestock for their release, while the policemen received a cut from the proceedings.

6. 6. The Chartered Company, in failing to address the problems, had failed to protect the Dusun's rights.

According to the petitioners, the loss of their lands and fruit trees had resulted in the loss of their sources of income. They also suffered from the loss of their cattle, buffaloes, goats, pigs and poultry which were impounded or even killed by the estates for trespassing into areas which they had formerly habitually used without restriction. The Dusun also had to pay compensation for damage caused by their animals on estate properties which had formerly been communal grazing land. Some estate workers further contributed to the Dusun's misery by stealing poultry from the villages.

Among other requests, the Dusun sought the intervention of the High Commissioner to impress upon the Chartered Company the need to redress the problem. They also sought rightful justifiable compensation for the losses they had suffered, particularly the fruit trees and cleared orchards. Even though the rubber estates did pay compensation for some of the fruit trees and sago palms, and even for houses they had removed, the Dusun deemed this insufficient.Footnote ²¹ More importantly, the Dusun expressed their wish to have the rubber company stop work in the graveyards, for fear of disturbing the spirits that were believed to dwell in the area. It was reported that the Dusun cemetery on a hill acquired by a rubber company had been cleared and the graves desecrated. Many of the graves had been dug up and the remains of the dead scattered.

One of the major points of contention raised in the petition was that the Dusun had no desire to sell their lands to rubber or other plantation companies, and they considered the Chartered Company's actions in selling the land for conversion to rubber estates as unjust and high-handed. Finally, the petition sought Sir John's help in setting up a royal commission to investigate this and other similar grievances for the whole of Sabah, with the aim of exposing ‘the injustice, high handed proceedings and other mis-administration of Government by the North Borneo Company of the officials’ as well as to seek necessary remedial action.Footnote ²²

As a result of the petition, Sir John Anderson directed the Chartered Company to allow the Dusun to seek redress through legal means. The Dusun of Papar, Membakut and Kimanis were allowed to file a lawsuit against the Chartered Company, seeking legal redress for their grievances. They were represented by Reginald Bryett Turner, formerly the Chartered Company's Judicial Commissioner. Along with the claims to land rights, the Dusun also complained that the Chartered Company officers were not treating the matter seriously; instead, they claimed, the Resident for West Coast, E.H. Barraut, had been drunk when he examined the case.Footnote ²³ As the allegation was being presented in the Court, the Governor was unable to prevent the matter being discussed or investigated.Footnote ²⁴

Turner, the lawyer engaged by the Dusun, first joined the North Borneo Company as Judicial Commissioner in 1908. A graduate of Worcester College in Oxford, Turner was called to the English Bar in 1906. In 1910, on a matter of principle over the alleged intervention of certain parties in a judicial case presided over by him, Turner resigned from the service and went into private practice — the only lawyer to do so in North Borneo at that time. In that same year he was approached by a delegation of Dusun from Papar, led by Simon Sindurang Bulakang, asking him to represent the Dusun in fighting for the return of their lands. From then, until the case was finally decided by the issuance of a Parliamentary Paper in 1920, Turner was closely associated with the Dusun of Papar, especially through their appointed leader, Simon Sindurang Bulakang.Footnote ²⁵

The Chartered Company denied having mistreated the Dusun of Papar, and blamed the entire matter on agitation by the Roman Catholic Mission, of which Simon was a member.Footnote ²⁶ Interestingly, although Simon was from Kampung Kapinpinan in Papar, his address was care of the Catholic Mission in Jesselton or Labuan. In his letter to High Commissioner Sir John Anderson, Governor Gueritz was of the opinion that the matter had been dealt with strictly in accordance with the provisions of the 1903 Land Proclamation. He felt that the Dusun's claim for failing to obtain any redress or relief from any of the Company's officials was unfounded.Footnote ²⁷ Gueritz also pointed out that he had directed his officials — among them the Government Land Commissioner and the Resident of West Coast — to look into the matter. He had also asked the manager of the estate not to cross the boundary line determined by the Government surveyor.

More importantly, Governor Gueritz had told Father A. Goossens,Footnote ²⁸ the Catholic priest at Papar, to inform Simon and the other Dusun not to interfere with the decisions arrived at by the officers who had investigated the matter, and that the Dusun's last option was to present the matter to the Company's Judicial Commissioner, whose decision would be final.Footnote ²⁹ Even though Goossens had promised to inform the Dusun about the matter, including the provision for presenting the case to a Judicial Commissioner, an appeal was nevertheless forwarded to Sir John Anderson. It was obvious that the Dusun no longer had faith in the Chartered Company's method of administrating justice. The fact that the Judicial Commissioner was an employee of the Chartered Company administration did not help to instil confidence in them.

During the course of the investigation, the Governor invited Simon to Jesselton for an interview with G.C. Woolley, the Acting Land Commissioner, and S. Sawrey-Cookson, the Chartered Company's Judicial Commissioner. However, Simon's interview could not come to a proper conclusion as, according to the Governor, Simon — though a minor landowner himself — could not give instances of how the problem had affected him, and could only represent the cases of his fellow Dusun claimants in vague terms. It was learned that Simon, with two others, had visited the villages along the railway line to collect evidence and subscriptions to brief Turner, who helped them to draft the petition submitted to the Judicial Commissioner. The petition had three parts, representing three localities: the complaints of the inhabitants of Papar, Kimanis and Membakut.Footnote ³⁰ Turner's petition to the Judicial Commissioner, dated 8 June 1911, listed Simon and Si Banjar and others as plaintiffs, and the Collector of Land Revenue and the Chartered Company as defendants.

Accordingly, Acting Governor A.C. Pearson, who had taken over the administration after the departure of Gueritz, dispatched Woolley to visit inhabitants of the three places to determine the truth of their complaints. He was also authorised to make on-the-spot payments to settle any complaints that he deemed to be well grounded and worthy of compensation.Footnote ³¹ During his visit to Papar, Membakut and Kimanis, Woolley found that many of the complaints were genuine, and he made payments to compensate for the losses. However, he also found that some claims were misrepresentations, especially those regarding fruit trees that had been ‘abandoned’ or ‘forgotten’.Footnote ³²

However, the most sensitive matter in the petition was the alleged desecration of Dusun graveyards, which was highlighted by Turner in every section of the petition. As the matter touched on the rites and customs of the people, the Company ensured that it was dealt with in a tactful manner. When Woolley had earlier been investigating some land matters, he wrote in his diary, ‘walked to Papar started a land enquiry case, Dusun adat very complex, no special rules, so had to refer it to chief for report’.Footnote ³³ However, Pearson was not that sympathetic. He suggested that the Dusun buried their dead all over the country and that their graves were not maintained. Thus, in time, the site would be lost to undergrowth. Pearson, however, was poorly informed, as the Dusun from Papar were required by custom to repair their graves, whereas the graves of some other Dusun, such as those from Tambunan, may not be repaired.Footnote ³⁴ Earlier, the Resident for West Coast had visited some of the graveyard sites and found most of them in disrepair, thus suggesting to the Governor that they were abandoned.

In his report, Woolley found that the local custom in Membakut dictated that, unless for the purpose of a burial, no clearing or felling of any sort may take place in a graveyard; graves therefore cannot be cleared or even fenced in, though apparently a panchang (gravestone) may be cut to mark the site. According to his investigation, only one case of actual desecration was authentic as it was shown that the grave had been pointed out and claimed before the land was cleared, and the rubber estate was fined $25 for the offence. The other complaints, however, were dismissed by the magistrate, as the graves had not been pointed out or marked before clearing. Woolley found that it was not the custom of the Dusun to mark their graves; therefore they could not comply with the government's requirement that only graves that were marked would be recognised. This put the Dusun's claims against the rubber estates in a greatly disadvantageous position. Woolley also acknowledged that the removal of burial tajau (jars) was forbidden by custom.Footnote ³⁵

According to Woolley, the local chiefs in Membakut had expressed their willingness to sell the land between Membakut Estate and the Membakut railway station, but retain the plot of land with the actual kampung at Limantak, including the coconut and pinang trees around it as well as the five old graveyards nearby. No compensation, however, was paid to the locals for the earlier felling of trees and clearing of graveyards as they had not been pointed out to the estate manager earlier.Footnote ³⁶ In cases where a graveyard had been cleared by the estate, the Chartered Company forbade the estate from planting on it. At Kampung Kolapis, Woolley fined the estate $25 for clearing trees and two graves that had been pointed out, despite having given instructions to the acting estate manager not to do so.Footnote ³⁷

Despite the measures taken by the Chartered Company, the case finally was sent for arbitration by the Judicial Commissioner.

Allegation against the Catholic Church

The main question that immediately came to the minds of the Chartered Company officials was: who was behind Simon Sindurang Bulakang and the Dusun? Their suspicions came from the belief that the Dusun, who had only recently come into contact with Western civilisation and laws, would not be able to appreciate the finer points of their land rights had they not been coached or instigated by others. The pointing of fingers seemed to end with the Catholic Church and the lawyer Turner. Two things prompted the Chartered Company officials to blame the Catholic Church for inciting the Dusun to act. First, Simon had given the Catholic Church at Jesselton or Labuan as his correspondence address. Second, the Company's fury was directed especially at Father Aloysius Goossens. He was also known to be in constant disagreement with North Borneo Company officials, particularly over the issue of the Company's policy of appointing Muslim headmen to administer places such as Putatan, Bundu and Papar.Footnote ³⁸ For instance, in South Keppel, which covered the districts of Putatan and Papar, the headman was Pangeran Haji Omar, a Brunei–Malay chief from Sipitang who was appointed in 1912.Footnote ³⁹

Writing in the early 1960s, K.G. Tregonning suggested that the Catholic Church had a hand in influencing the Dusun to act against the government:

This claim was refuted in the early 1980s by John Rooney, who said he had gone through the missionary's report, which denied that the church had been implicated in inciting the Dusun to protest against the government:

Rooney's misgivings about Tregonning's assertion, however, were based solely on the Mill Hill Missionary Society's reports and a parliamentary paper which seem to absolve the Catholic Church from the accusations.Footnote ⁴² An investigation into the mood of the Chartered Company officials during the period of the protest between 1910 and 1911, however, made it difficult not to allude to the Catholic Church being a party to inciting the Dusun.

Owen Rutter, the former Chartered Company Assistant District Officer who had not been helpful to the Dusun when they approached him in the initial stages, had been more inclined to put the blame on Turner, the Dusun's lawyer. Rutter's only complaint with the Church was its role in bringing ‘civilisation’ to the Dusun at Papar and Membakut, which meant that they had lost their ‘simplicity and become undesirably sophisticated; it is a fact that the Dusun who live near-by the railway line from Putatan to Membakut have changed very materially during the past fifteen years, and not for the better’.Footnote ⁴³ Thus the case also saw a mild discourse by Company officials who were less than thrilled by the prospect of facing a native society who were becoming more conscious of their rights and position, a development attributed to the role played by the Church in ‘civilising’ them.

Turner's decision to represent the Dusun and his alleged role in inciting the Dusun to protest against the government probably stemmed from his displeasure towards the Chartered Company administration in North Borneo. Turner had been engaged by the Chartered Company in 1909 to serve as its Judicial Commissioner, but he resigned from the service in 1910 over differences with government policies and practices in allowing influential planters to dictate even judicial decisions. It is possible that his decision to represent the Dusun was out of a desire to seek revenge on the Chartered Company. Whatever his reasons, Turner played a very important role in making sure that the Dusun's grievances were heard in court. It was also Turner who was chiefly responsible for sustaining wider interest in the case, including the involvement of the Society for the Protection of Aborigines.

The Chartered Company regarded Turner as an opportunist who had stayed with the Dusun for a few weeks to get the right to represent them in the case. They also looked upon him as one of the instigators behind the whole affair.Footnote ⁴⁴ Turner admitted that he had promised certain chiefs that he would help them obtain redress, in return for a fee collected through a general subscription by the Dusun. Turner was, of course, greatly despised by the Chartered Company officials who felt that they were unjustly challenged by him and ‘others of his kind [who] are now busily employed, if not in fomenting disturbances’,Footnote ⁴⁵ and who threatened the Company with the interference of the Secretary of State, an act which would undermine the authority of the Chartered Company government in North Borneo. What the Company officials failed to appreciate was that Turner was only engaged by the Dusun after they had repeatedly sent 11 complaints to the Company (to no avail), one to the British authority at Labuan and, finally, one to Singapore. It was only after Sir John Anderson's letter advising them to take the matter before the courts that the Dusun had obtained Turner's services.

And in spite of Rooney's contention that the Catholic Church and Father Goossens were not involved, there is some truth in Tregonning's assertion. In a letter from Turner to Father Goossens dated 24 June 1914, almost two years after Turner had left the country, Turner bemoaned Goossens’ passivity, ‘How is it that I cannot hear from you? Important matters are now in hand and I feel quite isolated, without a word from you or from our Dusun friends for when [sic] I have gone through so much.’Footnote ⁴⁶ At that time Turner was hoping to hear more from Goossens on the latest developments on the ground as he himself was having meetings with the North Borneo Company board of directors and the Anti-Slavery and Aborigines Protection Society. The latter also took up the Dusun's case against the Company.

The trial

The hearing before Judicial Commissioner S. Sawrey-CooksonFootnote ⁴⁷ was held from 8 June to 27 July 1911, with a recess of 10 days for coronation festivities (King George V). It was one of the longest court cases in North Borneo at that time. A total of 81 witnesses were called and examined; almost all were Dusun, with the exception of several Chartered Company officers, who included Woolley, acting for the Land Office, Barraut, the Resident of West Coast — who was allegedly drunk while hearing complaints from the Dusun during the initial stage of the affair — and other officers who came as character witnesses to defend Barraut.Footnote ⁴⁸

In his judgement, the Judicial Commissioner felt that the Chartered Company had acted in accordance with the existing law, and that Woolley's compensation payments were sufficient. As regards the graveyards, the Judicial Commissioner also ruled in favour of the Chartered Company. In his opinion, the Company officials had given prior orders to the Dusun to fence up their graveyards, and thus mark them. But as this had not been done, he ruled that no compensation should be made for claims of unmarked graves, and no sagit (customary compensation or considerations) was required.Footnote ⁴⁹

The seriousness of the case, however, was not lost on the Judicial Commissioner, who was of the opinion that Simon and his co-plaintiffs had every right to dispute the Company's stance on the matter, especially in claiming compensation (sagit) for the desecrated tajau (burial jars) and graveyards. He duly recommended that the rights of the natives regarding graveyards be respected and protected. Therefore, wherever any graves were known or shown to exist, the utmost care had to be taken so that they were not interfered with in any way. Had this been done, he believed that there would have been no defence to claims for reasonable sagit. Finally, Sawrey-Cookson recommended that all possible care be taken by those acquiring land from the natives, and also the natives from whom such land was acquired should be careful to obey all reasonable orders and help in every reasonable manner to make it possible for new landowners to avoid infringing any existing native rights.Footnote ⁵⁰

The Judicial Commissioner's decision was a relief to the Governor. In his dispatch to the President and Court of Directors in London, Governor Ellis expressed satisfaction that the:

The judgement also absolved the Chartered Company officials, including Barraut, of all alleged wrongdoings. The Governor also reported:

Not satisfied with the ruling of the Judicial Commissioner, Turner helped the Dusun at Papar, Bongawan and Membakut to draft new petitions to Sir John Anderson. The petitions were dated 19 July 1911, by Batindam, Yangar and Sogara of Bongawan; 5 August by Bokupas, Gombang and Massu of Membakut and Maratam and Tagap of Papar; and finally, 8 August by Simon of Kapinpinan, Papar.Footnote ⁵³ The Colonial Office was certainly not happy with the Company's stand over the issue, and strongly sympathised with the plight of the Dusun. Writing to the Chartered Company in London, Lewis Harcourt, the Under Secretary of State, remarked: ‘I do not like this at all. I cannot think it is consistent with public policy to dispossess natives of their fruit gardens and even of their graveyards to make room for a rubber plantation, and I should tell the C.O. [Colonial Office] so straight.’Footnote ⁵⁴ After some debate between the Chartered Company and the Colonial Office, the Colonial Office asked the Chartered Company to instruct its officers in North Borneo to take utmost care not to allow the alienation of land on which native graves were known or believed to exist.Footnote ⁵⁵

Though this episode ended in 1912, other similar petitions were submitted to seek the British government's intervention, including one from six locations in the west coast of Sabah in 1913. Sir Arthur Young, the Secretary of State, expressed surprise at the latest development as the petitions also involved Dusun from Putatan, Kinarut and Kimanis.Footnote ⁵⁶ The petition from Putatan was signed by Mamidal, that from Kinarut by Masagal, Madkar and Majarit, and Kimanis by Pambahan and Bangon. Thus far, the land dispute had been confined to the Papar–Bongawan–Membakut area.

By then Turner was already back in London. Due to his involvement with the Dusun, his law licence was not renewed and he was declared persona non grata and refused entry to North Borneo. Turner continued the struggle from England. He also took up the case with the Anti-Slavery and Aborigines Protection Society, and the case reached the British House of Lords in October 1919. In presenting the case to the House of Lords, Turner was assisted by G. de la Mothe and Dr J. Pryce Williams; the three signed the affidavit. The House, however, upheld the Chartered Company's position in August 1920. In his judgement, Lord Milner, on behalf of the British government, stated simply that the Company had met its accusers satisfactorily, but did not specifically exonerate it.Footnote ⁵⁷

The expression of grievances by the Dusun was not confined to Simon and his colleagues from along the railway line. Efforts were made to get the Dusun from Tuaran to join in the protest against the government, especially when they were also facing similar encroachment from the Tuaran Rubber Estate. However, the Dusun from Tuaran decided not to join them.Footnote ⁵⁸ Despite their efforts, Simon and his friends could not sustain their struggle for the return of their land. The absence of Turner, who was barred from entering North Borneo, and a much-subdued Father Goossens, who was instructed by his bishop not to get involved, ensured that the Dusun's cause failed. The long lull between the end of the trial and the next attempt to bring up the matter again by Turner through the Anti-Slavery and Aborigines Protection Society in 1919 had resulted in waning interest amongst the Dusun to take up the matter again.