The Sarawak Land Code 1958

Taken from Article by: Assoc Professor Ramy Bulan

Dayakbaru:

Please read slowly and understand to help you explain NCR issues in the long house.

The Sarawak Land Code 1958

The Sarawak Land Code 1958 is based on a Torrens registration system which only recognises registered interests in land. The person claiming ownership or interest must have a document of title in the form of a grant, lease or other document as evidence of title or interests. There is, however, a provision for the creation of Native Customary Land under Section 5(2) which is limited to six specific methods; namely:

* the felling of virgin jungle and the occupation of the land thereby cleared;

* the planting of land with fruits;

* the occupation of cultivated land;

* the use of land for a burial ground or shrine;

* the use of land for rights of way; and

* by any lawful method (deleted in 2000).

Numerous amendments have been made to the Land Code

1. For instance, in 1994 amendments were passed to empower the minister in charge of land matters to extinguish native customary rights to land.
2. In 1996, the onus was placed on a native claimant to prove that he has customary rights to any land against a presumption that the land belongs to the State.
3. In 1998, to pave the way for extinguishment or compulsory acquisition of land, the mechanisms for assessment and payment of compensation were put in place.

Land Code (Amendment) Ordinance 2000

The most comprehensive set of amendments were those set out in the Land Code (Amendment) Ordinance 2000. This included a definition of ‘native rights’ which was curiously missing in earlier legislation. Section 7A(1) streamlines ‘native rights’ into three categories; namely:

* rights lawfully created pursuant to Section 5(1) or (2);

*rights and privileges over any Native Communal Reserve under Section 6(1); and

*rights within a kampung reserve (Section 7).

It provides for the creation of a Registry of Native Rights

The 2000 amendment harmonised the processes and procedures relating to Native Customary Land with those relating to other types of alienated land in respect of the resumption of land and the adjudication of payable compensation for termination of rights. It also provided for the creation of a Registry of Native Rights. Finally (and notably), the amendment deleted ‘any lawful methods’ under Section 5(2)(f), for what Fong (2000) described as the sake of legal certainty and clarity.

The practice of customary land tenure certainly did not cease in 1958 ( Baru Bian 2000)

Some lawyers have argued that the implicit intention of the legislature in 1958 would have been to make a provision for certain customs and practices not covered by the Land Code (Bian 2000), but which were observed by different groups under their customary laws. The practice of customary land tenure certainly did not cease in 1958 and, as Bian argues, some lands had been acquired through barter exchange or ‘sale’ within communities, or as marriage dowries, which were subsumed under the ‘other lawful methods’. Given the inherent flexibility of adat (Cramb 1989; Sather 1990), and its ability to adapt to demographic and economic changes, Bian’s argument is reasonable.

Section 5 made it difficult to assert rights under the Land Code after 1958 (Bulan 2000).

The restricted concept of native customary rights under Section 5 made it difficult to assert rights under the Land Code after 1958 (Bulan 2000). The line of restriction is not a new phenomenon (Majid Cooke 2002). As Porter commented on the inception of the code, it ‘virtually prohibit[s] the creation of new customary rights’ and the ‘extremely detailed and rigid’ provisions ‘dictated government policy’ (Porter 1967: 83, 99).[7] Fong (2000) argues that the intention of the subsequent amendments was to restrict the methods of creating native customary rights to those stipulated under Section 5.

The Court recognized the existence of the Iban pemakai menoa

It is significant, therefore, that in a recent court case, Ian Chin recognised the existence of the Iban pemakai menoa — the area from which its members ‘eat’ (makai) — within which are found their temuda (secondary forest) and the pulau galau (land reserved for communal use).[8] The concept of pemakai menoa goes beyond mere agricultural use and extends to hunting, fishing and living off the produce of the jungle. Ian Chin held that those customary rights had not been expressly abolished by earlier orders or other legislation.

Court of Appeal did not disturb the High Court’s finding that the Iban concept of pemakai menoa exists

The Court of Appeal overturned the High Court decision on 9 July 2005,[9] holding that there was insufficient proof of occupation by the (Iban) respondents in the disputed area, although they had satisfied the test for native customary rights in the adjacent area. Nonetheless, the Court of Appeal did not disturb the High Court’s finding that the Iban concept of pemakai menoa exists. This is a milestone for native customary rights in Sarawak

Common law respects the pre-existence of rights under native law and customs

The Court of Appeal endorsed the exposition of the law by the learned judge of the High Court when he argued that the common law respects the pre-existence of rights under native laws or customs and that these rights do not owe their existence to statutes. Legislation is only relevant to determine how many of those native customary rights have been extinguished. It affirmed that the Land Code does not abrogate native customary rights that existed before the passing of that legislation, but held that natives are no longer able to claim new territory without a permit from the Superintendent of Lands and Surveys under Section 10 of the code. It also agreed with the High Court that the rights held under a licence ‘cannot be terminable at will’, for they can only be extinguished in accordance with laws subject to payment of compensation. Any discussion of the development of native customary rights must therefore bear in mind that, despite the provision of Section 5, the native concept of land is broader than the restrictive statutory provisions.

Estate Development is government’s choice to bring progress to Dayak

As the state seeks to accelerate land development under its broader ‘politics of development’ (Jitab and Ritchie 1991), the medium that is felt best suited to bring ‘development and progress’ to the natives is estate development. This involves lands which some native groups claim to be their communal lands

Dayakbaru:

Dayakbaru do not agree that the current equity / profit sharing model under “Konsep Baru” is helping Dayak to eradicate poverty.In fact, the 60 years agreement rob the Dayak of their rights without a guarantee that the land will revert to Dayak ownership after 60 years.

The dividends from Konsep JV does not commenserate with Dayak investment through providing cheap land to investors. Dayak has suffered froma business agreement that grossly favour the investor party.