Free Web Site - Free Web Space and Site Hosting - Web Hosting - Internet Store and Ecommerce Solution Provider - High Speed Internet
Search the Web

9^th May 2000

The Sarawak State Assembly sits again this week.

If there is anything that the public in Sarawak in particular and all others in Malaysia or the world can explain from this sitting is that there will be an amendment to the existing ordinance relating to land-use in Sarawak. The new amendment will especially further restrictive limitation and or curbing of the natives in their claim for native customary rights over land.

The State Assembly, with the exception of two opposition representatives from the DAP, is under the dominance of the Barisan Nasional (BN) government. In this sitting, the BN government is introducing a Land Code (Amendment) Bill 2000 for a major overhaul of the Sarawak Land Code.

Indeed, once passed as it would, a process will be in place for the expeditious extinguishment (now the government claims that there will be no more 'extinguishment' but 'termination') of native rights to land.

The explanatory statement appended to the purpose amendment bill provides that the principle objectives of this amendment to the Sarawak Land Code (hereinafter the 'SLC') are:

1. to accord recognition to rights lawfully created by natives over untitled or State land or over native customary land or Government Reserves declared for the use of kampung or kampung reserves or similar purposes;
2. to harmonise the process and procedure for the resumption of land under native customary rights or within Government Reserves used as kampung or kampung reserves or similar purpose, with that of alienated land; and
3. to harmonise the process of adjudicating the amount of compensation to be paid for the termination of rights lawfully created over such native customary land or Government Reserve used for the purposes aforesaid.

Reading of the 19 pages-proposed amendment bill in toto revealed "revolutionary" reconstruction of the Sarawak Land Code and the significant changes made to the Code which includes:

1. the definition of "native rights";
2. the creation of new sections in the Code to provide for the creation of a Register of 'native rights' land;
3. further restrictions on the methods in the natives' claim to possess NCR over land by deleting sections 5(2)(f) 'any other lawful methods';
4. the vesting of power with "the Director of Land in consultation with the Minister" in determining whether any grant should be issued to natives who had acquired rights by customary tenure to land;
5. the deleting of section 82 of the SLC which originally provided that the general provisions for resumption of land by the government in Part IV does not include the 'extinction of native customary rights', and corresponding amendment to section 46, making provisions clearly for the purposes of extinguishing ('terminating') native customary rights;
6. shortening of period of time for claim of compensation for interests or rights over land resumed by the government from 60 days to 45 days;
7. substituting of the words 'extinguishment' and 'extinguished' as used in current SLC for extinguishment of native customary rights wherever they appear with the words 'termination' and 'terminated'.

NCR Land has always been a contentious issue for decades and the continuing loss of NCR land to supposed "development" such as roads, dams, logging, oil-palm plantations, and other mega-projects surfaced more prominently after the indigenous peoples continue to take more direct actions to protect their land. Such peaceful action as symbolic blockades and protests continue to surface after the affected communities receive no response from the authorities and companies concerned to request for dialogues.

Before the proposed bill, the state government had been talking about 2 major changes that would be brought to the SLC, i.e. to enhance the legal recognition of the NCL and that there will be no more 'extinguishment' of native customary rights over land. Suggestion for the 2 proposed changes were approached with enthusiasm though cautious. It was said that by amending the SLC and to give NCL better recognition would enhance the value of NCL by facilitating financing, transfers, transmission, inheritance and acquisition of NCL. With the assurance that there would be no more 'extinguishment' of native customary rights, it was thought that the state had finally come to its senses in recognising NCR.

However, it was a surprise to many when the proposed amendment bill came in 19 pages, with 32 items listed on the amendment bill.

One may ask why should such a massive change be brought to the SLC.

Though not exclusive, the SLC as it is could sufficiently provide for the recognition of NCL. In order to facilitate, transfers, transmissions, inheritance and acquisition of NCL, what is needed are clauses providing for the recognition and protection of NCL. In addition, provisions can be made for mechanisms to demarcate the boundaries of NCL, issue titles of perpetuity (as the customary practice would have accorded them) and remove all restrictions (such as clauses limiting the scope of NCL) on claims to NCL. Furthermore, amendments to repeal such clauses providing for the 'extinguishment' of NCR land will provide more certainty to the recognition of NCL.

Unfortunately, such political promises are never meant to be.

On the issue of 'extinguishment' of NCR over, land, the proposed amendment bill now seeks to "substitute the words 'extinguishment' and 'extinguished' wherever they appear in various sections (sections 4, 15, 33A, 94 or 141) of the SLC with the words 'termination' and 'terminated' respectively".

It will be interesting to find out how the state BN government will justify that 'termination' of NCR over land does not equate or that it does not carry the same meaning as 'extinguishment' of NCR over land!

Under the proposed amendment, it provides that "native rights" over state land means rights described in section 7A(1), created by or belonging to a native over land not issued with a document of title.

Sections 7A, 7B, 7C, 7D and 7E are new sections proposed to be included in the SLC. The "native rights" over state land in section 7A(1) refers to

1. rights lawfully created pursuant to sections 5(1) or (2);
2. rights and privileges over any land declared as a Native Communal Reserve under section 6(1); and
3. rights within a Government Reserve declared under section 7(1) to be used as a kampung, kampung reserves or any similar purposes.

It is noted that NCR land created under section 5 must be by all methods stated under section 5(2) and with a permit from the District Officer given under section 10 SLC. Section 5(1) provides that no recognition shall be given to any NCR over land in Sarawak created after 1.1.1958 but NCR may be created by methods specified in section 5(2).

The former section 5(2) provides that the methods by which native customary rights may be acquired (the amendment bill provides that 'acquired' be substituted by 'created') are:

1. the felling of virgin jungle and the occupation of the land thereby cleared;
2. the planting of land with fruit trees;
3. the occupation or cultivation of land;
4. the use of land of any class for rights of way; or
5. any other lawful methods (now proposed to be deleted).

The principle purpose of the SLC of 1958 in this aspect is clear, i.e. that there shall be no more NCR land to be created after 1.1.1958 but that such NCR land created before 1.1.1958 in accordance to section 5(2) and still subsisting, may be recognised. Unfortunately, section 5(2) itself places limitations and restrictions on the scope of NCR land to be recognised as there is no provisions that the boundaries of such NCR land are to be determined in the spirits and methods of the customary laws and practices of the affected indigenous communities.

Because of the provisions above and based on the pre-amendment SLC, it loses all purposes and meanings for the registration of NCL and this being the major cause that sparked of the disputes, discontentment and the ongoing struggle of the native communities over their land rights. The native communities insist that their NCR should be accorded statutory force in accordance with their customary laws and practice with regards to creation or acquisition.

With such conflict of principles, it is hence doubtful if there were NCL created or acquired on or after 1.1.1958.

Yet the proposed amendment provides for the registration of NCL with rights acquired or created after 1.1.1958 of which there is, most likely, none!

Without any clarification or explanation in the explanatory statement, the proposed bill seeks to delete this section which provides that the native communities and or individuals may acquire NCR over land by "any other lawful methods".

The proposed amendment is most detrimental to the native communities because subsection (a) to (e) of section 5(2) severely curtailed the rights of the natives to their NCL as theirs pursuant to their adat (customary law and practice). The often-cited examples are that the water-catchment areas, communal forests and or any other components of land sanctioned as "menoa", "pulau", "tanah penurip" etc, recognised under their customary practices, do not fit into any of the subsection from (a) to (e). Subsection (f) provides for the only means that may be relied upon by the natives to claim such land rightfully theirs in accordance top their customary law and practice, by taking "any other lawful methods" to means "customary law and practice". With the deletion of s5(2)(f), any claim under the adat will be completely curtailed.

The Register of native rights is a separate register from the present statutory Register as provided under Part VII of the SLC. This is clearly seen from the amendment to the definition of "Register" which shall now reeds:

Therefore, on the outset, many believe that since the state government is attempting to register all native rights over land, the amendment should be welcomed and supported. Such belief is, unfortunately, a far cry from the intention of the amendment.

The new sections 7A, 7B, 7C, 7D and 7E made provision for the registration of native rights; transfer, transmission, inheritance or acquisition of native rights; remedies; effect of registration; and protection against the government, are meaningless for as far as rights of natives to customary land are concerned.

Separated from the statutory Register, this Register of native rights is at best only a record of the NCR land with the landmass much curtailed in the process of registration.

Section 7A(1) provides for the registration of only untitled (i.e. without document of title) land claimed to be held under native rights, but the manner of registration is yet to be specified. Even if a special document of title was given, it is unlikely that such title is of any value. This could be concluded from the fact that any land claimed to be held under native customary rights and practice being registered are expressly excluded and shall not be registered in this Register of native rights, as provided under section 7(3).

The contention that the Register is only a meaningless record can be further substantiated by the amended section 49 wherein subsection (5) provides that notwithstanding even if the Superintendent serves a notice on any person he believes to have rights created over any land (with the Register of native rights, it may be argued that there is now protection of the natives since there will be notice of such rights existing over disputed land) it shall not be deemed to be an admission or an acknowledgement on the part of the government that the person to whom the notice is addressed has any rights over such land.

The new section 54A made specific provision for the resumption of non-titled land and it states:

Together with the deleting of section 82 of the SLC which originally provided that the general provisions for resumption of land by the government in Part IV does not include the 'extinction of native customary rights', and corresponding amendment to section 46 making provisions clearly for the purposes of extinguishing ('terminating') native customary rights to land effectively vanishes in thin air.

In such a case, any registration will be rendered meaningless too. Any hope that transactions may be effected for transfers, transmission, acquisition or inheritance and that such transactions may be financed by banking institutions etc are mere illusions since the Register is no conclusive prove of ownership to land.

Many natives who have attempted to register their NCR land have also the experience that registration are made on prescribed forms and they are to state their claims as provided under sections 5(2) and this means that they are unable to register rights over land in accordance to their customary law and practice. The same is true of the Register of native rights. The further limitation, restriction and curtailment of section 5(2), by the deletion of subsection (2)(f), serves no purpose for the registration.

No more extinguishment of NCR land? Yes, but termination. Recognition of NCR land by the process of registration? Yes, but what extent of NCR land and for what purposes?

Th battle of the natives in Sarawak to rights under their adat to protect their NCR land is not help by this amendment bill. In fact, it is a bill to dear to be paid with all their rights and interests over their ancestral land!