Of matters about native land rights

Borneo Post

16 hours ago

Surveys of native rights over land may take a long time to complete, but it will be worth the effort and the expenditure. — Bernama photo
BEFORE the formation of the Federation of Malaysia on Sept 16, 1963, the rights and interests of the natives of Sarawak over land had been recognised by law.
MB Hooker, in his book 'Native Law in Sabah and Sarawak', printed in Singapore by the Malayan Law Journal Pte Ltd, 1980, writes: 'The source of law applicable in the courts in Sarawak was placed upon a more formal basis with the enactment of the Law of Sarawak Orders (16th February 1928) which provided that the law of England, in so far as it was not modified by orders of the H.H. the Rajah and so far as it was applicable having regard to native custom was to be the law of Sarawak.'
Sarawak became a Colony of Great Britain in 1947. In 1949, the Sarawak Government published a book called 'The Handbook of Sarawak'.
On land matters, one entry at Page 68 of the booklet states: 'All land in the Colony is Crown Land except where portions are alienated under the Land Ordinance or are claimed by Customary Native use.'
The Sarawak Land Code 1958 sets out how land rights are acquired; how the land in the colony was classified; provides the document showing who owns what and where; and even how the rights are acquired and even how these rights are lost.
The Kapit Conference
Sarawak was a colony of Great Britain for 17 years. Since Sept 16, 1963, it has become part of the Federation of Malaysia.
The formation of Malaysia was important to the natives of Sarawak in terms of the native rights over property such as land.
Feb 15, 1962 was an important date in the political history of Kapit District.
The leaders of the Iban community of that district consisting of 51 Penghulus, led by Tun Temenggong Jugah Barieng, were eagerly waiting for the arrival of the members of the Cobbold Commission.
The Commission was to conduct a survey of opinions of the people in the district as to whether or not the people would support the formation of a new nation called Malaysia, consisting of Malaya, Singapore, North Borneo, Brunei and Sarawak.
The 21-one chiefs were ready with a list of what they wanted on behalf of the people in the district for inclusion as terms and conditions of the entry of Sarawak into Malaysia.
They submitted 13 proposals.
Relevant to our discussion today are two important demands.
No 3 of their proposal was that: 'Adat Lama (traditional custom) to remain under the control of the Government of the State of Sarawak.'
The other proposal, No 4, was: 'Land to be under to be under the control of the State.'
The leaders were referring to the future of the people in the longhouses in the district.
They demanded recognition and protection of their rights and interests in land, and the related customs and traditions that created these rights and interests.
The recommendations were duly recorded by the Commission which, in turn, had passed them on to the Inter-Governmental Committee (IGC), another body responsible for the necessary drafting of legislation in respect of the proposals, wherever appropriate.
In return the leaders, on behalf of the Kapit residents, accepted the proposal to establish Malaysia, subject to the terms and conditions that they had submitted to the Commission earlier.
Since Sarawak had already enacted a land law in the form of the Sarawak Land Code 1958, there was no necessity for a new land legislation for the state.
The sole right to legislate matters relating to land in the state… belongs to that state.
Politicians, especially those walking in the corridors of power both in Peninsular Malaysia and in the Borneo states, need to champion the cause of the indigenous peoples of Malaysia more vigorously than they have done hitherto.
As they are holding the political power via the Unity Government, they should cooperate and collaborate in terms of working out an effective land legislation that recognises the legal rights of the indigenous landowners – Orang Asli in the peninsula, and the natives of Sarawak and Sabah.
Those politicians in Sarawak should appreciate the interest shown by Nurul Izzah Anwar, deputy president of Parti Keadilan Rakyat (PKR), in the determination of land rights of the natives of Sarawak or Sabah.
She has the right to comment on the affairs of the natives in Sarawak, and be concerned with the erosion of rights of the indigenous peoples of Malaysia.
The local political leaders should be concerned with the protection of rights over life and property, eg land.
Instead of disparaging her comment on the survey of Native Customary Rights (NCR) land in Sarawak, the local politicians in power should have kinder words about her, taking her comments on NCR survey as a useful feedback on the programme.
Apparently, Nurul Izzah's view on the perimeter of NCR land in Sarawak has hurt the feelings of a few local politicians.
The policy to determine the extent of rights to land claimed by the natives of Sarawak by means of the perimeter survey has been supported by the federal government with funds since 2010.
The policy was modified at a later stage of the programme, someone having recognised the need for a settlement of rights to enable the issue of a tie indefeasible title under Section 18 of the Sarawak Land Code.
If Nurul Izzah was criticising the policy of the state government in terms of delays of surveys of NCR lands, why the fuss over the statement?
Is this reflective of the federal government policy?
In fact, the federal government should initiate legislation in terms of Article 26 of the United Nations Declaration on the Rights of the Indigenous Peoples (UNDRIP) 2007.
I would prefer to use Part V of the Sarawak Land Code 1958 survey to determine the land rights: the settlement of rights.
The objective is to procure for the claimant of rights a title, which is indefeasible as provided for in Section 132 of the Code.
However, if the government can justify that the current policy is more effective than the other method, let them go ahead – as long as they get the job done, and the title to land surveyed is issued to the claimant or owner if there was no fraud, not even constructive fraud in the process of acquiring the land.
* The opinions expressed in this article are the columnist's own and do not reflect the view of the newspaper. land native land rights NCR sarawak