LAW ON NATIVE CUSTOMARY RIGHTS LANDS
I. Statutory Definition.
1. The Land Code [Cap. 81] defines “Native Customary Lands” to mean:
“(a) land in which native customary rights, whether communal or otherwise, have been lawfully been created prior to the 1st day of January, 1958, and still subsists as such;
(b) land from time to time comprised in a reserve to which section 6 applies; and
(c) Interior Area Land upon which native customary rights have been lawfully created pursuant to a permit under section 10 Land Code.”
2. What this purported definition attempts to do is to classify native customary land into 3 different types on the mode of creation or acquisition of the said customary rights lands.
II. Terminologies:3. “Native Customary Lands” and “Native Customary Rights Lands”.
What’s the difference? Basically, they refer to one and the same thing. While Native Customary Land is a statutory term, Native Customary Rights Land is not. native customary land means a land over which native customary rights have been established by a native
4. “Licence”?
In Nor Anak Nyawai & Ors V Borneo Pulp and Plantation Sdn Bhd & Ors [2001] 2 CLJ 769 [BOA-75] it was stated by Ian Chin J.
“The description of native customary rights as ‘licences’ is ill fitting and this was clearly illustrated by Richards, at p 18, in these words:
20 The rights in Sarawak are not easements, although there is some similarity, not because the people have no property in the and or rights over it but because they are a ‘fluctuating class’ in an ill-defined locality. Easements required clearly demarcated boundaries and definite possessors on either side. Even rights to take forest produce and to hunt do not fit with the English concept of profit a prendre because that also requires closer definition of the persons who possess the right than can usually be given here. The lack of precision in that case makes difficulties for the Forest Department but a right to hunt exists and could be called a mild form of occupation. Neither will ‘licence’ or ‘permission’ do to describe land rights. Permission is revocable at any time or expires by lack of renewal, and licence is ‘a right of user not annexed to land’. Use of these terms would almost imply that no rights existed at all. Occupation of land without document or registration has been acquiesced in for so long, that title would appear to have been obtained by prescription to a large part of ‘the bundle of rights’”.
5. Native Customary Rights Lands are perpetual in nature. Meaning, there is no time limit for its expiry as oppose to titled lands with the exception to title in perpetuity. As oppose to a licence per se, as a form of right, native customary rights land tenure stands on stronger footing and is much more secure than a licence.
III. Three [3] Ingredients.6. (i) communal or other wise;
(ii) lawfully created prior to 1st January, 1958, and
(iii) still subsists as such.
(i) First Ingredient - communal or otherwise.
7. This ingredient indicates numerical ownership of the said land as to whether it is owned by the community, by a group of a native within the community, by a family of natives within the community or individual.
a. Communal Native Customary Rights Land.8. Recognition of NCR land by High Court in Nor Anak Nyawai & Ors V Borneo Pulp and Plantation Sdn Bhd & Ors [2001] 2 CLJ 769 the Plaintiffs communal native customary rights land was recognized by the High Court. In the said case, the Plaintiffs claim that their communal native customary rights land is termed as Pemakai Menoa in the Iban language.
9. A pemakai menoa (also spelt pemakai menua), is an Iban term that refers to ‘a territorial domain of a longhouse community where customary rights to land resource was created by pioneering ancestors’ (Dr Dimbab Ngidang Page 248>> on Ethical Values of Sarawak Ethnic Groups, p 33).
10 Another description of it is in these words: ‘The family groups ( bilek) join together to make a longhouse which, with the surrounding contiguous territory, make up the menoa. It includes besides farms and gardens, the water that runs through it and the forest round about it to the extent of half a day’s journey’ (AJN Richards on The Land Law and Adat, p 24). Such a territory is chosen because of the presence of arable land, of rivers and forests from which life sustaining resources like water, fish, animals and forest products (including timber, wild vegetables, edible ferns, palm shoots, rattans, herbs or medicinal plants, fruit trees and bamboo) can be obtained.
11. Secretariat Circular No.12/1939 The important features of the circular are as follows:
i. Formation of village council to carry out survey and report on the boundary
ii. Demarcation of boundaries to follow natural physical features
iii. The survey report to be recorded by District Office as part of Boundary Book. Communal NCR lands are to be eventually gazetted as Native Communal Reserves under the Land Orders. Expansions of farming lands are allowed.
iv. Individual land titles will eventually be issued.
v. Practising of pulau galau is encouraged Communities.
12. Supt of Land & Survey, Miri Div. & Anor V. Madeli Bin Salleh
“We are conscious of the fact that in this case we are dealing with individual right not communal right, but in our view the principle applicable is the same. “
b. Individual Native Customary Rights Land -“or otherwise.”
13. With regards to individual native customary rights land, the popular term being used by the native is the word 'temuda” which is a term derived from the Iban language. Ian Chin J. in Nor Nyawai, said of temuda:
“Then there is temuda which is farm land and including land left deliberately fallow (see Lembat) for varying period of time to allow for the soil to regain its fertility and for the regeneration of forest produce. Some land are left fallow for upward of 25 years to allow for trees to grow (see Lembat). Thus, during the course of time, secondary jungle would appear and for that reason the description of temuda as secondary jungle in TR Nasat Ak Chapi v TR Mandi Ak Genging (CNCLS, p 97) is also correct. Since such temuda gives rise to a right of the natives to access it, so the description of temuda being ‘customary land’ was used in Abang v Saripah (CNCLS, p 163), see also Abang v Saripah [1970] 1 MLJ 164
14. Supt of Land & Survey, Miri Division & Anor v. Madeli Bin Salleh.
With respect, we are of the view that the proposition of law as enunciated in these two cases reflected the common law position with regard to native titles throughout the Commonwealth. And it was held by Brennan J, Mason CJ and McHugh J, concurring, in Mabo (No.2) that by the common law, the Crown may acquire a radical title or ultimate title to the land but the Crown did not thereby acquire absolute beneficial ownership of the land. The Crown’s right or interest is subject to any native rights over such land….
(ii) Second Ingredient – “lawfully created prior to 1st January, 1958”15. Tan Sri Gerunsin Lembat, the President of the Majlis Adat Istiadat Sarawak, the Council for Native Customs:
The purpose of creating a pemakai menoa involves the ritual ceremony of punggul menoa. After the ceremony has been performed, the first cutting of virgin jungle for settlement and farming can commence. From then onwards, the community can establish its rights to the felled area..”
16 R.V Van Der Peet 137 D.L.R. 289 at page 311 Lamer CJ said this:
[49] “In assessing claim for the existence of an aboriginal right, a court must take into account the perspective of the aboriginal people claiming the right. In Sparrow, supra Dickson CJC and La Forest J. held at p.1112 that it is crucial to be sensitive to the aboriginal perspective itself on the meaning of the rights at stake”
(iii) Third Ingredient – “and still subsists as such”.
17. This is a form of statutory restriction on the creation and acquisition of new native customary rights lands. At the same time this restriction only allows the existing rights to continue provided that they have not been abandoned.
18 Abang V Saripah which is a Native Court of Appeal at Sibu under Civil Appeal No. 1 of 1969. This case was decided Justice B.T.H. Lee:
This was made clear by the Rajah’s order dated 10th August 1899 Land Tenure Act, which states that, “Any Dayak removing from a river or district may not claim, sell or transfer any farming ground in such river or district nor may he prevent others farming thereon unless he holds such and under grant.’
IV. Protection For NCR Lands.19. Statutory provisions meant to protect NCR land rights:
(i) Section 15 (1) Land Code Cap. 81
“Without prejudice to sections 18 and 18A, state land shall not be alienated until all customary rights therein have been surrendered or extinguished or provisions has been made for compensating t persons entitled to such rights.”
(ii) Section 18 Land Code Cap 81.
“Where the Superintendent is satisfied that a native has occupied and used any area of unalienated state land in accordance with rights acquired by customary tenure amounting ownership of land for residential or agricultural purposes, he may, subject to section 18A, issue to the native a grant in perpetuity of that area of land free of premium rent and other charges.”
(iii) Article 39(1) Constitution of Sarawak.
“It shall be the responsibility of the Yang di-Pertua Negeri to safeguard the special position of the Natives…. “
(iv) Article 31(2) Federal Constitution
“No person shall be deprived of property save in accordance with law.”
(v) Article 153(1) Federal Constitution.
“It shall be the responsibility of the Yang di-Pertuan Agong to safeguard the special position of the …. the natives of any states of …… Sarawak.”
(vi) Article 161A(5) Federal Constitution.
“Article 89 shall not apply to the state of Sabah or Sarawak, and Article 8 shall not invalidate or prohibit any position of state law in the state of Sabah or Sarawak for the reservation of land for natives of the state or for alienation to them, or giving them preferential treatment as regards the alienation of land by state.”
20. International laws also protect NCR land rights.
(vii) The United Nations Declarations on the Rights Indigenous People.
“Article 10
Indigenous people shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after the agreement on just and fair compensation and, where possible, with the option of return.
Article 25
Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.
Article 26
1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
3. States shall have legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned. “ [emphasis added]
V. Admission of Oral History.21. Delgamuukw et al. v The Queen in the right of British Columbia et al; First Nation Summit et al, Intervener [1997] 153 D.L.R. (4th) page 193 where Lamer C.J.C reiterated the law on admissibility of oral history as in the previous case of R. Van Der Peet (1996) 137 D.L.R. (4th) 289. The learned Chief Justice said at page 231 [BOA-380]:
“This appeal requires us to apply not only the first principle in Van Der Peet but the second principle as well, and adapt the laws of evidence so that the aboriginal perspective, customs and traditions and on their relation ship with the land, are given due weights in the courts. I practical terms, this requires the courts to come to terms with oral histories of aboriginal societies, which, for many aboriginal nations, are the only record of the past. Given that the aboriginal rights recognized and affirmed by s. 35(1) are defined by reference to pre-contract practices or, as I will develop below, in the case of title, pre-sovereignty occupation, those histories play a crucial role in the litigation of aboriginal rights.”
22. In Malaysia, the case of Sagong Tasi & Ors v. Kerajaan Negeri Selangor & Ors [2002] 2 CLJ p.543 applied the decision of Delgamuukw in a claim by the Orang Asli tribe in Selangor. Mohd Noor Ahmad J. in his ruling at page 578 [BOA-329] said:
“It is manifestly clear that under art. 8(5) of the Constitution and the Act the plaintiffs have the right to be protected and the right to wellbeing and advancement, in particular to land use. The situation here is similar to the aboriginal peoples of Canada where in Delgamuukw case the Supreme Court of Canada affirmed the principles established in Van Der Peet, first, that trial courts must approach the rules of evidence in the light of the evidentiary difficulties inherent in adjudicating aboriginal claims, and second, that trial courts must interpret that evidence in the same spirit –must be understood against this background. The first principle relates to the difficulties inherent in demonstrating a continuity between current aboriginal activities and pre-contract practices, customs and traditions of aboriginal societies. Since many aboriginal societies did not keep written records at the time of the contract or sovereignty, it would be exceedingly difficult for them to produce conclusive evidence from pre-contract times about the practices, customs and traditions of their community. The second principle is to adapt the laws of evidence so that aboriginal perspective on their practices, customs and traditions and on their relationships with the land, are given due weight by the courts. In practical terms, this requires the courts to come to terms with the oral histories of aboriginal societies, which, for many aboriginal nations, are the only record of the past.”
VI. Restriction on Dealings In NCR Lands Between Dayaks.
23 Abang V Saripah which is a Native Court of Appeal at Sibu under Civil Appeal No. 1 of 1969. This case was decided Justice B.T.H. Lee:
No Dayaks is allowed to sell, purchase or lease (by way of demanding rent either in kind or cash) untitled land. It would be an infringement of the right of the Crown if they did so, and they may be prosecuted in view of the fact that selling of untitled land is prevalent in this division, and Dayak seem to forget this custom.
24. A.F. Porter in his book “Land Administration in Sarawak”, 1967, at page 11 wrote this:
“From time to time legislation has been introduced to deal with specific aspects of customary laws and in 1899
[1] an important order was issued, inter alia, to regulate the movement of Dayaks from one district to another by expedient of limiting the power of dispose of rights in accordance with customary practice. The provisions of the Order recognized certain customary practices which continue to be officially recognized.
Section 1 stated:
“Such fruit trees which have chiefly sprung up from the seeds thrown out of and about the house, and have become common property of the inhabitants of a long house or village, are in no cases to be sold or in any way transferred or claimed by individuals leaving such houses or villages.
Section 2 provided that:
“Any Dyak removing from a river or district may not claim, sell or transfer any farming ground in such river or district, nor may he prevent others farming thereon, unless he holds such land under a grant.
25. Bisi Jinggot v. Superintendent of Land & Survey Kuching Division [2008] 5 CLJ 606. Clement Skinner J followed Sat Anak Akum and Sumbang Anak Sekam’s case to decide that it is illegal for a Dayak to deal in NCR lands.
VII. Grounds For Legitimacy of Dealing In NCR Lands Among Dayaks.
26 Edwin H. Gomes, M.A. in “Seventeen Years Among The Sea Dayaks of Borneo [1910]” at page 93 wrote:
“With regard to land, it has been the immemorial customs of the Dyaks that when a person fells the virgin forest he acquires it by that act a perpetual title to the land. He may sell it, lend it, or leave it to his successor. The rent he is supposed to demand for a piece of land large enough to be farmed by one man is a dollar. If, however, he is not paid in money, he may claim a game-cock, or two plates. As a game or two plates cost about a quarter of a dollar, it is dearer to pay for the use of the land with money. Land disputes are very common among the Dyaks. As they leave a particular district, and the return again after many years, it is not surprising that complications arise.”
27. Professor Dimbab Ngidang in his article entitled “Deconstruction and Reconstruction of Native Customary Land Tenure in Sarawak:
“From the beginning, natives did not readily accept the idea that all the land belong to the Rajah, nor did they agree that all unregistered or untitled land was crown property when Sarawak became a crown colony in 1946. To the natives, their adat existed long before Brooke rule and their occupation and cultivation of land in Borneo for centuries was more than adequate to justify their ownership of it. They do not owe their customary rights to statute [Ian Chin 2001]. As we have seen, native in the past were unwilling to sacrifice that customary protection to obtain title that they already owned. They refused to pay for premium and survey fees in return for a lease subject to rent and conditions of occupation. They even believed that their customary rights to the land were extinguished upon payment for a lease [Porter 1967].”
28. Fadzilah Majid Cooke - “State, Communities and Forest In Contemporary Borneo”:
“All over southeast Asia, viewing unoccupied customary rights land as ‘idle’ or ‘waste’ land appears in different guises, and is based on fundamental error which has several features. First, colonial legal codes transformed forest into two categories: ‘natural forest’ (a political category) and ‘agricultural land’. Local management systems do not differentiate between the two categories. Once local spaces have been transformed through categorization, they are then policed using techniques of power and discipline that include territorial zoning and mapping, the constitution of institution of enforcement, and the creation of exemptions, among which are customary rights. The creation of customary rights and reference to this political process as “discovery” or “recognition” allowed state actors … to appear generous in conceding access (Peluso and Vandergeest 2001:765)”
VIII. Tungkus Asi.29. In the case of Sumbang Ak Sekam V. Engkarong Ak Ajah the Native Court of Appeal explained on the meaning of Tungkus Asi:
In order words this Court considers there was no sale and accordingly as Guyu had received Tungkus Asi from Perada the latter had prior claim to farm that land”.
30. AJN Richards in “Sarawak Land Law and Adat”
“The terms used for these payments are tungkus asi, (Iban), berasi and menasi (Fifth Division), ganti tebi kapak, tebi bliong (generally), a replacement of effort and the chipped axe blade, the rice eaten during the clearing.
31. “The Sarawak Dayak Adat Law In The Second Division”:
“a fine sometimes paid on borrowing land for farming. Properly it is a token made on taking over jerami (q.v.) or at so short an interval that some benefit may accrue to the borrower from the good omens (and crops) the lender had for the farm. It has now come to mean a recompense for the original felling. Even a purchase price of the value of the land has been called tungkus asi”.
