The Sarawak Land Code and the elimination of native customary rights
This article is posted for the education of readers on the Sarawak land code and the BN government efforts to eliminate native customary rights. Dayak must fully understand this information to help them make necessary changes and take actions where possible to help the Dayak community.
IDUP DAYAK
The 1957 LAND CODE
THE 1957 LAND CODE remains the principal land law in
The people dependent on Native Customary Lands, however, do not generally have copies of maps defining which areas of their lands have been officially documented as NCL.
State has no power
When considering rights of access to forest resources, the state has no power to issue a Forest Timber Licence over NCL. This has been tested in the case of Keruntum Sdn Bhd vs. Minister of Resource Planning in 1987.
The only powers which grant the state government to allocate timber licences are contained in the Sarawak Forestry Ordinance under: Section 49—the State government is empowered to issue a licence over Forest Reserve areas; Section 51—over
This is very significant as it implies that all of the Forest Timber Licences that have been issued over NCL may have no legal basis.
Native Customary Rights
The native peoples of Sarawak may also enjoy Native Customary Rights (NCR), i.e. the use of land resources on land categories outside of NCL (except Reserve Lands), but again no steps have ever been taken to define exactly over which areas these rights exist.
Another weakness of NCR as recognised by statute law is that the natives do not collectively own the land upon which they depend, but only have the right to use such lands. This in practice means that their rights over the menoa lands are weak, and this has had enormous implications when considering logging companies’ encroachment.
Logging industry taking are advantage of NCL
These rights to land and resources have been systematically ignored by the logging industry and breaches of native peoples’ property rights have gone largely unpunished by the state, despite an increasing number of court cases brought on behalf of community representatives and individuals.
Government removed barriers to NCL and NCR
As well as not enforcing existing rights, the state government, through the series of legislative changes detailed below, has removed all the barriers for the extinguishment of NCR and NCL of the forest peoples of
In addition to the powers already granted under the Land Code to extinguish Native Commual Reserves (Section 6(4)), and for the extinguishment of NCR (Sections 94(2) and Section 15),138 further amendments have been enacted to the detriment of NCL and NCR:
New Enactment that is detrimental to NCL and NCR
Six weeks notice
§ 1974, Section 5 (3 & 4), granted power to the Minister to extinguish native customary rights after six weeks notice by publication in the government Gazette or brought to the notice of the persons affected.
Land must not be left unused for consecutively three years period
§ 1988, Section 33 (1)(a), re-entry in case of breach or default: a fine may be imposed if the land is not used consecutively over a three year period and the land then later re-classified as state land if title rights are not implemented.
This amendment effectively ties people practising shifting agriculture to a single plot of land, decreasing their food security and increasing poverty.
“Public Utility “
§ 1994, Section 46, declaration that the land is required for “public utility”: The meaning of acquiring land for ‘public utility’ purposes has been enlarged under this amendment and provides a broader base for the extinguishment of NCR.
Burden of proof of land ownership reverse to Claimant
§ 1996, Section 5(3&4), where the government wants to develop land, the burden of proof of ownership of NCR is now transferred to the claimant rather than the reverse.
Sarawak Land Development Board and the Land Custody Development Authority
§ 1997 New Section 18(a), empowered the Sarawak Land Development Board and the Land Custody Development Authority to use their ordinances to declare an area as a ‘Development Area’ and a lease over such land may be issued for a period of not more than 60 years to any corporate body approved by the Minister.
On the expiry of the lease, any native whose land had been included in a ‘Development Area’ must apply to the Superintendent of Land and Survey if they wish to re-establish their land rights.
The Superintendent may, subject to the direction of the Land and Survey Department’s director, issue such a grant to the people concerned upon such terms and conditions as he deems fit to impose.
In policy this legal power has been called Konsep Baru or New Concept for NCR land development.
Conclusion
The Dayak who surrendered their land into “Development Area” believes that after the expiry of the 60 years lease to commercial interest, the land will revert to them. The promoters of New Concept for NCR land development is not telling the people of this particular clause. Could these be a dishonest intention by the promoters.
The rural Dayak and many young educated Dayak are not even aware of the mechanism used in the NCR land development concept. This article will help the young Dayak to better explain the pro and con of the NEW CONCEPT of NCR Land Development.
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7 Responses to “The Sarawak Land Code and the elimination of native customary rights”
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Masing need to say something on this..
(1) This is the most unbrilliant article about land administration I ever read.
(2) Though the writer had stated certain proviso of Sarawak Land Code (Chapter 81) of 1958, but it rather showing the stupidity of the writer when discussing the issues.
(3) The writer failed to discuss concept of Native Customary Right under prior Chapter 81. By quoting 1st January 1958 as a cut of date of creation of NCR showing that the writer have no knowledge on the Native Customary Right concept.
(4) Perhap the writer should consult legal officer of Lands and Surveys Department before accusing that the law has been enacted to extinguish the Native Customary Right.
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The Land and Survey Department can’t even argue intelligently what is so “unbrilliant” about the article. Instead they resort to name calling. Their response only shows their inability to communicate, much less to understand the injustices suffered by the natives in matters of land rigths.
(i) The rights of the Indigenous People of Sarawak must be restored.
(ii) The Sarawak goverment must cancel/retract all the licences or provisional lease (PL) that have been issued to all the developers, for the so called development.
(iii) Developers that have encroached into the territories of indigenous people must vacate all the areas immediately, and compensate the indigenuos people accordingly, at market rate and not foreign labor(slavery)rate, for all the damages to the environment and the inhabitant done and loss of potential income.
(iv) The Terms and Conditions of the Agreement proposed by the developer does not benefits the indigenous people.
(v) The Certified Land Surveyor should do their job i.e. by surveying all the NCL (plus NCR e.g. temuda and areas that the natives “slash & burn” & cultivate), “pemakai menua” i.e. communal lands or territorial domain, and “pulau” i.e. reserved virgin forests, instead of doing survey works for the rich and influential only.
(vi) The Land and Survey Department, Superintent, should issue “grant in perpetuity” to all the natives, the indigenous people of Sarawak.
Congrats! I do admire the writer’s knowledge on this topic. He has highlighted all those hidden facts, which are not found in other established literature. My advice to the writer is that he should rewrite the article and do lots of editing.
Yes, sometimes, PhD scholars tend to forget such a little thing – like the editing process. Try to be a good scholar, as you have gone through the whole process of “Permanent head Damage” treatment kind of thing… Heh!
Don’t just post it and then left it unedit.
A good work done, doc!
In Ng Entuat (Katibas Tengah), Katibas Song, 96850 Song Sarawak. Land & Survey department try to survey NCR land based on 3km from the Sg.Katibas river. This cause uneasiness and unhappiness over the wrong classification done by the L&S department. Please give some insight on how to reverse the whole process.
Thanks