Minister says NCR land is state land, lawyer disagrees
Taken from: MalaysiaKini Tony Thien (Jun 19)
Minister’s statement
A Sarawak senior minister has said that all land that has not been surveyed and issued with titles, including land under native customary rights (NCR) claim, is state or government land.
“The state government will only recognize a right or claim to government land if it was created in line with the relevant written laws of the state government, including laws and the Royal Order brought into effect before January 1, 1958,” state Second Minister of Resource Planning and Management Awang Tengah Ali Hassan told the state legislative assembly last Friday.
To whom is this statement for?
The minister’s statement appears to be directed at largely the Dayak community who make up almost half of the state’s 2.3 million population. They reside mostly in the rural areas and do traditional farming and collecting firewood and timber for their own needs from temuda land and pemakai menoa (land never surveyed and without any title issued).
It is estimated that NCR land constitutes a total area of about three million hectares or more.
Awang Tengah Reply in the DUNS
Awang Tengah was replying to a written question from Ba’Kelalan state assemblyperson Nelson Balang, who wanted to know the exact relationship between NCR land and state land in view of the need for native landowners to understand the legal implications.
He explained that if there was any land dispute involving either state land or NCR land, the matter should be dealt with according to the laws.
Whose responsibility to prove ownership?
“The party making the claim must prove the validity of their NCR claim over the land,” he added.
What Lawyer Baru Bian says
A well-known Orang Ulu lawyer Baru Bian, when contacted for his comments, described the minister’s statement as “misleading and incorrect as it does not reflect the actual status of the law.”
Land Code
“It is half-truth and half lie and I would say akin to the devil trying to tempt Jesus,” said Baru, who handles a number of litigation cases brought by NCR landowners against the government and many logging and plantation companies in Sarawak.
Sarawak Land Code clearly recognizes that native customary rights
He explained: “Section 15 of the Sarawak Land Code clearly recognizes that native customary rights over land can exist in a land categorised as state land.”
“Secondly, it also clearly states that state land shall not be alienated to any person until all native customary rights therein have been surrendered or extinguished or provisions made for compensation to be paid to persons entitled to such rights.”
Baru said he hoped the minister had been misquoted or been ill advised “because his response seems to suggest there is no NCR land under the laws of Sarawak.”
Native Land Title
He explained that by virtue of it (land) being native customary rights it therefore has no titles, and when the land is surveyed and issued with titles, it would then become titled native land.
Many natives have been complaining about encroachment by logging and plantation companies into NCR land which is either farming land or kampong reserves, leading to destruction of crops and fruit trees as well as polluting water catchment areas in some areas.
Small native landowners
Earlier this week, the state assembly passed a bill to determine the composition of the Native Court of Appeal and accelerate the process of hearing some 800 cases involving land disputes between natives.
130 litigation cases against the government in civil court
In addition, about 130 litigation cases against the government and companies are before the civil courts, and more such cases are expected as more land is opened up for logging, plantation and other commercial development activities in rural Sarawak.
Peter Nansian Ngusie
Meanwhile, Peter Nansian Ngusie ( BN-Tasik Biru), who also spoke, called on the state government to survey what he described as fragmented and small pieces of land owned by natives along roads and close to urban centres and issued them with titles for commercial agriculture.
Natives could raise loan with land titles
He added that while the government was pursuing large-scale plantation activities, small native landowners desiring to go into commercial activities themselves should also be assisted so that they could raise loans with land titles.
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16 Responses to “Minister says NCR land is state land, lawyer disagrees”
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Inspirational word from gkm2020
Agreed, Approved and Correct, all non-titled land including NCR are government properties.The Native including the Dayak likes to claim what are not thiers.
To me, what Datuk Awang Tengah said was overruled by The Federal Court decision on May 5, 2009 when dismissing the application for review of the Federal Court decision on October 8, 2007 in the case of Madeli Salleh vs The State Government and the Superintendent of Lands and Surveys Department. Hence, the Federal Court upheld the Court of Appeal`s decision on April 1, 2005.Being the highest court in Malaysia, The Federal Court decision in this case is the precedent to be followed thus, this landmark judgement is of major interest to many parties as they are more than 200 claims filed in court claiming NCR over the same land.
Briefly, some of the points in the judgement includes:-
i) That the reservation of land under the Rajah`s Order 1921 did not have the effect of extinguishing NCR over land.
ii) In citing cases of Nor ak Nyawai vs Borneo Pulp Plantation Sdn. Bhd in 2005, which provide the principle that common law respect pre-existence of rights under native laws or customs.
iii) In his case, Madeli Salleh`s NCR land in Miri was reserved by the Rajah for the operation of Sarawak Oilfields Limited (SOL). and the rights of the native to occupy untitled land in accordance with customary laws subsisted in area reserved for operation of SOL,and the rights of native were the same as communal rights.
iv) That NCR in Sarawak was not created by Section 66 of the Land Settlement Ordinance, because the Section did not purport to nullify the NCR rights prior to coming into force of the Ordinance and thus, it had no retrospective force. The actual physical presence was not necessary for occupation as long as one could show that there was control over the land.
We have seen and heard that thousands of hectares of land acquired for development and oil palm plantations under the name of companies belonged to some ministers whose portfolios in the cabinet are directly involved in the land development. If the said ministers were board members and had actively participated in the decision making, or they had some pecuniary interest in the sense that they were going to benefit from the land, was it not corruption?
Agom on June 21st, 2009 5:01 pm,
Congrats buddy…
TQ
changop4540 – I think you must substantiate your statement above to allow readers to better understand what you mean by all land without title are state land.
There are many lawyers who are BN supporters – JC Fong for one that may be able to improve your perception on this matter.
Changop 4540-please read AGOM’S comment to find out whether what you have said are correct or otherwise.
Selalu ia, orang ka nadai tanah, tau ka ia bisi tang begedi meda enggi orang ka mayuh, selalu kepapas meda orang. Selalu ngaga diri pintar ari orang bukai, minta dipuji perintah, ngica ka diperening orang, laban ai nadai tanah.
Baka ni tak muntang endar nyebut semoa tanah ka nadai title di kumbai “STATE LAND”. Tu charut dunya Iban ela. Sari tu nuan rising rising ketawa ka IBAN merinsa abis tanah di tujah, lama laun orang sigi ngelempai ka penusah ngagai orang ka nemu nganu Iban setegal mantah perintah BN.
Bisi maya raung ngalih.
latest news………kaban kitai ari Layar nyangka semak ke bekejang……nyamai alai DAYAKBARU to unite All Dayak at Borneo………KENA PENYAKIT CANCER Kaban kitai ari Layar nya unggallllll
Bian Baru is a truly spirited dayak agi ngembuan slogan “agi idup agi ngelaban”.
The rest of dayaks (including myself) are coward, especially dayak lawyers who are going only for money if they take/ file the case going to court. Why dont they form the association (dayak lawyers association) to fight for our rights against the corrupted BN gomen that obviously discriminate the dayak community?
If my information is correct – 5 Dayak lawyers has formed a loose association to fight for Dayak NCR land.
Baru Bian is one of the 5. I will seek further confirmation of the name of the other lawyers. Hopefully it has grown from 5 to many more.
Agom wrote: “iii) In his case, Madeli Salleh`s NCR land in Miri was reserved by the Rajah for the operation of Sarawak Oilfields Limited (SOL). and the rights of the native to occupy untitled land in accordance with customary laws subsisted in area reserved for operation of SOL,and the rights of native were the same as communal rights.”
–Which for Sarawak government (act on behalf by JC Fong) thought the opposite and want to claim such reserved lands (Madeli Salleh lands) as state lands also. That is why NCR lands without titles and no survey done which was falls under reserved lands is quite tricky because all of such lands deemed to be the state lands (as explained by Awang Tengah recently). Madeli Salleh case is unique because regardless of which period of ruling government Rajah or present state government, NCR lands stood as it is. Madeli Salleh lands’ status for reserves land for SOL is quite ‘temporary’ unless actual oilfield activity works being done so in effect Madeli Salleh still have the right as the sole NCR landowner. The change of government (from Rajah times to now BN) and state land codes doesn’t mean the end of land ownership for Salleh and all those ‘temporary’ reserves lands also can’t be deemed automatically falls under state land, but state government thought all are theirs for taking. Now the said land got some school already built on it, Madeli Saleh can go for further compensation from state government which in first place it’s illegal for state government to do so without Salleh’s permission or land acqusition from Salleh.
It is good for Federal Court to set a limit on what the state government can claim or not, always think everything under the sun belong to them as they wish and fancy. The fact that there are hundreds of NCR land case still piled up shows state government’s disregard and greed to day-light robbing of NCR lands especially from the Dayak landowners. This is not an opposition-fed fear but a real threat to Dayak land rights, made even easier by own Dayak leaders for their selfish self-serving cronism. Only fickle minded like Apanama itu 4540? can happily deny it blindfolded.
awang tanah nya ka meh… laban ia udah maioh ngambi tanah ncr kitai lalu digaga ia land title. Kitai rh panjai sentiasa ngasuh perintah nyukat tanah kitai tang pending sida ia tuli…mata sida buta enda peduli ka kitai.
nyamai2 Aaaawang tanah nya deka ngambi tanah kitai.
Badu agi ngundi bn kitai…laban sida nya meh ka ngerampas hak kitai.
The dayaks,
Dont ever dream of taking back the useless native land becos we r a useless natives, never try to develop our own land thus far, leaving us far behind the other races. Shame on Dayaks…
Barang sapa ke besai kuasa, nya meh ngempu menua. Semua balak nya enggi sida iya. Tebang balak, udah nya tanam kelapa sawit.
Baka ba bandar tu meh. Sapa gengster ke bekuasa, sida nya meh ke ngelanjak sida gengster bukai ke lemi. Mayuh meh habuan ulih sida iya.
It needs a strong gangsterism attitude to monopaly what the earth has.
Are Changgop4545 (double gg number 4545) and Changop4540 (one g number 4540) brothers?
Today the decendents of lazy ancestors have no NCR land to inherit. They are the ones who are in favor of the present State Govt’s policy of land robbery. Will this kind of Dayak please SHUT UP!!!
well done…. I visited Long Semadoh in March 2010 the people in Long Semadoh are worried that they Land will be taken away….