Land Code Bill short of expectations

By Simon Peter

KUCHING, Oct 30, 2014: The Land Code (Amendment) Bill 2014, to be tabled at coming Sarawak State Assembly sitting, is short of expectations of those who want to see a comprehensive and inclusive definition in the native customary rights (NCR) land.

The Bill has excluded giving definitions to "Pemakai Menoa" (territorial domain) and "Pulau Galau" (communal forest reserve) as NCR land.

Picture: Chief Minister Adenan Satem is to table the Sarawak Land Code Bill

The Sarawak Land Code has not given the definitions  "Pemakai Menoa" and "Pulau Galau", although the Federal Court has accepted "Pemakai Menoa" and "Pulau Galau" as part and parcel of NCR lands.

Leading NCR land rights lawyer Baru Bian and See Chee How have all along been calling on the government to amend the Land Code by adding the definitions  of "Pemakai Menoa" and 'Pulau Galau".

The Land Code and the state government, however, only recognise cultivated or farmed land as NCR land.

But most of the 200 cases pending  before the court or have already been decided by the court, involved claims on "Pemakai Menoa"and "Pulau Galau".

NCR landowners have rejected the government's definition of the NCR land as it is only confining to cultivated or farmed land, hence the court cases.

Native landowners go to court because the government has issued provisional leases to plantation companies that include lands the natives claim as their NCR lands, including "Pemakai Menoa" and "Pulau Galau".

 

There is a brighter side to the Land Bill relating to the transfer of NCR lands from one native to the other.

The Bill, to be tabled by Chief Minister Adenan Satem, however, seeks to permit owners of land held under native customary rights to transfer, dispose of or have dealing over such lands.

The natives may also acquire, purchase and inherit such lands.

The amendments to the Land Code to transfer or dispose arise out of the Bisi Jinggot vs Supt of Lands and Survey, Kuching Division, and 3 Others case.

Picture: Baru Bian, State Assemblyman for Ba'Kelalan and Sarawak PKR chief, has proposed that the amendments should include giving definitions to Pemakai Menoa and Pulau Galau as NCR lands.

Jinggot lost the case because he had acquired the lands by way of sale and purchase agreement.

The highest court of the country held that "the bottom line that individual customary rights created or acquired by natives through the practice of their customs could not be transferred for value or to someone from outside their community or district."

The court ruled that Jinggot could not acquire the NCR land by way of sale and purchase agreement, which he did, hence the transfer of the land was deemed null and void.

The Code Bill seeks to rectify this "archaic" law by amending Section 5(2) of the Land Code, with a new subsection.

Section 5(2)(b) reads:"any native lawfully in occupation thereof shall be deemed to hold by licence from the government and his rights over the land may, upon the date of coming into force of this paragraph, be inherited, acquired or purchased by or transferred or sold or disposed of to or dealt with another native."

The purpose of the Bill is to enable the transactions to be effected in respect of lands over which native customary rights lawfully subsist.

The proposed new provisions are intended to apply to all such cases made prior to the date of coming into force of the amendments, except where such transactions had been invalidated or declared unlawful, null and void by the court and is a subject matter in any proceedings pending for the court.

The Sarawak State Assembly will sits from Nov 10 to 19, 2014.