Ba'Kelalan State Assemblyman Baru Bian's debate speech on the Land Code (Amendment)
Bill 2014 at the Sarawak State Assembly today, Nov 10, 2014
Ø Section 5(2)
The proposed amendment to section 5(2) of the Land Code
is the “reincarnation” of part of my private Bill, which was rejected by a vote
in this august house in our last sitting in May. Nevertheless, I am happy to
lend support to the amendments proposed in the present Bill before us today
except a small reservation on the new section 197A, for reasons I will
elaborate later.
This Bill fundamentally seeks to amend section 5(2),
amongst other things to allow untitled NCR lands to be “inherited, acquired or
purchased by or transferred or sold or disposed of to or dealt with another
native”. In the context of this Bill and in the light of section 5 of the Land
Code, I believe the NCR land referred to herein is in reference to “temuda” NCR
land and not to the “pemakai menua” or the “pulau galau” which is normally
co-owned by the community.
Secondly, since the concept of “pemakai menua” and
“pulau galau” is yet to be officially accepted by the State Government, I would
submit that this amendment is indeed in reference to “temuda” NCR land.
Thirdly
Mr. Speaker, it is also premised on the fact that, customarily and legally only
“temuda” rights could be dealt with by the claimant/s.
Mr. Speaker, I believe this particular amendment was
triggered by the Federal Court case of Bisi Jinggot @ Halirion Bisi ak Jinggot
v Superintendent of Lands & Surveys, Kuching, & 3 Ors [2013], where the
Federal Court declared unlawful the sales of NCR lands by some Ibans to an Iban
person who came from another community or village different from that of the
seller although all are native Ibans.
But that was because the expert witness
in that case said it is not allowed in accordance with the adat or custom of
the Ibans in that case. But Mr. Speaker, such sale is in fact allowed in some of
the native communities in Sarawak; for example the Lun Bawangs and Tagals in my
constituency.
Therefore, this amendment to section 5(2) is necessary and timely
as I had proposed too in my private Bill referred to earlier; i.e. to put a
general sanction or endorsement to such sale of NCR land amongst natives in
Sarawak.
Mr. Speaker, of course there are some people who are very
jittery of this amendment. They say that this would allow rich natives to take
advantage of the poor natives landowners to part with their NCR lands in such
transaction thus taking advantage of the financially weaker landowner.
There is
some merit in this argument Mr. Speaker, but at the same time we cannot
prohibit genuine transactions that could have been done between a willing buyer
and a willing seller. Therefore, I propose a middle ground, Mr. Speaker, and
that is to restrict the acreage in one transaction to 500 acres and that such
sale must be registered at the District office where the land is located and
the village chief be notified.
This will be a safety measure to check for such
an abuse of this section. In fact this is consistent with the restrictive
spirit of section 19 of the Land Code where the Code prohibits the issuance of
a single document of title either alone or jointly owned beyond 5000 acres.
Here I am proposing 500 acres and not 5000 acres. Mr. Speaker; if this
suggestion is not possible to be incorporated in this Bill, I propose that the
same could be laid down as rules made under section 213 of the Land Code in particular
subsection (1)(e)[1].
Ø Section 15
The Bill states, “Section 15 is amended to include after
the word “made” at the end of subsection (1) thereof the words “in accordance
with section 5(3) and (4)”. So the whole of section 15 would now read:
“15(1) Without prejudice to
sections 18 and 18A, where native customary rights have been lawfully created
over State land, such land shall not be alienated or be used for a public
purpose until all native customary rights have been surrendered or terminated
or provisions for compensating the persons entitled thereto have been made in
accordance with section 5(3) and (4)”.
Mr. Speaker, section 15 is a very good section, which
guarantees the compensation to NCR landowners when his NCR land is acquired for
public purpose. Although the amendment sought here is just to make the
acquisition kind of complete by relating it to section 5(3) & (4) of the
Land Code, please allow me Mr. Speaker, at this juncture to make comments on
section 5(3) for the Minister’s consideration for further amendment.
Section 5(3) allows the Minister to extinguish any NCR
over NCR land by direction, which shall be: -
“(i) Published
in the Gazette and one newspaper circulating in Sarawak; and
(ii) Exhibit at
the notice board of the DO for the area where the land, over which such rights
are to be extinguished is situate,
and on that date specified in the direction, the native
customary rights shall be extinguished and the land held under such rights
shall revert to the Government.” Then the next proviso to that section talks
about lodging your claims within 60 days and if NCR is established compensation
made to the owner.
Mr. Speaker, a few serious problems arise from this
section 5(3) process:
1. The natives
in the ulu or rural Sarawak do not read Government Gazette or read the
newspaper, especially those living in the highland of Long Semadoh, Bakelalan
or Bario, Mr. Speaker. I assure you, Mr. Speaker - no Gazette or newspaper
reaches the rural areas of Sarawak. What more to say the natives in rural
Sarawak when even most YBs or lawyers or any professionals for that matter do
not read Government Gazette. As to newspapers, maybe some do read.
2. “To exhibit
at the notice board of the DO for the area where the land, over which such
rights are to be extinguished is situate”. How often does the native come down
to the District Office? Maybe once a year just to renew his gun licence or to
apply for his children’s I.Cs etc.
Even if he comes down to the District
Office, how do you expect him to read what is on the Notice Board? Well, if he
can read well and fine. But if he is illiterate like many of our relatives,
they are done for, because the section requires them to lodge their claims for
compensation within 60 days failing which “no claim for compensation for
extinguishment of NCR shall be entertained” by the Superintendent under
subsection 3(b).
Mr. Speaker, at this juncture may I respectfully ask that
the Minister consider seriously amending section 5(3) (a) further by:
(i) including
the said extinguishment direction to be exhibited at the “door” or “bilik” of
the village Chief or Ketua Kampung or Tuai Rumah where the said land is
located;
(ii) providing
that there must be a free prior consent process conducted with the natives in
accordance with the requirements under the United Nations Declaration of Rights
of Indigenous People.
On the second proposal above, Mr. Speaker, some natives
may own only that one piece of NCR land acquired by the Government for this
public project or that piece of land may have some sentimental value to him or
the family and therefore taking it away from him although compensated may not
be the best thing for the person concerned. You may be aware Mr. Speaker,
compensation for NCR land especially in the rural Sarawak is very negligible.
So the natives may prefer the land than the money. But section 5(3) gives them
no right to oppose the acquisition. For example, in a recent case in Buduk Nur,
Bakelalan where a beautiful buffalo ranch of more than 10 acres was acquired
under this section 5 for Government buildings, compensation offered was around
RM20,000-00.
The owner and the children refused to accept the compensation or
acquisition and preferred the land. So when they asked my opinion I said under
the present provision you have no right to oppose the acquisition. Once the
process under section 5(3) of the Code is done you only have the right to argue
on quantum of compensation. A very sad state to be in.
Mr. Speaker I have come across many such cases, and I
strongly believe that section 5(3) must be further amended to address these
real practical problems.
Ø Section 18A
The amendment sought under section 18A of the Code is
commendable as it makes it mandatory for the issuance of document of title
under section 18 to the natives whose right of ownership had already been
proven or recognized as opposed to the earlier provision where the natives may
have to apply for the issuance of such document of titles.
Ø New Section 197A
Mr. Speaker, I am not very comfortable with this new
section 197A. This is because the Government appears to be shying away from her
fiduciary duties towards her children; in this case the natives of Sarawak by
pleading immunity.
This legal and constitutional responsibility is now applied
in our country in the Court of Appeal case of Kerajaan Negeri Selangor &
Ors v Sagong Tasi & Ors [2005] 4 CLJ 169 where His Lordship Gopal Sri Ram,
approving the High Court’s judgment said:
“The content of the fiduciary duties has been described
in many (sic) ways.
But in essence, it is a duty to protect the welfare of the
aborigines including their land rights, and not to act in a manner inconsistent
with those rights, and further to provide remedies where an infringement
occurs. In Mabo No 2, (Mabo & Ors v. State of Queensland & Anor [1986]
64 ALR 1) it was said that the obligation on the Crown was to ensure that the
traditional title was not impaired or destroyed without the consent of or otherwise
contrary to the interests of titleholders.
And in the Wik People’s case, (The
Wik Peoples v. The State of Queensland & Ors [1996] 187 CLR 1) it was
reiterated that the fiduciary must act consistent with its duties to protect
the welfare of the aboriginal people. The remedy, where the government as
trustee or fiduciary has breached its duties, is in the usual form of legal
remedies available, namely by declaration of rights, injunctions or a claim in
damages and compensation.”
The new section reads: “No action or claim for
compensation shall be brought against the Government arising from any
inheritance, acquisition, purchase, transfer, sale or disposal of or other
dealing in land over which native customary rights subsist as provided in
paragraph (i) of the proviso in section 5(2).”
I have no problem with the words, “inheritance,
acquisition, purchase, transfer, sale or disposal of” which connotes the
dealing of the individual over his own NCR land, but what is worrying to me is
the next phrase “or other dealing in land over which native customary rights
subsist”.
Mr. Speaker, it appears to me that the Government may not
be liable for compensation where NCR lands may be included in Timber Licences,
or Provisional Leases issued to a third party. Can I ask the Minister whether
the issuance of Timber Licence, Provisonal Lease, Quarry Licence or LPF licence
is considered as dealing in land and therefore covered under this new section?
If it does, Mr. Speaker, then I strenuously oppose this new section. With this
little reservation Mr. Speaker, I am supportive of this proposed Land Code
(Amendment) Bill 2014.
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