Overview of
Sarawak Land Code – its shortcomings and solutions
By
:
Abun
Sui Anyit
Advocate
& Solicitor
For
Dayak Forum on 7.1.2017
(In
Response to Federal Court Decision on TR. Sandah Anak Tabau)
The Law in
relation to Native Customary Rights (NCR) in Sarawak
Under Land Code
(Cap. 81)
Introduction
We will discuss from the perspective of
perspective of laymen. As lawyers we are cannot say the statute as wrong
because the function of court include the lawyers are to interpret the statutes
or customs used by litigants.
Land Code
overview:
1.
NCR
seems isolated sections in the Land Code (Cap. 81)
2.
No
improvement to the safeguard of Native Customary Rights over land in the Land
Code
3.
Our
rights over land getting erode over time
4.
Evidence
of the eroding rights confirmed in TR. Rumah Sandah case
Scenario /
Application 1
Section
5
(1)
“As from the 1st day of
January 1958, native customary rights may
be created in accordance with the native customary law in the community or
communities concerned with any of the method specified in subsection (2),
if a permit is obtained under section
10, upon interior Area Land. Save as aforesaid, but without prejudice
to the provisions hereinafter contained in respect of Native Communal Reserves
and rights of way, no recognition shall be given of any native customary rights
over any land in Sarawak created after 1st day of January, 1958, and
if the land is State Land any person in occupation thereof shall be deemed in
unlawful occupation of State land and section 209 shall apply thereto.
(2) The methods by which native customary
may be acquired are:
(a) The
felling of virgin jungle and the occupation of the land thereby cleared;
(b) The planting of land with fruit trees;
(c) The
occupation or cultivation of land;
(d) The
use of land for a burial ground or shrine;
(e) The
use of land of any class for rights of way; or
(f) Any
other lawful method;
Provided
that –
(i) Until
a document of title has been issued in respect of thereof, such land continue
to be State land and any native lawfully in occupation thereof shall be deemed
to hold b licence from the Government and shall not be required to pay any rent
in respect thereof unless and until a document of title is issued to him; and
(ii) the
question whether an such right has been acquired or has been lost or
extinguished shall, save in so far as this Code makes contrary provision, be
determined by the law in force immediately prior to the 1st day of
January, 1958.
(3)
(a) Any native customary rights may be
extinguished b direction issued by the Minister which shall be –
(i)
published in the Gazette and one Newspaper circulating in Sarawak ; and
(ii)
exhibit
at the notice board of the District Office for the area where the land,
over which such rights are to be extinguished is situate,
and
on the date specified in the direction, the native customary rights shall be
extinguished and the land held under such rights shall revert to the
Government:
Provided that where such rights are
extinguished in pursuance of this section compensation shall be paid to any person
who can establish his claims to such rights in accordance with paragraph (b)
and (c); or other land over which such rights may be exercised may be made
available to him with or without the payment of additional compensation whether
for disturbance, or for the costs of removal, or otherwise.
(b) Any person who
desires to make any claim for compensation must submit his claim with evidence
in support thereof to the Superintendent, in a form to be prescribed by him,
within such period as may be stipulated in the direction issued by the Minister
under paragraph (a), provided that the period so stipulated shall not be less
than sixty days from the date of
publication or exhibition thereof.
(c)
No claim for compensation for extinguishment of native customary rights
shall be entertained by Superintendent unless such claim is submitted within
the period stipulated in paragraph (b).
(4)
(a) Any
person who is dissatisfied with any decision made by the Superintendent under
subsection (3) on the ground that -
(i)
his claim to native customary rights has
been rejected or not recognized by the Superintendent;
(ii)
the allocation of land over which such
tights are to be exercised, is inadequate or inequitable; or
(iii)
the amount or apportionment of
compensation is inadequate, unfair or unreasonable,
may
within twenty-one days from the date of receipt of the decision
of the Superintendent, by notice in writing addressed to the Superintendent,
require the matter to be referred to arbitration in accordance with Section 212.”
(b) Upon receipt of the notice of arbitration,
the Superintendent shall direct that any compensation payable to the person who
desires to have his or matter referred to arbitration, to be deposited in the
High Court, pending the outcome of such arbitration proceedings.
(5) Subsection (3) shall apply whether the
land over which the customary rights are exercised is required for a public
purpose or the extinction of such rights is expedient for the purpose of
facilitating alienation, but shall have no application to cases in which the
Forests Ordinance [Cap. 126 (1958 Ed.)], the National Parks and Nature Reserve
Ordinance, 1998 [Cap. 27] or any other written law, including Part V, makes
other provision for the extinguishment thereof.
(6) The
Majlis Mesyuarat Kerajaan Negeri may make rules for the assessment of
compensation payable for extinguishment of native customary rights under this
section and section 15.
(7) Whenever
any dispute shall arise as to whether any native customary rights exists or
subsists over any State land, it shall be presumed until the contrary is
proved, that such State land is free of and not encumbered by any such rights.
Scenario / Application
2:
Section
28 Land Code: Survey required before
alienation
28.
(1) No
State land shall be alienated under this Code unless and until the survey of the land
has been completed to the satisfaction
of the Superintendent.
Provided
that, when the immediate survey
of any State land is impracticable,
the Superintendent may order
that a provisional lease in Form C in the First Schedule be executed in favour of the person entitled.
(2)
Every provisional lease shall specify the approximate extent and
area of the land included therein but shall not be entitle the holder to grant or lease of the whole of the area
specified.
(3) Notwithstanding the payment by him of
any of any rent in respect of the area stated, the registered proprietor of any provisional lease shall have no right to registration of a lease in
Form B in the First Schedule for an area equal to the area stated to be
alienated if on survey such area is found not to be available.
(4) Save where the context otherwise
requires, this Code in connection with leases shall apply to provisional lease.
Shortcomings of the above
Section 28 (from the perspective of Natives):-
Section 28(1)
(a) All
lands are considered State land under this section;
(b) Survey
of land – no need inform the Native within the area;
(c) The
survey completed to the satisfaction of the Superintendent (without Native
satisfaction);
(d) If
immediate Survey is impracticable, Superintendent may order PL be executed in
favour of the person entitled;
Solutions:-
(a) Prove
the land is our Native Customary Rights land;
(b) Take
care or watchful of your land all the time (include PM/PG);
(c) The
Natives need to oppose or check any survey by the “State land” by surveyor
engaged by the Government or Company
(d) Schedule
check your land area in Land Office nearby whether issued with PL or not
Section 28(2)
No
shortcoming / fair.
Section 28(3)
No
shortcoming / fair.
Section 28(4)
(a) This
part is trying to put the meaning and effect of lease (S. 117) into the meaning
or interpretation of provisional lease.
Solution:-
(a) To
amend the subsection accordingly.
For
Discussion and comments:
Series
of Amendment of Sarawak’ Laws. – Any shortcomings in the amendments?
1970s – Redefinition of rights through
amendments.
1994 – Minister empowered to
extinguish any land
1996 – Burden shifted to native
claimant to prove ownership and lawful occupation.
Example:
Section
5(7) Land Code:
(7)
Whenever
any dispute shall arise as to whether any native customary rights exists or
subsists over any State land, it shall
be presumed until the contrary is proved, that such State land is free
of and not encumbered by any such rights.
1997 – Occupation without permit
illegal “notwithstanding any custom to the contrary”.
1998 – Compensation for
extinguishment, resumption of compulsory acquisition
2000 Land Code Amendment.
Particular:
section 5 in sub section (2)…………..
>.
(i) In substituting the word “acquired” where ever it appears in the subsection
with word “Created”
Note :
Amendment
to Subsection 2 (f) was not consented to by Governor of Sarawak (not gazetted).
Question to ponder:
With the above amendments, does it for improvement
that benefiting the peoples/natives?
Present Challenge:
“Pemakai
Menua and Pulau Galau” under adat Iban (Natives) in TR. Sandah Anak Tabau
decision have no force of law.
-
In other words, under the law we Dayaks/Natives
considered as squatters on “State lands” all over Sarawak.
Conclusions
Solutions to the shortcomings of
Land Code, the government need to appoint the Sarawak Attorney General (SAG) to
lead SAG Chambers should from the Natives because this land of Sarawak is
mostly populated by the Natives who has the indebted conscience for the Natives
of Sarawak include heritage and NCR land include pemakai menua and Pulau
Galau.
With the lands rights problems we
the Natives, Dayak in particular are facing until today as if we are in need to
install a Dayak to be incharge of lands who is knowledgeable customary law and
custom with full authority to oversee land problem in Sarawak.
1 comment:
From memory, i thought that Section 5, 6, 7, and 8 were the ones that caused issue, and may act as an extinguishment of native customary right.
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