Overview of Sarawak Land Code- Its shortcomings and solutions

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 1^st 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 1^st 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 1^st 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.