Land Code (Amendment) Bill 2000 - Rengah Sarawak

Land Code (Amendment) Bill 2000
A bill the Natives of Sarawak will pay with all their
customary land rights
9 th May 2000
- Chendang Hollis
The Sarawak State Assembly sits again this week.
If there is anything that the public in Sarawak in particular and all others in Malaysia or the world
can expect from this sitting is that there will be an amendment to the existing ordinance relating to
land-use in Sarawak. The new amendment will especially further restrictive limitation and or curbing
of the natives in their claim for native customary rights over land.
The State Assembly, with the exception of two opposition representatives from the DAP, is under
the dominance of the Barisan Nasional (BN) government. In this sitting, the BN government is
introducing a Land Code (Amendment) Bill 2000 for a major overhaul of the Sarawak Land Code.
Indeed, once passed as it would, a process will be in place for the expeditious extinguishment (now
the government claims that there will be no more ‘extinguishment’ but ‘termination’) of native
rights to land.
Preliminary note:
While the statements made herein made reference to native customary rights (hereinafter
‘the NCR’) land or native customary land (hereinafter ‘the NCL’), of which the natives
of Sarawak claim land rights in accordance to their traditional and customary law
and practice, the arguments are equally applicable to such land occupied by Malays for
they acquire rights over land in similar manners. While it was not clearly provided that
such customary land rights enjoyed by the Malays will be restricted, limited or curtailed,
the proposed amendment specifically makes reference to such ‘natives rights’ as rights
over native customary land or Government Reserves declared for the use of kampung or
kampung reserves or similar purposes.
What is installed in the Land Code (Amendment) Bill 2000
The explanatory statement appended to the proposed amendment bill provides that the principle
objectives of this amendment to the Sarawak Land Code (hereinafter the ‘SLC’) are:
(a) to accord recognition to rights lawfully created by natives over untitled or State land or over
native customary land or Government Reserves declared for the use of kampung or kampung
reserves or similar purposes;
(b) to harmonize the process and procedure for the resumption of land under native customary
rights or within Government Reserve used as kampung or kampung reserves or similar
purpose, with that of alienated land; and
(c) to harmonize the process of adjudicating the amount of compensation to be paid for the
termination of rights lawfully created over such native customary land or Government Reserve
used for the purposes aforesaid.

Reading of the 19-pages proposed amendment bill in toto revealed “revolutionary” reconstruction
of the Sarawak Land Code and the significant changes made to the Code which includes:
1. the definition of “native rights”;
2. the creation of new sections in the Code to provide for the creation of a Register of
‘natives rights’ land;
3. further restriction on the methods in the natives’ claim to possess NCR over land by
deleting section 5(2)(f) ‘any other lawful methods’;
4. the vesting of power with “the Director of Land in consultation with the Minister” in
determining whether any grant should be issued to natives who had acquired rights by
customary tenure to land;
5. the deleting of section 82 of the SLC which originally provided that the general provisions
for resumption of land by the government in Part IV does not include the ‘extinction
of native customary rights’, and corresponding amendment to section 46, making
provisions clearly for the purposes of extinguishing (‘terminating’) native customary
rights;
6. Shortening of period of time for claim of compensation for interests or rights over the
land resumed by the government from 60 days to 45 days;
7. substituting of the words ‘extinguishment’ and ‘extinguished’ as used in current SLC for
extinguishment of native customary rights wherever they appear with the words ‘termination’
and ‘terminated’.
NCR Land has always been a contentious issue for decades and the continuing loss of NCR land to
supposed “development” such as roads, dams, logging, oil-palm plantations, and other mega projects
surfaced more prominently after the indigenous peoples continue to take more direct actions to
protect their land. Such peaceful action as symbolic blockades and protests continue to surface after
the affected communities receive no response from the authorities and companies concerned to
request for dialogues.
Before this proposed bill, the state government had been talking about 2 major changes that would
be brought to the SLC, i.e. to enhance the legal recognition of the NCL and that there will be no
more ‘extinguishment’ of native customary rights over land. Suggestion for the 2 proposed changes
were approached with enthusiasm though cautions. It was said that by amending the SLC and to
give NCL better legal recognition would enhance the value of NCL by facilitating financing, transfers,
transmissions, inheritance and acquisition of NCL. With the assurance that there would be no
more ‘extinguishment’ of native customary rights, it was thought that the state had finally come to
its senses in recognising NCR.
However, it was a surprise to many when the proposed amendment bill came in 19 pages, with 32
items listed on the amendment bill.
One may ask why should such a massive change be brought to the SLC.
Though not exclusive, the SLC as it is could sufficiently provide for the recognition of NCL. In
order to facilitate financing, transfers, transmissions, inheritance and acquisition of NCL, what is
needed are clauses providing for the recognition and protection of NCL. In addition, provisions can
be made for mechanisms to demarcate the boundaries of NCL, issue titles of perpetuity (as the
customary practice would have accorded them) and remove all restrictions (such as clauses limiting
the scope of NCL) on claims to NCL. Furthermore, amendments to repeal such clauses providing
for the ‘extinguishment’ of NCR land will provide more certainty to the recognition of NCL.
Unfortunately, such political promises are never meant to be.

‘Extinguishment’ and ‘termination’ of NCR over land
On the issue of ‘extinguishment’ of NCR over land, the proposed amendment bill now seeks to
“substitute the words ‘extinguishment’ and ‘extinguished’ wherever they appear in various sections
(sections 4, 15, 33A, 94 or 141) of the SLC with the words ‘termination’ and ‘terminated’
respectively”.
It will be interesting to find out how the state BN government will justify that ‘termination’ of NCR
over land does not equate or that it does not carry the same meaning as ‘extinguishment’ of NCR
over land!
“Natives rights” over land
Under the proposed amendment, it provides that “native rights” over state land means rights described
in section 7A(1), created by or belonging to a native over land not issued with a document
of title.
Sections 7A, 7B, 7C, 7D and 7E are new sections proposed to be included in the SLC. The “native
rights” over state land in section 7A(1) refers to
a) rights lawfully created pursuant to section 5(1) or (2) ;
b) rights and privileges over any land declared as a Native Communal Reserves under section
6(1); and
c) rights within a Government Reserve declared under section 7(1) to be used as a kampung,
kampung reserves or any similar purposes.
It is noted that NCR land created under section 5 must be by the methods stated under section 5(2)
and with a permit from the District Officer given under section 10 of the SLC. Section 5(1) provides
that no recognition shall be given to any NCR over land in Sarawak created after 1.1.1958 but
NCR may be created by methods specified in section 5(2).
The former section 5(2) provides that the methods by which native customary rights may be acquired
(the amendment bill provides that ‘acquired’ be substituted by ‘created’) 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 methods (now proposed to be deleted).
no
recognition
The principal purpose of the SLC of 1958 in this aspect is clear, i.e. that there shall be no more NCR
land to be created after 1.1.1958 but that such NCR land created before 1.1.1958 in accordance to
section 5(2) and still subsisting, may be recognised. Unfortunately, section 5(2) itself places limitations
and restrictions on the scope of NCR land to be recognised as there is no provision that the
boundaries of such NCR land are to be determined in the spirits and methods of the customary laws
and practices of the affected indigenous communities.
Because of the provisions above and based on the pre-amendment SLC, it loses all purposes and
meanings for the registration of NCL and this being the major cause that sparked off the disputes,
discontentment and the ongoing struggle of the native communities over their land rights. The
native communities insist that their NCL should be accorded statutory force in accordance with
their customary laws and practice with regards to creation or acquisition.

With such conflict of principles, it is hence doubtful if there were NCL created or acquired on or
after 1.1.1958.
Yet the proposed amendment provides for the registration of NCL with rights acquired or created
after 1.1.1958 of which there is, most likely, none!
The proposed deletion of section 5(2)(f)
Without any clarification or explanation in the explanatory statement, the proposed bill seeks to
delete this section which provides that the native communities and or individuals may acquire NCR
over land by “any other lawful methods”.
This proposed amendment is most detrimental to the native communities because subsection (a) to
(e) of section 5(2) severely curtailed the rights of the natives to their NCL as are rightfully theirs
pursuant to their adat (customary law and practice). The often-cited examples are that the watercatchment
areas, communal forests and or any other components of land sanctioned as “menoa”,
“pulau”, “tanah penurip” etc, recognised under their customary practices, do not fit into any of the
subsection from (a) to (e). Subsection (f) provides for the only means that may be relied upon by
the natives to claim such land rightfully theirs in accordance to their customary law and practice, by
taking “any other lawful methods” to means “customary law and practice”. With the deletion of
s5(2)(f), any claim under the adat will be completely curtailed.
The Register of native rights
The Register of native rights is a separate register from the present statutory Register as provided
under Part VII of the SLC. This is clearly seen from the amendment to the definition of “Register”
which shall now reads:
“Register” means the Register kept under Part II but does not include a Register
of native rights kept under section 7A(2).
Therefore, on the outset, many believe that since the state government is attempting to register all
native rights over land, the amendment should be welcomed and supported. Such belief is, unfortunately,
a far cry from the intention of the amendment.
The new sections 7A, 7B, 7C, 7D and 7E made provision for the registration of native rights;
transfer, transmission, inheritance or acquisition of native rights; remedies; effect of registration;
and protection against the government, are meaningless for as far as rights of natives to customary
land are concerned.
Separated from the statutory Register, this Register of native rights is at best only a record of the
NCR land with the landmass much curtailed in the process of registration.
Section 7A(1) provides for the registration of only untitled (i.e. without document of title) land
claimed to be held under native rights, but the manner of registration is yet to be specified. Even if
a special document of title was given, it is unlikely that such title is of any value. This could be
concluded from the fact that any land claimed to be held under native customary rights and practice
being registered are expressly excluded and shall not be registered in this Register of native rights,
as provided under section 7(3).

The contention that the Register is only a meaningless record can be further substantiated by the
amended section 49 wherein subsection (5) provides that notwithstanding even if the Superintendent
serves a notice on any person he believes to have rights created over any land (with the Register
of native rights, it may be argued that there is now protection of the natives since there will be
notice of such rights existing over disputed land) it shall not be deemed to be an admission or an
acknowledgment on the part of the government that the person to whom the notice is addressed has
any rights over such land.
The new section 54A made specific provision for the resumption of non-titled land and it states:
“Where the Superintendent has taken possession of any Native Customary Land or
land previously constituted under section 7 as a Government Reserve, such land shall
be vested in the Government free of and unencumbered by any native customary rights
and shall revert to the Government and if any rights over such land are registered
under section 7A, an entry be made in the Registered of Native Rights of the termination
of such rights and the land may be alienated in accordance with section 13.”
Together with the deleting of section 82 of the SLC which originally provided that the general
provisions for resumption of land by the government in Part IV does not include the ‘extinction of
native customary rights’, and corresponding amendment to section 46 making provisions clearly
for the purposes of extinguishing (‘terminating’) native customary rights, all native rights to land
effectively vanished in thin air.
In such a case, any registration will be rendered meaningless too. Any hope that transactions may
be effected for transfers, transmission, acquisition or inheritance and that such transactions may be
financed by banking institutions etc are mere illusions since the Register is no conclusive proof of
ownership to the land.
Many natives who have attempted to register their NCR land have also the experience that registration
are made on prescribed forms and they are to state their claims as provided under section 5(2)
and this means that they are unable to register rights over land in accordance to their customary law
and practice. The same is true of the Register of native rights. The further limitation, restriction and
curtailment of section 5(2), by the deletion of subsection (2)(f), serves no purpose for the registration.
No more extinguishment of NCR Land? Yes, but termination. Recognition of NCR land by the
process of registration? Yes, but what extent of NCR land and for what purposes?
The battle of the natives in Sarawak to rights under their adat to protect their NCR land is not help
by this amendment bill. In fact, it is a bill too dear to be paid with all their rights and interests over
their ancestral land!