NATIVE CUSTOMARY RIGHTS TO LAND
By Henry Ling Kuong Meng
[26.8.2010]
Section 5 of the Sarawak Land Code (SLC) recognizes the native customary rights which may be created in accordance with the native customary law of the community or communities concerned.
In SUPERINTENDENT OF LAND & SURVEYS MIRI DIVISION & ANOR V MADELI BIN SALLEH (SUING AS ADMINISTRATOR OF THE ESTATE OF THE DECEASED, SALLEH BIN KILONG) [2008] 2 MLJ 677, the Federal Court held that the proposition of law as enunciated in the Australian case of Mabo v Queensland (No 2) (1992) 175 CLR 1 (commonly known as Mabo No 2) and the Canadian case of Calder v AG of British Columbia [1973] S.C.R. 313 reflected the common law position with regard to native titles throughout the Commonwealth including Sarawak.
The case of Mabo (No 2) (1992) was a landmark Australian court case in 1992 holding that by the common law, the Crown may acquire a radical title or ultimate title to the land but the Crown did not thereby acquire absolute beneficial ownership of the land, and in that the Crown’s right or interest is subject to any native rights over such land.
In the case of Calder [1973], it was the first time the Canadian law acknowledged that aboriginal title to land existed prior to the colonization of the continent and was not merely derived from statutory law. As such, the State’s right or interest is subject to any native rights over State land.
In the case of Madeli bin Salleh the Federal Court held that the Rajah’s Order IX of 1875 in no uncertain terms speaks of ‘claim or title to such land’ show that as early as 1875 the Rajah had already given due recognition to native rights over land which was further reinforced by Rajah’s Order No VIII 1920 (Land Order 1920), and that Section 22 of the SLC gives recognition to native holdings in accordance with customary laws and where possible such claim to land shall be registered, and that Section 30 provides for compensation to be paid should the Government resumes possession of any occupied land for any purpose.
The biggest problem is that genuine native rights under the SLC are not guaranteed unless they are all given due registration of native rights with land titles to be issued. At present, even genuine claimants of native customary rights may have difficulty of proving their claims to show ownership as their rights to any land of native customary rights depend on whether they could fulfill the requirements under the customary law of Sarawak pursuant to Section 5(1) of the SLC.
As I had written early in April 2010, the opposition parties tried to capitalize the issues mala fide for ulterior political purposes and it was time for BN to recognize the indigenous rights of native people so as to improve their social economic positions in the development of the State. No doubt, now BN has taken steps to carry out survey all native customary rights land in the State and with survey and registration exercise of native rights it is a formidable task but it is still better to do it once for all in solving the problem and in putting such issues to rest permanently. In doubtful cases, natives should be given necessary land on companionate ground for their longhouses or residential areas so that genuine claimants would not be left to be deprived for any lack of proof in cases where genuine claimants for native customary rights cannot positively identify their native customary rights.
Professor Dr Dimbab Ngidang of Universiti Malaysia Sarawak (Unimas) on ‘PEOPLE, LAND AND DEVELOPMENT: IBAN CULTURE AT THE CROSSROADS’ presented at the Culture Seminar at Parkcity Beverly Hotel in Bintulu on the 23rd October 1998, published by Dayak Cultural Foundation, writes:
“By definition, land tenure is the system of rights and institutions that governs access to and use of land and other resources. In Sarawak, the customary land tenure is characterised by both formal and informal attributes. The formal attribute of customary land tenure is that NCR rights are recognised and protected by the Land Code. But it is also informal customary land tenure because its recognition and acceptance are based on the adat laws in the Iban community.
The Iban land tenure system uses the concept of territory, called pemakai menoa, for exerting rights of access to land resources within a longhouse community. Each longhouse community has its own permakai menoa. The boundaries of this territory are usually marked by natural features such as rivers and ridges [Lambat, 1994]. Native communities could claim customary rights to land only applied to the felling of virgin jungle before 1 January 1958, the planting of fruit trees, the use of land for burial grounds or shrines, and the use of land of any class for rights of ways and or any other lawful methods recognised by the Land Code. In some cases, land can be acquired through purchase or by exchange of gifts such as gongs and/or cannons [Cleary and Eaton, 1996]”
Development of land law
Evelyne Hong on ‘NATIVE OF SARAWAK – SURVIVAL IN BORNEO’S VANISHING FORESTS’ on the ‘Changes in Sarawak’s Land Laws: Impact on Natives’, Chapter 4, which ‘deals with some of the major events and changes related to land law, polices and systems in Sarawak’ at p.38 writes:
“Under the Impact of Colonial rule and, later, the entry into Malaysia, the land system in Sarawak underwent a drastic change. Native found that their traditional rights to land use and expansion were severely curtailed. They became more and more ‘restricted’ in terms of their access to land. …No individual may hold more land than he can use… The indigenous system of land tenure has been gradually and systematically eroded as a result of new laws related to land and the forests introduced at various political and administrative periods in Sarawak’s history.” (See pp.38-39)
“In 1946 Sarawak was ceded to the British Crown. The most important legislation introduced by the Colonial Government was the 1948 Land Classification Ordinance. This Ordinance classified all land in Sarawak into one of five categories:
i) Mixed Zone Land;
ii) Native Area Land;
iii) Native Customary Land;
iv) Reserved Land; and
v) Interior Area Land
This was largely a consolidation of previous legislation, which was later revised and formed the basis of the 1958 Land Code.
In 1952, an amendment was made to the 1948 Land Classification Ordinance pertaining to the lawful occupation of the different classes of land created. With this amendment ‘native who were in lawful occupation of Native Customary Land were declared to be licensees of Crown Land’ (Porter 1967:61). In effect what this meant was that the Crown now assumed total proprietorship over all land in the State… This policy towards the natives was taken a step further in 1955 with another amendment to the Land Classification Ordinance. With this amendment ‘a total prohibition on the spontaneous creation of further customary rights was applied’ (Idem 1967:68). Natives were now forbidden to open up new forests and exercise customary rights or operate under customary tenure in these new areas. More important, this amendment meant that native communities could no longer move freely to establish new swiddens and new settlements in new areas as they did in the past” (See pp.44-45)
“The Land Classification Amendment Ordinance of 1955 was enacted as a result of a court decision in 1954. In Sepid anak Selir v R, the judge Lascelles J., in his judgment said…Section 8 of the Land (Classification) Ordinance natives may occupy such land for the purpose of creating customary rights…’ This judgment revealed a major loophole in the law by which new customary rights could be created by natives. The Government took immediate action to draft legislation. The Land (Classification) Rules 1954 and the Land Classification (Amendment) Ordinance 1955 which were enacted effectively prohibited any further widespread creation of new customary rights over land (Idem 1967:77)” (See pp.45-46)
“The colony embarked on its first five year Development Plan in 1955-60… In 1957, the most unified Land Code to date was promulgated. This piece of legislation came into force on 1st January 1958… One of the major objectives of the Land Code was to classify and strengthen the law relating to native customary rights. ‘The Land Code enacted provisions which continue to effectively restrict the creation of further customary rights’ (Idem 1967:83)… With this Ordinance customary rights to tenure were now restricted under Part II Section 5(2) to six methods.”
Evelyne Hong on ‘TRADE, CROPS AND LAND: THE IMPACT OF COLONIALISM AND MODERNISATION ON SARAWAK’ as published in The Sarawak Museum Journal, Vol. XXV No.46, 1977 at pp.59 & 60 writes:
“In Sarawak the system of land tenure has undergone important change starting with Brooke rule. Customary tenure and adat as a native system of law had deep social and religious significance to the native peoples. Customary law provided cultivators with rights to the use of land and not to permanent ownership rights. Rights to land use gained by a lamin [or bilek] family clearing land, and observing native adat with regards to land, ritual and religious belief.” (See p.59)
“In 1863 the first land law was promulgated, the most important effect being the creation of government rights and proprietorship to land in the State; hence “all unoccupied and waste lands” is to be “the property of the government”. (See p.60)
“The Significance of the 1863 Land Order was that although natives could continue to practice customary tenure within their domain, they could no longer automatically claim rights to land outside their existing domain, which now belonged to the State. Native wanting to open new land outside their domain had according to the Code to obtain government permission. Hence freedom of land to native was restricted. At the same time private ownership of land was now instituted in the form of leases supplied by the government.” (See p.60)
“In 1949 the Land Classification Ordinance introduced by the Colonial Government led to the restriction of the creation of customary rights to tenure to six methods (Hooker 1976: 112). These were:
1) the felling of virgin jungle and the occupation of the land thereby cleared;
2) the planting of land with fruit trees;
3) the occupation or cultivation of land;
4) the use of land for a burial ground or shrine;
5) the use of land of any class for rights of way; or
6) any other lawful method
Applications for these rights had to be made for permits issued by the District Officer, and these may or may not be granted. This definition of customary tenure by the government ‘frustrate certain transactions admitted by systems of native personal law’ (Porter 1967: p61). Adat or customary tenure was codified and enforced and this curtailed the rights of natives to land even further.” (See p.61)
In SUPERINTENDENT OF LANDS & SURVEYS, BINTULU v. NOR ANAK NYAWAI & ORS AND ANOTHER APPEAL [2005] 3 CLJ 555, the Court of Appeal at page 571e-h recognised below:
(1) that the common law respects the pre-existence of rights under native laws or customs though such rights may be taken away by clear and unambiguous words in a legislation;
(2) that native customary rights do not owe their existence to statutes. They exist long before any legislation and the legislation is only relevant to determine how much of those native customary rights have been extinguished;
(3) that the Sarawak Land Code 'does not abrogate whatever native customary rights that exist before the passing of that legislation'. However natives are no longer able to claim new territory without a permit under s. 10 of that legislation from the Superintendent of Lands & Surveys'; and
(4) that although the natives may not hold any title to the land and may be termed licencees, such licence 'cannot be terminable at will. Theirs are native customary rights which can only be extinguished in accordance with the laws and this is after payment of compensation'.
Hashim Yusoff JCA at pp. 569a-570f:
‘Claim for native rights is not a novel subject. In our own courts, this issue has been adjudicated. In Adong bin Kuwau & Ors v. Kerajaan Negeri Johor & Anor [1997] 3 CLJ 885; [1997] 1 MLJ 418 the learned trial judge said, inter alia, at p. 430:
“the aboriginal peoples' rights over the land include the right to move freely about their land, without any form of disturbance or interference and also to live from the produce of the land itself, but not to the land itself in the modern sense that the aborigines can convey, lease out, rent out the land or any produce therein since they have been in continuous and unbroken occupation and/or enjoyment of the rights of the land from time immemorial. In Malaysia the aborigines' common law rights include, inter alia, the right to live on their land as their forefathers had lived and this would mean that even the future generations of the aboriginal people would be entitled to this right of their forefathers.”
The foregoing view was affirmed by this court in Kerajaan Negeri Johor & Anor v. Adong bin Kuwau & Ors [1998] 2 CLJ 665 in that common law recognizes native customary rights.
Another view on the subject was expressed in the High Court case of Sagong bin Tasi & Ors v. Kerajaan Negeri Selangor & Ors [2002] 2 CLJ 543 in which the trial judge appears to have given some indication on the limit to such claim when he said this at p. 565:
‘I follow the Adong case, and in addition, by reason of the fact of settlement, I am of the opinion that based on my findings of facts in this case, in particular on their culture relating to land and their customs on inheritance, not only do they have the right over the land but also an interest in the land. I am fortified in my view by the leading Privy Council case of Amodu Tijani v. the Secretary, Southern Nigeria [1921] 2 AC 399 ('the Amodu case'), which was relied on by the High Court in the Adong case though the issue of settlement did not arise in the case.’
Accordingly, the Privy Council relied upon a report on the character of the tenure of land among the native communities in West Africa which stated that all members of the native community had an equal right to the land although the headman or the head of the family had charge of the land, and in loose mode of speech is sometimes called the owner who held the land for the use of the community or family, and the land remained the property of the community or family. The same can be said of the character of land tenure and use amongst the Temuan people based on the facts as found. Further, the character of proprietary interest of the aboriginal people in their land as an interest in land and not merely an usufructuary right can be gathered from the following features of the native title as decided by the courts:
(a) it is a right acquired in law and not based on any document of title (see the Calder case, followed in the Adong case at p 428F);
(b) it does not require any conduct by any person to complete it, nor does it depend upon any legislative, executive or judicial declaration (see Brennan CJ inThe Wik Peoples v. The State of Queensland & Ors [1996] 187 CLR 1 ('theWik Peoples case') at p 84, followed in the Malaysian case of Nor Anak Nyawai & Ors v. Borneo Pulp Plantation Sdn Bhd & Ors [2001] 2 CLJ 769 at p 780);
(c) native title is a right enforceable by the courts (see Brennan CJ in theWik Peoples case at p 84);
(d) native title and interest in aboriginal land is not lost by colonization, instead the radical title held by the sovereign becomes encumbered with native rights in respect of the aboriginal land (see Mabo No 2, headnotes at p 2);
(e) native title can be extinguished by clear and plain legislation or by an executive act authorized by such legislation, but compensation should be paid (seeMabo No 2, headnotes at p 3); and
(f) the aboriginal people do not become trespassers in their own lands by the establishment of a colony or sovereignty (see Ward & Ors (on behalf of the Miriuwung and Gajerrong People & Ors v. State of Western Australia & Ors [1998] 159 ALR 483 at p 498, lines 43-45).”
In SAGONG BIN TASI & ORS v KERAJAAN NEGERI SELANGOR & ORS [2002] 2 MLJ 591, Mohd Noor Ahmad J on the aboriginal right to the size of land usage in relation of aboriginal rights said at 615:-
“Therefore, in keeping with the worldwide recognition now being given to aboriginal rights, I conclude that the proprietary interest of the orang asli in their customary and ancestral lands is an interest in and to the land. However, this conclusion is limited only to the area that forms their settlement, but not to the jungles at large where they used to roam to forage for their livelihood in accordance with their tradition. As to the area of the settlement and its size, it is a question of fact in each case. In this case, as the land is clearly within their settlement, I hold that the plaintiffs’ proprietary interest in it is an interest in and to the land.”
In SUPERINTENDENT OF LANDS & SURVEYS, BINTULU v. NOR ANAK NYAWAI & ORS AND ANOTHER APPEAL [2005] 3 CLJ 555, the Court of Appeal at page 570e-f recognised the same limit as below:
“Therefore, in keeping with the worldwide recognition now being given to aboriginal rights, I conclude that the proprietary interest of the orang asli in their customary and ancestral lands is an interest in and to the land. However, this conclusion is limited only to the area that forms their settlement, but not to the jungles at large where they used to roam to forage for their livelihood in accordance with their tradition. As to the area of the settlement and its size, it is a question of fact in each case. In this case, as the land is clearly within their settlement, I hold that the plaintiffs' proprietary interest in it is an interest in and to the land.”
In THE MINISTER FOR LANDS AND MINERAL RESOURCES v BILAM ANAK CHANDAI [1971] Kuching, unreported, High Court Application No.2 of 1971, Land Cases 1969-1987, George Seah J, as he then was, observed at pp.709-710:
“In Sarawak a native may be said to ‘own’ land if he holds a document of title issued by the Superintendent of Lands and Surveys or when he can claim customary rights over the said land. It is clear law that until a document of title has been issued in respect of the land over which he claimed native customary rights, such land shall continue to be State land and any native lawfully from the State and shall not be required to pay any rent in respect thereof unless and until a document of title is issued to him (see the proviso to s.5 (2) of the Land Code). This is perhaps the most difficult thing for any native to understand.”
In NYALONG v THE SUPERINTENDENT OF LANDS & SURVEYS 2ND DIVISION, SIMANGGANG [1967] 2 MLJ 249, Silke J at p. 251 held:
“The right which the plaintiff may have created by his original clearing and cultivation is a restricted one and it can be lost by abandonment.
It must be remembered that a person can be said to own land only if there is a land office title subsisting in the land and if no such title exists the occupier is a mere licencee of Crown land.”
HALSBURY’S LAWS OF MALAYSIA (Vol 8) at para [150.191] explained the law as follows:
‘The Sarawak Land Code provides that any issue document of title or entry or alteration in the Register procured or obtained by fraud will be void as against the person defrauded or who may be defrauded thereby, and no person who is a party or privy to the fraud, or who claims solely as a volunteer under such person, must take any benefit therefrom. It does not, however, make defeasible the title of a successor in title to a party who was guilty of fraud, or a party or privy to fraud; instead so long as that successor is able to claim that he acted in good faith and for value, his title is indefeasible not only against his predecessor’s fraud but also against error or misdescription.’
Land tenure in Sarawak is on the ‘Torren’ system of registration to facilitate the proof of title to estates in land. Under the Torrens system, the register is everything. The document of title is good against the world.
ELEMENTS OF LAND LAW, 3rd Edition (2001), Kevin Gray and Susan Francis Gray at page 967 writes:
“Underlying the entire scheme is the philosophy that registration of title confers on the registered proprietor a generally indefeasible title to a specified parcel of land and ‘dispenses with any need on the part of persons dealing with him to investigate further his right thereto.
In AWANG OSEN AWANG MAT v NORHAZLENA ABDURANI & ORS [2004] 7 CLJ 1, Abdul Aziz Abdul Rahim JC, as he then was at p.10c-e said:-
‘The law therefore is well settled: that the registration conferred on the registered proprietor an indefeasibility of title. In so far as it relates to the Sarawak Land Code it is manifested in s.132. Though the indefeasibility of title may be challenged on the ground of fraud, such ground cannot be used to defeat a title acquired by a registered bona fide purchaser and for value. This is my view and is plain from the reading of s 134(2) which states as follows:
‘Nothing in this Code shall be construed as to place in doubt the title of any person who is a purchaser in good faith and for value of any interest, and who is registered as the proprietor of such interest, on the ground that the registered proprietor through or under whom he claim was registered as proprietor through fraud or error, whether such fraud or error consisted in a misdescription of the land or otherwise.’
