by Samuel Aubrey, firstname.lastname@example.org. Posted on July 14, 2013, Sunday
Dayak leaders call for review on native customary rights land code, ordinance to clear confusion over sale and development of the land
KUCHING: Sarawak Dayak National Union (SDNU) yesterday called for a review of all land code, laws or ordinance following a Federal Court’s ruling that native customary rights (NCR) land cannot be transferred by sale and purchase agreements.
Its vice-president Anthony Banyan said Dayak leaders should initiate such a review to address land problems which affect the community.
“The laws related to NCR must be up to date so that Dayaks can catch up with the progress of the country,” he said yesterday.
One of the salient points brought up in the ruling by Chief Judge Malanjum was that native customary rights could not be transferred by the owners of such rights to persons outside their community.
He was of the view that legally, under the new NCR land development concept, natives would not be able to enter into joint ventures with persons outside their community to develop their NCR land.
Touching on that ruling Anthony said, “The legality of all deals like joint ventures on NCR land may be affected. If that is the case, then NCR land in joint ventures and NCR development projects should now be given back to NCR land owners,” he said.
On the positive side, he said the court ruling could mean that land owners could rest assured that their ownership on NCR land are protected.
Meanwhile, Land Development Minister Tan Sri Dr James Jemut Masing also concurred there should be a review saying the ruling was based on outdated perception of Dayak demographic pattern in the state.
He pointed out at present, the Dayaks are no longer confined to areas of their birth as they are working and residing all over Sarawak.
“This ruling (by Federal Court) limits them to acquire NCR land in areas of their current residence or employment. Freedom for Dayaks to make better living should not be restricted by outdated laws. However, I agree with laws that will restrict non Dayaks from purchasing NCR land to prevent sale for quick cash and render them landless,” he said.
On Thursday, the Federal Court in Putrajaya passed the ruling when Chief Justice Tun Arrifin Zakaria, Chief Justice of Sabah and Sarawak Tan Sri Richard Malanjum and Federal judges Tan Sri Abdul Hamid Embong, Tan Sri Surayadi Halim Omar and Tan Sri Hasan Lah unanimously dismissed an appeal by Bisi Janggot against the lower courts’ decision to refuse him a declaration that he acquired NCRs over several lots of land totalling 37.24 acres at Sungai Agas in Matang.
Delivering the unanimous judgment of the Court, Justice Surayadi held that under native custom, the original feller of virgin jungle who occupied the area cleared for farming had rights to the land (specificaly Temuda) which may be inherited by his heirs.
These rights may be lost by the native abandoning the area. Justice Surayadi held no NCRs so acquired over the temuda by a native may be sold to another person who does not belong to the same community.
He added that even the expert witness Nicholas Bawin, had testified that there was no native custom that allowed the sale of NCR land, but such land may be inherited or if the owner of the land moved from the longhouse, he may transfer his NCR land to relatives such as cousins who in turn would compensate him with “tungkus asi”.
It was said this custom of “tungkus asi” had been upheld in a number of decisions of the Native Court of Appeal in Sarawak.