26 November 2013
Menteri di Pejabat Ketua Menteri dan Menteri Tugas-tugas Khas (Y.B. Tan Sri Datuk
Amar Haji Adenan Bin Haji Satem): Tuan Speaker, I will proceed first by expounding on matters relating to Native Customary Rights land as raised by member for Ba‟kelalan in this Honorable House.
The Member for Ba‟kelalan contained that it is a decision of our court to include the definition of Native Customary Right land to include Pemakai Menua and Pulau Galau. With respect, I beg to disagreed, I beg to differ. To begin with, on the question how Native Customary Rights (NCR) could be lawfully created or acquired, the State Government will respect and follow the decision of the Federal Court in Bisi anak Jinggot @ Hilarion Bisi anak Jinggot vs Superintendent of Lands and Surveys, Kuching Divisionand Ors delivered on 12th July this year.
Now, this is a the Highest Court on the land, there is no more appeal on the decision of this court and this is, I just relate the comment made by this Honorable Court, from the totality quoted from the judgment. “From the totality of evidence and authorities referred to in the course of hearing, we are satisfied that the creation of Native Customary Land and Rights acquired by a native of Sarawak is conditional upon adherence to custom or common practice of his community. So, it is based on custom and the common practice of that particular community. For an Iban, it has the Customary concept of Tusun Tunggu whereby NCR could be acquired by two modes namely, clearing untitled virgin jungle reroute to the creation of what is locally described as Temuda and the other by receiving the Temuda as a gift or inheritance.
For the first mode, the comment thread is that the acquisition of NCR starts with the clearance of the untitled virgin land or jungle by a native, followed by the occupation of the cleared land and thereafter not allowing the land to be abandoned. Once abandoned, whatever NCR was created or acquired previously over that land would be lost. If the original owner abandons the land without more the community takes over.
The decision of the Federal Court is based on Native Custom relating to the only two modes whereby NCR over land maybe created or acquired. Land over which NCR are also created or acquired call a known as Temuda. There is no mention of Pemangkai Manua, there is no mention of Pulau Galau at all. Thought the previous court, the Federal Court has correctly stated the Native Customary Law of Sarawak is applicable only for the Iban community, that customary law is also generally applicable to other indigenous community in Sarawak.
The Honorable Member for Ba‟kelalan had attempted to move a Motion in this august House to amend Section 2 of the Sarawak Land Code on the definition of “Native Customary Land” to specifically include cleared/farmed land (temuda), the reserved forests area (Pulau Galau) and communal land (Pemakai Menua) are not within the prevailing statutory definition of Native Customary Land.
Now, he is seeking that the Land Code be amended to include the definition of NCR to include Pemakai Menua and Pulau Galau as NCL. The definition of Native Customarily Right under the Land Code those not say anything about that. So now he saying we must defined that definition more broadly.
While the fact that he is seeking to amend the Land Code is an admission by my Honorable friends that is the Land Court and the Land Court only defines what is Native Customary Land. And the provision in the Land Code about admission is a reflections of the recognitions that the law has over this Native Custom because it says in Section 5(2) of the Sarawak Land Code as from 1st January 1958, Native Customary Right maybe created in accordance with the Native Customary law of that community or communities concern and by any of the matters specified subsection. That impact is an admission of the land court that Temuda or acquisition of Native Customary Right follows native the custom of the native community under the definition.
This amounts to a clear admission by the Honourable Member that Pulau Galau and Pemakai Menua are not within the prevailing statutory definition of NCL. Hence, the move by the Honourable Member to amend the current definition of NCL on the Land Code and Pemakai Menua as Native Customary Right.
The Honourable Member for Ba‟kelalan must also have been aware of the findings of the Report of National Inquiry into The Land Rights of Indigenous People by SUHAKAM. In its report, SUHAKAM noted that the Land Code definition of Native Customary Rights covers land which have been cleared from primary forest, cultivated and occupied by the natives. SUHAKAM said this definition was too narrow and did not take into account uncultivated and preserved forests or territories for hunting, gathering and other traditional and cultural practices by the natives. SUHAKAM says that “in their testimony all officers of the Land and Survey Department stressed that they strictly adhere to the definition of Native Customary Rights as provided under Section 5 (2) of the Land Code”.
This means as what I have said earlier, that there is already a statutory definition for “Native Customary Land” which is confined to Temuda land and land cleared from virgin jungle, cultivated and occupied by native communities in accordance with their customs and traditions. This definition does not include preserved land Pulau Galau or areas where the natives or their ancestors went to forage for food and forest produce.
This legal decision furthermore is supported by the judgment of the court of appeal in the case of superintendant of Land and Survey Bintulu Division against Nor anak Nyawai which adopted the following passage of the judgment in the orang asli case of Sagong Tasi against Kerajaan Negeri Selangor. There it was a case involving orang asli in West Malaysia which is quite similar to our situation in Sarawak and the case is known as Sagong Tasi against Kerajaan Negeri Selangor. And this is the finding of the court which was endorsed by the Federal Court. And I quote what the Sagong Tasi case says “Therefore in keeping with the worldwide recognition now been given to aboriginal rights, I conclude that the proprietary interest of the Orang Asli in their customary and ancestral land is an interest in and to land. However this conclusion is limited only to the area that forms part of their settlement, but not to the jungle at large where they used to forage for their the livelihood in accordance with their tradition”.
So, the Federal Court, the highest court in the land endorses this finding by the lower court in Sagong Tasi against Kerajaan Negeri Selangor. From the above two cases, we note that the common features which forms the basis of claim for Native Customary Right is the continuous occupation of land. Further, we are incline to agree with the view of the learned trail judge in Sagong Tasi and Ors that the claim should not be extended to areas where they used to roam to forage of their livelihood in accordance with their tradition.
Such view is logical as otherwise it may mean that vast areas of land could be under native customary right simply through assertions by some natives that they and their ancestors had roamed or foraged the areas in search for food. We note that even Mr. Baru in his submission hinged the claim of the respondents over the disputed area on the assertion that they “had been in continuous occupation and by express provisions of the law at the relevant time being lawfully occupying the disputed area”.
In summary therefore, there is no recognition in our opinion by the highest court of the land that Pemakai Menua and Pulau Galau is part of the definition of Native Customary Rights. Therefore, the rights of the natives in Sarawak to land is confined to the temuda which is land where the natives have farmed and occupied continuously but does not extend to the forest areas where they roamed and foraged for their livelihood.
If that is the case, and they can claim land for which they have roamed and foraged then there would be a lot of conflicts within the country. One tribe claims this and another tribe claim that they used to go to that area and so on. In the old days if this happened, there will be inter-trouble wars in Sarawak in those days.
The Honourable Member for Ba‟kelalan wanted the State Attorney-General‟s Chambers to come up with a Bill to amend the Land Code so as to include Pulau Galau or the whole Pemakai Menua as part of the definition for Native Customary Land.
Our position is the Government will adhere to the pronouncement by the Federal Court in the case I mentioned just earlier, that there are only two modes by which the NCR can be created or acquired or inherited by the natives. The first mode requires the piling of the virgin jungle, cultivation and continuous occupation of land to create and acquire rights of such land which is known as Temuda. If the Honourable Memberfor Ba‟kelalan wishes to amend the law and feels he has the support of this Dewan, he should present a Private Members Bill under his own name, to make the amendment. It means that he is not confident that he would have the support of this Dewan in amending the existing law on NCR or NCL.
I would urge the Honourable Member of Ba‟kelalan who is handling these native cases, NCR cases in Court. I believe his firm handles many of these, what we call NCR cases and every time they brought the case to Court, they make sure that they have the biggest publicity in the media as to the land codes so that the Courts can come to correct decisions based on the law passed by this august House. The present law must remain until and unless the Honourable Memberfor Ba‟kelalan manages to change it by introducing Private Members Bill and that Bill is passed by this august House.
The Honourable Memberfor Ba‟kelalan also touched on a Federal Court ruling that NCR land cannot be transferred to another party by Sale and Purchase Agreement. He claims that the apex Court‟s decision has caused much dismay to those who have been transacting such agreements and he called for a review of the laws pertaining to this subject, claiming that by not allowing the disposal of NCR land among the communities is a disservice or an unfairness to these native people as it would in effect be making the NCR land worthless.
It ought to be pointed out that the Court‟s decision was based on the native custom of Tungkus Asi and having regard to these essential features of native customary land. If the law with regard to the transfer of NCR land is so restricted, it is based on Tungkus Asi which is the custom practice by that community. It is not by act of this Dewan or any Government. There‟s no law to say, by Government to say that NCR land cannot be transferred, it is because of the custom. So that is why I said, in a way the Court‟s decisions was based on custom decisions or Tungkus Asi so don‟t blame the Government if you find this as very submissive, it is because of custom, the Court is only reflecting what the custom is. It is not decision based on any statutory provision. There is no statutory provision in our law passed by this Dewan to say that they shall not transfer for consideration for value NCR land. It has been explained and decided by the Native Court of Appeal in Sarawak more than 50 years ago in two cases, viz-a-viz Sat ak Akum Nor vs. Randang ak. Chararang and Sumbang ak Sekam vs. Engkarang ak. Ajau. It is a decision of Native Court of Appeal so many years ago and the Court refers to these cases. The NCR cannot be transferred to another person outside of the community of a village or longhouse.
Now, what is the rationale behind these restrictions? Why is this custom practiced and for what reason? The rationale behind this adat or custom is that untitled native land, held under native customary tenure, is for the use or benefit of a particular native longhouse or village community, and the use of the land shall be under the control of the Tuai Rumah or may allocate the use of any portion thereof to the person most in need at that time. In other words to keep the land within the community, you can pass it on by an accordance to your own relatives or you can pass on to some other person by a payment of a token sum known as Tungkus Asi but whatever it is, the land will be kept within the community, that is the reason. The rationale behind the adat is the untitled native land held under the native for the youth benefits etc. Thus, if there‟s any sale or transfer for such land for value in accordance with native custom, shall be among the persons belonging to the community in that particular longhouse or village. This is to preserve the social cohesion and harmony within the community which cannot be maintained if any member of that village or longhouse, chooses to sell his individual NCR land to an outsider, from another town, village or district, who had no connection with the people of that particular longhouse or village community.
It is generally accepted that NCR Land is normally the most valuable asset to a native particularly those who continue to reside on the NCR Land and depend on that land for his livelihood. His land is untitled and generally due to it remote location in the interior and disadvantageous in term of accessibility or marketability, unable to command a high market value. If a native were allowed to freely sell off of his individual NCR Land, that would immediately render him landless and without any mean to sustain his livelihood. The price he obtained from the sell would generally be inadequate to sustain the upkeep of himself and his family in the longer term. He would either end-up as a squatter or he would have to move somewhere, or at the same endure hardship because the amount of money he receives from the sale of his untitled NCR land, is usually insufficient to sustain himself or his family. Imagine a longhouse without any land because the land surrounding the longhouse has been disposed-off to an outsider.
Any consideration to change the customary law so as to allow NCR to be freely transacted, as advocated by the Honourable Member for Ba‟Kelalan must take into account the adverse impact on the social cohesion and harmony of the village and longhouse communities as well as to the longer term financial impact on the individual and his family who sells his untitled land for usually a meagre sum of money and become landless.
That is the case that would happen, but the Government of course is not oblivious. We do not ignore the fact that circumstances have somewhat changed. Maybe one or two hundred years ago in the time of the Raja, people do not dispose very much of their land, as they confines themselves to the areas. But now we are at the 21st century, circumstances have changed. So, if there is a proposal by interested parties who have a stake in this matter to petition the Government to amend the law so as to enable the transfer of native land from one native to another native even outside of that community, we are prepared to consider that. But we must state the position as it is so that there will be no misunderstandings, but we are open to suggestion, we are open to recommendation and we can discuss this matter, weighing all factors into account. If it is not, as if the Government is purely against this sort of thing. We understand the situation and it ought to be amended or it ought to be changed to suit the circumstances.
Any consideration to change the customary law so as to allow NCR to be freely transacted as advocated by Honourable Member must take into account the adverse impact on the social cohesion and harmony of the village and longhouse community as well as on the longer term financial impact on the individual and his family who sells his land for usually a meagre sum of money and become landless.
For these reasons, the Government‟s policy has been, in fact the Government has provided an alternative for the land so that it will be in place. The Government‟s policy has been to encourage native to consolidate or merge small, fragmented parcels of NCR land into sizeable land banks, suitable for commercial or large scale agriculture, so as to realize the economic potentials of their land and to enjoy sustainable monetary returns from land.
We have so many scheme, Salcra scheme, Felda scheme, apa nama itu Felcra scheme, Salcra scheme etc. to improve and enhance the value of that land. If the native keep on to that land, they can realize its potential value. If it‟s left idle of course they have on income from the land. We don‟t want the land to be idle, but to develop it so that have commercial value for the benefit. That is why we have Salcra scheme, Felda scheme, Felcra scheme, etc. etc.
The Honourable Member For Ba‟ Kelalan as well as the Opposition and some Non-Governmental Organization (NGOs) have repeatedly alleged that the Government does not recognise NCR land in Sarawak. Let me assure this august House, that the Government respects, safeguards and seeks to enhance the value and realize the full economic potentials of NCR land. Pursuant to the Government Transformation Programme, the initiative to undertake perimeter survey of NCR land has been carried out with the assistance of funds from the Federal Government. The rights of the natives to these lands are therefore safeguarded. If that is not the policy of the Government, then why bother? Why bother to survey this land? Why bother to have section (18) of the Land Code? If indeed the Governments does not care about NCR Right, why bother to have section (18), why bother to survey with the view to issuing title later on.
I am aware that there are requests and complaints by some quarters that this survey only covers temuda land. That is true and it is consistent with the decision of the Federal Court that only land which has been cultivated and occupied continuously, is NCR land. If anyone wants any survey to be conducted for their pemakai menua which includes more than the temuda land, the Government wants to reiterate that its firm policy is that this perimeter survey is to survey all the NCR or temuda land.
On the completion of the survey of the land of NCR land, the amendment to the Land Code vide the Land Code (Amendment) Ordinance 2000 with regard to the registration of NCR land, could be brought into force and the transferability of such land could be allowed after its impact on the native communities had been carefully studied and appropriate mechanism, are in place to ensure that the transferability of such land would not affect the social cohesion and harmony of village or longhouse communities and would not have to the adverse effect on those selling their land, which usually is their sole asset. This obvious adverse impact would have to be mitigated before the transferability of such land could have the proper sanction of the law.
This is no April Fool, this is no April Fool. We are serious about it. After the survey have been completed, then we will proceed. Because when you issue title, or you issue some document it must describe what the land is. We cannot pass a title or some document to say that your land is here, there and everywhere. It must be defined, so that when this is done only then can we implement it, full steam.
The Honourable Member for Ba‟Kelalan touched on the gazetting of island created by the impoundment of Bakun Hydo-electric Dam as the Bakun National Park. Yes.
Y.B. Chong Chieng Jen: Thank you Tuan Speaker, thank you Honourable Minister. We have heard many a times perimeter survey has been mentioned. May I know up to this day, how many acres or hectares of land has been surveyed and how many titles have been issued?
Menteri di Pejabat Ketua Menteri dan Menteri Tugas-tugas Khas (Y.B. Tan Sri Datuk Amar Haji Adenan Bin Haji Satem): I will answer that. That is in the later part of my speech. You, you wait for it, alright.
Now, with regard to this national park, sometimes I don‟t, I mystified by some NGOs to say that we ought to preserve our forest, we ought to protect our forest but when we want to declare the national park, they object. What is the purpose of the national park but to preserve what we have? We are damn if we do, we are damn if we don‟t.
What kind of situation is that? The proposed national park is to be created from islands created by the Bakun Hydro-electric power reservoir. These islands were the top of mountains, anybody who knows the geography should know that once the land is inundated, the top of mountains become islands. These so-called islands are in fact the top of mountain and who has any NCR on the top of the mountain. I lived all these years viewing Gunung Santubung, Gunung Serapi, Gunung Medang, can see from my house, I don‟t see anybody creating Temuda at 3,600 feet or something. It is absurd, that contention is absurd.
These islands were on the top of mountain before the inundation of the reservoir area. In any event, even if any native had claimed, even if they have claims, even if they have claim, ok they have proven their claim to this island created by the empowerment of the reservoir their rise and privileges, if satisfactorily proven, could be admitted and could still exercise these right and privileges under the control of the Controller of the National Park. The case in Mulu, the case in Loagan Bunut, we do give neighbouring natives the right to roam and collect under Schedule 2, I believe of the declaration. They do have, they can practice all these things. It is not total excretion or in the words of Honourable Member for Ba‟Kelalan total extermination. I do know who he is going to exterminate. They come and then we will resettle them. There is no question of extermination. I am sure that Honourable Member for Ba‟Kelalan perhaps he is more familiar with this term. We are not familiar with this term.
Where native have proven their rights as in the Gunung Mulu National Park Proclamation No. for example 2852 of 1974 or the Final Proclamation to constitute the Loagan Bunut National Park No. 2790 of 1991, their rights will be noted in Schedule II. It can be done, it has been done and it will be done, if their proven rights of the law. We are not adverse to that, but don‟t make a blank clip that we are trying to exterminate them. In the Gunung Mulu National Park ... (inaudible) Yes, Siapa luka dialah pedih.
Y.B. Encik Baru Bian: Tuan Speaker, with due respect if you read my speech, I did not suggest that was the extermination. If you read my speech, I did also propose that based
on the argument, I am not going to argue in Court, this is not Court, based on the understanding of the Court case, Pemakai Menua dan Pulau Galau are NCR land, so based on that the mountain should be recognised as that. And secondly, I did propose too that if it is, then regulate it as what the Ministry is saying, regulate it accordingly, that is my proposal, my speech. I did not, for the purpose of the record, say that, that is exterminating. It appears to, if we don‟t concede to this it appears to be exterminated. That is what I mean, off record. (interruption)
Menteri di Pejabat Ketua Menteri dan Menteri Tugas-tugas Khas (Y.B. Tan Sri Datuk
Amar Haji Adenan Bin Haji Satem): But I think your word is exterminate. Now you want
to withdraw it?
Y.B. Encik Baru Bian: Ya, it appears to, that is what I said (interruption)
Menteri di Pejabat Ketua Menteri dan Menteri Tugas-tugas Khas (Y.B. Tan Sri Datuk
Amar Haji Adenan Bin Haji Satem): Appears to. Okay? … (inaudible)
Y.B. Encik Baru Bian: If we don‟t recognise it.
Menteri di Pejabat Ketua Menteri dan Menteri Tugas-tugas Khas (Y.B. Tan Sri Datuk
Amar Haji Adenan Bin Haji Satem): But the … (inaudible)
Y.B. Encik Baru Bian: Correct. Our different is on the definition Tuan Speaker. They have, the Government have their own view, we have put our views. I just put on record, that‟s my speech.
Tuan Speaker: The Minister is not talking about mountain. He is talking about tops of the mountain.
Menteri di Pejabat Ketua Menteri dan Menteri Tugas-tugas Khas (Y.B. Tan Sri Datuk Amar Haji Adenan Bin Haji Satem): It is okay. It is alright. I don‟t want to make a mountain on the mole hill.
For instance in the Gunung Mulu National Park, certain long houses were allow to collect jungle produce from the park and nomadic Punans living within the park can continue to roam in the area. Therefore the remark by the Honourable Member for Ba‟Kelalan that by gazetting the „island‟ or former mountain tops at the Bakun National Park was attempting to exterminate the natives in the area, I don‟t want to mention that, I think its better, it has been settle. So that part of my speech I will not include in the Hansard but for the record it is the former mountain top of Bakun National Park, the Government were attempting to exterminate the native is totally uncalled for, irresponsible and highly inflammatory. I think there is no need for the last passage to be in the Hansard. I withdraw that, never mind, because in view of what the Honourable Member for Ba‟Kelalan have said.
The Honourable Member also asked the Government to adhere to international standards in implementing projects which had an impact on the people and in particular those principles contained in the United Nation Declaration on the Rights of Indigenous Peoples (UNDRIP) which in essence required free, prior and informed consent of the affected natives before acquiring their land for implementation of development projects like the building of hydro-electric dam.
Firstly, although Malaysia has signed UNDRIP, no law has been passed by Parliament to ratify that Declaration or to bring its principles or covenants into force in Malaysia as part of Malaysia‟s domestic law.
Nevertheless, this is not yet the law of the land. It is simply a declaration an international declaration. It is not yet even though we have adopted it, it is not yet rectified by the Parliament. Therefore it is not yet the law of the land. Nevertheless, even though it is not yet the law of the land, the State Government follows what is known as the International Hydro Association Assessment Impact Protocol that is a protocol with regard to this matter. In undertaking consultation with those affected local indigenous communities and in the process of the implementation of any resettlement plan for the affected people and the payment of compensation to them for the loss of their land.
The Murum resettlement action plan is a manifestation of the Government‟s commitment to ensure that the affected communitites would not be worst off when they have been resettled from the previous villages to the new resettlement sites which would have better infrastructures, amenities and welfare, health and educational facilities as well as providing them with economic and employment opportunities which they did not have in their former villages. It is not as if, the Government say „You go away. We want to build a dam here; where you go I don‟t care‟. That is not the position. The Government says, “we want to build a dam here, you have to move because your villages will be underwater, but we have prepared an alternative land for you”. We provided all the modern facilities for you, we pay compensation to you. But the NGOs would seem to take the attitude, we just take people‟s land to build a dam and let them go to wherever they want to go. Hambus kata orang Melayu. Hambus. That is not the case. We said we will resettle, we prepare the place for you and you will be better off here than where you were before.
In any event before the concept of free, prior and informed consent could be implemented there must be mechanisms in place to deal with situations where consent is deemed unreasonably withheld, and the circumstances whereby a project could proceed in the event that the majority has consented but the minority withhold consent. In a developing country like Malaysia, it is necessary that development projects must be implemented and development strategies, which are beneficial to the people or designed to take the country to a high income economy, ought to be allowed therefore to be implemented in the national or state interests. The Courts themselves have repeatedly held that state or national interests override personal interests. We cannot have a multimillion dollar project, where the majority have agrees and one or two or even minorities says no, surely the right of the majority and the overall planning of anything or overall of country the national interests and the state interests override personal interests.
I must therefore refute the allegation by the Honourable Member for Ba‟Kelalan that there was any marginalization of the majority of people who belong to the indigenous community. It is not true that the Government does not adhere to the decisions of the Courts in this country. The Government accords due respect to all decisions of the Court. Likewise, the Government expects the Judiciary to make its decisions based on the laws duly passed by the Legislature. In any event, sorry. Yes.
Honourable Member for Krian called for the adoption and implementation of the SUHAKAM report on the national enquiry of native land claims. As the honourable member raisely pointed out, the Federal Government has not favored the SUHAKAM report to Parliament as required by Section 12 of the Human Right Commission Act.
Instead, the Federal Government has established a National Task Force to study the findings and recommendations in the SUHAKAM report and report to the Government what findings and recommendations could be implemented and if so how they are to be implemented. It is as if no response to the SUHAKAM report. There is a response to the SUHAKAM report that is why the Federal Government establish this National Task Force to study his findings and recommendations, so that is the first phase of Government response.
The State Government will await the outcome of the study by the National Task Force before making any decision on those part of SUHAKAM report which relate to Sarawak. Let us follow the users process first. They will submit, SUHAKAM will submit the report to the Government, the Federal Government will make recommendations and so on, and then they will consult the State Government. Only at that stage can we consider the recommendations and so on. I will not predict what recommendation will be recommended or not, but we cross the bridge when we come to it. It is premature at this stage to discuss or debate on the SUHAKAM report until outcome of the study of the National Task Force is available.
~ Unedited Hansard