Tuesday, November 26, 2013

Legal minds spar in Sarawak assembly over native customary rights land definition

BY DESMOND DAVIDSON
NOVEMBER 26, 2013
The question of what defines Native Customary Rights (NCR) land was hotly debated at the Sarawak legislative assembly today with two of the state's sharpest legal minds in the state - Minister with Special Functions Tan Sri Adenan Satem and leading NCR land lawyer, Baru Bian (pic) - sparring one another.
Adenan, Chief Minister Tan Sri Abdul Taib Mahmud's troubleshooter and “fireman” on contentious issues, told the assembly that the government's position on what is NCR is confined to the “temuda” - land that the natives had cleared, farmed and occupied continuously.
NCR land does not extend to the “pulau galau” - the reserved forest area where the natives or their ancestors went to forage for food and jungle produce – and the “pemakai menua” - their communal land, Adenan added.
Last week, Baru attempted to move a motion in the assembly to amend Section 2 of the Sarawak Land Code on the definition of NCR land to include the “temuda”, “pulau galau” and “pemakai menua” under the definition of NCR.
The debate continued outside the assembly where Baru, Sarawak PKR chief and Ba Kelalan assemblyman, insisted the government's definition was flawed, as it had not accepted recent court decisions on what NCR lands are or that it had been ill advised by the Sarawak Attorney-General’s Chambers on these court decisions.
The motion failed to be debated as it had violated Standing Order 14 that states no such motion may be made during the meeting at which the Supply Bill is being considered.
The current session of the assembly is the Budget session.
Adenan, in reply to the issues raised by Baru in his debate, said the state government would respect and abide by the decision of the Federal Court in the case of Bisi Jinggot@Hilarion Bisi Jenggut vs Superintendent of Lands and Surveys, Kuching Division & Ors that was delivered on July 12.
Adenan said the decision of the Federal Court was based on native customs relating to the two modes, namely, clearing untitled virgin jungle enroute to the creation of the temuda, and by receiving the temuda as a gift or inheritance.
He added that Baru must also have been aware of the findings of Suhakam’s Report on National Inquiry into the Land Rights of Indigenous Peoples.
Adenan said Suhakam had, in its report, noted that the Land Code definition of NCR covers “land which have been cleared from primary forest, cultivated and occupied by the natives”.
“Suhakam said the 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 of the natives.
“Suhakam said that 'in their testimonies, all officers of the Lands and Surveys Department stressed that they strictly adhered to the definition of Native Customary Rights as provided under Section 5(2) of the Sarawak Land Code'.”
That, Adenan pointed out, meant there was already a statutory definition of NCR land, which is confined to the temuda.
The legal position, he added, was supported by the judgment of the Court of Appeal in the case of the Superintendent of Lands and Surveys Bintulu Division vs Nor Nyawai.
Baru, in the media room later, said the minister’s response did not surprise him as it was identical to the submission of the SAG (State Attorney-General’s) Chambers in the recent land cases he had handled and won against the government.
Last month, the government lost four appeals in the Court of Appeal when it argued that native rights to land were confined to the temuda and not to the pulau galau and pemakai menua.
Baru also said the Chief Judge of the High Court of Sabah and Sarawak, Tan Sri Richard Malanjum, had also written another judgment in which “he said NCR consists of temuda, palau galau and pemakai menua”.
Baru also said he would table a Private Members Bill at the next sitting of the assembly on the proposed amendment. - November 26, 2013.
~ The Malaysian Insider

1 comment:

Melanie Endawi said...

very interesting read...