LAND CODE (AMENDMENT) ORDINANCE, 2014
An Ordinance to amend the Land Code [Cap. 81 (1958 Ed.)]
Enacted by the Legislature of Sarawak -
Short title and commencement
1.- (1) This Ordinance may be cited as the Land Code (Amendment) Ordinance, 2014.
(2) This Ordinance shall come into force on such date as the Minister may, by notification in the Gazette, appoint, and the Minister may appoint different dates for the coming into force of different provisions of this Ordinance.
Amendment of section 2
2. Section 2 of the Land Code [Cap. 81 (1958 Ed.)] (in this Ordinance referred to as "the Code") is amended -
(a) by adding immediately after subsection (a) of the definition of "Native
Customary Land" the following new subsection (aa)"
"(aa) such definitions under subsection (a) shall include cleared/farmed land (temuda or its equivalent), reserved forests area (pulau galau/pulau or its equivalent) and communal land/territorial domain (pemakai menua or its equivalent);
(b) by adding immediately after the definition of "Native Customary Land" the following new definition:
" "native rights" means rights described in section 7A(l ), created by or belonging to a native over land not issued with a document of title;"
Amendment of Section 5
3. Section 5 of the Code is amended-
(a) by adding immediately after the word "Minister" in the last line of subsection (a) the words", after free, prior and informed consultation have been obtained from any person whose Native Customary Rights over such land are affected,"
New Section 7A
4. The Code is amended by adding immediately after section 7 the following new section 7A:
"Transfer, etc., of native customary rights over land
7A. - (1) The following are rights belonging to a native over any land in respect of which no document of title has been issued-
(a) rights lawfully created pursuant to section 5(1) or (2);
(b) rights and privileges over any land declared as a Native
Communal Reserve under section 6(1);
(c) rights within a Kampung Reserve;
(d) native customary land as defined under section 2 under the definition of Native Customary Land subsection (aa)
(2) Any rights described in subsection (1) may be transferred or transmitted to, or inherited or acquired by, any native.
(3) The transfer, transmission, inheritance or acquisition of native rights over land under subsection (1) shall be in accordance with the system of personal law applicable to the community to which the native belongs and shall be regulated by rules made under section 213.
The Objective of this Bill is principally to amend certain provisions of the Land Code [Cap. 81 (1958
Ed.)] ("the Code") to-
a) spell out more clearly the definitions of "Native Customary Land" which has been affirmed in the
High Court, the Court of Appeal and the Federal Court in the numerous cases listed below:-
1. Madeli Salleh v Superintendent of Lands & Surveys & Anor  3 CU 697 (CA);
2. Superintedent of Land & Surveys, Miri Division & Anor v. Madeli Bin Salleh  6 CLJ
3. Luking Uding & Ors v Superintendent of Lands and Surveys Kota Samarahan Division &
Ors  7 CU 342;
4. TR Gayan & 3 Ors v Vita Hill Sdn Bhd, High Court Sibu Suit No. 21-4-2009;
5. Usang ak Labit & 3 Ors v Rosebay Enterprises Sdn Bhd & 2 Ors High Court Sibu Suit No.
6. TR Sandah ak Tabau & 7 Ors v Kanowit Timber Sdn. Bhd. & 2 Ors High Court Sibu Suit
7. Numpang ak Suntai & 13 Ors v Quality Concrete Holdings Berhad & 6 Ors High Court
Kuching Suit No. 22-218-2010-II;
8. TR Nyutan ak Jami & 2 Ors v LCDA & 2 Ors High Court Kuching Suit No. 22-249-98- III(I);
9. Jubang ak Punjab & 3 Ors v First Binary Sdn Bhd & 3 Ors High Court Kuching Suit No.
10. Director of Forest & Another vs TR Sandah ak Tabau & Ors, Civil Appeal No. Q-01-463-
II . Superintendent of Lands and Surveys & Anor v Usang ak Labit & 3 Ors Civil Appeal No. Q-01-138-03/2012 (CA)
b) Amendment to section 5 will ensure that extinguishment of native customary rights to land is in adherence to the international requirement embodied in the United Nations Declaration of the Rights of the Indigenous People that native customary rights to land cannot be extinguished in whatsoever manner without free, prior and informed consultation with those whose native customary rights are affected and adequate compensation to those affected;
c) Furthermore, the amendment to section 5 will adopt the recommendation of the Human Rights Commission 's (SUHAKAM) Report of the Land Rights of Indigenous Peoples released on the 5th of August 2013.
c) The Federal Court's decision in Bisi ak Jinggot v Superintendent of Lands & Surveys, Kuching Division  5 MLJ 149 has had an adverse impact on the practice of the natives pertaining to transfer, transmission, inheritance or acquisition of native rights over land to other natives. Therefore, the new section 7A is to ensure that the Code is up to date on the practice pertaining to transfer, transmission, inheritance or acquisition of native rights over land to other natives.