Wednesday, May 7, 2014

BARU BIAN'S PRIVATE MEMBER'S BILL TO AMEND THE SARAWAK LAND CODE: AN EXPLANATION


THE PROPOSED AMENDMENTS TO THE SARAWAK LAND CODE 2014
BY BARU BIAN

There are three main amendments sought by this Bill; firstly the definition to the term “Native Customary Land” under section 2 of the Sarawak Land Code (Cap. 81) 1958 (hereinafter referred to as “the Code”), secondly the additional to section 5, and thirdly the additional of Section 7A to the Code.


A.        AMENDMENT TO THE DEFINITON OF “NATIVE CUSTOMARY LAND” UNDER SECTION 2 OF THE SARAWAK LAND CODE 1958.


1.         Section 2 of the Land Code (Cap. 81) 1958 defines the term 'Native Customary Land' to mean -
           
(a)           land in which native customary rights, whether communal or otherwise, have lawfully been created prior to the 1 January 1958, and still subsist as such;

(b)           land from time to time comprised in a reserve to which section 6 applies; and

(c)       Interior Area Land upon which native customary rights have been lawfully created pursuant to a permit under section 10; (emphasis added). 

2.         Before the judgment of the landmark case of Nor Anak Nyawai & Ors v. Borneo Pulp Plantation Sdn Bhd & Ors [2001], it was the State Government’s view that Native Customary Land (“NCL”) means that area of land felled, farmed and occupied by the natives before the 1st day of January 1958 and subsist as such to this day. In other words it is the settlement area which was farmed and lived on before the 1st day of January 1958. So to the Government any virgin forest or lands cannot be deemed NCL. This view was challenged in this case of Nor anak Nyawai, in that NCL includes the territorial domain or the communal land of a native community commonly referred to as “pemakai menua” and their reserved forests land within their said “pemakai menua” commonly referred to as “pulau galau”, which in many instances are even virgin forests or lands. At page 776 (para f) of the judgment reported in the Current Law Journal [2001] to 779 some relevant excerpts, which are as follows:

“A pemakai menoa (also spelt pemakai menua), is an Iban term that refers to “a territorial domain of a longhouse community where customary rights to landresource was created by pioneering ancestors” (Dr. Dimbab Ngidang on EthicalValues of Sarawak Ethnic Groups, p. 33). Another description of it is in these words: “The family groups (bilek) join together to make a longhouse which, with the surrounding contiguous territory, make up the menoa. It includes besides farms and gardens, the water that runs through it and the forest roundabout it to the extent of half a day’s journey” (A.J.N. Richards on The Land Law and Adat, p. 24). Such a territory is chosen because of the presence of arable land, of rivers and forests from which life sustaining resources like water, fish, animals and forest products (including timber, wild vegetables, edible ferns, palm shoots, rattans, herbs or medicinal plants, fruit trees and bamboo) can be obtained. The evidence of the plaintiffs’ supports this and I need not go into them since that is not disputed. The pioneers of a longhouse community are usually relatives who banded together in search of a new territory and when this is found, the pioneers would build a longhouse with sufficient rooms arranged in a row, all joined together to accommodate the families. The longhouse will just expand with new families. It is within this territory, called the pemakai menoa, that each longhouse community has access to land for farming, called the temuda, to rivers for fishing and to jungles, called the galau or pulau galau, for the gathering of forest produce. It has boundary separating it from that of another longhouse. The boundary is reckoned by reference to mountains, ridges and rivers or other permanent features on the earth. “


“The more recent definition of a pemakai menoa, and which I accept to be equally accurate as those of the authors I have just referred to can be found in a paper presented at a seminar (called Seminar Pembangunan Tanah Pusaka Bumiputra on 29 September to 3 October 1994) by Tan Sri Datuk Gerunsin Lembat. He was the former president of the Majlis Adat Istiadat Sarawak and in that paper he said:

Pemakai menoa  is an area of land held by a distinct longhouse or village community, and includes farms, gardens, fruit groves, cemetery, water and forest within a defined boundary (garis menoa).

The purpose of creating a pemakai menoa involves the ritual ceremony of punggul menoa. After the ceremony has been performed, the first cutting of virgin jungle for settlement and farming can commence. From then onward, the community can establish its rights to the felled area, boundaries (garis menoa) are drawn between villages. These boundaries normally follow streams, watersheds, ridges and permanent landmarks. Pemakai menoa  includes cultivated land (tanah umai), old longhouse site
(tembawai) , cemetery (pendam)  and forest area (pulau). “


3.      The Superintendent of Lands & Surveys, Bintulu State appealed against the said decision of the High Court to the Court of Appeal in the case reference of Superintendent of Lands and Surveys, Bintulu v Nor Nyawai & Ors and another appeal [2005] 3 CLJ 555, and the appeal was allowed on the ground that there was no evidence to show that the disputed area was a pulau. But their Lordships at the Court of Appeal confirmed the customary law and concept of “pemakai menua”, “pulau galau” and other practices of the Ibans when their Lordships said at page 571 of the report:

“In respect of the other expositions of the law by the learned judge in relation to native customary rights we are inclined to endorse them. And briefly they are as follows:

(a)           that the common law respects the pre-existence of rights under native laws or customs though such rights may be taken away by clear an unambiguous words in a legislation;

(b)           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;

(c)           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 and Surveys’; and

(d)           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’.


4.      In the Federal Court’s case of Superintendent Of Land & Surveys [2007] 6 CLJ 509, the decisions in Nor anak Nyawai and another case coming from the State of Johore called the Adong’s Case, were challenged by the State Government of Sarawak. After referring to the relevant portion of the judgments in both cases at the Court of Appeal, the Federal Court concluded:

                        “As for the fifth question our answer is that we wholly agree with the view expressed in Adong bin Kuwau and Nor ak Nyawai that the common law respects the pre-existence of rights under native laws or customs.”


5.      In another Federal Court case of Bisi ak Jinggot v. Superintendent of Lands & Surveys, Kuching & 3 Ors, the Chief Judge of Sabah and Sarawak, (CJSS), Tan Sri Richard Melanjum affirmed the pemakai menoa concept when His Lordship referred to Nor anak Nyawai at paragraph 4 of His Lordship’s judgment:
“’pemakai menoa’ is a term givento an area of land selected by pioneers of a long house community who are usually related to each other for the construction of a longhouse with sufficient rooms arranged in a row, all joined together to accommodate the families. And the longhouse will just ‘expand to with new families’. And it is within the ‘pemakai menoa’ that the longhouse community will establish ‘temuda’ which is an area of land accessible for farming and ‘pulau’ or ‘pulau galau’ which is the forest area where there may be rivers for fishing and the jungles for gathering of forest produce. The other Iban terms are ‘tembawai’ for old longhouse site; ‘tanah umai’ for cultivated land within ‘pemakai menoa’ and ‘pendam’ is cemetery. However, ‘pemakai menoa’ has its boundary usually based on streams, watersheds, ridges and permanent marks, separating it from another longhouse community.” (see: Superintendent of Lands & Surveys, Bintulu v Nor anak Nyawai & Ors and Another Appeal [2006] 1 MLJ 256 [COA].

6.      Under paragraph 21 of His Lordship judgment, CJSS further said:

“In respect of the intended purpose, NCL were created and existed by and for the natives in Sarawak. NCL are basically meant:

i.       for farming (‘temuda/tanah umai’) on the land within ‘pemakai menoa’ that is ‘anarea of land held by a distinct longhouse or village community, and includes farms, gardens, fruit groves, cemetery, water and forest within a defined boundary (garis menoa)’,

ii.      for fishing in the rivers therein; and

iii.     for the gathering of forest produce such as bamboo. ‘damar’ (resin) and timber for building boats and houses from the jungles (‘pulau’ or ‘pulau galau’).

7.      Ever since the decision in Nor anak Nyawai in 2001, we have no less than 10 cases affirming this concept of ‘pemakai menoa’ and ‘pulau galau’ coming out of the High Court and the Court of Appeal in Sarawak.


B.      AMENDMENT TO SECTION 5 OF THE SLC.

8.      It has been found in many cases where section 5(3) (4) are being used to extinguish NCR over NCL for public purposes the NCL owners are not consulted and given opportunity to air their response to such acquisition. In most cases the NCL owners only found out long after the process of the acquisition is gazetted; most of the time only when the project commenced on the ground. Active consultation with the affected natives must be done and if possible their consent obtained to avoid any future hindrances to the project.

C.      NEW SECTION 7A

9.      This section is in response to the decision in the Federal Court’s case of Bisi Jinggot @ Hilary Bisi Jinggot, which prohibits the transfer of NCR land even between the same native group but the buyer coming from another Kampong. I know there are a lot of people who disagreed to this decision as it appears to be in contradiction with some of the natives’ customs in Sarawak and secondly the sale of NCL had been on going in Sarawak with the approval of the Land and Surveys Department. Therefore the amendment is necessary just to ensure that what has been practiced all this while is made clear through legislation.

BARU BIAN
ADUN N.70, BA’KELALAN

*ADMIN'S NOTE: The matter on whether leave should be granted for the motion to proceed was put to vote after the Speaker gave his ruling. There were 14 votes in favour, and 52 against. The motion was dismissed without it being debated. 

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