Monday, November 10, 2014

Baru Bian's debate speech on the Land Code (Amendment) Bill 2014

Sarawak State Assembly 10-19 November 2014


Mr. Speaker,

Thank you for allowing me the opportunity to participate in the debate on the Land Code (Amendment) Bill, 2014.

Ø  Section 5(2)

The proposed amendment to section 5(2) of the Land Code is the “reincarnation” of part of my private Bill, which was rejected by a vote in this august house in our last sitting in May. Nevertheless, I am happy to lend support to the amendments proposed in the present Bill before us today except a small reservation on the new section 197A, for reasons I will elaborate later.

This Bill fundamentally seeks to amend section 5(2), amongst other things to allow untitled NCR lands to be “inherited, acquired or purchased by or transferred or sold or disposed of to or dealt with another native”. In the context of this Bill and in the light of section 5 of the Land Code, I believe the NCR land referred to herein is in reference to “temuda” NCR land and not to the “pemakai menua” or the “pulau galau” which is normally co-owned by the community. Secondly, since the concept of “pemakai menua” and “pulau galau” is yet to be officially accepted by the State Government, I would submit that this amendment is indeed in reference to “temuda” NCR land. Thirdly Mr. Speaker, it is also premised on the fact that, customarily and legally only “temuda” rights could be dealt with by the claimant/s. 

Mr. Speaker, I believe this particular amendment was triggered by the Federal Court case of Bisi Jinggot @ Halirion Bisi ak Jinggot v Superintendent of Lands & Surveys, Kuching, & 3 Ors [2013], where the Federal Court declared unlawful the sales of NCR lands by some Ibans to an Iban person who came from another community or village different from that of the seller although all are native Ibans. But that was because the expert witness in that case said it is not allowed in accordance with the adat or custom of the Ibans in that case. But Mr. Speaker, such sale is in fact allowed in some of the native communities in Sarawak; for example the Lun Bawangs and Tagals in my constituency. Therefore, this amendment to section 5(2) is necessary and timely as I had proposed too in my private Bill referred to earlier; i.e. to put a general sanction or endorsement to such sale of NCR land amongst natives in Sarawak.

Mr. Speaker, of course there are some people who are very jittery of this amendment. They say that this would allow rich natives to take advantage of the poor natives landowners to part with their NCR lands in such transaction thus taking advantage of the financially weaker landowner. There is some merit in this argument Mr. Speaker, but at the same time we cannot prohibit genuine transactions that could have been done between a willing buyer and a willing seller. Therefore, I propose a middle ground, Mr. Speaker, and that is to restrict the acreage in one transaction to 500 acres and that such sale must be registered at the District office where the land is located and the village chief be notified. This will be a safety measure to check for such an abuse of this section. In fact this is consistent with the restrictive spirit of section 19 of the Land Code where the Code prohibits the issuance of a single document of title either alone or jointly owned beyond 5000 acres. Here I am proposing 500 acres and not 5000 acres. Mr. Speaker; if this suggestion is not possible to be incorporated in this Bill, I propose that the same could be laid down as rules made under section 213 of the Land Code in particular subsection (1)(e)[1].

Ø  Section 15

The Bill states, “Section 15 is amended to include after the word “made” at the end of subsection (1) thereof the words “in accordance with section 5(3) and (4)”. So the whole of section 15 would now read:

         “15(1)   Without prejudice to sections 18 and 18A, where native customary rights have been lawfully created over State land, such land shall not be alienated or be used for a public purpose until all native customary rights have been surrendered or terminated or provisions for compensating the persons entitled thereto have been made in accordance with section 5(3) and (4)”.

Mr. Speaker, section 15 is a very good section, which guarantees the compensation to NCR landowners when his NCR land is acquired for public purpose. Although the amendment sought here is just to make the acquisition kind of complete by relating it to section 5(3) & (4) of the Land Code, please allow me Mr. Speaker, at this juncture to make comments on section 5(3) for the Minister’s consideration for further amendment.

Section 5(3) allows the Minister to extinguish any NCR over NCR land by direction, which shall be: -

   “(i) Published in the Gazette and one newspaper circulating in Sarawak; and
   (ii) Exhibit at the notice board of the DO for the area where the land, over which such rights are to be extinguished is situate,

and on that date specified in the direction, the native customary rights shall be extinguished and the land held under such rights shall revert to the Government.” Then the next proviso to that section talks about lodging your claims within 60 days and if NCR is established compensation made to the owner.

Mr. Speaker, a few serious problems arise from this section 5(3) process:

1.      The natives in the ulu or rural Sarawak do not read Government Gazette or read the newspaper, especially those living in the highland of Long Semadoh, Bakelalan or Bario, Mr. Speaker. I assure you, Mr. Speaker - no Gazette or newspaper reaches the rural areas of Sarawak. What more to say the natives in rural Sarawak when even most YBs or lawyers or any professionals for that matter do not read Government Gazette. As to newspapers, maybe some do read.

2.      “To exhibit at the notice board of the DO for the area where the land, over which such rights are to be extinguished is situate”. How often does the native come down to the District Office? Maybe once a year just to renew his gun licence or to apply for his children’s I.Cs etc. Even if he comes down to the District Office, how do you expect him to read what is on the Notice Board? Well, if he can read well and fine. But if he is illiterate like many of our relatives, they are done for, because the section requires them to lodge their claims for compensation within 60 days failing which “no claim for compensation for extinguishment of NCR shall be entertained” by the Superintendent under subsection 3(b).

Mr. Speaker, at this juncture may I respectfully ask that the Minister consider seriously amending section 5(3) (a) further by:

(i)     including the said extinguishment direction to be exhibited at the “door” or “bilik” of the village Chief or Ketua Kampung or Tuai Rumah where the said land is located;

(ii)    providing that there must be a free prior consent process conducted with the natives in accordance with the requirements under the United Nations Declaration of Rights of Indigenous People.

On the second proposal above, Mr. Speaker, some natives may own only that one piece of NCR land acquired by the Government for this public project or that piece of land may have some sentimental value to him or the family and therefore taking it away from him although compensated may not be the best thing for the person concerned. You may be aware Mr. Speaker, compensation for NCR land especially in the rural Sarawak is very negligible. So the natives may prefer the land than the money. But section 5(3) gives them no right to oppose the acquisition. For example, in a recent case in Buduk Nur, Bakelalan where a beautiful buffalo ranch of more than 10 acres was acquired under this section 5 for Government buildings, compensation offered was around RM20,000-00. The owner and the children refused to accept the compensation or acquisition and preferred the land. So when they asked my opinion I said under the present provision you have no right to oppose the acquisition. Once the process under section 5(3) of the Code is done you only have the right to argue on quantum of compensation. A very sad state to be in.

Mr. Speaker I have come across many such cases, and I strongly believe that section 5(3) must be further amended to address these real practical problems.

Ø  Section 18A

The amendment sought under section 18A of the Code is commendable as it makes it mandatory for the issuance of document of title under section 18 to the natives whose right of ownership had already been proven or recognized as opposed to the earlier provision where the natives may have to apply for the issuance of such document of titles.

Ø  New Section 197A

Mr. Speaker, I am not very comfortable with this new section 197A. This is because the Government appears to be shying away from her fiduciary duties towards her children; in this case the natives of Sarawak by pleading immunity. This legal and constitutional responsibility is now applied in our country in the Court of Appeal case of Kerajaan Negeri Selangor & Ors v Sagong Tasi & Ors [2005] 4 CLJ 169 where His Lordship Gopal Sri Ram, approving the High Court’s judgment said:
“The content of the fiduciary duties has been described in many (sic) ways. But in essence, it is a duty to protect the welfare of the aborigines including their land rights, and not to act in a manner inconsistent with those rights, and further to provide remedies where an infringement occurs. In Mabo No 2, (Mabo & Ors v. State of Queensland & Anor [1986] 64 ALR 1) it was said that the obligation on the Crown was to ensure that the traditional title was not impaired or destroyed without the consent of or otherwise contrary to the interests of titleholders. And in the Wik People’s case, (The Wik Peoples v. The State of Queensland & Ors [1996] 187 CLR 1) it was reiterated that the fiduciary must act consistent with its duties to protect the welfare of the aboriginal people. The remedy, where the government as trustee or fiduciary has breached its duties, is in the usual form of legal remedies available, namely by declaration of rights, injunctions or a claim in damages and compensation.”

The new section reads: “No action or claim for compensation shall be brought against the Government arising from any inheritance, acquisition, purchase, transfer, sale or disposal of or other dealing in land over which native customary rights subsist as provided in paragraph (i) of the proviso in section 5(2).”

I have no problem with the words, “inheritance, acquisition, purchase, transfer, sale or disposal of” which connotes the dealing of the individual over his own NCR land, but what is worrying to me is the next phrase “or other dealing in land over which native customary rights subsist”.

Mr. Speaker, it appears to me that the Government may not be liable for compensation where NCR lands may be included in Timber Licences, or Provisional Leases issued to a third party. Can I ask the Minister whether the issuance of Timber Licence, Provisonal Lease, Quarry Licence or LPF licence is considered as dealing in land and therefore covered under this new section? If it does, Mr. Speaker, then I strenuously oppose this new section. With this little reservation Mr. Speaker, I am supportive of this proposed Land Code (Amendment) Bill 2014.  

As to the rest of the amendments to sections 228 and 229 I have no comment except to say they are appropriate in the circumstances as stated in the explanatory note to the Bill.

Thank you for your indulgence Mr. Speaker.


[1] The Majlis Mesyuarat Kerajaan Negeri may make rules generally for carrying out the provisions of this Code…. “(e) the conduct and conditions of sales by auction or otherwise”.