1 Land Laws And Creation of Native Customary Rights (NCR) BY YBHG. DATUK J.C FONG (SARAWAK STATE ATTORNEY GENERAL) Land Laws And Creation of Native Customary Rights (NCR) BY YBHG. DATUK J.C FONG (SARAWAK STATE ATTORNEY GENERAL)

2 1.OVERVIEW OF LAND LAWS ETC. 2.FOREST LICENCES AND LAND RIGHTS 3.PENANS AND NATIVE CUSTOMARY RIGHTS (“NCR”) ISSUES RECOGNITION OF PENANS’ TRADITIONS SETTLEMENTS FOR PENANS 4.SELAAN-LINAU FOREST MANAGEMENT UNIT CURRENT ISSUES CONSTITUTION OF SULING-SELAAN PROTECTED FORESTS INTRODUCTION

3 The Land Code of Sarawak is the principal Law governing land in Sarawak. This Code was passed in 1957 and came into force on The Code consolidates all legislations in force at that time. No rights to land may be acquired save in accordance with the provisions of the Land Code (Section 44). OVERVIEW OF LAND LAWS ETC.

4 The Land Code recognizes native customary rights over land, provides the methods whereby native customary rights can be created over State land, and where such rights are created or acquired prior to , their creation or acquisition would be governed by laws in force immediately prior to (See: Section 5(1) & (2) of the Land Code). After , NCR may be created over Interior Area Land upon permit issued under Section 10 of the Land Code. OVERVIEW OF LAND LAWS ETC.

5 Claims to land based upon native customs has been part of our land system for nearly 2 centuries. The creation and acquisition of native rights over land had been regulated, from time to time, by written laws, originally, in the form of Orders or Proclamations made by the Rajahs and later, by laws passed by the Legislature. The common law of England does not apply in regard to acquisition of rights over land in Sarawak. (See: Sections 3 & 6 of Civil Law Act, 1965) OVERVIEW OF LAND LAWS ETC.

6 By virtue of Item 2 of List II (State List in the Ninth Schedule of the Federal Constitution) the Dewan Undangan Negeri (and not Parliament) has the authority to legislate on land matters in the State, including “native reservations”. Under Item 13 List IIA (Supplement to the State List for States of Sabah and Sarawak) native laws and customs are matters within the sole legislative competence of the State Legislative Assembly. OVERVIEW OF LAND LAWS ETC.

7 Where native customary rights are to be extinguished by the government, compensation will be paid to the affected natives. No State land which is encumbered by native customary rights may be alienated without payment of compensation. OVERVIEW OF LAND LAWS ETC.

8 TIMBER LICENCEES & LAND RIGHTS Timber licencees have no proprietary rights to the land. All land in Sarawak are vested in and within the control of the Government (Section 12 of the Land Code). The issue of Forest Licences to non-natives do not affect the rights of the Government over the land. The natives’ proprietary rights to land (if any) is limited only to the area that forms their settlement, but not to the jungles at large. See : Superintendent of Lands and Surveys Bintulu vs Nor ak Nyawai & others [2005] 3 CLJ 555 FOREST LICENCES

9 Timber licences do not cover land lawfully held under native customary rights – Second Schedule of a typical Forest Licence excludes land subject to NCR from the licensed area. The NCR must be those recognised by law, such as Section 66 of Land Settlement Ordinance, 1933 or created in accordance with Section 5 (2) of Land Code. FOREST LICENCES (cont.)

10 NCR ISSUES PERTAINING TO THE PENANS Penans were originally nomadic and do not settle in any specific area. Penan population in Sarawak in 2006 is estimated to be 15,405 mostly in interiors of Baram, Limbang and Belaga Districts. Majority have with encouragement and assistance of Government settled in Suai and Niah in Miri District, Lower Tinjar in Baram, Bintulu, Belaga and Limbang Districts, since 1960s. PENANS

11 NCR ISSUES PERTAINING TO THE PENANS Total Penans settlements is 103. Details as follows: PENANS (cont.) DistrictNo. of Settlements No. of Populations Baram Bintulu Miri Limbang Belaga ,765 1,187 1, ,041 Total10314,947

12 NCR ISSUES PERTAINING TO THE PENANS Nomadic Penans amount to 458 belonging to 9 groups in the Magoh and Tutoh river systems in Baram District. Some Penans have not yet obtained either birth certification or identity card. Consequently their native status need to be ascertained before they could claim rights to Native Customary Land. The State Government is working with the Federal Authority to resolve this problem. Source: Miri, Kapit & Limbang Resident and District Offices. PENANS (cont.)

13 NCR ISSUES PERTAINING TO THE PENANS Tradition of nomadic Penans to roam in the jungles are acknowledged and recognized. See: Gunong Mulu National Park Proclamations, 1974 – covering a total area of 52, hectares. PENANS (cont.)

14 Gunong Mulu National Park Proclamations, 1974 “Nomadic Punans living within the Park, shall have the privileges mentioned in paragraphs (a) to (c) above but such privileges shall cover the whole area of the Park. In addition, the Nomadic Punans shall have the privilege of taking timber and poles for firewood and the construction of temporary houses. Nomadic Punans that adopt a settled mode of existence shall forego the privileges included in this paragraph and have the same privileges as the inhabitants of the longhouses mentioned in paragraph (a).” PENANS (cont.)

15 RESERVATION OF LAND FOR PENANS Section 6(1) of Land Code enable the Minister to declare, by Gazette Notification, “any area of State land to be a Native Communal Reserve for the use of any community having a native system of personal law”. Native communal reserve can be declared for the Penans when they agree to settle. PENANS (cont.)

16 The Native Communal (Agriculture) Reserve Order, 1981 (Swk. L.N. 2/1981) whereby 2133 acres of land described as Lot 1 Block 22 Sawai Land District was declared to be a Native Communal Reserve for the exclusive use of the Penan community (pop. 450) at Kampung Meneng, Suai for agriculture purposes only. PENANS (cont.)

17 Although the Penans claim to have NCR over part of this forest area, the other natives, Kenyahs, are also claiming rights to the same area. Disputes between the Penans on the one hand and the logging company and the Kenyahs on the other side, are before the High Court at Miri (Suit No (MR)). SELAAN-LINAU FOREST MANAGEMENT UNIT

18 Disputes between the Penans and the Kenyahs are before the Native Court, Marudi vide case No. MUR/CC/06/2004. The Chiefs’ Native Court presided by a Penghulu ruled in favour of the Kenyahs. The Penans have appealed against this ruling to the Chief’s Superior Court which will be presided by a Temenggong. The High Court case is stayed pending final decision of the Appellate Court under the Native Court System. SELAAN-LINAU FOREST MANAGEMENT UNIT

19 In the meantime, some of the Penans have started their blockades and complaints against logging by the holder of forest timber licences, and the construction of a road which the Government wants to link to interior villages which are inaccessable. The Kenyahs are apparently not opposed to the harvesting of timber or the construction of the public road. Delay in the completion of the road is affecting the wellbeing of another community namely the Kelabits. SELAAN-LINAU FOREST MANAGEMENT UNIT

20 This forest area is within the Suling-Selaan Protected Forest constituted on the By virtue of the 2 nd Schedule to the Proclamation constituting this Protected Forest the permanent inhabitants of a number of long houses have “rights to continue traditional activities of fishing, hunting and collection of minor jungle produce for personal and domestic use only”. Prior to the constitution of this Protected forest, an exercise was carried out, after due public notice being given for any person claiming to have rights or privileges in the area to submit their claims to the Regional Forest Officer Miri. SELAAN-LINAU FOREST MANAGEMENT UNIT

21 The rights referred to in the 2 nd Schedule were determined after investigation and adjudication of the claims submitted by 274 people. The natives concerned do not have proprietary rights over the land in that area. They continue to have access to the area for fishing, hunting and collection of minor jungle produce. SELAAN-LINAU FOREST MANAGEMENT UNIT

22 Thank You