Part 6: Native customary land rights in Sarawak
Around the world, the indigenous customary land rights have been the source of confusion for the modern nation state. In this article, we will discuss the legal framework for the native customary land rights in Sarawak. For more information on the violations of the native customary land rights in Sarawak, please see our 2019 publication, The Land we Lost: Native Customary Rights (NCR) and Monoculture Plantations in Sarawak. This is the sixth article of our seven-part series on the indigenous customary land rights in Malaysia.
Over the last six decades, the Sarawak land and forestry laws have been amended numerous times; resulting in the progressive circumscription of the native customary land rights in the state. In the last two decades alone, the amendments of the Land Code 1958 in the year 2000 i.e., the Land Code (Amendments) Ordinance 2000 (Chapter A78) and in the year 2018 i.e. the Land Code (Amendments) Ordinance 2018 (Chapter A179), were among the most controversial, receiving widespread protests from civil society organisations and native communities. However, eventually, many of the amendments introduced in 2000 were never enforced and were subsequently repealed by the 2018 amendments.
As such, although Sarawak laws recognise the indigenous customary land rights in a more explicit manner in comparison to the legislation in Peninsular Malaysia, it does not mean that the rights are not subject to systemic violations. This recognition also does not prevent the extinguishment of the rights without the free, prior and informed consent (FPIC) of affected communities. It does not compel extinguishment notification to be served in a more personal fashion to affected communities, demand for local languages to be used for the notification or ensure the payment of adequate compensation for the loss of the rights.
The following sections will attempt to capture these concerns.
Land Code 1958
The Sarawak Land Code 1958 is the main land legislation which contains the most extensive provisions on the NCR in the state, although not all of such provisions may necessarily be favourable to the interests of the communities. Customarylaw is defined as a custom or body of customs to which the law of Sarawak gives effect.
Sarawak land classes
The following land classes in Sarawak is defined under section 2 of the code:
(i) Mixed Zone Land
Land that can be held under private titles and occupied by both native and non-native persons or permanent residents in Malaysia without any restrictions. The Mixed Zone Land cannot be occupied by any persons without a valid document of title.
(ii) Native Area Land
Land which can be held only by native persons but under a document of title. Non-native persons are only allowed to hold rights to such land under specific circumstances, including for mineral prospecting and forest produce harvesting. Much of such land is located within native customary territories that are in close proximity to areas that have become relatively urbanised.
(iii) Native Customary Land (NCL)
(a) Land in which native customary rights, whether communal or otherwise, have lawfully been created prior to the January 1, 1958, and still subsist as such. This includes land without any documentary title or a reservation status.
(b) Native Communal Reserve gazette under section 6.
(c) Interior Area Land upon which the NCR have been lawfully created pursuant to a permit issued under section 10.
The NCL may not be alienated unless the subsisting NCR have first been successfully extinguished.
(iv) Reserved Land
This is land reserved for various public purposes including but not limited to, for the direct use of the state and federal governments; and the establishment of production forests and conservation areas under the forestry and conservation legislation, respectively and Native Communal Reserve under legislation itself.
(v) Interior Area Land
Land which does not fall within any of the definitions of the four other categories. The bulk of such land is located in the interior. We however contend that based on landmark judicial decisions, it is still possible for the NCR to subsist in this land class.
Acquisition of the NCR
Section 5(1) of the law provides for the cut-off point of the creation of new NCR i.e., January 1, 1958. From this date, new NCR may only be acquired in accordance with customary laws of the concerned communities, if a permit is obtained under section 10 of the law, within Interior Area Land.
Section 5(2) then provides the methods by which the NCR may be acquired:
(a) the felling of virgin jungle and the occupation of the land thereby created;
(b) the planting of land with fruit trees;
(c) the occupation or cultivation of land;
(d) the use of land for a burial ground or shrine;
(e) the use of land of any class for rights of way; or
(f) any other lawful method.
Subsection 5(2)(f) may include to any methods of acquiring rights as recognised by customary law, such as the acquisition of shared common rights by an entire community on the higher forests through hunting, harvesting and gathering activities and the recognition of territorial boundaries through mutual agreements with adjacent communities. The lack of documentary title for the NCR does not jeopardise their legitimacy, as the people are still regarded as government land licensees on state land.
However, in order to determine the validity of the NCR acquired prior to 1958; whether they had been lawfully acquired, the second proviso of subsection 5(2) appears to suggest that the law that must be referred to for this process is the land law in force prior to 1958 i.e., the Land Settlement Ordinance 1933.
Section 66 of this older law recognises the NCR that had been established on:
(a) land planted with fruit trees, when the number of fruit trees amounts to twenty and upwards to each acre;
(b) land that is in continuous occupation or has been cultivated or built on within three years;
(c) burial grounds or shrines; and
(d) usual rights of way for men and animals from rivers, roads or houses to any or all of the above.
Strengthening state recognition of the NCR
The land law also provides for ways in which indigenous customary land rights can be further strengthened through the following ways:
(i) Section 6 allows for the creation of the Native Communal Reserve, which is still explicitly admitted to be part of state land. Like its counterparts in the Peninsular Malaysia and Sabah, the status of the Native Communal Reserve in Sarawak may also be revoked, if it can be done “without causing injustice or oppression”, through subsection 6(4).
(ii) Section 10 allows for the acquisition of new NCR after 1958 through the issuance of a special permit although admittedly, its tone is more focused on prohibiting the occupation of areas within Mixed Zone Land, unless a document of title is obtained.
(iii) Section 18 of the law specifies that if the state finds such NCR legitimate, it can issue the rights holders with a grant in perpetuity, free of any land rental charges, including for residential and agricultural purposes. Section 18 comes under Part III of the law which addresses issues related to the alienation of state land. This process therefore can be deemed as a form of land alienation for native persons who hold customary tenure over their traditional land.
Extinguishment of the NCR
Subsections 5(3) to 5(7) of the Land Code 1958 provide for the extinguishment of the NCR. The notification process provided by the law is severely inadequate, requiring that it is only published in the Sarawak Government Gazette and in one newspaper, in addition to being displayed at the local district office. There is no provision whatsoever which compels the state to inform affected peoples in a more personal fashion, or to do so in an appropriate language or dialect. However, as some NCR extinguishments undertaken through this law had involved forced relocation for the purpose of the construction of large dams, in such cases the state had no choice but to also conduct personal notifications for affected communities.
From the date of the announcement and regardless of whether affected communities have been fully informed of the extinguishment decision, affected communities will have a maximum of 60 days to submit their claims to the Department of Lands and Surveys. If claimants are dissatisfied with the decision of the agency, they will have another 21 days to write to the department to request for an arbitration process.
Meanwhile, rules of assessment of the compensation payable for the extinguishment of the NCR will be determined by the state cabinet, otherwise known as the Majlis Mesyuarat Kerajaan Negeri. Once again, compensation for the loss of the indigenous customary land rights is addressed in an arbitrary fashion, violating the demands of the Federal Constitution that the loss of the right to property must be compensated adequately.
Meanwhile, subsection 15(1) stipulates that land with subsisting NCR, cannot be alienated unless all such subsisting rights have first either been surrendered or extinguished and compensation payments have been made to affected persons. The subsequent subsections 15(2)(a) – (f) provide for the processes related to the surrendering of the affected rights once the land is required by the state.
This land resumption process is undertaken mostly at the level of the Department of Lands and Surveys, avoiding the more elaborate process of issuing a direct ministerial NCR extinguishment order, as provided for by subsection 5(3). However, since it is unlikely that communities are willing to part with their land voluntarily, even with compensation payments, subsection 5(3) has to be invoked.
Development Areas
Section 18A of the law empowers the Sarawak Land Custody and Development Authority (LCDA, or its Malay abbreviation, PELITA) and the Sarawak Land Development Board (SLDB), to use their respective ordinances to declare an area as a Development Area. A lease over such land may then be issued for not more than 60 years to any approved corporate or statutory body. On the expiry of the lease, if they so wish, natives whose lands have been included in a Development Area must submit the application for the reinstatement of their rights over the land to the Department of the Lands and Surveys, which may then issue such a grant to the applicants, with terms and conditions that is deemed fit to be imposed.
Clearly, section 18A was introduced in 2001 to allow commercial interests greater access to the NCL for operations such as monoculture plantations, including joint-venture projects undertaken between the private sector and native landowners, as part of the controversial Konsep Baru land development policy. Apart from questions of consent and other issues associated with the transparency and fairness of the profit-sharing ventures under the Konsep Baru, in reality, this amendment has the possible effect of permanently terminating the peoples’ rights.
Native Territorial Domain and Native Communal Title
Introduced through the controversial amendments of 2018, the Native Territorial Domain (NTD) is a contentious term right from the start. It is the sort of solution no one was asking for; one that may compound existing difficult situation, instead of making it better.
It was reported that the main objectives of the Land Code (Amendment) Bill 2018 were to give Native Territorial Domain the force of law, to issue Native Communal Title in perpetuity, which will confer on such title a proprietary right to the native territorial domain. Once the title is issued, it will be treated as any title granted under the Land Code, and the proprietary interest in that title would be indefeasible by virtue of section 132 of the Land Code.
Section 2 defines the Native Territorial Domain as an area or territory that is within or conjoining or immediately adjacent to an area where NCR have been created by that community in accordance with section 5; and wherein members of a native community prior to 1958, exercised usufructuary rights or preserved by them for such purposes, provided that such area or territory have not already been constituted a communal forest under the Forests Ordinance 2015.
The section also defines Native Communal Title as a title issued in accordance with section 6A over a native territorial domain in the name of a person or body of persons as trustee for the native community concerned but without the right of sale or disposal, and such native communal title shall be held to be a title under this Code.
A Native Communal Title will be officially registered with the state. It has been claimed that section 132 of the land law, which provides for the indefeasibility of a registered land title, will bestow such a title with proprietary interest.
The new section 6A on the NTD reads as follows:
(1) Any native community may, within a native territorial domain, claim usufructuary rights exercised and enjoyed by members of that community.
(2) Any claim under subsection (1) shall be made to the Superintendent in such form as may be provided by the Director with all evidence in support of such claim:
Provided that—
(a) any area claimed as native territorial domain shall not exceed five hundred hectares; or
(b) the Minister may, with the approval of the Majlis Mesyuarat Kerajaan Negeri in accordance with the Rules made herein, allow a claim of up to one thousand hectares.
(3) If the Director approves the claim, the Superintendent shall issue a native communal title, describing the area as a native territorial domain, which shall be used exclusively by the native community for agricultural purpose or such other purposes as may be approved by the Majlis Mesyuarat Kerajaan Negeri and subject to any other terms and conditions that the Director may impose:
Provided that the native communal title shall—
(a) be issued in the name of a person or body of persons who shall hold the native territorial domain in trust for the native community named in the native communal title in accordance with rules made hereunder;
(b) be in perpetuity, free of any premium, rent or other charges; and
(c) not be assigned or transferred to any person who is not a member of the native community named therein.
(4) In the event that the Director rejects the claim, any person aggrieved by his decision may within thirty days from the date when the decision of the Director is conveyed to him, appeal to the Minister who shall consider the appeal.
(5) Where any question shall arise as to whether any person is a member of the native community named in the native communal title issued under subsection (3), the person or body of persons in whose name the native communal title is issued shall refer the same to the District Native Court for a decision, and such reference shall be instituted and dealt with in accordance with rules made under the Native Courts Ordinance, 1992 [Ord. No. 9/92].
(6) Any claim for a native territorial domain shall not be made or allowed in respect of any area or land where, before the coming into force of this section, there is a final decision by a court of competent jurisdiction that no usufructuary rights have subsisted or have been lost or abandoned by members of the native community making that claim.
As can be seen from the above, there are several disturbing matters about this new section, which include:
(i) It openly reduces the NCR to usufructuary rights, when the judiciary and indigenous communities themselves have contended time and again that the rights are more than usufructuary rights, they are proprietary in nature;
(ii) Rights to the NTD are granted by the state, although the judiciary has already affirmed that the existence of the NCR does not depend on any executive, legislative or judicial proclamation;
(iii) The expectation that indigenous communities would have to apply for rights that are already theirs is quite legally bizarre;
(iv) The limitation of the size of the NTD, of between 500 hectares and 1,000 hectares, of which the latter must even receive ministerial and state cabinet approval, is another instance where the amendment is in conflict with judicial decision, which has affirmed that the size of an indigenous customary territory is a question of fact. It is unclear how the state will address NCR territorial claims that exceed this size in the future, although based on judicial decisions again, the size and extent of an indigenous territory is not dependent on any executive, legislative or judicial proclamation;
(v) The size limitation of an NTD of between 500 and 1,000 hectares is really uncalled for. The population size and livelihood requirements of a Sarawak native community may far exceed this threshold. Generally, the size of most indigenous territories in Sarawak is much larger; in fact, figures larger than 5,000 hectares are not uncommon. Territorial size is dependent upon the size of the communities and its boundaries had already been historically determined.
(vi) Assigning the name of an individuals or a group of an individuals to a native communal title may pose risks to the integrity of indigenous territories as it may create new power imbalances within a native community. Such a practice is absent to the customs of the communities.
As can be seen, these amendments may do more harm than good for the NCR.
Land resumption by the state
The resumption of land by the state is fully addressed under part 4 of the land law, although section 82 stipulates that NCR extinguishment will not be dealt with by provisions under this part. Its section 46 provides for a wide range of purposes for which land may be resumed by the state, including for work deemed as beneficial to economic and social development of the state and public purposes.
Forests Ordinance 2015
The Forests Ordinance 2015, which provides for the gazetting of Permanent Forest Estate (PFE), with two subclasses of production forest and one for communal reserves, through its sections 30 to 38, is the main forestry law in Sarawak.
In 1995, Sarawak corporatised the functions of its Forests Department, including its enforcement tasks to the Sarawak Forestry Corporation (SFC) by virtue of the Sarawak Forestry Corporation Ordinance 1995. The department remains a policy making body.
The gazetting of the Forest Reserves and Protected Forests under the PFE tends to largely extinguish existing NCR claims to such forests, as the case is in Sabah and Peninsular Malaysia. Although the state may concede certain subsisting rights and privileges of affected native communities in such forests, section 21 may subject these rights to new conditions, set at the discretion of the state. Section 27 prevents activities associated with the exercise of any subsisting rights within Forest Reserves and Protected Forests, from being punishable under the law.
While such conditions may allow affected communities to continue residing in such forests and to carry on with their cultivation activities on existing farms, they may also make it an offence the planting of new trees or unauthorised utilisation of the forests and the felling of trees within such forests. Further, the amount of jungle produce that can be harvested by communities may also be heavily controlled.
Sections 20 and 39 the law declare that all forest produce in the state as property of the state. Section 20 prohibits the unauthorised staying and occupation of Forest Reserves and Protected Forests, and even the unauthorised entrance by persons whose rights have been extinguished as a result of their establishment. Section 26 provides for a list of activities that are prohibited to be carried out without authorisation within the Forest Reserves and Protected Forests. They include the felling, cutting and injuring of any tree or timber, including by fire, the erection of buildings, the clearing of land for cultivation or for any other purpose, animal pasturing and even trespass of the forests themselves.
Sections 8 to 17 of the law provide for a notification and compensation process for NCR extinguishment for the establishment of the Forest Reserve and Protected Forest. However, this process is highly unfavourable to affected communities.
The law only stipulates that the notification must first be published in the Sarawak Government Gazette, at least one newspaper, or in such medium as circumstances may permit, and displayed at the local district office. Affected communities are given a maximum of 60 days from the date of the notice to submit their claims and evidence to support their claims. Affected persons who fail to submit such claims within the stipulated period shall simply be deemed to have abandoned or waived their rights and no longer be entitled to any compensation payment.
Following the submission, an enquiry process will take place. Affected persons who are still not satisfied with the decision of the department will have another 21 days to appeal at the sessions court. The rights that can be claimed are those that can be demonstrated to exist prior to January 1, 1954, the date the predecessor to the current forestry legislation came into force and are continuously held until the date of the extinguishment notice.
Meanwhile, rules of assessment of the compensation payable for the extinguishment of the NCR will be determined by the state cabinet, otherwise known as the Majlis Mesyuarat Kerajaan Negeri. Once again, compensation for the loss of the indigenous customary land rights is addressed in an arbitrary fashion, violating the demands of the Federal Constitution that the loss of the right to property must be compensated adequately.
Compensation assessment is provided under section 15. This process is also addressed based on the discretion of the forests department, violating the demands of the Federal Constitution that the loss of the right to property must be compensated adequately. The forestry director is simply required to take into account the nature and extent of the right or privilege claimed; whether such right or privilege is still exercised or enjoyed by the claimant at the date of the notification; the degree of actual dependency, if any, of the claimant on such right or privilege, as a means of his livelihood; if the right or privilege relates to the planting of any crop, whether an alternative site or area has been provided by the Government for the person or the community to which he belongs, for farming; and any other relevant factors or circumstances pertaining to the enjoyment or exercise of such right or privilege.
Due to the absence of a mandatory personal notification and information dissemination process, historically, many affected indigenous communities were not even aware of the extinguishment of their NCR for the purpose of establishing such forests, not until the process had reached its final stages or even completed.
Last but not least, logging and timber tree plantation licences (which may also allow the cultivation of oil palm on more 20 per cent of a concession area for one cycle of 25 years), are also issued under the authority of the Forests Ordinance 2015, whether on the PFE or state land forests. Since the PFE and state land forests are interpreted as state property, while the indigenous customary land rights are interpreted as merely a limited form of usufructuary rights, such licences would frequently encroach on native customary territories without the FPIC of affected communities.
Communal forest reserve
Sections 30 to 38 of the forestry legislation also provide for the creation of the Communal Forest Reserve, the only category which can be gazetted for the sole domestic use of local native communities. However, the size of the Communal Forest Reserve has been in sharp decline since the 1960s. In fact, data on this is not readily made available in the public but the percentage of its size in relation to the overall size of the forested area or even the PFE in the state, is believed to be less than one per cent today. In practice, the gazetting of such forests has long been halted by the state. In the last three decades, countless native villages had applied for such legal recognition to no avail.
Further, it must also be noted that in 2001, a confounding amendment was also made to the predecessor forestry legislation on the Communal Forest Reserve. This was the insertion of the which perversely posited that if members of a community proceeded to harvest forest produce within their Communal Forest Reserve, they would then be presumed to be taking it for sale, exchange or direct profit, unless they could prove otherwise. This insertion effectively rendered the function of the Communal Forest Reserve meaningless. This content) is now retained through subsection 37(3) in the new 2015 law, with specific penalties being stipulated in the succeeding subsections 37(4) and 37(5).
National Parks and Nature Reserves Ordinance 1998 and the Wild Life Protection Ordinance 1998
Apart from the forestry legislation, the Sarawak Forests Department also regulates two conservation laws i.e. the National Parks and Nature Reserves Ordinance 1998, which regulates the creation of National Parks and Nature Reserves, and the Wild Life Protection Ordinance 1998, which regulates the establishment of Wild Life Sanctuaries and protected animal and plant species. Like the forestry legislation, these conservation laws also pose similar threats to the NCR. For the purpose of the establishment of these conservation forests or areas, these rights will also be either extinguished in full or severely reduced and regulated.
For the National Parks and Nature Reserves Ordinance 1998, although its subsection 8(3) allows for the designation of any part of its conservation areas for the exercise of subsisting rights or privileges, its section 21 also spells out the effects of the notification of the establishment of its conservation areas, which bars unauthorised entrance, residence and stay within its conservation areas.
Meanwhile, section 23 declares that National Parks and Nature Reserves to be the property of the state. Section 26 provides for the list of acts prohibited within National Parks and Nature Reserves, which include, among others, the unauthorised entrance, residence or stay within the areas; the possession of any weapons, explosives, poison or any contrivance of any kind used for the taking, capturing, shooting, killing or disturbing of any animals; the killing, injuring, capturing or disturbing of any animal or the destruction of any plant, egg or nest; the setting of fire to any plant; the destruction and removal of objects of special interest; the removal of any animal or plant; the erection of buildings; and the clearing of land.
Last but not least, subsection 37(1) of the law provides a long list of matters on which further regulations may be made by the state in respect of such conservation areas. These include the exclusion of members of the public from the areas; the capturing and killing of animals; the burning and cutting of vegetation; the taking, hunting, killing, snaring, trapping or capturing of any kind of wildlife by people with subsisting rights and privileges; the control of the type of weapons, instruments, contrivances and methods that they are able to use in the taking, shooting or killing of wild life; the conditions subject to which permission to enter the areas may be granted; and the periods of times during which they shall be open to the public.
Likewise, the Wild Life Protection Ordinance 1998 also contains similar provisions. Its section 25 allows for some exemption to be given for the exercise of any right or the enjoyment of any privilege. Its section 22 spells out the effects of the notification of the establishment of the Wild Life Sanctuary, which among others also bars unauthorised entrance, residence and stay in the gazetted area.
Its section 24 provides for the list of acts prohibited within Wild Life Sanctuaries, which include, among others, the unauthorised entrance, residence or stay within a Wild Life Sanctuary; the hunt or capture of any animal; the possession of any weapon, contrivance or material for the taking, shooting or killing of any animal; the possession or use of any trap, snare, net or any similar contrivances (with the exception of fishing nets for people with subsisting rights or privileges); the cutting, collection, removal or possession of any wild plant; the possession of any wild animal or its parts and derivates; the erection of buildings; and the breaking of land for cultivation or for any other purpose.
Finally, its subsection 55(1) also provides for the list of matters on which further regulations may be made by the state in respect of the Wild Life Sanctuary. These include the control on the taking, hunting, killing, snaring, trapping or capturing of any kind of wildlife; and the type of weapons, instruments, contrivances and methods to be used in the taking, shooting or killing of wildlife.
Like the forestry legislation, the two conservation laws also provide for a notification and compensation claims process for the extinguishment of the NCR prior to the establishment of National Parks, Nature Reserves and Wild Life Sanctuaries. Similarly, the process under both laws is also highly unfavourable to affected communities. For the National Parks and Nature Reserves Ordinance 1998, this process is addressed by section 10 to 18; for the Wild Life Protection Ordinance 1998, they are addressed by section 11 to 19.
Both laws only stipulate that the notification must first published in the Sarawak Government Gazette, at least one newspaper and displayed at the local district office. Additionally, the state may also apply its own discretion in deciding whether it is necessary for other notification methods to be carried out for affected native communities. Affected communities are given a maximum of 60 days from the date of the notice to submit their claims and evidence to support their claims. Affected persons who fail to submit such claims within the stipulated period shall simply be deemed to have abandoned or waived their rights and no longer be entitled to any compensation payment.
Following the submission, an enquiry process will take place. Affected persons who are still not satisfied with the decision of the department will have another 21 days to appeal at the sessions court. For the National Parks and Nature Reserves Ordinance 1998, the rights that can be claimed are those that can be demonstrated to exist prior to February 16, 1956. For the Wild Life Protection Ordinance 1998, the cut-off date is set on January 1, 1958.
For the lack of a mandatory personal notification and information dissemination process, again, many affected indigenous communities will attest that they were not even aware of the extinguishment of their NCR for the purpose of establishing such conservation forests and areas, not until the process had reached its final stages or even completed, although admittedly this issue is more prevalent for the reservation of production forests. Once again, both laws have the effect of presuming that native communities are able to learn of the NCR extinguishment process without any mandatory personal notification being implemented by the state.
Apart from the above, section 28 of the Wild Life Protection Ordinance 1998 also provides for the protection of land deemed to be of ‘special interest’ for its important wildlife population or interesting geological or physiographical features. The conservation measures undertaken to protect such wildlife habitats or natural features may include similar prohibitions enforced in other conservation areas. In fact, the exercise of the NCR may also be similarly curtailed if the state deems it necessary for this to be enforced. However, such regulatory measures can also be achieved through the establishment of special arrangements and agreements with the owners or occupiers of the land.
However, where the state finds that it is not possible for such an arrangement or agreement to be reached with affected persons, it can also unilaterally serve them with a written notice which sets out the conservation measures it wishes to undertake in the concerned area in no less than a month’s time. In this case, affected persons may still forward their concerns and objections to the state, whose decision however will be final and cannot be challenged or appealed against in any way, including in a court of law. Affected persons who fail or neglect to carry out the order or act in breach of the provisions of the arrangement or agreement made, shall be guilty of an offence punishable by both imprisonment and fines.
Size of NCR territories unilaterally determined by the state
Prior to 2009, the website of the Sarawak Lands and Surveys Department used to display statistical data which showed that the size of NCL in Sarawak to be around 1.6 million hectares, or approximately 13 per cent of Sarawak’s total land area.
Although this information has long been gone from the department’s website, in November 2012, the Sarawak state legislature was reportedly told that “around 1.5 million hectares of land in Sarawak may be subject to native customary rights.” However, it was clarified that these did not include the pemakai menoa or pulau galau, the former refers to the entire Iban customary territory, the latter refers to its communal forest reserve, unless there was proof of NCR claims over such land. We thus believe that areas held under the NCR as defined by the peoples’ customs, which include the entire pemakai menoa, would be much higher.
In July 2018, the Sarawak legislature was informed that under the first phase of the Program pengukuran tanah NCR inisiatif baharu (New initiative on NCR land survey programme), around 1,318,755 hectares of land in Sarawak have been approved for perimeter survey works. From these, the survey for 861,136 hectares have actually been completed; 8,546 hectares were still in the process of being surveyed; 225,963 hectares would soon be surveyed in the near future; while the survey of another 211, 124 hectares of land could not be continued as a result of various problems in the field.
9,461 individual lots of 10,512 hectares of NCR land have thus far been surveyed and issued with land titles under section 18 of the Land Code 1958 under the second phase of the abovementioned programme.
On the whole, according to the Sarawak Department of Lands and Surveys, through its Aerial Photograph Information System (APIS), if all such land is surveyed in the future, it has been estimated that there will be 2,594,501 hectares of land held under the NCR and another 1,154,827 hectares that can be claimed as NTDs. These bring the size of native customary territories to 3,749,328 hectares or 30 per cent of Sarawak’s landmass.
Conclusion
From the above, we can conclude that there are numerous weaknesses, limitations and flaws in the content of the various laws on land, forestry and conservation in Sarawak, which collectively have failed to provide adequate protection on the native customary land rights in the state, as demanded by landmark judicial decisions and the Federal Constitution.
There are also other laws that affect the indigenous customary territory in Sarawak. Sarawak by far has the highest number of legal provisions that can create adverse impacts on the indigenous customary land rights. It even has a law which severely restricts community mapping activities and another which attempts to be very determined in advancing the codification of native customs to the point where the assertion made on its conclusiveness insists that its correctness shall not be questioned in any court. For more information on the NCR in Sarawak, please refer to table 3 in the third part in this series of articles, or you can head to our 2019 publication.
