THE long-awaited amendment of the Sarawak Land Code relating to native customary rights (NCR) could be made in the May sitting of the legislative assembly.

Deputy Chief Minister Douglas Uggah Embas, addressing criticism that he was slow to respond after the government failed to keep its promise of tabling the amendment relating to “pemakai menoa” (territorial domain) and “pulau galau” (communal forest reserve) at the current sitting, told the assembly today that time was needed to look at the issues holistically and to work out proposals to amend the land laws.

Uggah, who heads the task force to propose solutions to resolve the customary land rights issues, called for patience from all parties concerned.

“Be assured that holistic solutions will be found to address these sensitive and potentially volatile native customary land issues,” he said.

Two Federal Court decisions sparked public debate on NCR land.

In December last year, the Federal Court in the case of Director of Forest, Sarawak vs TR Sandah & others ruled that the NCR of the Dayaks of “pemakai menoa” and “pulau galau” – the forest areas around their longhouses – had no force of law.

The court ruled that their claims to NCR land apply only to the “temuda” (farmland).

On Oct 13, the Federal Court overturned the decisions of the High Court and Court of Appeal by ruling that Section 132 of the Sarawak Land Code protected the indefeasibility of the lease title, even if it had been shown that native customary rights had been created over the lands.

Uggah explained to the assembly that although the NCR creation and ownership of “pemakai menoa” and “pulau galau” are practised and recognised as part of the Iban custom, they “do not have legal effect”.

“In other words, although the custom relating to pulau galau and pemakai menoa is part of the Iban custom, such custom does not have the force of law.

“Therefore, the use and occupation of land pursuant to such customary practice does not constitute or establish native customary rights over such land.”

Uggah said the December ruling meant the custom on pemakai menoa and pulau galau was “never recognised in relation to creation of customary rights to land, in any of the Orders made and legislation passed by or during the Brookes era or by the state legislature”.

“The said custom is also not expressly provided in any of the codified Natives’ Adat, like the Tusun Tunggu and Adat Iban, 1993,” he said.

Uggah said the state government is aware of the implications of the Federal Court rulings and that was why the task force – comprising state and federal ministers, politicians, senior civil servants and legal practitioners – was formed.

The task force first met on March 14 and had met 12 times since then.

Uggah said a working committee had also been formed to study the implications of the Federal Court ruling, examine which laws need to be amended, and propose the appropriate amendments.

He told the assembly the working committee had also studied the memoranda forwarded by Sarawak Dayak Iban Association (Sadia) and Dayak intellectual groups, as well as the views of the Dayak Ketua Masyarakat and Ketua Kaum throughout the state.

However, Uggah said the memoranda and views expressed during the dialogues were mostly opinion and expression of sentiments.

“Substantive proposals to amend the Land Code were lacking.”

He also explained why lawmakers from the ruling Barisan Nasional rejected the Ba Kelalan assemblyman, Baru Bian’s, motion for leave to table a motion to debate the amendment of the Land Code last week, saying “it was an example of a piecemeal amendment intended to address a professional problem faced by Ba’ Kelalan in his legal practice”.

Uggah aslo said Baru’s “simple amendment without the need to obtain the views of all the communities involved, would not be able to address comprehensively the issues of creation, acquisition and ownership of native customary land especially by the Dayak communities”.

He said the government, on the other hand, is actively studying amendments to other related laws such as the Native Customs (Declarations) Ordinance 1996, the Native Courts Ordinance 1992, the Interpretation Ordinance 2005 and the codified Natives’ Adat.

“A detailed and comprehensive exercise as such inevitably requires more time to come with the proposed holistic amendments.”

Last Saturday, Dayak landowners with the support of a dozen of civil rights groups staged a protest in Kuching to pressure the government to table the amendment. – November 17, 2017.