THE Sarawak government has made a major concession on a key proposal in the contentious bill to amend the Land Code.

It has decided to allow native communities their proprietary rights to land created via native customary practices and considered native territorial domain.

It said it is still “listening” to feedback on the bill, as several Gabungan Parti Sarawak (GPS) backbenchers joined the chorus of protest against the proposal to limit what native communities could claim over their native territorial domain.

The proposal, sighted from leaked copies of the bill and those sent to assemblymen for their perusal, was to grant usufructuary rights, meaning only the rights or privileges over a community’s native territorial domain to forage for food, including fishing and hunting, but without legal ownership over the said domain.

The proposal has sparked protests from native civil rights groups, land rights activists and opposition Pakatan Harapan lawmakers, who claim that the passing of the bill would “kill” native communities’ traditional concept regarding land ownership.

Dayak National Congress (DNC) president Paul Raja earlier this week said the bill would not only put an end to the customs of “pemakai menoa” (territorial domain) and “pulau galau” (communal forest reserve), but the government was also shortchanging and downgrading native rights.

Land and human rights activist Peter John Jaban said the granting of usufructuary rights was “not made for the people” as the government has failed to recognise their “adat” (customs).

However, Deputy Chief Minister Douglas Uggah Embas, in tabling the Land Code (Amendment) Bill 2018 at the state assembly, declared that “today is a historic moment for the natives of Sarawak… because we are finally going to see the light of day in respect to native land rights”.

“Most governments, where indigenous communities exist, give usufructuary rights to their inhabitants over areas traditionally occupied by them.

“Here in Sarawak, under the GPS government, territorial domain is to be given the force of law, and to be legally recognised as having a proprietary right,” he said as backbenchers sounded their approval of the concession.

Uggah, who chaired the task force set up by the government to draw up the amendment, said the “landmark outcome” of the amendment is “to enable native communal title in perpetuity to be issued” over the native territorial domain.

He said the title will be issued to the community concerned to protect its domain.

The title will be issued in accordance with the custom that the land is the particular community’s heritage, and will not be assigned or transferred to any person who is not a member of the community.

Uggah said the granting of the proprietary right nullifies views by “champions of native rights, keyboard and armchair critics, and Sarawak PH”.

However, two other contentious proposed amendments – limiting the area that may be claimed as native territorial domain at 500ha, and to have native communities apply for their domain from the Land and Survey Department – remain.

Several GPS backbenchers questioned the proposal to limit the size of the domain that could be claimed, with Murum assemblyman Chukpai Ugon saying doing so “will not be acceptable or reasonable for settlements in my ‘kawasan’ (constituency)”.

The Parti Rakyat Sarawak rep said the same applies to other interior areas, such as Hulu Rejang, Kapit, Balleh and Baram, “where longhouses may have more than 100 doors, and the areas they have been foraging, hunting and fishing in are much larger than 500ha”.

“Limiting the native territorial domain for bigger settlements with 100 doors or more households means that each household will have only 3ha to 5ha, which is obviously insufficient and not reflective of their current practices and needs.”

Other GPS backbenchers against the limit are John Ilus (Bukit Goram) and Martin Ben (Kedup).

“We are listening,” said Uggah, adding that he will meet with Chief Minister Abang Johari Openg to discuss further what has been said during the assembly.

Civil society groups and Dayak leaders, like DNC’s Raja, have said the provision, if approved by the state assembly, would mean “there will be no more native customary rights land based on ‘pemakai menoa’... as any rights approved by the superintendent of land survey are statutory rights, not customary rights”.

They said native customary rights are rights acquired under the customs of natives, not given under statute law.

The Land Code was amended to give the force of law to “pemakai menoa” and “pulau galau”.

The Federal Court, in 2016, had ruled that the native customary rights of the Dayak to their “pemkai menoa” and “pulau galau” had no force of law, and their customary rights relating to the creation of land applied only to their farmland, or “temuda”.

The Dayak, however, say they have customary rights over the “territorial domain” around their longhouses, including primary forest within that domain, which is usually owned by the community. – July 11, 2018.