WHY is there a need for a new section in the Sarawak Land Code to define native customary rights (NCR) land when there is already such a section, asked Batu Lintang rep See Chee How during the debate on the Land Code (Amendment) Bill 2018.

The native land rights lawyer and state PKR vice-president said Deputy Chief Minister Douglas Uggah Embas, who tabled the bill, might not have been fully briefed on the implications of the proposed Section 6A.

He said the same definition could be found in Section 18, titled “Grant to natives”, which states that the Land and Survey Department director, subject to any direction from the minister, may issue to the native “a grant in perpetuity of that area of land that a native has occupied, and used any area of unalienated state land, in accordance with the rights acquired by customary tenure, amounting to ownership of the land for residential or agricultural purposes, free of premium rent and other charges”.

He said the NCR land granted under Section 18 is “superior” than the title issued under the proposed Section 6A, as “it is free of restrictions found in the new Section 6A”.

He said under the new section, even though NCR land – now termed as “native territorial domain” – is granted in perpetuity, the land is subjected to many restrictions, including “the inequitable and even discriminating constraint” that the domain shall not exceed 500ha.

Gabungan Parti Sarawak (GPS) backbenchers have expressed their reservations regarding the limit.

See said the proposal for the limit, in effect, does not grant full recognition and force of law to “pemakai menoa”, “pulau galau”, or other similar native customary or ancestral territorial domain, including “tempat cari makan” of Malays.

He said it runs contrary to what Uggah had claimed to be the intention of the bill.

Pointing to one case handled by his law firm – Tuai Rumah Nyutan vs Sarawak Land Consolidation and Development Authority, Nirwana Muhibban Sdn Bhd and the Sarawak government – he said natives in the village in Serian had proven the existence of their NCR over an area of more than 5,000ha under Section 18.

If there was a 500ha cap, he said, each family in Kg Lebor, which has more than 250 families, would have less than 2ha as their share of “native territorial domain”.

“This is certainly insufficient for the family if they have 10 members to plant padi or cash crop for their subsistence.”

The PKR rep said it is, therefore, wrong for Uggah to criticise the private member’s bill tabled by Ba Kelalan assemblyman Baru Bian last year.

Baru had proposed that only Section 2 of the Land Code be amended, to give full recognition and force of law to “pemakai menoa”, “pulau galau”, or other similar native customary or ancestral territorial domain, allowing the other provisions of the Land Code, such as Section 18, to give effect to the recognition and force of law to the NCR land of various native communities.

Uggah said the then Barisan Nasional government could not support Baru’s bill as it did not quite deal with the subject in a comprehensive and in-depth manner, “the way the Land Code (Amendment) Bill 2018 does”.

He said Baru’s bill was “merely a token gesture or attempt to give recognition to territorial domain, but did not seek to confer any proprietary rights on territorial domain, did not provide for the issuance of titles, did not grant titles in perpetuity, and did not provide for the exclusion or carving out of NCR or territorial domain from provisional leases”.

Uggah said these are provided for in the bill he tabled.

“I must reiterate that the objective of this bill is to give the custom and practice of native territorial domain legal force. This is further strengthened by granting the native communal title in perpetuity.

“This is the solution by the GPS government to resolve the controversy surrounding the territorial domain issue.”

He said the proposed amendment also puts in place the principle of deferred indefeasibility in relation to provisional leases. – July 11, 2018.