Native Customary Rights on Land in Sarawak - PART II

What is Land Native Customary Rights in Sarawak?

PART II

These rights were attached to the land cleared for cultivation and occupation and not beyond such areas.  This practice of clearing land for farming as a basis for creation of NCR (temuda) was reinforced by the Tusun Tunggu under the Iban Adat.  The relevant portions of the Guides to Judges, Magistrates and others on adoption, divorce, the acquisition and disposition of property as practiced amongst the Sea Dayaks of the Third Division, ratified at the Penghulu’s Conference held at Sibu on 15 July, 1952  reads “Theoretically all untitled land whether jungle or cleared for padi farming (temuda) is the property of the Crown.  The fact that Dayaks do clear a portion of virgin land for the site of their padi farms confer on them restricted right of proprietorship of the land thus cleared.  Once the jungle has been cleared, it becomes temuda.  It is a recognised custom that temuda is for the use of the original worker, his heirs and descendents.  This is the only way Dayaks can acquire NCR land other than by gift or inheritance. 

Prior to the publication of the Tusun Tunggu, the recognition of the native rights over land was given by section 66 of the Land Settlement Ordinance, 1933 which reads : “Natives Customary rights shall be recognised in respect of (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; (d) usual rights of way for men and animals from rivers, roads or houses to any or all of the above”.

Section 5 of the Land Code which came into force on 1.1.1958 also acknowledges the concept of temuda i.e. the felling of virgin jungle for cultivation as the basis for creation of rights to occupy State land as licensee of the Government.  What is provided for in section 5 embodies the Adat (Law of the natives) at the time since Rajah James Brooke arrived in Sarawak. 

Under section 2 of the Land Code, Native Customary Land is defined as “(a) land in which native customary rights, whether communal or otherwise, have been lawfully created prior to the 1st day of January, 1958 and still subsists as such; (b) land from time to time comprised in a reserve to which section 6 applies; and (c) Interior Area Land upon which native customary rights have been lawfully created pursuant to a permit under section 10”.

Section 5(2) of the Land Code provides the methods by which native customary rights may be created that is “(a) the felling of virgin jungle and the occupation of the land thereby cleared; (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:

Provided that : (i) until a document of title has been issued in respect thereof, such land shall continue to be State land and any native lawfully in occupation thereof shall be deemed to hold by licence from the Government and shall not be required to pay any rent in respect thereof unless and until a document of title is issued to him; and (ii) the question whether any such right has been acquired or has been lost or extinguished shall, save in so far as this Code makes contrary provision, be determined by the law in force immediately prior to the 1st day of January, 1958.

This follows that under the present laws, only temuda land, i.e. Land which have been cleared from virgin jungle, farmed and occupied is recognised.  The Government stands on this is reinforced by the following  passage of the Court of Appeal Judgment in Superintendent of Lands and Surveys Bintulu Division vs Nor anak Nyawai [2008] 3 CLJ 555 at page 570 : “ .......... We note that the common feature which forms the basis of claims for native customary rights is the continuous occupation of land.  Further we are inclined to agree with the learned trial judge in Sagong bin Tasi & others that the claims should not be extended to areas where they used to roam to forage for livelihood in accordance with their tradition”.  Such a view is logical as otherwise it may mean that vast areas of land could be under native customary rights simply through assertions by some natives that they and their ancestors had roamed or foraged the areas in search for food”.