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Sabah, S’wak CJ: Time to set up native land tribunal

Posted on January 31, 2012, Tuesday

KOTA KINABALU: A native land tribunal should be be set up in Sabah to provide a more effective alternative to resolve disputes involving native land, said Chief Judge for Sabah and Sarawak Tan Sri Richard Malanjum.

He said a dedicated body, similar to those in foreign countries like the Waitangi Tribunal in New Zealand, would be more flexible and therefore able to settle such disputes faster and more efficiently.

“Maybe it is time for the state to consider setting up such a commission, instead of just throwing native land dispute cases to civil courts. The court has its own limitations, including lack of judges,” he said in his keynote address at the Symposium on Sabah Native Land Rights at Universiti Malaysia Sabah yesterday.

Malanjum noted that in some cases judges from Peninsular Malaysia, who may not be that familiar with Sabah’s native customary land rights, have to preside in local cases and as a result these cases may be decided as they would have been in similar land cases in the peninsula.

“This would not be fair for Sabahans as their adat (customary rights) are different from that in Semenanjung,” he added, noting that there were presently about 40 pending native land cases in Sabah.

The Waitangi Tribunal is a New Zealand permanent commission of inquiry established under the Treaty of Waitangi Act 1975, entrusted with the task of investigating and making recommendations on claims brought by Maori.

Because it was established as a permanent commission of inquiry, its method of investigation differs significantly from that of a court in several important respects.

The Tribunal’s process is more inquisitorial and less adversarial than that followed in the courts.

In particular, it can conduct its own research so as to try to find the truth of a matter, whereas courts generally must decide a matter solely on the evidence and legal arguments presented by the participating parties.

The Tribunal’s process is more flexible where it is not necessarily required to follow the rules of evidence that generally apply in the court, and it may adapt its procedures as it thinks fit.

Although the Waintangi Tribunal does not have final authority to decide points of law and has authority only to make recommendations, the inquiry process on tributes to the resolution of Treaty claims and, in that way, to the reconciliation of outstanding issues between the Maori and Pakeha.

Meanwhile, Malanjum said there was an urgent need to address land issues in Sabah, in particular the worrying land lost suffered by the natives.

Citing a 2010 statistic, he said on average the 1.49 million natives in Sabah own roughly only 0.8 acre of land per individual, as compared to 2.024 acres per person for the non-native population.

He added in that same year out of 7.25 million hectares of alienated land, only 44,867 were Native Title lands.

“May be in 10 years or so, based on Sabah’s population growth estimate, the acreage of native lands will drop to five or four per cent or maybe even zero.

So this is a very important issue that we need to look at,” he said.

He suggested factors contributing to natives losing their land and customary land rights must also be clearly identified and appropriate measures be implemented.

Several possible measures should be studied and implemented if suitable, including those towards educating the native people on the importance of owning a land.

He said the recently introduced Communal Title approach, although could be subjected to abuse, can be a workable solution for protecting native land provided it is managed with sincerity, transparency and free from corruption.

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