NCR issues should not be politicised

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READING the statement by the Assemblyman for Ba Kelalan, Baru Bian convinces me more than ever that issues relating to Native Customary laws and rights to customary rights to land should not be politicised.

It would be even better if these issues are not articulated by politicians especially, if they have a political agenda. Politicians tend to have to provide an admixture of the law and myths flavoured with political bias in their analysis and explanation of the law. This creates misunderstanding and confusion and a polarized political environment – conditions ideal for those with a political agenda. Let me explain why.

Let’s start with basics. Native rights or titles to land is underpinned by the fundamental feature of continuous occupation of such land by the natives. The Australian Courts in the cases of Mabo (No.2) and the Wiks people cases reaffirmed this principle of common law. This feature of continuous occupation has now been accepted by Malaysian Court. As a matter of judicial record, the Court of Appeal in Nor Ak Nyawai noted that Mr Baru had submitted as follows:-

“We note that even Mr Baru in his submission hinged the claim of respondents over the Disputed Area on the assertion that they ‘had been in continuous occupation and by expression provision of the law at the relevant time had been lawfully occupying the area.”

Mr Baru had repeatedly referred to the case of Madeli bin Salleh as recognition by the Courts of the adat of pemakai menoa and pulau. But Madeli and his forefathers were Malays, and never practised those  customs of the Dayak Communities.

The facts of Madeli’s case were these. Madeli’s grandfather planted coconut on a six- acre piece of land in Miri in the early 1910s. In 1920 the Rajah issued an Order to reserve land in Miri for exploration of oil by Sarawak Oilfields Ltd (later taken over by Shell). The issue was whether Madeli’s family lost their NCR over the land which was included in the Rajah’s Order as they lost control or occupation of their land to Shell. The Federal Court held that “occupation” need not be physical occupation so long as the person having rights to occupy the land can prevent “strangers from interfering with his rights.” In Madeli’s case the evidence should that his family had a house on the land until the Japanese Occupation when it was burnt down and Madeli continued to maintain the coconut garden on the land until the Government acquired it for a religious school. If Mr Baru, (who was not even Counsel for Madeli), disputes these facts, he can ask the media to publish the Federal Court Judgment in full for the public to Judge.

Both the cases of Nor ak Nyawai and Madeli Salleh were decided on the basis that the native claimants had continuous occupation of the disputed land. In fact, in Nor Ak Nyawai, the Court of Appeal specifically said the NCR area did not extend their settlements, to areas where they “roam or forage for food”.

Now, the concept of continuous occupation fits the native custom of temuda which has been recognized by the codified Adat and Tusun Tunggu. In law, the customs of pemakai menoa and pulau do not fit the essential feature of any claim to native title or rights to land based on the concept of continuous occupation.

No appeal by the State Government, to my knowledge, was to seek to overrule the judgements for Nor ak Nyawai or Madeli Salleh cases. These judgements remain good law and the Government wants them followed so that claims to native title and right to land must be on the basis of continuous occupation of the land in accordance with the Adat or when permitted under the Land Code post 1958.

The State Government appeals because some Judges do not follow the principles laid down in the above cases. For the record, Mr Baru had not succeeded to convince any of the appellate Courts hearing these appeals so far, that the customs of pemakai menoa and pulau have the essentials of continuous occupation to entitle the natives to claim proprietary rights or title to the land through the practice of these customs.

The minority decision in TR Sandah, reaffirmed that there are two categories of rights, one acquired through continuous occupation like custom of temuda thus giving title or rights to the land, and the other, through the customs of pemakai menoa and pulau which create some users’ right to the land or forest but not proprietary interest over such land.

So the law is settled. Occupation of land continuously in accordance with Adat or Land Code, by natives gives right title over the occupied area. There is, admittedly, considerable unhappiness over the law as it stands today on this issue. Laws can be amended but any amendment must make it fairer and in accord with the aspirations of the people. Changes to the law must be studied carefully or rationally and not emotionally or in a politically charged atmosphere.

Nor will the holding of politically motivated rallies to make false allegations that the Government does not recognize pemakai menoa or pulau be helpful to the law making process.

This is not a case that the Government does not recognize pemakai menoa or pulau as if such customs do not exist. This is patently incorrect. These customs do exist but, the Courts have ruled, they do not fulfill the common law pre-requisite, of continuous occupation to sustain a claim for title or rights to land.

All interested parties should provide to the Government constructive input on how to reconcile the practice of these 2 customs with the common law fundamental concept, now accepted by Malaysian Courts, of continuous occupation of land for the creation of native title and rights and make such changes to the law on how NCR could be created without continuous occupation.