KOTA KINABALU: State Attorney-General Datuk Roderic Fernandez said the Sabah Land Ordinance (SL) that came into force in 1930 does not allow the creation of fresh Native Customary Right (NCR) land.
“There is no native or indigenous community in this world which claims a customary right to create fresh customary lands. There is no government in the world which recognises such a right,” he said.
“The recognition of a right to create fresh customary lands any where in Sabah at any time is the antithesis of the concept that all state land belongs to the State Government as provided in the SLO,” he said.
However, Fernandez pointed out that although there can be no creation of fresh NCR land, the SLO has instead provided four additional ways natives can own land in Sabah over and above others.
“Firstly, genuine claimants of NCR lands which fall within the definition of Section 15 of the SLO and which preexisted in 1931 can either be given a title or paid compensation under Section 16.
“Secondly, natives can apply for direct alienation of Native Title lands under Section 9.
“Thirdly, Communal Native Titles are issued for natives under Section 76 and fourthly, to protect the present and future interests of natives State lands are declared as Native Reserves under Section 78,” said Fernandez yesterday.
The issue of Native Customary Rights (NCR) in respect of land has been a major cause of conflict in Sabah as seen from reports in the local newspapers on the “Symposium on Sabah Native Land Rights: Issues, Challenges and the Way Forward held in Kota Kinabalu last week and the comments by various quarters.
Fernandez noted that the erstwhile understanding of NCR in respect of land in Sabah held by the common people, legal practitioners and the judiciary is that NCR means a right to occupy State land any where in Sabah at any time and claim NCR on it.
“It is argued that there is no cut-off date. In effect it means the right to create fresh NCR land on state land any where in Sabah at any time,” he said.
“Is this the correct legal meaning of NCR in Sabah?
He pointed out that when the SLO came into force on Dec 13, 1930 the Ordinance brought with it the concept that all land belongs to the State Government.
“Whereas in the past land belonged to the native community which had settled on it, now it belonged to a central authority. Henceforth, no unlawful occupation of land shall establish any right against the State Government. And no title or claim to land shall be valid unless there is a document of title issued by the State Government.”
However, Fernandez said that the framers of the SLO made one exception.
“Land ‘still’ held by the natives under NCR was exempted. Only land ‘still’ occupied by natives under NCR on the date of the coming into force of the SLO that is prior to 1931, are validly recognised as NCR land.
“There is no provision in the SLO for natives to go into occupation after 1930 and claim NCR on it. A claimant for NCR today must show occupation of the land prior to 1931.”
According to Fernandez, a harmonious reading of the relevant provisions of the SLO will show that Section 5 states the basic concept that all state land belonged to the State Government; Section 6, a fortification of the above basic concept by providing that no unlawful occupation of state land shall give any rights against the State Government; and Section 88 states the logical conclusion to Sections 5 and 6 providing that no title or claim to land is valid unless there is registered a document of title issued by the State Government .
“The decided Malaysian and Commonwealth judicial precedents bear out the above,” said Fernandez citing the landmark Malaysian case of Madeli our apex court accepted the principle that the common law respects “preexisting” native rights. The Australian case of Mabo (No. 2) and the Canadian case of Calder vs AG of British Columbia reflect the common law position throughout the Commonwealth that the crown’s title to the land is subject to any “pre-existing” native rights over it. A similar principle was accepted in Amodu vs The Secretary of Southern Nigeria and Oyekan vs Adele.
He contended that in all the cases the emphasis was on “pre-existing” native rights and not the right to create fresh native rights.
He said this principle is consistent with international norms on this issue and cited The United Nations Declaration on the Rights of Indigenous Peoples, Article 26.
Article 26 states that indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired. States shall give legal recognition and protection to those lands, territories and resources.
“Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.
“The emphasis is on the word ‘traditional’. In some countries the term ‘ancestral’ or ‘tribal’ is used. In Sabah the term ‘native customary’ is used. But they all mean one and the same thing – a historical occupation of land,” Fernandez added.