‘Proper safeguarding of Native interests important function of government’: The Gazette

0

c_pc0019828THOSE advocating for the legal recognition to the Sarawak Native custom creating rights to land may find it interesting to follow the debate over the same subject held 70 years ago in The Sarawak Gazette.

The debate was sparked by a book called ‘Land Law and Custom in the Colonies’, written by Dr CK Meek.

According to the April Fools 1947’s issue of The Gazette, “this work is a most thorough and comprehensive study of the various systems of land tenure throughout the Colonial Empire and of matters associated therewith. Rights appertaining to land are the fundamental factor in the economy of a primitive community, and in Sarawak it has always been recognised that the proper safeguarding of native interests in this respect is the most important function of government.”

The exchange of views between DL Leach, the then director of Lands and Surveys, and ET Leach, the anthropologist, and the editors of The Gazette gives us an insight into the considerable difficulty faced by the colonial government in safeguarding those Native interests.

What to do with the land classified as the ‘interior areas’ was the main concern of the time.

Among other things, Dr ET Leach talked about a clash of views over the legal approach and the anthropological approach to ownership of such land. He said, “To the Land Office land title implies only right of usufruct and not the whole complex of ideas associated with ‘ownership’ or ‘possession’ but the peasant does not departmentalise his ideas like this nor does he appreciate that the Orang Puteh does not understand his ideas”. He added, “Social Anthropologist claims that a legal approach is inadequate.”

The Gazette editors suggested the urgent need to record and safeguard the interests of the native before “these interests have been submerged under alien infiltration, to offer him a security of tenure only possible under a foreign, but now unavoidable, economy by imposing an adequate land registration system, and to make certain that in the coming years, as he passes through the transition period to so-called ‘civilisation’, his birth right, his land and his customs, shall not be lost”. For details of the debate itself, look up the Gazette issues for April 1 to Aug 1, 1947.

The colonial government stated its land policy as, “All land in the colony is Crown land EXCEPT where portions are alienated under the land ordinance OR are claimed by customary native use” in ‘The Handbook of Sarawak’ – comprising historical, statistical, and general information concerning the colony obtained from official, and other reliable records – compiled by BA St J Hepburn (Secretariat), 1949.

Erosion of native land rights

When the Code of 1958 came into being, the colonial government classified land into various zones – Mixed Zone, Native Area, Native Customary, Reserved, and Interior Area.

The government also included six methods by which Natives could create rights to land in Sarawak: by the felling of virgin jungle and the occupation of the land thereby cleared; occupation or cultivation of cleared land; use of land for a burial ground or shrine; use of land of any class for rights of way; or any other lawful method.

Prior to Jan 1, 1958, Natives of Sarawak could – and did – create customary rights over land that they had felled in the areas classified as Interior Land, same as Interior Areas.

After Jan 1, 1958, however, they could not do so any more. In theory, they can create rights over those interior areas with the permission from the District Officer acting under the authority of Section 10 of the Land Code. But as a matter of practice, it was rare for the District Officers to exercise that power.

Legal rights to land of the people living in the Interior Area Land have been questioned by the authorities beginning with the colonial government. This is where vast majority of indigenous people of Sarawak still live; they have been living there since time immemorial; there, for hundreds of more years their descendants will stay – as squatters, unless their customary rights are legally recognized and registered under the Torrens System.

A harbinger

Erosion of the Native rights to land began with the case of Sepid Anak Selir v R [Criminal Appeal No. A/24/54; Sarawak, North Borneo and Brunei Supreme Court Reports, 1954 and 1955].

In June 1954, Sepid Selir and three others were convicted in the Police Court, Serian, for an offence of occupying Crown land marked “Communal Forest Reserve, Kampong Retoh and Bentawa”.

They appealed against that decision and won. In handing down the decision, the judge (Lascelles J) said, “Whatever type of reserve it was meant to be it has never been gazetted as such and it is clearly still Interior Area Land. … By Section 8 of the Land (Classification) Ordinance Natives may occupy such land for the purpose of creating customary rights, which is clearly what the appellants were doing here. Powers exist for converting Interior Area Land into Mixed Zone, Native Area, Native Communal Reserve or Reserved Land, but it is clear that no such powers have yet been exercised in respect of this land and the appellants were clearly acting within their legal rights in doing what they did …”

Now here comes the catch; an orbiter dictum, really.

Justice Lascelles continued, “For the benefit of those interested in preserving the old jungle of the Colony and who may feel that this judgment may lead to untold slaughter of the forest and a great increase in farming disputes it is possible that Section 27(ee) of the Local Authority Ordinance might afford a method of control.  Again the Natural Resources Ordinance may prove of service.”

Instead of using the Local Authority Ordinance or the Natural Resources Ordinance, the government took an immediate step to draft legislation with which to plug the loophole in the law – Natives creating more customary rights over land inside the Interior Land.

They scrambled to amend The Land (Classification) Rules 1954, and the Land (Classification) Ordinance itself. The end product:  Land Code, 1958.

The six above methods by which Natives have acquired rights to land have been reduced to five. In 2000, subsection(f) of Section 5(2) – “by any other lawful method” –  was proposed to be chopped off.

In broad daylight, the Natives would be stripped of their right to create rights to land at their backyard by any other method which is lawful.

Although legal rights to land inhabited by the indigenous peoples of Sarawak have been questioned from time to time, yet no sustainable programme has been carried out to ensure security of tenure such as by registering their rights under the Torrens System. In his book ‘Native Law in Sabah and Sarawak’ (Singapore Malayan Law Journal Pte Ltd 1980), Dr MB Hooker calls this “full registerable and saleable title”.

Back to the Gazette. It said “The significance of Dr Meek’s book becomes apparent, for we find that throughout the Empire the same sort of problems has cropped up as have often afflicted us in Sarawak. How frequently must land be cultivated in order to enable rights over it to be preserved? What are the respective rights of the village, the family and the individual? How far does a native, who goes away to Miri and works there for 10 years, forfeit his interest in his ancestral land? Who gets the land of a longhouse when it moves from one District to another? These are the sort of questions which are continually occurring and which will become of growing importance as the Colony develops.”

Well, Sir, in July 1963, your Colony of Sarawak morphed into a self-government briefly, before it was absorbed into an enlarged Federation called Malaysia in September that year, as you wished (Mana ko tuan).

Seventy years ago, the above questions were the sort of questions that the colonial officers asked of themselves; these are more or less the same questions that the post-colonial Malaysians are asking now.

The recent Federal Court decision in the case of TR Sandah before Christmas last year, declaring the Iban custom creating rights to land called pemakai menoa and pulau galau in particular areas under dispute as having no force of law in Sarawak, has caused much mental agony among the Native owners of customary land who lost in the case, in particular, and among the members of the indigenous communities, in general.

Fiduciary duty

It’s their collective concern over further erosion to their rights to traditional lands.  Isn’t there someone having the fiduciary duty who is prepared to assure the Natives that their rights over their traditional lands will not be eroded any further within the next 70 years?

Comments can reach the writer via [email protected].