Thursday, November 21

Towards a solution to a festering problem?


THOSE advocating the legal recognition of the Sarawak Native custom creating rights to land such as the Pemakai Menoa and Pulau Galau (called by other names in the various languages of the other indigenous peoples of Sarawak) may find it interesting to follow the debate over the same subject held 71 years ago.

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

According to the April Fool’s 1947 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 Dr 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.

Among other things, the social scientist 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 further 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 (‘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.


Progressive erosion of Native land rights

When the Land 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, though, 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 and government policy, 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 the bone of contention.

It is about ownership of land – the land where the vast majority of indigenous people of Sarawak still live; they have been living there since time immemorial; and there, for hundreds of more years their descendants will stay as squatters or licensees, unless their customary rights are legally recognised and registered under the Torrens System.


A ban on rights creation

Serious erosion of the Native rights to land began with the case of Sepid 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.

The government scrambled to amend The Land (Classification) Rules 1954, and the Land (Classification) Ordinance itself. The end product: Land Code, 1958. Since then, the Code has been amended and with each amendment came progressive nibbling at the Native land rights.

To be continued next week.

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