That word

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No such thing as abandonment in the lexicon of shifting cultivators.

IF there is one word in the English language which has caused havoc to the native custom of land ownership in Sarawak, it is the word ‘abandonment’.

People who think, quite wrongly, that the Natives of Sarawak have more than enough land for their own purpose – thus leaving the forests for others to exploit – use the word with gay abandon as if it were an original ingredient of a Sea Dayak adat. It is not. A few illustrations will do to prove the point.

AL Porter, in his book ‘Land Administration in Sarawak’, referring to the Rajah Order of 1875, writes, “The Order seems to be directed at land which was occupied and cultivated in accordance with native customary laws and then abandoned; the preamble states, ‘Whereas it is common practice among the native community’s to make large clearings of old jungle, and afterwards abandoned them’ … This Order is one which the writer cannot pretend to understand.”

The writer elaborates, “It suggests a curious misunderstanding on the part of the government, not simply of the practices permitted under native customary law but also of the biological demands the practices made on the land. The common pattern at the time was long term fallow rotation in which the fallow land needed up to 15 years to restore itself to fertility after a single crop had been taken.”

This Native of England who was here in the 1970s as Superintendent of Lands and Surveys, First Division, knows a lot about the shifting cultivation. His criticism of the Order of the Rajah’s government is relevant in terms of understanding the current issue of overlapping claims of ownership of leases issued to plantation companies. Many of these leaseholds are encumbered by native rights. Ever wonder why there are so many disputes brought before the court of law for settlement?

Most of the Rajah’s Orders had been made obsolete by various later Orders or Regulations. Yet, there have been attempts to use the Rajah’s Fruit Trees Order to deprive a native of his right to land (NCR) unless he is in continuous occupation of that land which his grandfather had cleared off the virgin jungle before Jan 1, 1958.

A little knowledge of native custom on land right is a dangerous thing. Lack of understanding of the early Brooke policy on control of the Sea Dayak migration has compounded the confusion as to the basic concept of the Dayak adat. History is full of how the first two Rajahs were trying to discourage or curb Sea Dayak (Iban) migration. Not until towards the end of the time of the Third Rajah and the beginning of the colonial period was there a change in policy. Iban migration to designated parts of Sarawak – mostly from Skrang and Saribas areas and from Lubok Antu to Lundu – was officially sanctioned.

However, the colonial government started imposing a total ban on further creation of customary rights on land from Jan 1, 1958. Even after that date, it is legal for natives to occupy Interior Land, if the District Officer would be kind enough to use Section 10 of the Land Code. Subject to correction, this Section has been used once in a blue moon!

Controlling the movement of the shifting cultivators did not work well; so the next alternative strategy for the government was to be strict on pindah. The first legislation used for this purpose was the Land Tenure Act, effective from Aug 10, 1899; even this was not very effective. So, on July 15, 1952, a Conference of Penghulu from the then Third Division was held in Sibu to discuss, among other things, the same issue. It was decided to reaffirm the provision of the legislation of 1899, Rajah’s declared Iban Adat, also known as the Fruit Trees Order.

The Tusun Tunggu Iban Bagi Ketiga 1952, approved at the Sibu Conference states, “Sapa Iban ke pindah ka ai bukai sungai siti ngagai sungai siti sekalika ngagai menoa pegai bukai, nda tau agi ngambu, nyual sekalika meri temuda iya ka empu orang bukai ke di- ator tuai dia ke patut bumai temuda nya semadi meh tanah temuda iya nya bisi surat grant.”

The gist of the above passage is that no Iban moving from one river to another or from one area to another has the right to claim or sell or give away his land; the community leaders will decide as to who should use that land except unless the land is a grant. Period.

However, application of this Tusun Tunggu was confined to the Iban of the then Third Division – the whole Rajang basin. It was later extended to the Fourth Division and the Fifth Divisions. Still not extensive enough. Next area?

In the next Conference, this time it was held at Simanggang. There, the Iban chiefs also discussed the Rajah’s adat on pindah; curiously, never using the word ‘abandonment’. However, there was an important change in the concept of pindah with the adoption of a proviso. At paragraph 30, the minutes of the proceedings read, “It was agreed at the Conference on the 7th of July 1961, that (xv) Removal from one longhouse to another constituted pindah, and not only from one river or Penghulu’s area to another. Resumption of rights relinquished on pindah could not be had without prior agreement of the Tuai Rumah, except the land was under title.”

Note the phrase “resumption of rights” implies that upon pindah the native rights to land are temporarily suspended. They are redeemable, at last. This solution would be more equitable than the inhumane dispossession of land under the last paragraph of Tusun Tunggu Iban Bagi Ketiga, above.

Note also that both the Tusun Tunggu Iban Bagi Ketiga of 1952 and the Dayak Adat Law in the Second Division of 1961 did not apply to the Iban in the First Division (living in villages from Lundu to Simunjan). These other Iban have their own customs all right, but their adat was not codified. Neither are the words ‘abandonment’ nor ‘non-occupation’ in their dictionary.

The word was being slowly abandoned; however, the phrase ‘continuous occupation’ was being vigorously promoted to deprive a native of his right to traditional land by strictly applying Section 5 (2)(c): the occupation or cultivation of land.

In 2000, our famous word was haunting the Malaysian courtrooms. In the case of Madeli Salleh (2007), the Apex Court, touching on the question of ‘abandonment or non-occupation’ of land owned by Salleh Kilong (Madeli’s father), held that “actual physical presence need not be equated with occupation”: per FCJ Datuk Arifin Zakaria.

Hopefully, this aspect of the Madeli Salleh ruling will stop people from insisting on being right in applying the Rajah-declared Fruit Trees Adat that deprives a native of his land right simply because he is not in continuous occupation of his land.

It would be helpful if we stuck to the proviso to the Law of Sarawak Order Feb 16, 1928, “… the law of England insofar as it was not modified by Orders of HH The Rajah and so far as it was applicable HAVING REGARD TO NATIVE CUSTOM (my emphasis), was to be the law of Sarawak.”

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