Pemakai Menoa, Pulau Galau now have the force of law

THE LCA Bill 2018 means a lot to the natives, especially Dayaks, whose adat rights over lands they claim as theirs are without the force of law. The LCA Bill 2018 seeks to address this.

In tabling the Bill in the State Legislative Assembly (DUN) today, Deputy Chief Minister and Minister for Modernisation of Agriculture, Native Land and Regional Development Datuk Amar Douglas Uggah, said: “Today is a historic moment for the natives of Sarawak. Why? Because we are finally going to see the light of day in respect of native land rights with the tabling of this Amendment Bill.

“The landmark outcome of this proposed Land Code (Amendment) Bill, 2018 is to enable native communal title in perpetuity to be issued over an area to be described as native territorial domain.” This practically sums up the Bill and consequently answers whatever doubts as to the rights of natives, especially Dayaks, on lands they claim as theirs.

A lot had been argued, especially among netizens, about “usufructuary rights” and questioned why the State government was giving only these rights to the natives. Apparently, this is not true. The Bill seeks to give more than just that; it’s giving natives proprietary rights to their territorial domain and titles will be issued.

Uggah said: “Clause 2 of the Bill through the definition of “native communal title” expressly provides that a title will be issued in accordance with Section 6A over a native territorial domain and that such native communal title shall be held to be a title under the Land Code. This means that the right under native territorial domain is a statutory proprietary right and not just limited to usufructuary right as recognised under common law and the decision in Tuai Rumah Sandah’s case.”

In the case of the Director of Forests Sarawak and State Government of Sarawak vs. TR Sandah anak Tabau and 7 others delivered on December 20 2016 the Federal Court had ruled that the native customs of Pemakai Menoa (PM) and Pulau Galau (PG), although practised by the Iban communities, have no force of law in Sarawak. As a result, the claim by TR Sandah and his anakbiaks to ownership rights over land which, according to their own custom, is their Pulau, was dismissed.

In Tuai Rumah Sandah’s case, while the dissenting judgement of Yang Arif Zainun Ali gave legal recognition to PM and PG, such right was only limited to usufructuary rights.

“This means that the natives have the right to only use the resources within the Pulau Galau and Pemakai Menoa for their livelihood but they do not have legal ownership of the land within the Pulau Galau and Pemakai Menoa,” explained Uggah.

If, as already been pointed out by the Federal Court, native adat over lands was without the force of law, this Bill has changed that. Under the amendment, native territorial domain has been given the force of law.

Therefore, it is not just the rights to use, forage and hunt, which are usufructuary rights, that are being given, but the natives get to own the land as well. That is to say they enjoy proprietary rights, too.

Of this, Uggah told the DUN: “This Land Code (Amendment) Bill, 2018, will not only recognise but also give legal effect to the custom(s) of Pemakai Menoa and Pulau Galau and (their) equivalent.”

Indeed, the Bill looks to be a comprehensive piece of document, thanks to Uggah and the Special Task Force on Territorial Domain that he chaired.

In his own words: “The Task Force was assisted by a working committee chaired by Deputy State Secretary (Rural Transformation). These Task Force and Committee met numerous times and engaged with various stakeholders over the past year to come up with a comprehensive solution.

“At the same time, Majlis Adat Istiadat Sarawak (MAIS) was tasked to consult and obtain the views of the different native communities on their respective concepts, customs, cultural practices and Adats on native territorial domain.

“These consultations culminated into a special conference for Native Communities' Leaders held on January 24 and 25, 2018 at Kuching. The conference's resolutions and recommendations were forwarded to the State government, which later formed one of the basis to amend certain provisions of the Land Code and which are now proposed to be incorporated in this Amendment Bill.

“The Task Force, after engagements with various stakeholders, native communities' leaders and relevant state agencies, recommended to the government that the Land Code be amended as proposed in this Amendment Bill.”

Uggah said given the complex nature of the native territorial domain, the Private Member’s Bill proposed by the Member for Ba’Kelalan (Baru Bian) “did not quite deal with the subject in a comprehensive and in-depth manner the way the Land Code (Amendment) Bill, 2018 does”.

Like Baru, some friends were less than happy that the territorial domain has been limited to 500 hectares. As to this, let me share a Facebook post of John Nyigor, a PBB supreme council member which reads:

“The proposed amendments to the SLC which would only be tabled at the current sitting of the Sarawak State Legislative Assembly on Wednesday, 11th July, 2018 has met with so much opposition based on suppositions as to what the amendments to the SLC would be; for starters, the current state government sincerely wants the best it could offer to the people of Sarawak; after the FC decision re TR Sandah case wherein it was decided that customs that created PM and PG do not have the force of law, effectively, the orang asal only have lands that they cleared, cultivated and occupied before 01/01/1958 as lands they could claim as theirs under NCR; their PM and PG have effectively been declared as State land; this current state government wants this state of affairs rectified and wants the SLC amended to accommodate not just the Ibans but all the orang asal of Sarawak as well; the 500 hectares or more than 1,000 acres that is proposed as a communal reserve or domain per community is in reality quite sizeable; if we take, YB Baru's claim that such communal reserve or domain can be as big as 10,000 hectares per community, consider this: Sarawak's total land size is 48,051 square miles or approximately 12,445,209 hectares; if the government were to divide Sarawak into equal 10,000 hectare plots, there would only be 1,244 plots to benefit only the same number of communities and the total land size of 48,051 square miles includes towns, rivers, lakes and what have you; I suggest we wait for YB Datuk Amar Douglas Uggah to table the SLC amendment bill before we dismiss the government's good intentions as being unfair to the Dayaks of Sarawak.”

Uggah described the Private Member’s Bill as “merely a token gesture or attempt” to give recognition to the native territorial domain. He said the Private Member’s Bill however did not seek to confer any proprietary rights on Territorial Domain; did not provide for issue of title to Territorial Domain land; did not grant title in perpetuity to Territorial Domain; and did not provide for exclusion or carving out of NCR, Territorial Domain from provisional leases.

He said what the Private Member’s Bill failed to fulfill is now provided for in the present Amendment Bill.

I had expected that Baru and Chong would not have decided to give the tabling of the Bill a miss given its immense significance. But skip they did and I can now understand. They had nothing more to offer to an already comprehensive document Uggah and his team had prepared.

Attending the Federal Cabinet meeting, therefore, was a perfect excuse to avoid the shame of opposing something that should be supported.