All of Sabah belongs to the natives, says Pacos

Local NGO, Pacos Trust, says the use of the term 'traditional' in Article 26 of the Sabah Land Code 'does not imply going back historically' and denying natives their land.

KOTA KINBALU: State Attorney-General Roderic Fernandez today came in for a lot of flak after he contended that state land cannot be claimed as and when it is occupied.

Pacos (Partners of Community Organisations) Trust has questioned the motive of Fernandez over his interpretation that the Sabah Land Ordinance does not allow creation of fresh Native Customary Rights (NCR) land after 1931.

Pacos’ interpretation is that NCR should apply to all land in the state and at any time.

According to Pacos executive director Anne Lasimbang, Fernandez’s interpretation is misleading and implies a move to impede the recognition of the native peoples’ right to their land.

“It only lends weight to the serious allegations by native communities and individuals that they have been denied of their right to NCR land.

“Moreover, the interpretation means that the NCR land had been extinguished in favour of large-scale land development in the hands of government agencies, government-linked companies and private companies.

“We urged the attorney-general and the state government to cooperate fully with the ongoing national inquiry into the land rights of indigenous peoples being conducted by Suhakam and seriously implement the recommendations made when the report comes out,” she said.

Lasimbang said that it is the courts that have the authority to interpret laws, adding that there has not been any interpretation by the court that 1930 is a cut-off point for the creation of NCR land.

She said that documents of the British colonial government had strongly argued to continue accepting NCR claims because the NCR land settlements had never been completed.

Besides, the registration of NCR claims was limited because of the lack of understanding of the concept of native land use and ownership.

“This lack of understanding persists to this day and is seen in the processes adopted by the state in issuing native titles.

“Those authorities dealing with NCR claims then felt that giving a cut-off date may infringe on the rights of the natives, and have advised the colonial government against it,” she said.

No mention of cut-off date

Lasimbang also said there was never any mention even by the Land and Survey Department or the state government about a cut-off date.

“In any case, before any new interpretation is put forward, particularly setting a cut-off date on NCR claims that would adversely affect the rights of native peoples, there must be
adequate discussions and the decision must be based on the principles of free,prior and informed consent of the natives of Sabah,” she said.

Lasimbang also noted that there are many complaints from the natives of Sabah that the procedures for land applications through the normal process of getting a title are flawed

“Suhakam reported that about 80% of the complaints it received are due to administrative and procedural issues in applying for a title.

“A simpler procedure to record NCR under Section 14 of the Sabah Land Ordinance has been stopped for almost 10 years.

“To now try and implement an NCR cut-off date as far back as 1931 would only invite verification nightmares and serious delays in determining NCR claims.” she said.

“The cut-off date in Sarawak – Jan 1, 1958 – has created numerous problems for the natives and the Sarawak government, and it would be wise for the Sabah government not to take such a path,” she said.

She noted that the concept of NCR originated from customary laws of the natives of Sabah, and were incorporated in the Sabah Land Ordinance 1930 under Section15, though not in a comprehensive manner.

Law has failed

Lasimbang cited how the law failed to include, among others, fallow land under the traditional agriculture cycle, community water catchment areas, community conserved areas for hunting and fishing, sago cultivation, firewood, or ceremonial areas.

“But communities continue to this day to uphold their own customary laws with respect to land ownership, which means that whoever opens a piece of land within their traditional territory, gains ownership right to that land.

“Although most NCR claims are based on generations of occupation and use, some new lands which are opened after 1930 as a result of increasing population pressure in a particular village territory, would still be recognised as NCR lands under customary law,” she said.

She also reminded Fernandez that the judiciary and native communities do not interpret NCR to mean that any native can occupy any state land anytime, anywhere.

“Native communities recognise inter-village boundaries and opening of land is subject to customary law,” she said.

She also said that NCR land which falls under Section15 are not only through the granting of a title or paying of compensation (understood to mean that the application was unsuccessful).

Customary tenure under Section 15(a), which is further defined under Section 66, also establishes that NCR lands need not be recognised based on a documentary title.

Section 66 states that “sustomary tenure shall confer upon the holder thereunder a permanent heritable and transferable right of use and occupancy in his land..”.

‘Traditional does not imply historical’

Lasimbang said that Fernandez’s argument that the concept in which all land belong to the state when the State Land Ordinance came into force in 1930, is also debatable.

Citing the “Regalian Doctrine” in the Philippines or “Terra Nullius” in Australia, she noted that many indigenous peoples have argued that the flawed understanding of the colonisers (and adopted by present-day governments) of customary land use is a violation of indigenous peoples’ rights to land.

“Similarly, the limitation in the criteria for customary land use under Section 15 of the Sabah Land Ordinance, and back-dating cut-off dates to when native population was much less, are but ways to deny native rights in Sabah.

“It can also be argued that the State Land Ordinance 1930 was imposed on Sabahans by the colonisers to enable the state to profit from the land.

As such, any present-day democratic and people-centred government should push for rights-based legal reforms instead of perpetuating such concept,” she said.

Lasimbang also said that Article 26 of the UN Declaration on the Rights of Indigenous Peoples should not be taken out of context.

“The use of the term ‘traditional’ in Article 26 does not imply going back historically so as to deny indigenous peoples their right to their land.

“The article also emphasised the need to accord recognition to land with due respect to customs, traditions and land tenure systems.

“To the natives of Sabah, their land tenure systems include present-day practices that are governed by customary laws,” she said.