Musa challenged to declare stand on NCR

The 'conflict' over native customary land (NCR) rights as mentioned by the Sabah attorney-general is "caused mainly by inefficiency and lack of political will of the state government".

KOTA KINABALU: The Sabah government has been challenged to show the provision in the Sabah Land Ordinance (SLO) that states that there can be no Native Customary Right (NCR) claims for natives of Sabah after 1930 as argued by its top counsel.

PKR Sabah senior leader Kong Hong Ming, a practising lawyer, said while state Attorney-General Roderic Fernandez is entitled to his opinion, it is of paramount importance and public interest that the Sabah government declare whether the views expressed by Fernandez is the official policy of the state Barisan Nasional government.

Kong was commenting on a recent statement by Fernandez who said the SLO that came into force in 1930 does not allow the creation of fresh NCR land.

On Thursday, Fernandez said only lands “still” occupied by natives under the NCR on the date the SLO came into force, that is prior to 1931, are recognised as NCR land.

“There is no provision in the SLO for natives to go into occupation after 1930 and claim NCR on it. Any claimant for NCR today must show occupation of the land prior to 1931,” he added.

In a statement yesterday, Kong who heads Sabah PKR’s Land Development and Natural Resources Bureau, disagreed with the state AG’s interpretation of the provisions in the SLO.

He said the state BN government, headed by Chief Minister Musa Aman, should table a motion to amend the SLO in the State Legislative Assembly if Fernandez’s statement represented the present policy of the BN government.

“By his (Fernandez) statement on such a major issue of fundamental and constitutional importance, the state attorney-general appeared to have decided unilaterally without any reference to any clear and express provision in the SLO that the present BN state government has already abolished fresh NCR after 1930,” Kong contended.

Conflict caused by govt inefficiency

The opposition leader also challenged BN component parties and leaders to declare their stand on the matter.

“This is relevant because only recently, the impression given was that BN leaders appeared to be in full support of the preservation, protection and realisation of NCR claims for the natives, which to me, was a light at the end of the tunnel to the natives whose land rights had been eroded due to the neglect of the state government.

“I must say that the so-called conflict mentioned by the state AG was caused mainly by inefficiency and indifferent culture of the relevant department and the lack of political will of the state government coupled with a poor delivery system.

“As a result of extremely long delay in processing land applications, the ordinary folks who have limited resources and political connections especially those in the rural areas suffered the loss of their land rights,” he said.

Based on the court decisions and precedents, Kong pointed out that the Malaysian courts had made it clear that extinguishing the NCR must be by way of clear and unambiguous words in the legislation and not by implication.

Further, both the High Court and Court of Appeal had decided that NCR claims for natives in Sabah subsist until today, he said.

“I have no hesitation to disagree with the legal position taken by the state attorney-general. But I am not surprised because the state government and the relevant authorities have showed little or no respect to NCR claims by the natives and the decisions of the courts,” he said.

‘Land is a god-given right’

Kong added that the state AG has a duty to give certainty to the law on NCR and the land rights of the natives of Sabah since the Malaysian Federal Constitution imposed a fiduciary duty on the state and federal governments to safeguard the wellbeing of the natives of Sabah.

“Put it in simple terms, NCR means land and people are one and together. From the beginning, land is a resource from mother earth.

“Land is a god-given right and gift to the original people of the land, who are in need of the basic to live. Without land, there is no life or livelihood, let alone the future generations. Traditionally, natives live on their land. They built and planted on their land. They hunt in the forests and fish in the rivers. They take timber produce and traditional medicine from their land.

“At the end of the day, they bury their deaths back to the land where they belong. They share their land resources by way of custom and traditional practices. Now, the native people call it ‘tanah adat’ or native customary rights to land,” he said.

“The Malaysian Federal Court has recently expressed agreement with the principle of common law that ‘Crown did not thereby acquire absolute beneficial ownership of the land.

“The Crown’s right or interest is subject to any native rights over such land. They adopted the view of the Privy Council in Amodu Tijani v Secretary, Southern Nigeria [1921] 1 AC 399,” he concluded.