NCR CUT-OFF DATE, DENY NATIVE RIGHTS

PACOS Trust views the interpretation by State Attorney General that the Sabah Land Ordinance does not allow creation of fresh Native Customary Right to Land after 1931 as very misleading.

In Malaysia, it is the judiciary (through the court) that has the authority to interpret our laws, including Native Customary Rights (NCR) to land. In analysing the decisions of court cases, there has been any interpretation by the court that 1930 is seen as a cut-off point for the creation of NCR.

There are several reasons why indigenous peoples or natives of Sabah would oppose such an interpretation by the State AG:

A) In historical documents based on reports by authorities on land during the British colonial period, Commissioner of Land (now Director of Lands and Survey) and District Officers argued strongly to continue accepting NCR claims because the NCR land settlements was never completed and that 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 exemplified 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.

B) There was never any mention even by the Land and Surveys Department or the state government regarding such a cut-off date before. In any case, before any new interpretation is put forward, particularly one as important as setting a cut-off date on NCR 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.

C) There are many complaints from natives of Sabah that the procedure of land applications through the normal process of getting a title, including the three ways mentioned by the AG, are flawed and disempowering for native people. 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 S14 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. The cut-off date in Sarawak of 1 January 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.

D) The concept of NCR originates from customary laws of the natives of Sabah, and incorporated in the Sabah Land Ordinance 1930 under S15, though not in a comprehensive manner. For example, S15 failed to include, among others, fallow land under the traditional agriculture cycle, community water catchment areas, community conserved areas for hunting, 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 land which are opened after 1930 as a result of increasing population pressure in a particular village territory would still be recognised as NCR land under customary law.

E) It should be pointed out to the AG 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.

It should also be pointed out to the AG that NCR lands which fall under S15 are not only through the granting of a title or paying of compensation (understood to mean that the application was unsuccessful).

Customary tenure under S15(a), which is further defined under S66, establishes that NCR land need not be recognised based on a documentary title. S66 states that “Customary tenure shall confer upon the holder thereunder a permanent heritable and transferable right of use and occupancy in his land..”.

The AG’s argument that the concept in which all land belongs to the State with the SLO coming into force in 1930, is also debateable. As with similar concept such as the 'Regalian Doctrine' in the Philippines or 'Terra Nullius' in Australia, many indigenous peoples have argued that the flawed understanding of the colonizers (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 S15 of the Sabah Land Ordinance (mentioned earlier), and back-dating cut-off dates to when native population were much less, are but ways to deny native rights in Sabah.

It can also be argued that the introduction of the SLO 1930 and the concept that came with it, was imposed on Sabahans by the colonizers with the intention for the state to profit from land. As such, any present-day democratic and people-centred government should push for rights-based legal reforms instead of perpetuating such concept.

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 and as far back as to deny indigenous peoples their right to their land.

The article also emphasized the need to accord recognition to land with due respect to customs, traditions and land tenure systems. As mentioned earlier, to natives of Sabah, their land tenure systems include present-day practices that are governed by customary laws.

PACOS Trust questions the motives of the state AG in his interpretation which clearly implies a move to impede the recognition of native peoples’ right to their land. It can only see such statement as a way to further exacebate the serious allegations by native communities and individuals of the denial of their right and the extinguishment of NCR to land in favour of large-scale land development in the hands of government agencies, GLC and private companies.

In this respect, PACOS Trust urges the AG and the 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.

- Sabahkini