Why native land titles have become a hot-button issue in Sabah

KINIGUIDE | Land tussles involving natives have been a perennial flashpoint in Sabah despite the existence of explicit protections in the law.

As the Sept 26 state polls loom, land rights is once again a hot-button issue.

This was especially true when caretaker Sabah Chief Minister Shafie Apdal continued to present land titles after the July 30 dissolution of the state legislative assembly before the proclamation of an election on Aug 17.

In this instalment of KiniGuide, Malaysiakini explains types of land titles available to Sabah natives and why it is a political matter.

This article was written in consultation with Galus Ahtoi, a land rights programme coordinator with Penampang-based NGO Pacos Trust.

The 2012 book Native Customary Rights by lawyers Nasser Hamid and Ram Singh was also referenced.

Do native Sabahans have unique land rights in the state?

Yes.

States and territories have jurisdiction over land matters, and in Sabah, these matters are governed by the state government using the Sabah Land Ordinance 1930 (SLO).

A piece of legislation inherited from the British colonial occupation, the SLO lays out specific procedures for natives and non-natives to either apply or claim for land.

Native claims to land will be the focus of this KiniGuide.

Who is considered a Sabah native?

A native is a person whose parents are or were both members of a people indigenous to Sabah. Also considered a native is a person who resides in Sabah, lives as a member of a native community and has at least one parent or ancestor who is a native.

This is according to Section 2 of the Interpretation (Definition of Native) Ordinance 1952.

Under the same section, a native is further defined as any person who resides in Sabah and is a member of the Suluk, Kagayan, Simunul, Sibutu or Ubian people; or of a people indigenous to Sarawak or Brunei. The person must have lived as and been a member of a native community for three consecutive years preceding the date of their claim.

The native status is also extended to Sabah residents who are a member of a people indigenous to Indonesia, the Sulu islands (Philippines), Peninsular Malaysia or Singapore. For these claimants, they must have lived as and been a member of a native community for five continuous years preceding the date of their claim.

For the latter two conditions, the claimant must have “borne a good character” throughout the respective period and prove their stay in Sabah was not restricted under the Immigration Act 1959/63.

Native status claims are decided by the Native Court.

So what unique rights does a Sabah native have?

Sabah natives can claim rights to land under Native Customary Rights (NCR).

Section 15 of the SLO lists seven conditions that can be used to substantiate NCR claims:

1. Land possessed by customary tenure
2. Land planted with fruit trees where the number of trees amounts to more than 50 per hectare
3. Isolated fruit trees and sago, rattan or other plants of economic value that the claimant can prove were planted, maintained and regularly enjoyed as personal property
4. Grazing land that the claimant agrees to keep is stocked with sufficient number of cattle or horses to keep down undergrowth
5. Land cultivated or built on within three years
6. Burial grounds or shrines
7. Usual rights of way for people and animals from rivers, roads and houses to any or all of the above.

“Customary tenure” is defined by Section 65 of the SLO as lawful possession of land by natives either by continuous occupation or cultivation for three or more consecutive years; or by a title.

Natives can also make claims to land under NCR based on common law.

And what land titles can natives claim under NCR?

For one, a Native Title (NT) can be claimed. 

An NT is a specific, mapped out land title awarded to an individual. It gives the owner a native legal, permanent, perpetual and inheritable ownership of the land.

An NT must be registered with the NT Register or Field Register, as per Section 67 of the SLO.

NT land can only be traded among natives. Non-natives are not allowed to purchase NT land unless the state government gives specific permission under Section 17 of the SLO.

NT claims are made with the Land and Survey Department (Jabatan Tanah dan Ukur or JTU). Parked under the Chief Minister’s Department, the department is responsible for issuing NT deeds.

So why is this a political issue?

NTs have historically taken many years to be processed by the JTU as they require detailed land surveys. Ahtoi said it was not uncommon for natives to wait decades for their title deeds, pointing to a lack of political will and budget for these surveys except when elections draw near.

The Communal Titles (CT) was mooted by previous administrations as a swift solution. The conditions for such titles are found under Section 76 of the SLO.

Unlike the NT, a CT is not specifically demarcated and the natives do not receive individual title deeds. The deeds are often given to the title chief and natives are “beneficiaries” and not owners of the land.

CTs are not handled by the JTU but are instead issued by the Chief Minister’s Office.

However, Ahtoi’s experience with communities on the ground found serious abuse of the CT system, often resulting in natives being disenfranchised from their land.

Ahtoi had cases where the list of beneficiaries for CT land included the names of those not from the local community.

After a 2009 amendment to Section 76 of the SLO allowed the state government to “plan” CTs, he began receiving complaints that villages that did not apply for a CT were found to have one.

Their surrounding lands were then entered into joint-venture agreements with commercial entities and exploited for timber and plantations without informed consent.

According to Ahtoi, the CT system provided a loophole for the usual detailed logging licence application process to be bypassed.

Are there any examples?

Kampung Bigor in the southwestern district of Nabawan is an example of how misunderstandings over CT land have caused conflicts between native communities and the state government.

Back in 2013, the Murut villagers were offered RM2,000 by a developer to sign a joint-venture agreement to develop their communal land. Ahtoi claimed the natives did not understand the English-language agreement when they signed it and accepted the money.

The natives were later shocked when the developer began clearing the community’s paddy fields, fruit trees and rubber plantations. The community would later engage in altercations with the developer, involving the police and arrests on several occasions.

But what about NCR?

Ahtoi opined that many were unaware of their rights, and said this was partly due to how the SLO had yet to be translated from English to Malay, the common language for most natives.

He also claimed the Land and Survey Department was often procedurally “opposed” to recognising NCR claims to land despite explicit provisions in the SLO as well as court judgements upholding NCR.

Pacos has since campaigned for Section 76 of the SLO to be amended to stop future state governments from misusing and exploiting CTs.

Didn’t the Warisan state government promise to stop issuing CTs?

Yes, and the promise was part of their 14th general election (GE14) manifesto.

Shafie began presenting NTs to natives in 2019 and ramped up such presentations just before the Sabah snap election dates were announced.

To Ahtoi, Shafie’s recent NT blitz was proof that the Land and Survey Department could significantly speed up its processing time for NT claims if it wanted to.

He pointed to how former BN chief minister Musa Aman had similarly handed out 1,000 NTs to natives several days before GE14.

The Warisan government has been presenting NTs since last May. According to the Chief Minister’s Office, a total of 10,686 NTs would have been presented by the middle of next week.

“Another 16,000 lots which are still being processed… are expected to be resolved in three years. CTs have been abolished as promised in the Warisan manifesto,” said the Chief Minister’s Office in a statement to Malaysiakini.

Nevertheless, Ahtoi applauded the move and hoped NT deeds would continue to be presented to qualified claimants during non-election times.  - Mkini