All over southeast Asia, viewing unoccupied customary land as ‘idle’ or ‘waste’ land appears in different guises, and is based on a fundamental error which has several features. First, colonial legal codes transformed forests into two categories: ‘natural forests’ (a political category) and ‘agricultural land’. Local management systems do not differentiate between the two categories. Once local spaces have been transformed through categorisation, they are then policed using techniques of power and discipline that include territorial zoning and mapping, the constitution of institutions of enforcement, and the creation of exemptions, among which are customary rights. ‘[T]he creation of Customary Rights and reference to this political process as “discovery” or “recognition” allowed state actors … to appear generous in conceding access’ (Peluso and Vandergeest 2001: 765).

During the Brooke period, ideologies of legal pluralism as well as financial constraints limited the space taken over as ‘state land’, so that the tension caused by the recognition of ‘customary rights’ and expanding state spaces was avoided. In the colonial period, the tension re-emerged and is seen in the ambivalence about customary land in the 1958 Land Code.

The provision for recognition of customary rights in the 1958 Land Code allowed occupation prior to 1958 by methods prescribed in Section 5(2) of the code.^[13] The basis for the 1958 Land Code dates further back, to the Brooke period. Recognition of local people’s pre-existing rights in land and trees can be seen in the Code of Laws introduced in 1842, which was meant to forbid interference with native customary law and protect native peoples from ‘immigrant races’, especially Chinese (Peluso and Vandergeest 2001: 779). However, the 1863 Land Regulations gave the Brooke regime rights over all ‘unoccupied and waste lands’ which it could then lease out to individuals and companies (Richards 1961; Porter 1967).^[14] ‘Unoccupied and waste lands’ were defined as those lands outside of territories where natives could hold ‘customary land rights’ (Peluso and Vandergeest 2001: 779, citing the 1863 Land Order).

This is the start of the problem for native communities because ‘unoccupied and waste lands’ covered all land regarded as lying outside those classified as customary land. Areas that may appear to be lying ‘outside’ customary land from the official perspective may in fact lie ‘within’ it from a local perspective. Later orders showed that there was no understanding among Brooke administrators about land left to fallow or rotation for shifting cultivation, or deliberately left uncultivated for ecological reasons (watershed protection), or subsistence use (for wild meat, building material, rattan supply for mat and basket making, and so on).^[15] For example, in 1875 an administrative order was issued for the purpose of imposing a fine against the act of clearing land and then ‘abandoning’ it. ‘This (administrative) Order … suggests a curious misunderstanding on the part of Government, not simply of the practices permitted under native customary law but also of the biological demands the practices made on the land’ (Porter 1967: 37).^[16] This initial ‘misunderstanding’ regarding ‘unoccupied and waste lands’ continues to cause problems to native communities today, because the error remained uncorrected and unquestioned in the post-colonial era. The problem can be glimpsed in the quotation from the current Sarawak State Attorney General cited at the beginning of this chapter.

The idea that land was productive only when occupied or improved went hand in hand with legalising land ownership through title. These notions reflect elements of the Torrens system of property entitlement that influenced the Brooke land policies of the 1930s (Porter 1967: 51). During the Brooke era (and especially from 1875 onwards) a number of ideas were introduced: that natives were ‘squatters’ on government or ‘state-owned’ land; that rights were tied to specific lots in ‘native land reserves’; and that surveillance was necessary to control cash crop production (ibid.: 35–51). Cash crop production was to be controlled through species regulation (gambier, rubber and pepper were encouraged) and through titles (registration, permits, leases or occupation tickets). Surveillance of species and territory was facilitated in the 1930s, when ‘fairly accurate maps’ were printed and published for the first time (ibid.: 49).

During the colonial period (1946–63), a new system of classification was introduced through the 1948 Land (Classification) Ordinance which divided land into five categories: mixed zone, native area, native customary, reserved, and interior area land. The design of the classification system was racialised in that it was intended: 1) to protect natives from encroachment by non-natives, by restricting the latter to land within the ‘mixed zone’; and 2) to prevent natives from disposing of their land to non-natives (Porter 1967: 62–3). However, these intentions need to be framed against plans to open up Sarawak’s forests to logging on a far larger scale than had been done during the Brooke era (Majid Cooke 1999: 46), which would have severe implications for customary land, given the lack of capacity of the colonial land surveying machinery to ensure sufficient safeguards. Equally, during the colonial period, the 1958 Land Code was found to be ineffective in terms of its original intention of ‘protecting native interests’, so that in 1962 a Land Committee proposed that tighter control be exercised through the Resident’s office to prevent the ‘disposal’ of native land to non-natives.