State control over land did not change significantly in the post-colonial era, except that with intensified ‘development’ (state-sponsored oil palm in the 1960s, logging in the 1970s and 1980s, and then joint venture oil palm from the 1990s on), customary land came under severe pressure. When under pressure, and due to the ambivalence of the 1958 Land Code, ‘state land’ is often contested space. In brief, the Land Code, while acknowledging the rights of native communities to live on their land (access rights), was ambivalent about recognising their ‘ownership’ of the land. Today, this ambivalence allows for multiple interpretations of the status of Native Customary Land in relation to other lands managed by the state. For example, using one set of evidence (Appendix to the Native Customary Laws), one interpretation of the law suggests that ‘all untitled land whether jungle or cleared for padi farming (temuda) became “the property of the Crown”’ (Fong 2000: 9). This is the view underpinning the quote by Fong at the beginning of this chapter. Without evidence including maps, records kept at district offices, or certificates issued by colonial administrators or Brooke officials, Native Customary Land was taken to be ‘crown land’ and Dayak landowners were interpreted as being mere ‘licensees’ (ibid.) as in the colonial period, except that they are now ‘licensees’ on ‘state’ rather than ‘crown’ land (ibid.: 19). However, most native communities were unaware of government edicts, since they did not have access to government gazettes, and continued to create new settlements and claim customary rights, both before and after 1958, in line with adat (customary) law. Regardless of the ambivalence in the Land Code, from the mainstream legal viewpoint such communities are ‘illegal squatters’ on state land (ibid.: 19), and the majority of those who occupied land after 1958 find their status especially uncertain.

A different view suggests that what observers mistake for ‘virgin jungle’ may in fact be pulau. From this perspective, pulau are forest reserves especially set aside by native communities for essential items such as timber for house construction and building boats, jungle vegetables, rattan and other produce. They may also provide the hunting ground for the community and be important water catchment areas (Bian 2000: 23). This view is in line with the contemporary discovery of ‘anthropogenic forests’ that were formerly classified as ‘virgin’ forests untouched by human managers (Leach and Mearns 1996).

Ambivalence and multiple interpretations are problematic to the hypermodernist agenda. The Land Code Amendment, introduced in conjunction with Konsep Baru, can be viewed as a way of cleaning up unfinished business left by the colonial legacy. Officially, the amendment was introduced for the dual purposes of recognising ‘genuine’ customary rights claims over land through land registration, and preventing ‘all forms of unlawful occupation of State land on the pretext that such occupation is allegedly based on adat’ (Fong 2000: 19). Registration of Native Customary Land is now seen in official circles as an attempt to provide statutory recognition to holders of customary rights, who were otherwise ‘legally bare licensees in occupation of State land without title’ (ibid.). For land to be registered, however, the usual requirements apply; namely, that natives would first have to be considered legal occupiers of their land prior to 1958, or would need proof that they had acquired customary rights over their land. The onus of proof is on the claimant. Proving that they have legitimately acquired their rights will keep most communities busy, regardless of whether they settled the land before or after 1958. For those who had settled after 1958, however, acquiring evidence is almost impossible because permits were very rarely issued to native landowners after that date (interviews at Miri, May 2000).

Having gone through the complicated process of claiming their rights, communities may then wish to have their land registered so that, under Konsep Baru, they could exchange it for shares in the joint venture oil palm companies working on their land. But registration does not make native peoples landowners in the eyes of the law. It is merely a ‘registration of … rights, not a registration of any estate or proprietary interests in land’ (Fong 2000: 24). Small wonder, then, that as late as 2004, judging from the many appeals made by officials for natives to register their land, many rural groups seemed to be hesitant about doing so.^[17] Some resist oil palm plantations through blockades of company vehicles and/or government-linked surveying teams, or through the courts (Majid Cooke 2003a). In court, Dayak groups have been more successful in obtaining compensation for damage done to their land than for recognition of their customary claims to land.^[18] Their overall reluctance may be one reason for the perceived slow rate of acceptance of Konsep Baru in some rural areas of Sarawak.

The intention in passing the Land Code Amendment was to eliminate loopholes emanating from the 1958 Land Code. As noted, the Land Code recognised native customary rights, albeit in a limited way. The method described in Subsection 5(2)(f) as that of acquiring rights by ‘any other lawful method’ was particularly useful for negotiating access rights for those who had settled in their areas before 1958, but who possessed no legally acceptable evidence or proof.^[19] However, it also proved useful for those who occupied land after 1958 and who, in the eyes of the law, were ‘illegal squatters’ on ‘state land’.

Some in the legal profession saw Subsection 5(2)(f) as a way of bringing adat (custom) into the legal system. According to Baru Bian (2000), adat establishes a bundle of rights and practices that are otherwise not captured by the Land Code. Adat carries an inherent flexibility in terms of land access and use as demographic or economic pressures change (Rousseau 1987; Cramb 1989; Sather 1990). Subsection 5(2)(f) provided the potential for capturing this flexibility, and by deleting this subsection, the amendment of 2000 restricts the potential for claiming access to land through adat. The effects are summarised by Bulan (2000: 19) thus: ‘The deletion of “any other lawful means” under Section 5(2)(f) appears to have taken away every remnant of practical right of the natives to prove entitlement to customary land.’ This means that the rights of those who settled on their land after 1958 and who, under Subsection 5(2)(f), could have negotiated for recognition of their rights under adat,^[20] remain unresolved. In some villages, even among those who have records to prove their occupation as being prior to 1958, the fear of Konsep Baru stems from the notion that it is a mechanism for ‘taking away’ Dayak land, with the benefits from plantations going to other people (Majid Cooke 2003a).