Sarawak has an anomalous and unique history as a British colony. A British protectorate in 1888, it was only annexed to British dominion in 1946 and became independent when it joined Malaysia in 1963. From 1841 to 1946 it was ruled by the Brooke family, whose members were themselves British subjects. This historical legacy has shaped, and continues to influence, the development of the law and policies relating to native customary land.
Prior to James Brooke’s arrival in Sarawak there was in existence a system of land tenure based on adat (native customary laws). That system remained virtually the same over the following century. Native customary rights to land consisted of rights to cultivate the land, rights to the produce of the jungle, hunting and fishing rights, rights to use the land for burial and ceremonial purposes, and rights of inheritance and transfer. According to native ideas, the clearing and cultivation of virgin land confers permanent rights on the original clearer (Geddes 1954; Freeman 1955; Richards 1961).
As the term implies, native customary rights may only be claimed by a native, or a person who has become identified with and has become subject to native personal law, and is therefore deemed to be a native. ‘Native’ refers to the indigenous groups who inhabit the state, as listed in the schedule to the Sarawak Interpretation Ordinance and Article 161A, Clause 6 of the Federal Constitution. Despite the existence of numerous groups, the term ‘Dayak’ is colloquially used to refer to all the non-Muslim natives, differentiating them from the Malays, who by legal definition are Muslims (Bulan 1999; Hooker 2000). However, it is notable that the constitutional definition of natives in Sarawak includes the Malays. While the Malay-Melanau groups are coastal dwellers, the Dayaks are typically longhouse dwellers whose livelihood depends on the jungle and on swidden farming. Occupying the intermediate zones and the interior areas of Sarawak, their geographical locations and dependence on the land clearly determine the way that land administration affects them.
The Brookes did not interfere with the customary land rights of the Dayaks and Malays, allowing them a degree of self-governance. No scheme of alienation or land development was introduced except with respect to land where no rights or claims, whether documentary or otherwise, existed. There was a need to regulate the administration of land, and at every phase, there was an awareness of the existence of native customary rights. As the authorities discovered, the regulation of customary tenure and land use touched on a social consciousness in which land has economic, social and religious significance (Porter 1967: 11). After a number of regulatory orders, a memorandum on native land tenure was published by means of the Secretarial Circular No. 12 of 1939.
Cultivated land and any land on which a fruit grove had been planted is heritable. Communities may also demarcate certain areas of primary jungle as pulau (reserved forest land) for communal use, within which rights over different resources may be established. Although judicial decisions have held these rights to have been lost upon personal abandonment, migration, or transfer, these losses must be seen in the light of the customary practices of each individual community.
English law was formally applied by the Brookes through Order L-4 (Laws of Sarawak Ordinance) 1928. This introduced English law subject to modifications by the Rajah, and was applicable to native customs and local conditions.
After the Brookes, the most significant period for Sarawak’s land law was that which followed the cession of Sarawak to the British Crown in 1946. The Instrument of Cession transferred the rights of the Rajah, the Rajah in Council, and the State and Government of Sarawak in all lands to His Britannic Majesty ‘but subject to existing private rights and native customary rights’. The Application of Law Ordinance 1949 provided for the reception (afresh) of English common law and doctrines of equity together with statutes of general application. These applied only ‘so far as the circumstances of Sarawak and of its inhabitants permit and subject to such qualifications as local circumstances and native customs render necessary’.
One of the first pieces of legislation passed by the colonial government was the Land (Classification) Ordinance 1948. This instituted the system of land classification by which all land was divided into:
Mixed Zone Land (land which may be held by any citizen without restriction);
Native Area Land (land with a registered document of title but to be held by natives only);
Native Communal Reserve (declared by Order of the Governor in Council for use by any native community, regulated by the customary law of the community);
Reserved Land (reserved for public purposes);
Interior Area Land (land that does not fall within the Mixed Zone); and
Native Customary Land (land in which customary rights, whether communal or otherwise, have been created).
The effect of the classification was that the non-natives could acquire rights only in the Mixed Zone Lands. The natives were restricted in their dealings with non-natives, as well as among themselves, in line with the government policy of preventing the natives ‘from impoverishing themselves by disposing lightly of their rights to others, whether alien or natives’. Native Customary Land was preserved wherever it was already created, irrespective of the zone. Any transfer or dealing contrary to the code was subject to a penalty (Porter 1967: 77).
A significant provision of the 1948 Ordinance was that natives were entitled to occupy Interior Area Land for the purpose of creating customary rights but they were to be licensees of the Crown. Since by definition a licensee holds land at the discretion of the owner, in one stroke that ordinance removed proprietary rights to land from people who for generations had occupied and depended on that land.
The reduction of native rights to a mere licence advanced the presumption that natives had only a usufructuary right with no kind of ownership, and underpinned the colonial ‘tendency, operating often at times unconsciously, to render that title conceptually in terms which are appropriate only to systems which have grown up under English law’. To deny the existence of a valid native perspective on land ownership, based on an elaborate system of rules and customs, was ‘characteristic of the self-serving ethnocentricity upon which colonialism is based’ (McNeil 1990: 92). The fact was that Sarawak was already inhabited by native groups who were not mere wanderers but were people in occupation of the land.
Amendments made through the Land (Classification) (Amendment) Ordinance 1955 precluded the creation of customary rights over Interior Area Land from 16 April 1955 unless a permit was obtained from the District officer. This continued to form the basis of the Land Code that came into force in January 1958, and remained an integral part of the land law system even after Sarawak joined Malaysia in 1963. However, the issue of permits was effectively halted in 1964 by means of a government directive (Zainie 1994).
The Sarawak Land Code 1958 is based on a Torrens registration system which only recognises registered interests in land. The person claiming ownership or interest must have a document of title in the form of a grant, lease or other document as evidence of title or interests. There is, however, a provision for the creation of Native Customary Land under Section 5(2) which is limited to six specific methods; namely:
the felling of virgin jungle and the occupation of the land thereby cleared;
the planting of land with fruits;
the occupation of cultivated land;
the use of land for a burial ground or shrine;
the use of land for rights of way; and
by any lawful method (deleted in 2000).
Numerous amendments have been made to the Land Code. For instance, in 1994 amendments were passed to empower the minister in charge of land matters to extinguish native customary rights to land. In 1996, the onus was placed on a native claimant to prove that he has customary rights to any land against a presumption that the land belongs to the State. In 1998, to pave the way for extinguishment or compulsory acquisition of land, the mechanisms for assessment and payment of compensation were put in place.
The most comprehensive set of amendments were those set out in the Land Code (Amendment) Ordinance 2000. This included a definition of ‘native rights’ which was curiously missing in earlier legislation. Section 7A(1) streamlines ‘native rights’ into three categories; namely:
rights lawfully created pursuant to Section 5(1) or (2);
rights and privileges over any Native Communal Reserve under Section 6(1); and
rights within a kampung reserve (Section 7).
The 2000 amendment harmonised the processes and procedures relating to Native Customary Land with those relating to other types of alienated land in respect of the resumption of land and the adjudication of payable compensation for termination of rights. It also provided for the creation of a Registry of Native Rights. Finally (and notably), the amendment deleted ‘any lawful methods’ under Section 5(2)(f), for what Fong (2000) described as the sake of legal certainty and clarity.
Some lawyers have argued that the implicit intention of the legislature in 1958 would have been to make a provision for certain customs and practices not covered by the Land Code (Bian 2000), but which were observed by different groups under their customary laws. The practice of customary land tenure certainly did not cease in 1958 and, as Bian argues, some lands had been acquired through barter exchange or ‘sale’ within communities, or as marriage dowries, which were subsumed under the ‘other lawful methods’. Given the inherent flexibility of adat (Cramb 1989; Sather 1990), and its ability to adapt to demographic and economic changes, Bian’s argument is reasonable.
The restricted concept of native customary rights under Section 5 made it difficult to assert rights under the Land Code after 1958 (Bulan 2000). The line of restriction is not a new phenomenon (Majid Cooke 2002). As Porter commented on the inception of the code, it ‘virtually prohibit[s] the creation of new customary rights’ and the ‘extremely detailed and rigid’ provisions ‘dictated government policy’ (Porter 1967: 83, 99). Fong (2000) argues that the intention of the subsequent amendments was to restrict the methods of creating native customary rights to those stipulated under Section 5.
It is significant, therefore, that in a recent court case, Ian Chin recognised the existence of the Iban pemakai menoa — the area from which its members ‘eat’ (makai) — within which are found their temuda (secondary forest) and the pulau galau (land reserved for communal use). The concept of pemakai menoa goes beyond mere agricultural use and extends to hunting, fishing and living off the produce of the jungle. Ian Chin held that those customary rights had not been expressly abolished by earlier orders or other legislation.
The Court of Appeal overturned the High Court decision on 9 July 2005, holding that there was insufficient proof of occupation by the (Iban) respondents in the disputed area, although they had satisfied the test for native customary rights in the adjacent area. Nonetheless, the Court of Appeal did not disturb the High Court’s finding that the Iban concept of pemakai menoa exists. This is a milestone for native customary rights in Sarawak
The Court of Appeal endorsed the exposition of the law by the learned judge of the High Court when he argued that the common law respects the pre-existence of rights under native laws or customs and that these rights do not owe their existence to statutes. Legislation is only relevant to determine how many of those native customary rights have been extinguished. It affirmed that the Land Code does not abrogate native customary rights that existed before the passing of that legislation, but held that natives are no longer able to claim new territory without a permit from the Superintendent of Lands and Surveys under Section 10 of the code. It also agreed with the High Court that the rights held under a licence ‘cannot be terminable at will’, for they can only be extinguished in accordance with laws subject to payment of compensation. Any discussion of the development of native customary rights must therefore bear in mind that, despite the provision of Section 5, the native concept of land is broader than the restrictive statutory provisions.
As the state seeks to accelerate land development under its broader ‘politics of development’ (Jitab and Ritchie 1991), the medium that is felt best suited to bring ‘development and progress’ to the natives is estate development. This involves lands which some native groups claim to be their communal lands.