Land Laws

And
Creation of
Native Customary Rights (NCR)
BY
YBHG. DATUK J.C FONG
(SARAWAK STATE ATTORNEY GENERAL)

INTRODUCTION
1. OVERVIEW OF LAND LAWS ETC.
2. FOREST LICENCES AND LAND RIGHTS
3. PENANS AND NATIVE CUSTOMARY RIGHTS (NCR)
ISSUES

RECOGNITION OF PENANS TRADITIONS

SETTLEMENTS FOR PENANS

4. SELAAN-LINAU FOREST MANAGEMENT UNIT

CURRENT ISSUES
CONSTITUTION OF SULING-SELAAN PROTECTED FORESTS

OVERVIEW OF LAND LAWS ETC.

The Land Code of Sarawak is the principal Law
governing land in Sarawak.
This Code was passed in 1957 and came into force
on 1.1.1958.
The Code consolidates all legislations in force at that
time.
No rights to land may be acquired save in accordance
with the provisions of the Land Code (Section 44).
3

OVERVIEW OF LAND LAWS ETC.

The Land Code recognizes native customary
rights over land, provides the methods whereby
native customary rights can be created over State
land, and where such rights are created or
acquired prior to 1.1.1958, their creation or
acquisition would be governed by laws in force
immediately prior to 1.1.1958 (See: Section 5(1)
& (2) of the Land Code).
After 1.1.1958, NCR may be created over Interior
Area Land upon permit issued under Section 10
of the Land Code.
4

OVERVIEW OF LAND LAWS ETC.

Claims to land based upon native customs has
been part of our land system for nearly 2 centuries.
The creation and acquisition of native rights over
land had been regulated, from time to time, by
written laws, originally, in the form of Orders or
Proclamations made by the Rajahs and later, by
laws passed by the Legislature.
The common law of England does not apply in
regard to acquisition of rights over land in Sarawak.
(See: Sections 3 & 6 of Civil Law Act, 1965)

OVERVIEW OF LAND LAWS ETC.

By virtue of Item 2 of List II (State List in the
Ninth Schedule of the Federal Constitution) the
Dewan Undangan Negeri (and not Parliament)
has the authority to legislate on land matters in
the State, including native reservations.
Under Item 13 List IIA (Supplement to the State
List for States of Sabah and Sarawak) native laws
and customs are matters within the sole
legislative competence of the State Legislative
Assembly.

OVERVIEW OF LAND LAWS ETC.

Where native customary rights are to be

extinguished by the government, compensation will be
paid to the affected natives.
No State land which is encumbered by native
customary rights may be alienated without payment of
compensation.

FOREST LICENCES
TIMBER LICENCEES & LAND RIGHTS
Timber licencees have no proprietary rights to the land.
All land in Sarawak are vested in and within the control
of the Government (Section 12 of the Land Code).
The issue of Forest Licences to non-natives do not
affect the rights of the Government over the land.
The natives proprietary rights to land (if any) is limited
only to the area that forms their settlement, but not to
the jungles at large.
See : Superintendent of Lands and Surveys Bintulu vs
Nor ak Nyawai & others [2005] 3 CLJ 555
8

FOREST LICENCES (cont.)

Timber licences do not cover land lawfully held
under native customary rights Second Schedule
of a typical Forest Licence excludes land subject
to NCR from the licensed area.
The NCR must be those recognised by law, such
as Section 66 of Land Settlement Ordinance,
1933 or created in accordance with Section 5 (2)
of Land Code.

PENANS
NCR ISSUES PERTAINING TO THE PENANS
Penans were originally nomadic and do not settle
in any specific area.
Penan population in Sarawak in 2006 is estimated
to be 15,405 mostly in interiors of Baram, Limbang
and Belaga Districts.
Majority have with encouragement and assistance
of Government settled in Suai and Niah in Miri
District, Lower Tinjar in Baram, Bintulu, Belaga
and Limbang Districts, since 1960s.
10

PENANS (cont.)
NCR ISSUES PERTAINING TO THE PENANS
Total Penans settlements is 103. Details as follows:
District
Baram
Bintulu
Miri
Limbang
Belaga
Total

No. of
Settlements

No. of
Populations

60
8
5
10
20

8,765
1,187
1,557
397
3,041

103

14,947
11

PENANS (cont.)
NCR ISSUES PERTAINING TO THE PENANS
Nomadic Penans amount to 458 belonging to 9 groups in
the Magoh and Tutoh river systems in Baram District.
Some Penans have not yet obtained either birth
certification or identity card.
Consequently their native status need to be ascertained
before they could claim rights to Native Customary Land.
The State Government is working with the Federal
Authority to resolve this problem.
Source: Miri, Kapit & Limbang Resident and District Offices.

12

PENANS (cont.)
NCR ISSUES PERTAINING TO THE PENANS
Tradition of nomadic Penans to roam in the
jungles are acknowledged and recognized. See:
Gunong Mulu National Park Proclamations,
1974 covering a total area of 52,864.07
hectares.

13

PENANS (cont.)
Gunong Mulu National Park Proclamations,
1974
Nomadic Punans living within the Park, shall
have the privileges mentioned in paragraphs (a)
to (c) above but such privileges shall cover the
whole area of the Park. In addition, the Nomadic
Punans shall have the privilege of taking timber
and poles for firewood and the construction of
temporary houses. Nomadic Punans that adopt a
settled mode of existence shall forego the
privileges included in this paragraph and have the
same privileges as the inhabitants of the
longhouses mentioned in paragraph (a).
14

PENANS (cont.)
RESERVATION OF LAND FOR PENANS
Section 6(1) of Land Code enable the Minister
to declare, by Gazette Notification, any area of
State land to be a Native Communal Reserve for
the use of any community having a native system
of personal law.
Native communal reserve can be declared for
the Penans when they agree to settle.

15

PENANS (cont.)
The Native Communal (Agriculture) Reserve
Order, 1981 (Swk. L.N. 2/1981) whereby 2133
acres of land described as Lot 1 Block 22 Sawai
Land District was declared to be a Native
Communal Reserve for the exclusive use of the
Penan community (pop. 450) at Kampung
Meneng, Suai for agriculture purposes only.

16

SELAAN-LINAU FOREST MANAGEMENT UNIT

Although the Penans claim to have NCR over part
of this forest area, the other natives, Kenyahs, are
also claiming rights to the same area.
Disputes between the Penans on the one hand
and the logging company and the Kenyahs on the
other side, are before the High Court at Miri (Suit
No. 22-46-98(MR)).

17

SELAAN-LINAU FOREST MANAGEMENT UNIT

Disputes between the Penans and the Kenyahs
are before the Native Court, Marudi vide case No.
MUR/CC/06/2004. The Chiefs Native Court
presided by a Penghulu ruled in favour of the
Kenyahs. The Penans have appealed against this
ruling to the Chiefs Superior Court which will be
presided by a Temenggong.
The High Court case is stayed pending final
decision of the Appellate Court under the Native
Court System.

18

SELAAN-LINAU FOREST MANAGEMENT UNIT

In the meantime, some of the Penans have
started their blockades and complaints against
logging by the holder of forest timber licences,
and the construction of a road which the
Government wants to link to interior villages
which are inaccessable.
The Kenyahs are apparently not opposed to the
harvesting of timber or the construction of the
public road. Delay in the completion of the road is
affecting the wellbeing of another community
namely the Kelabits.
19

SELAAN-LINAU FOREST MANAGEMENT UNIT

This forest area is within the Suling-Selaan
Protected Forest constituted on the 1.12.2000.
By virtue of the 2nd Schedule to the Proclamation
constituting this Protected Forest the permanent
inhabitants of a number of long houses have
rights to continue traditional activities of fishing,
hunting and collection of minor jungle produce for
personal and domestic use only.
Prior to the constitution of this Protected forest,
an exercise was carried out, after due public
notice being given for any person claiming to
have rights or privileges in the area to submit their
claims to the Regional Forest Officer Miri.
20

SELAAN-LINAU FOREST MANAGEMENT UNIT

The rights referred to in the 2nd Schedule were
determined after investigation and adjudication of
the claims submitted by 274 people.
The natives concerned do not have proprietary
rights over the land in that area.
They continue to have access to the area for
fishing, hunting and collection of minor jungle
produce.

21

Thank You
22