Uggah recalls Tok Nan’s wish on NCR land issues

KUCHING: Deputy Chief Minister and Minister for Modernisation for Agriculture, Native Land and Regional Development, Datuk Amar Douglas Uggah Embas cannot hold back his tears when reading the Land Code (Amendment) Bill, 2018.

Uggah, paused and later sobbed, when reminiscing how former Chief Minister Pehin Sri Datuk Patinggi Adenan Satem, who was very ill reminding him to solve issues surrounding Pemakai Menoa and Pulau Galau.

“Even on his death bed, Allahyarham Tok Nan reminded me to settle the issue,” Uggah, said in between sobbed as the State Legislative Assembly turned silence.

Uggah voice changed dramatically when he read, “After the “Director of Forests, Sarawak & Anor v. Tr Sandah Tabau & Ors and others” case – whereby, the Federal Court ruled that the native custome of PM/PG has no force of law, we had two options to respond to the Federal Court’s ruling:

Option 1: Allow the controversy to be resolved in court or;

Option 2: Consider a possible political solution,” he said, before a long pause turned sobbed.

Uggah said the former Chief Minister was determined and committed to respond through Option 2 – a political solution.

“Therefore, he directed us to pursue Option 2 and find a possible political solution to resolve the issue revolving around PM/ PG as reflected in the case of Director of Forests, Sarawak & anor v. Tr Sandah Tabau & Ors and others,” he said.

Uggah said the Land Code (Amendment) Bill, 2018 described the amendment as a landmark decision that enable native communal title to be issued in perpetuity.

He pointed out in most countries where there are indigenous communities ,their government will only give them usufructuary rights to the land traditionally occupied by them but in Sarawak, under the Gabungan Parti Sarawak ( GPS) Government, territorial domain is to be given the force of law and legally recognised as having a proprietary right.

“Document of title will be issued to the community concerned to protect their territorial domain.”

Uggah said this nullifies the views expressed by some so called champions of native rights, keyboard warriors and armchair critics and opposition leaders in Sarawak.

“TheircontentionthatGabungan Parti Sarawak is only giving usufructuary rights to native territorial domain and thereby eroding the natives of their Native Customary Rights land is totally misleading and mischievous,” he nailed.

He said the natives rely on the land for farming, foraging for food, hunting and fishing as well as an important source of materials for domestic purposes.

“Because of this cultural significance, they have very strong sentiment and attachment to their land,” Uggah reasoned.

Uggah explained that by adopting the Torrens System for the State’s Land Administration System, these customs and practices were not all incorporated into our Land Laws.

“Specifically, our written laws did not expressly stipulate the existence of customs Pemakai Menoa and Pulau Galau, or the equivalent native territorial domain of other communities and thus this has affected its recognition,” he pointed.

Uggah explained the shortcoming in our laws is manifested in the Judgment of the Federal Court in the case of Director of Forests, Sarawak and State Government of Sarawak vs. TR Sandah anak Tabau and 7 others, delivered on 20th December 2016.

“In this case, The Federal Court had ruled that the native customs of Pemakai Menoa and Pulau Galau, although practised by the Iban communities, have no force of law in Sarawak.

“As a result, the claim by TR Sandah and his anak biaks to ownership rights over land which, according to their own custom, is their Pulau, was dismissed by the Federal Court,”he elaborated.

To add insult to injury, Uggah said the Federal Court had also ruled that the practice of Pemakai Menoa and Pulau Galau were never recognised to have created customary rights to land by any of the laws passed during the Brooke rule or later by the State’s Legislature.

“Pemakai Menoa and Pulau Galau or its equivalent customs of other natives are also not expressly provided for in any of the codified Natives’ Adats,” he explained.

The Judgment of the apex Court, according to Uggah, has a profound impact on the rights of the natives which, in accordance with their customs, is their land.

“The Federal Court’s decision presented the State Government with the opportunity to review the existing laws relating to the acquisition of rights to land based upon the customs of the native communities in Sarawak.”

“Through this review, any legal impediment to all the native communities to lawfully acquire proprietary interests in land would be addressed, to meet the expectations of all native communities to get legal recognition of their rights to land acquired in accordance with their own customary laws,” he said.

Uggah explained the term native territorial domain was use instead of Pemakai Menua and Pulau Galau for inclusiveness – because the practice relating to native territorial domain is not only practised by the Ibans, but also all other native communities in Sarawak.

“In the case of Rambli Kawi v Supertindent of Land and Survey, the courts have also recognised the concept of “cari makan “of the Malay’s equivalent to Pemakai Menua and Pulau Galau. Thus, this amendment is inclusive and relevant to all natives in Sarawak,” he clarified.

The main feature of the amendment according to Uggah is “Rights to land may be created by natives through access to the area within, conjoining or adjacent to their native customary land created under Section 5 of the Land Code if ‘usufructuary rights’ were exercised by the natives prior to 1st January 1958.”

To avoid confusion, Uggah said the customs and practices described under the definition of ‘ usufructuary rights’ are similar to the customs of ‘Pemakai Menoa’ and ‘ Pulau’ of the Iban Community.

He said, a native communal title would be issued for the ‘ native territorial domain’ and the land may be used for agricultural purpose or such other purpose as may be approved by Majlis Mesyuarat Kerajaan Negeri ( MMKN).

“This means that the land may be used not only for foraging for food or hunting and a source of timber for domestic use, but also for any usage coming within the term “agriculture purpose” as defined in Section 2 of the Land Code,” he stressed.

Uggah said members of the community will have the prerogative to determine amongst themselves the usage for their ‘native territorial domain’ but if they decide that the land be used for a purpose other than “agriculture purpose”, they would have to apply to MMKN for a change of use.

Upon registration of the native communal title, the proprietary interests in that title would be indefeasible by virtue of the provisions of Section 132 of the Land Code, Uggah revealed.

He said any land held under native customary rights created under Section 5 or native territorial domain under the proposed new Section 6A of the Land Code would be expressly excluded from any Provisional Leases issued under the amended Section 28 of the Land Code.

Uggah also stressed that Section 6A should provide for a limit to the area that may be claimed as native territorial domain to be 500 ha or 1,250 acres.

Uggah also revealed that two other amendments are also proposed, namely:

i. to enable the officers authorised by the Director of Lands and Surveys to have the power of investigation which they currently do not have in respect of offences under the Land Code; and

ii. to repeal those amended provisions in the Land Code under the Land Code ( Amendment) Ordinance, 2000 [Cap A78] which have not been brought into force.

“These amended provisions are no longer relevant due to the changes made to the Land Code which would be brought about by the amendments of this Bill. One significant effect of this repeal is the reinstatement of Section 5( 2)(f) of the Land Code which was deleted by the 2000 Amendment .

“Section 5 ( 2)(f) was a general and saving provision allowing for creation of Native Customary Rights over land as may be recognised under the law,” he said.

Uggah said there was much uproar among the native communities when Section 5( 2)(f) was deleted by the 2000 Amendment as it was perceived to be an attempt to remove and restrict their rights to create customary rights over land.

“With this Amendment Bill this provision has now been reinstated into the Land Code,” he stressed.

Uggah also explained why they cannot support the Land Code (Amendment) Bill 2017 sought by Ba’ Kelalan assemblyman, Baru Bian because it was merely ‘Melepaskan Batuk Di Tangga’.

“Member for Ba’Kelalan did not quite deal with he subject in a comprehensive and in- depth manner the way the Land Code (Amendment) Bill, 2018 does,” he said.

“The Bill was merely a token gesture or attempt to give recognition to Teritorial Domain but:

• did not seek to confer any proprietary rights on Territorial Domain;

• did not provide for issue of title to Territorial Domain land;

• did not grant title in perpetuity to Territorial Domain; and

• did not provide for exclusion or carving out of NCR, Territorial Domain from provisional leases as is now provided for in the present Amendment Bill,” he added.

Uggah stressed that the route for this bill to reach this August House had been very challenging.

“The Task Force and the Working Committee had to do all the balancing act. We have to be inclusive. Therefore I appeal to all not to politicise this issue but focus on finding solution to problem at hand,” he said.

“I appeal to all honourable members of the august House to support this Bill, which will greatly benefit all natives,” he said.