Chukpai: 500ha NTD not acceptable, reasonable
KUCHING: An amendment to the Land Code to limit the area of Native Territorial Domain ( NTD) to 500 hectares is not acceptable or reasonable especially for big settlements with 100 doors or more households in places like upper Rejang, Kapit, Balleh, Baram and even Limbang.
Kennedy Chukpai Ugon ( PRSMurum) said the limitation would mean that each household would have only 3- 5ha which was obviously insufficient and not reflective of the community’s current practices and needs.
“Limiting it to 500ha is not fair and equitable for people in my kawasan (area) and other interior areas where longhouses may have more than 100 doors.
“Furthermore, in places where they have been foraging, hunting and fishing, the land size is larger than 500ha,” he added.
Chukpai thus proposed that the amendment to the Land Code Bill, 2018 not to limit the NTD to 500ha only but to determine the size according to the custom and the need of the community concerned on a case- to- case basis.
He said this when participating in a debate on Land Code (Amendment)Bill,2018,whichwas tabled by Deputy Chief Minister and Minister of Modernisation of Agriculture, Native Land and Regional Development Datuk Amar Douglas Uggah yesterday.
Nevertheless, he supported the amendment which took due consideration and much understanding of the importance and sensitivity of the Dayak community.
He said the amendment was intended to address and rectify the Federal Court’s decision in TR Sandah’s case, whereby the court ruled that the Iban custom of Pemakai Menoa (PM) and Pulau Galau ( PG) has no force of law.
Recognising the strong sentiments and reactions among the natives to the decision of the Federal Court in TR Sandah’s case, the Sarawak government has taken proactive steps to amend the Land Code so as to give it a legal force to the PMPG.
“Due to the different terms used by different native communities to refer to their respective customs and practices, which is the equivalent of PMPG among the Ibans, the term NTD is adopted for the amendment so as to have general application to all natives of Sarawak,” he said.
Secondly, although the term ‘ Usufructuary Right’ is used in the definition of NTD, Kennedy said the right in the NTD land is in fact a proprietary and legal right amounting to legal ownership of the NTD area.
“This is evident in Section 6A of the amendment which gives communal title to the NTD approved by the Land and Survey Department based on the evidence of the area being used by the community for foraging, hunting and fishing before 1957 or preserved for such purpose since 1957.
“Thirdly, the amendment to Section 15 gives legal recognition of ownership of NTD land which has been issued with communal title,” he added.
Chukpai added there was no truth in the allegation by parties opposing the amendment, saying that the right granted under NTD was merely Usufructuary Right or only the right to use the land but not proprietary right or legal ownership of the land.
“Section 6A of the amendment makes it very clear that NTD is a legal and proprietary right otherwise NTD cannot be issued with communal title and such title is as good as valid as any other document of title issued under Section 18 of the Land Code.
“Fourthly, the amendment to Section 28 which provides for exclusion of NTD from Provisional Leases (PL) is an added security for NTD and also Native Customary Rights ( NCR) land.”
The amendment to Section 28, meanwhile, will address the problem posed by the Federal Court decision in TR Nyutan’s case where the court ruled any NCR land proven to exist within an area issued with Provisional Lease.
“In such a case the NCR owner cannot get their land back but can only claim compensation for their NCR land within the PL area. This is due to doctrine of indefeasibility of title under Torrens System which is the basis and foundation of our land law in Sarawak and Malaysia.
“With the proposed amendment to Section 28, any land alienated under PL must be surveyed to ensure that any NCR and NTD land are excluded before the final lease document of title can be issued.”
Chukpai explained that the PL shall not have indefeasibility until and unless a proper survey on the ground has been done and any NCR and NTD must first be excluded during such survey before the final document of title can be issued.
“Prior to this amendment it was a standard condition in the PL has indefeasibility and PL holders tend to ignore or do not make any serious attempt to identify and exclude NCR land within their PL area, such NCR cannot be excised out of the PL area and only be compensated in monetary terms.
“However, with the amendment the Clause 28, it makes it mandatory for PL holders to exclude another NCR and NTD land from the PL area,” he added.
Amendment to Section 28, he added, was truly an advantage and security for NCR and NTD land.