By definition, land tenure is the system of rights and institutions that governs access to and use of land and other resources. In Sarawak, the customary land tenure is characterized by both formal and informal attributes. The formal attribute is that the NCR rights are recognized and protected by the Land Code. But it is also informal customary land tenure because it's recognition and acceptance are based on the Adat Law of the Iban community (Dimbab Ngidang, 1998).
The Iban land tenure system uses the concept of territory, called the 'pemakai menoa' for the exerting rights of access to land resources within a longhouse community (Henry Ling, 2010). The boundaries of this territory are usually marked by natural features such as rivers and ridges (Lambat, 1994). On the other hand (Cleary and Eaton, 1996) reported that native communities could claim customary rights to land only applied to the following:
1) Felling of virgin jungle before January 1st 1958
2) Planting of fruit trees
3) Use of land for burial grounds or shrines
4) Use of land in any class for rights of ways or any other lawful methods recognized by the Land Code.
5) Purchase or by exchange of gifts such as gongs or/and cannons.
History of NCR land in Sarawak has been in household lips since the days of the colonial rule dated from century ago. In 1863, the first land law was promulgated resulting in 'all unoccupied and waste lands' are to be the property of the government. The significance of the 1863 Land Order was that although the natives could continue to practice customary tenure within their domain, they could no longer claim rights to land outside their existing domain, which is now belonged to the state (Evelyn Hong, 1974).
In 1949, the Land Classification Ordinance introduced by the colonial government further restricted the creation of customary rights to tenure to 6 methods (Hooker, 1976):
1) The felling of virgin jungle and the occupation of the land thereby cleared
2) The planting of land with fruit trees
3) The occupation or cultivation of land
4) The use of land for burial ground or shrine
5) The use of land of any class for rights of way
6) Any other lawful method
Applications to these rights had to be made for permits issued by the district officer, which may or may not be granted. This definition of customary tenure by the government frustrate certain transactions admitted by systems of native personal law (Porter, 1967). The Adat Law and the customary tenure were codified and this further curtailed the rights of natives to land even more.
In 1946, Sarawak was ceded to the then British Crown and they introduced the 1948 Land Classification Ordinance that further denied the customary rights to land for the natives. In 1952, an amendment was made pertaining to the lawful occupation for the different classes of land created. This resulted in the following rules (Porter, 1967):
1) Native who were in lawful occupation of the NCR land were declared to be licensees of Crown Land
2) The Crown assumed total proprietorship of all land in the state of Sarawak
The ordinance was further amended in 1955 resulting in a total prohibition on spontaneous creation of further customary rights law (Idem, 1967). Direct effects of these as reported by (Henry Ling, 2010) are that:
1) Natives are now forbidden to open up new forests
2) Forbidden to exercise customary rights or operate under customary tenure in new areas
3) Natives could no longer move freely to establish new swiddens, settlements in new area as they did in the past.
Generally, a native may be said to own land if he holds a document of title issued by the superintendent or surveyor when he can claim customary rights over the said land. It is clear law that until a document of title has been issued in respect to over the land which he claimed to be NCR land, such land shall continue to be state own land.
Sarawak Land Code, 1958 (SLC) section 5 clearly recognizes NCR which may be created in accordance to the native customary law of the community concerned which is native Iban in this case. Section 22 provides recognition to native holdings where such claim to land must be registered. Section 30 provides for the compensation to be paid should the government resumes possession of any occupied land for any purposes (DayakBaru, 2010).
The current uproar lies not in the knowledge of the NCR land issue anymore. The natives are fully aware of the issuance of a document title for their NCR land claim to be approved. However, the biggest problem is that genuine native rights under the SLC are not guaranteed unless they are all given due registration of native rights with land titles. The question is how many cases such as the success story of Mr.Nor Anak Nyawai? How can one register and lawfully true to their claims if most of their applications were being tossed and rejected along the process?
We are not asking for more, we are just asking for what we believe we deserved...
Till the next posting.
The Iban land tenure system uses the concept of territory, called the 'pemakai menoa' for the exerting rights of access to land resources within a longhouse community (Henry Ling, 2010). The boundaries of this territory are usually marked by natural features such as rivers and ridges (Lambat, 1994). On the other hand (Cleary and Eaton, 1996) reported that native communities could claim customary rights to land only applied to the following:
1) Felling of virgin jungle before January 1st 1958
2) Planting of fruit trees
3) Use of land for burial grounds or shrines
4) Use of land in any class for rights of ways or any other lawful methods recognized by the Land Code.
5) Purchase or by exchange of gifts such as gongs or/and cannons.
History of NCR land in Sarawak has been in household lips since the days of the colonial rule dated from century ago. In 1863, the first land law was promulgated resulting in 'all unoccupied and waste lands' are to be the property of the government. The significance of the 1863 Land Order was that although the natives could continue to practice customary tenure within their domain, they could no longer claim rights to land outside their existing domain, which is now belonged to the state (Evelyn Hong, 1974).
In 1949, the Land Classification Ordinance introduced by the colonial government further restricted the creation of customary rights to tenure to 6 methods (Hooker, 1976):
1) The felling of virgin jungle and the occupation of the land thereby cleared
2) The planting of land with fruit trees
3) The occupation or cultivation of land
4) The use of land for burial ground or shrine
5) The use of land of any class for rights of way
6) Any other lawful method
Applications to these rights had to be made for permits issued by the district officer, which may or may not be granted. This definition of customary tenure by the government frustrate certain transactions admitted by systems of native personal law (Porter, 1967). The Adat Law and the customary tenure were codified and this further curtailed the rights of natives to land even more.
In 1946, Sarawak was ceded to the then British Crown and they introduced the 1948 Land Classification Ordinance that further denied the customary rights to land for the natives. In 1952, an amendment was made pertaining to the lawful occupation for the different classes of land created. This resulted in the following rules (Porter, 1967):
1) Native who were in lawful occupation of the NCR land were declared to be licensees of Crown Land
2) The Crown assumed total proprietorship of all land in the state of Sarawak
The ordinance was further amended in 1955 resulting in a total prohibition on spontaneous creation of further customary rights law (Idem, 1967). Direct effects of these as reported by (Henry Ling, 2010) are that:
1) Natives are now forbidden to open up new forests
2) Forbidden to exercise customary rights or operate under customary tenure in new areas
3) Natives could no longer move freely to establish new swiddens, settlements in new area as they did in the past.
Generally, a native may be said to own land if he holds a document of title issued by the superintendent or surveyor when he can claim customary rights over the said land. It is clear law that until a document of title has been issued in respect to over the land which he claimed to be NCR land, such land shall continue to be state own land.
Sarawak Land Code, 1958 (SLC) section 5 clearly recognizes NCR which may be created in accordance to the native customary law of the community concerned which is native Iban in this case. Section 22 provides recognition to native holdings where such claim to land must be registered. Section 30 provides for the compensation to be paid should the government resumes possession of any occupied land for any purposes (DayakBaru, 2010).
The current uproar lies not in the knowledge of the NCR land issue anymore. The natives are fully aware of the issuance of a document title for their NCR land claim to be approved. However, the biggest problem is that genuine native rights under the SLC are not guaranteed unless they are all given due registration of native rights with land titles. The question is how many cases such as the success story of Mr.Nor Anak Nyawai? How can one register and lawfully true to their claims if most of their applications were being tossed and rejected along the process?
We are not asking for more, we are just asking for what we believe we deserved...
Till the next posting.
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