Datuk Sebastian Dewan debate on The Land Code (Amendment) Ordinance Bill, 2018

suppadmin | July 12, 2018

Datuk Amar Tuan Speaker.

1. Thank you for giving me the opportunity to speak on the Land Code (Amendment) Ordinance Bill, 2018. I would like to congratulate our government and Deputy Chief Minister YB Datuk Amar Douglas Uggah Embas for tabling a very comprehensive and inclusive Bill.

2. I was very surprised that yesterday the Honourable member for Ba’ Kelalan, Honourable member of Kota Sentosa and their Pakatan Harapan colleagues had a press conference regarding this Bill, which was NOT even tabled in this August House for consideration and debate. They would therefore not know the background, explanation and intention of our government on this Bill. Because of the above they would have given incomplete information in their press conference and thus might have misrepresented to the public at large, especially to the native communities.

3. This Bill is very challenging, considering that this issue had been affecting the native communities for many years, the sensitivity behind it and the emotion that comes with it. In particular the decision on Federal Court case of Tuai Rumah Sandah Tabau in Ulu Machan, Kanowit and eight other NCR landowners where the court recognised the existence of customary rights of Iban community regarding their “pemakai menoa” and “pulau galau” but have no force of law.

4. This Bill seeks to amend the Land Code to allow the term “native territorial domain” be recognized and given the force of law and for matters related thereto. It appears that the intention of this Bill is to include all native ethnic groups in Sarawak. Indeed Sarawak is blessed and we have over 30 ethnic and sub-ethnic groups. We have been living in peace and harmony all these years.

Datuk Amar Tuan Speaker.

5. The proposed “Amendment of Section 2(b)”, defines “native communal title” as,

” “native communal title” means a title issued in accordance with Section 6A over a native territorial domain in the name of a person or body of persons as trustee for the native community concerned but without the right of sale or disposal, and such native communal title shall be held to be a title under this Code”

In Section 6A(3)(b) and (c), the “native communal title” is further described as,

(b) be in perpetuity; and

Datuk Amar Tuan Speaker,

6. The Honourable member for Ba’ Kelalan was reported to have said, I quote,

“We have won cases where the “Pemakai Menoa and Pulau Galau” extends beyond 10,000 hectares”

I do not know these cases and I sincerely hope the Honourable member for Ba’ Kelalan will enlighten us and provide this August House on the names of those cases before this DUN adjourns sine die.

7. To be read with section 2(B), the word “usufructuary rights” means the rights or privileges exercised or enjoyed by a native community over a native territorial domain to:

(a) forage for food, including fishing and hunting;
(b) enjoy such rights or privileges exercisable by a native community in a communal forest constituted under Part III of the Forest Ordinance, 2015 [Cap. 71]; or
(c) carry out such activities which are expressly authorized in the native communal title issued under section 6A(3) or a permit issued under section 10(3) but subject to the terms and conditions specified therein.

8. It is clear that firstly, the community concerned is able to exercise their Rights and privileges within the “native territorial domain” but the title holder is not allowed to assign or transfer the territorial domain to any non-community member or to sell or dispose of the territorial domain because the territorial domain belongs to the whole community. This is a protection to ensure that the territorial domain stays with the community. It is always there for them, now and in future.

Secondly, I take comfort that the title shall be held in perpetuity.

Datuk Amar Tuan Speaker.

9. Paragraph C above would provide activities, in particular agriculture activities, example planting of Musang King durian, MD pineapple, be allowed in the native communal title.

10. I would like to touch on Section 6A (2), (3) and (4). I honestly believe that the Director of Land & Survey should not be the one with authority to approve or reject the “native territorial domain” claim. It is not rational and also unfair to the Director who is non-native or a person who is not well-versed in natives “adat” in the position to determine the claim. We have over 30 ethnics and sub-ethnics with many of them practicing their “adat” customs differently. It is really impossible for any Director to have full or adequate knowledge of all their “Adat”.

Datuk Amar Tuan Speaker.

11. There are few suggestions that I would like to make. One of the main objections to this Bill is that the size of native territorial domain shall not exceed five hundred hectares. This is provided in Section 6A(2). It says “Provided always any area claimed as native territorial domain shall not exceed five hundred hectares;”

I believe that our Honourable members remember the Federal Court case of Tuai Rumah Sandah where the land claimed was 2,712 hectares of “pemakai menoa” and “pulau galau”.
Each claim under native territorial domain will be different and it is therefore preferred not to restrict or cap the size of the “native territorial domain” to 500 hectares only. Instead, it is preferred for the claimant(s) to prove their claim(s).

12. I would therefore like to propose that the Director of Land & Survey should only act based upon the recommendation from statutory body such as the Majlis Adat Istiadat Sarawak, who has better knowledge and expertise in determining the claim or setting up a Commission consisting of experts in native “adat” to determine the claim by the respective native communities.

13. As we are here debating on the Land Code (Amendment) Ordinance, 2018, I would like to take this opportunity to touch on something extra for consideration of this August House.

Datuk Amar Tuan Speaker.

I am sure that most of the Honourable members here know that majority of the town land, suburban and private landowners of agricultural land in Sarawak is leasehold whereby the land belongs to the State government which is leased out to the public for a fixed amount of years like 60 years or 99 years or 999 years. Upon expiry of the lease, the ownership of the land reverts back to the State Authority unless the land owner wishes to renew the tenure of lease for a premium.

14. With the amendment of Section 28, in particular Section 28 (e) which reads, “that any land held under native customary rights created under section 5 or native territorial domain under section 6A shall be excluded from the area covered by the provisional lease”

It is hoped that the “Mother of All Disputes”, which I agreed with Honourable member of Katibas, arising from Provisional Lease be resolved and innocent lives be no longer lost.

15. I thank our Deputy Chief Minister Datuk Amar Douglas for reminding us of our late Chief Minister Pehin Sri Datuk Patinggi Tan Sri Adenan Satem on how even at the very last moment of his time before ascending to be with his Allah, he instructed him to settle the problems of “Pemakai Menoa” and “Pulau Galau”.

I hope that all the Honourable members would support the legacy left by our late Tok Nan for implementation of this present government for the good of the native communities and with this I beg to support the Bill.

Thank you.

16. I think it is the right time for the government to consider allowing conversion of leasehold land to freehold land. This will give the people especially those living in the urban and sub urban areas including the private landowners of agricultural land with the most complete form of ownership of that land that is in perpetuity. The Sarawak people will have no worry about the lease running out and no more financial burden as the owner does not need to pay premium to renew the tenure of lease. I believe this is a fair request for the benefit of all Sarawakians that the government should seriously consider.