KUCHING, July 11: Ali Biju (PKR-Krian) today cautioned the State Legislative Assembly that the Land Code (Amendment) Bill, 2018 would create more headaches for native land owners.
He argued that the proposed amendments fell short of the expectations of the native communities, who had been fighting and waiting for the recognition of their rightful claims on their ancestral lands for a very long time.
Biju said Deputy Chief Minister Datuk Amar Douglas Uggah had promised to settle the problem once and for all with the introduction of this Bill, but the Bill would end up creating more problems, instead.
“Firstly, let us talk about ‘usufructuary right’, a legal term used by the court to mean having the right to use something but not having ownership of it. This amendment fundamentally gives the force of law to ‘Pemakai Menoa’ and ‘Pulau Galau’ (PMPG) to only an extent. The problem is only half solved. There is no question about that.
“However, the question that arises is where does the right exist, on the land or in the land? This Bill states that it is on the land, meaning there is right to use whatever grows on the land or flows on the land or is found on the land. The force of law does not go any deeper than what is on the land because the land itself is not mentioned in this Bill.
“In short, this Bill only gives the right to use what is on the land but does not give the right to possess the land. So the question arises, who owns the land?” he wondered out loud.
Another issue Biju raised concerned the size of the PMPG, which he believed was the most controversial aspect of the amendment.
He said since time immemorial, the natives of Sarawak had created PMPG based on their respective ‘adat’ or customary law, and the size of each community’s PMPG was very subjective.
“Various ethnic groups, and even within the same ethnic group, have various ‘adat’, and the boundaries of their PMPG were acknowledged and respected by their neighbours. This amendment will directly go against historical facts and is trying to standardise the size of PMPG across the board. It is an attempt to do a ‘one-size fits-all’ approach,” he pointed out.
Biju opined that this approach was not only completely unfair but also refused to recognise the ‘adat’ of the native communities.
“In fact, it is as if the government is trying to find a simple solution to settle the matter, and it would be safe to assume that any land outside the 500 hectares would be state land.
“In one fell swoop, the government has limited PMPG and created state land outside the 500 hectares, in effect grabbing the native communities’ PMPG that are more than 500 hectares,” he said.
Biju claimed that the size of PMPG of the natives along the Rajang and Baram rivers tended to be much larger as compared to those in Krian.
“Will the natives in these areas be able to accept the capping of 500 hectares?” he questioned.
He cited ex-Temenggong Pahang’s village as an example. That village has more than 200 families, meaning 500 hectares would be outrageously small for their needs.
The third issue he raised was that the Bill would require the Director of Land and Survey to approve applications for PMPG. This, he believed, would not be acceptable to the native communities.
“How can a civil servant who is not well versed in each and all of the native communities’ ‘adat’ laws and history make a ruling over such matters? We, in Pakatan Harapan (PH), have proposed since 2011 that we set up a Land Commission comprising experts in native ‘adat’ laws to be the Registry for all valid applications.
“However, this Bill is putting such applications in the hands of a civil servant who is an administrative expert, not an ‘adat’ law expert,” lamented Biju.
The last issue he raised was that the Bill stated that PMPG that have been approved would be given in perpetuity. He said this was an ambiguous clause that contradicted the very essence of ‘usufructuary’ right, which is a limited right.
“How can you give title in perpetuity to something that is not legally owned by the user? If the government is serious to give force of law in perpetuity to ownership of the land, then why go around in circles using section 6A when we can do a shortcut and just give PMPG full force of law under section 18?
“With that, I would like to suggest the conversion of this territorial domain bill to be carried out under section 18 with a reasonable timeframe of conversion within, say 10 or 20 years,” he suggested. — DayakDaily
