Land Code issue: Amendment done for benefit of natives, explains Gerawat

Datuk Gerawat Gala

KUCHING, Sept 21: The state government amended the Sarawak Land Code recently as it understood the predicament faced by the natives and wanted to resolve it. The government could have chosen not to make any amendment and just abide by the decision of the court, which is perfectly legitimate.

In stating this, Deputy Speaker of the State Legislative Assembly (DUN) Datuk Gerawat Gala said if the Land Code had stayed as it is, it would mean the native community would only have their Native Customary Rights (NCR) land but not their `Pemakai Menoa’ and `Pulau Galau’ (PMPG), otherwise described as Native Territorial Domain (NTD) following the recent amendment.

“But as a responsible government that recognises and understand the predicament faced by the native community arising from the court decision, our government leaders took steps to amend the law so as to give legal recognition and effect to PMPG,” he said in a press statement today.

Gerawat gave this explanation after the issue was raised during the Dayak National Congress (DNC) last weekend and reported in a local English daily in the last two days.

Prior to the amendment, the Federal Court ruled that the Iban custom of PMPG had no legal force and that the use and occupation of land as PMPG under Iban custom does not give the claimants any right to the land. In other words, the Federal Court ruled that PMPG is not NCR land. Even the right to use the land as PMPG (otherwise known as usufructuary right) was not recognised by the court as the custom relating to PMPG had no force of law.

Gerawat stressed that Section 6A of the amendment clearly stated that NTD was now given legal recognition as a proprietary right which the community could use and own.

“The amendment provides for the issue of a document of title in perpetuity over the NTD to the community, and such title is as good and as valid as any title issued under Section 18 of the Land Code. The amendment has given full legal recognition and protection over NTD to the native community via the issue of title to the NTD.

“The NTD is not just limited to the usufructuary right as alleged by DNC. The reference to a usufructuary right in Section 6A is merely the process to establish NTD. The community must have used the area for foraging and gathering (i.e usufructuary right) over the land or the PMPG for the same to be recognised as NTD. Surely the native community has every reason to be grateful for the amendment as it has given them a right to use and own land (NTD) that they did not have prior to the amendment.”

Gerawat explained that the NTD land was different from NCR land, which has always been recognised and provided for in Section 5 of the Land Code.

“The NCR land is land that has been cleared and cultivated before 1957, whereas NTD land is jungle land (as provided in the amended Section 6A of the Land Code), which has not been cleared or planted but located immediately next to or conjoining NCR land and used by the natives for foraging before 1957 or since then reserved for such purpose.

“NTD land is an additional land area over and on top of NCR land as provided by the Sarawak Land Code. Any allegation that the amendment has taken away NCR land or in any other manner affected NCR land is clearly without legal basis. The Federal Court has clearly ruled that PMPG land, otherwise referred to as NTD, is not part of NCR under the Sarawak Land Code.”

Gerawat further pointed out that DNC’s allegation that the amendment had put an end to the custom of PMPG because NTD is a statutory creation rather than being based on customary rights of PMPG was rather confusing.

“While I appreciate DNC’s insistence that PGPM is based on custom and should not be dependent on statutory provision, this argument is legally untenable and against the finding of the Federal Court. Without the amendment, PMPG would not have any legal recognition and would not qualify as a proprietary right that can be titled and owned by the native community.”

Gerawat opined that DNC’s challenge to deputy chief minister and most senior Dayak government leader, Datuk Amar Douglas Uggah Embas, to a public debate to be aired live over TV1 was inappropriate and would not solve anything.

“It may even aggravate inter and intracommunity sentiments on the issue,” he lamented.

Gerawat stressed again that engaging in a debate could suggest a party having to win over the other, which is a very confrontational approach.

“I doubt if such an approach will help resolve the differences of opinion on the NTD. After all, the difference of opinion is on the part of DNC. It would be more meaningful for DNC to engage with the State Attorney General and Majlis Adat Istiadat, who are knowledgeable about the amendment relating to NTD.

“Uggah has merely expressed his disappointment over DNCs allegations regarding NTD as provided in the recent Land Code amendment,” he said.

Gerawat said that the government would be engaging with the native community leaders and relevant government officers involved with native land to explain the amendments and clear any doubts and misunderstanding.

“My suggestion to any NGOs or organisations who wish to hold forums or engagement sessions relating to the amendment to invite and include speakers from the Attorney General’s Chambers or from Majlis Adat Istiadat as they are the parties who were involved in drafting the amendment and are in position to explain and clarify the amendment, “ he concluded. — DayakDaily