Lawyer says proposed Land Code amendment good for NCR landowners

Ng (centre) giving a press conference at a coffee shop in Kuching today.

KUCHING, July 7: Lawyer Dominique Ng opined that the new terminology “native territorial domain” in the proposed State Land Code Amendments Bill 2018 (Amendments) includes ‘Pemakai Menoa’ and ‘Pulau Galau’ (PMPG) from the Iban perspective.

‘Pemakai Menoa’ refers to territorial domain, while ‘Pulau Galau’ refers to communal forest reserves.

He noted that this misapprehension of the legal term in the proposed amendments had led to objections by the Ibans to the proposed bill.

Ng, who is a former Padungan assemblyman, pointed out that if the bill were to be referred only as “PMPG”, it would not be fair to other ethnic native groups who have similar native customary rights (NCR) land but referred to this land by different names.

“The term that is used in the proposed Land Code Amendment Bill is ‘native territorial domain’, and it is an apt general name that describes or can be extended to mean all such native cultural territorial areas, such as the ‘Pemakai Menoa’ and ‘Pulau Galau’ of the Ibans, the ‘Pimuung’ of the Bidayuhs, the ‘Pulau Ramu’ of the Kedayans and Jati Miriek, and the ‘Kawasan Cari Makan’ of the Malays.

“In the said bill, there is a totally new Section 6A, where such ‘native territorial domain’ can be registered and, most importantly, ‘native communal title’ issued, and ‘which shall be used exclusively by the native community for agriculture purposes or such other purposes as may be approved by the MMK and subject to any other terms and conditions that the Director may impose’ [section 6A(3)],” he said at a press conference here today.

Describing the State Land Code Amendments Bill 2018 as “a slap across the face of the Attorney General Chamber”, he said the amendments would address several important issues of the conflicts between the NCR land owners versus Sarawak government and private companies.

The Amendments will be tabled in the State Legislative Assembly, which will sit from July 9 to 18, by Deputy Chief Minister Datuk Amar Douglas Uggah Embas.

“Another very important amendment is that to Section 28, with respect to ‘Provisional Leases’ (PLs). PLs have been at the centre of many NCR conflicts and trauma, and this amendment clears once and for all much of the confusion and controversy surrounding their issuance.

“This Land Code Amendment Bill clearly will reverse and/or substantially affect several of the most important and recent land mark decisions of the Federal Court in TR Sandah (Director of Forest, Sarawak & Anor v TR Sandah Tabau & Ors And Other Appeals [2017] 3 CLJ 1), that of TR Nyutan (TH Pelita Sadong Bhd v TR Nyutan Ak Jami & Ors and other Appeals [2018] 1 MLJ 77),” he said.

Ng also brought up the controversy surrounding the legal term or concept used in proposed Land Code Amendment Bill of ‘usufructuary rights’, which is associated with ‘native territorial domain’ with many commentators exclaiming dismay or disappointment over such a limit being placed to their NCR rights over PMPG.

“However it is to my [limited] understanding that the concept of ‘Pulau Galau’ and other ‘native territorial domains’ is primarily ‘usufructuary’ in nature, i.e. only to use, and not a ‘full ownership’ per se.

“But it is also my understanding that ‘Pulau Galau’, within the ‘Pemakai Menoa’, do belong exclusively to the Iban community that claims it, and in that sense, do differ from the normal meaning of ‘usufructuary rights’, which means only the right to use and enjoy its fruits, but does not tantamount to ‘full ownership’, which would include the right to cultivate the land and the right to sell it off. And that it would expire upon the death of the usufructuary.

Ng said after the amendments, there would be no expiry of the usufructuary right in the native communal title that is to be granted to the community here, thus removing one heavy ‘Sword of Damocles’ that used to hang over the native communities of having their rights to their NCR lands being taken away by any outside groups or companies acquiring the said lands via PLs issued to them, much to the dismay and to the detriment of the native community concerned.

With the amendments made to Section 28 with respect to PLs, he said NCR shall now have to be excluded from the PLs, and this would effectively reverse the Federal Court Decision of TR Nyutan.

“So, finally, the natives of Sarawak can now get back some of their NCR lands that had been lost as a result of those damning Federal Court decisions,” said Ng. — DayakDaily