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Friday, October 23, 2009

Native Customary law system prevailing in Sarawak is peculiar to our State. What is "native customary law" must be determined with reference to the laws of the State, and what constitutes "native customary rights" over land must also be determined with reference to the relevant State laws.
Native Customary Rights to land is also a system which recognises the rights of the native community to occupy and use land which by law belongs in the old days to the Crown, but nowadays by reason of Section 12 of the Land Code, belongs to the State.
The system of native customary rights over land had evolved over near one and half centuries; since 1841 when the Rajah James Brooke decided to make his first pronouncement pertaining to Land. Through this process of evolution, native rights to land were recognised, under certain conditions spelt out in the various Proclamations and Orders made by the Rajahs and subsequently, in various legislations passed by the Council Negeri (now Dewan Undangan Negeri of Sarawak).
As such, land occupied by natives under native customary tenure, are untitled i.e. there is no document of title to show ownership. Whether a native has rights to such land would depend on whether he or his forefathers fulfilled certain requirements under the laws prevailing at the time which rights to the land were said to have been created.
Native customs which could create rights over land had been modified in Sarawak by laws made by the Rajahs and subsequently by the Council Negeri. At this juncture, it ought to be pointed out that in all legal systems, indigenous rights may be modified or extinguished by legislative or executive action. Professor Douglas Sanders in his Paper on "Indigenous And Tribal Peoples: The Right To Live On Their Own Land" (presented at the 12th Commonwealth Law Conference held in Kuala Lumpur in September, 1999) stated;
"A leading Australian constitutional text summarises the basic rule from the Mabo decision as follows:
The indigenous population had a pre-existing system of law, which along with the rights subsisting thereunder, would remain in force under the new sovereign except where specifically modified or extinguished by legislative or executive action."
It must be emphasised that the evolution of our laws on native customary rights over land over more than 11/2 centuries was a peaceful and orderly process, without any serious discord amongst the various communities in Sarawak or between them and the Government, and has enabled the Government of the day to improve the social and economic position of these communities and bring about overall development and progress to the rural areas.