By Awang Zamhari Bin Awang Mahmood

Since the early days of the Brooke era, the government recognises the rights of the natives to their land, provided the rights have been created in accordance with the law.

Native customary land as defined by section 2 of the Sarawak Land Code is the land in which native customary rights, whether communal or otherwise, have been lawfully created prior to the 1st day of January, 1958, and still subsist as such; land from time to time comprised in a reserve to which section 6 of the Land Code applies; and interior area land upon which native customary rights have been lawfully created pursuant to a permit issued under section 10 of the Land Code.

Section 5(2) of the Sarawak Land Code further explains that native customary rights may be created through the felling of virgin jungle and the occupation of the land thereby cleared; the planting of land with fruit trees; the occupation or cultivation of land; the use of land for a burial ground or shrine; and the use of land of any class for rights of way.

Native customary rights (NCR) created through any of the methods spelt out under Section 5(2) of Sarawak Land Code is recognised by the government. In addition to that, the NCR created before Sarawak Land Code came to force in 1958 is also recognised under the earlier laws.

Despite provisions of the law stating that any land with no document of title shall be known as State land, the government never failed to recognise those land proven to have native rights, evidenced in the compensation paid out to all genuine NCR claimants when their land is acquired for government projects such as roads, schools, hospitals etc. Under the Ninth Malaysia Plan, from 2006 to 2009, the government had paid out RM572,546,733 in compensation for land acquired for public projects, and this amount is inclusive of compensation for NCR land.

The government never ignores the rights of the people because Article 13 of the Federal Constitution clearly states that no person shall be deprived of property save in accordance with law; and no law shall provide for the compulsory acquisition or use of property without adequate compensation.

Therefore, the government continuously recognises customary rights created in accordance with the law and it is hoped that the people too will respect the existing laws on NCR land.

As the government agency that has been entrusted to manage and administer land, including native customary land, the Land and Survey Department abides strictly by the provisions of the law. Any work procedures and processes adopted by the Department is consistent with the legislative provisions for native rights.

One of the main roles of the Department is to determine the existence of genuine native rights based on the laws. In this respect, the Land and Survey Department uses aerial photo interpretation and other relevant documents such as land-use map and information from field books to determine the existence of NCR.

Officers of the Department are also dispatched to the ground to check and verify the status of the land. Another important role of the Department is to survey and issue individual titles for NCR land after having first determined that there are genuine rights over the land. In short, the Department is guided by official records and physical evidence on the ground in determining the status of NCR.

As the agency responsible for managing land, the Land and Survey Department also strives to narrow the understanding gap on NCR land, particularly among the native community in the State. Some of the efforts made thus far are organising briefings, dialogues, and seminars to educate the people on what constitutes NCR land and address the prevailing issues of NCR land among the community. Such efforts are still ongoing at the divisional and district levels with cooperation from other government agencies and elected representatives of the constituency.

Regular dialogues and briefing sessions with the people will also enable the Department to garner feedback and suggestions from the grassroots. These inputs are crucial to allow the government to scrutinise the prevailing NCR issues among the community and work out possible solutions.

It is only with the right understanding towards the issue of native customary land that all parties would have a better appreciation and respect towards the rights of the natives. The right understanding will also ensure a smoother and effective implementation of government policy on native customary land that will ultimately benefit the people.

The writer is the Superintendent of Land and Survey Mukah Division and can be contacted at zamharim@sarawak.gov.my.