KUCHING: The State Assemblyman for Krian, Ali Biju has said that the proposed amendments to the Land Code (Amendment) Bill, 2018, fall short of the expectations of the natives who have been fighting and waiting for the recognition of their rightful claims on their ancestral lands.
“The Minister promised to once and for all settle this problem with the introduction of this Bill. Instead of solving the problem, this bill creates more problems,” he said during the State Legislative Assembly (DUN) sitting here yesterday.
Biju highlighted the legal term ‘usufructuary’ right as problematic as it is 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’ only to 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 also believed that the size of pemakai menoa and pulau galau remained as the most controversial amendment in the bill.
“The natives of Sarawak have created pemakai menoa and pulau galau based on their respective adat or customary law. The size of each community’s pemakai menoa and pulau galau is very subjective.
“Various ethnic groups, and even within the same ethnic group, have different adat customs and the boundaries of their pemakai menoa and pulau galau were acknowledged and respected by their neighbours.
“This amendment will directly go against historical facts and is trying to standardise the size of pemakai menoa and pulau galau across the board.
“It is an attempt to do a ‘one-size fits-all’ approach. Such an approach is completely unfair and refuses to recognise the adat customs of the natives.
“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 swoop, the government has limited pemakai menoa and pulau galau and created State Land outside the 500 hectares, in effect grabbing native communities’ pemakai menoa and pulau galau who have more than 500 hectares.
“For example the size of pemakai menoa and pulau galau for the natives along the Rajang and Baram river tend 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? In the case of Ex Temenggong Pahang village, which consist of more than 200 families, 500 hectares will be outrageously small,” said Biju.
He added the bill required the Director of Land and Survey to approve applications for pemakai menoa and pulau galau and that it was not acceptable to the natives.
“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 the State Pakatan Harapan 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,” he explained.
Biju also said that the bill mentioned that the pemakai menoa and pulau galau that have been approved will be given in perpetuity.
“Again, this is an ambiguous clause that contradicts 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 pemakai menoa and pulau galau full force of law under section 18?,” he stressed.
He suggested that the conversion of this territorial domain bill be carried out under section 18 with a reasonable timeframe of conversion within 10 or 20 years.
He also posed whether the bill would be the ultimate solution to the land cases which were currently pending in court of law and whether the bill would have retrospective effects.
“Therefore, I have to reject this bill at its current state unless all of the above issues are amended accordingly,” said Ali Biju.
