Defining Native Customary Rights to Land

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Sarawak has an anomalous and unique history as a British colony. A British protectorate in 1888, it was only annexed to British dominion in 1946 and became independent when it joined Malaysia in 1963. From 1841 to 1946[1] it was ruled by the Brooke family, whose members were themselves British subjects. This historical legacy has shaped, and continues to influence, the development of the law and policies relating to native customary land.

Prior to James Brooke’s arrival in Sarawak there was in existence a system of land tenure based on adat (native customary laws). That system remained virtually the same over the following century. Native customary rights to land consisted of rights to cultivate the land, rights to the produce of the jungle, hunting and fishing rights, rights to use the land for burial and ceremonial purposes, and rights of inheritance and transfer. According to native ideas, the clearing and cultivation of virgin land confers permanent rights on the original clearer (Geddes 1954; Freeman 1955; Richards 1961).

As the term implies, native customary rights may only be claimed by a native, or a person who has become identified with and has become subject to native personal law, and is therefore deemed to be a native.[2] ‘Native’ refers to the indigenous groups who inhabit the state, as listed in the schedule to the Sarawak Interpretation Ordinance and Article 161A, Clause 6 of the Federal Constitution. Despite the existence of numerous groups, the term ‘Dayak’ is colloquially used to refer to all the non-Muslim natives, differentiating them from the Malays, who by legal definition are Muslims (Bulan 1999; Hooker 2000). However, it is notable that the constitutional definition of natives in Sarawak includes the Malays. While the Malay-Melanau groups are coastal dwellers, the Dayaks are typically longhouse dwellers whose livelihood depends on the jungle and on swidden farming. Occupying the intermediate zones and the interior areas of Sarawak, their geographical locations and dependence on the land clearly determine the way that land administration affects them.

The Brookes did not interfere with the customary land rights of the Dayaks and Malays, allowing them a degree of self-governance. No scheme of alienation or land development was introduced except with respect to land where no rights or claims, whether documentary or otherwise, existed. There was a need to regulate the administration of land,[3] and at every phase, there was an awareness of the existence of native customary rights. As the authorities discovered, the regulation of customary tenure and land use touched on a social consciousness in which land has economic, social and religious significance (Porter 1967: 11). After a number of regulatory orders, a memorandum on native land tenure was published by means of the Secretarial Circular No. 12 of 1939.[4]

Cultivated land and any land on which a fruit grove had been planted is heritable. Communities may also demarcate certain areas of primary jungle as pulau (reserved forest land) for communal use, within which rights over different resources may be established. Although judicial decisions have held these rights to have been lost upon personal abandonment, migration, or transfer, these losses must be seen in the light of the customary practices of each individual community........