Indigenous People and Their Territories in Malaysia

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There are a few types of indigenous traditional territories. Communities in Sabah refer their territory as Kampung which includes the settlement area, backyard gardens, farms, old village or farm sites, cemetery, grazing area, ceremonial spots, and forest within village boundary.

Firstly, the village settlement area which is known as Kokompungan or Kawalaian in Dusun, Pamahunan in Murut and Kampung in Paitan is where individual houses, hamlets or longhouses are customarily organized. For most kampung, each household have small plot as their vegetable garden or other crops. There are also social recreation areas such as football or takraw field and other village amenities like village hall in the kampung.

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Next, rice cultivation area is called Pongugumaan in Dusun, Pantahumaan in Murut and Pongumaan in Paitan. This is located beyond the settlement area and are owned by individuals or families. On the other hand, wet rice cultivation area are located in specific area where irrigation of water is available. It is called Ranahon in Dusun, Lanau in Murut and Ranau in Paitan.

Communities will also plant rice in hill rice fields. There are mainly two types of hill rice fields, currently planted farming land and land left fallow. Land undergoing fallow period can be divided into two categories, secondary growth for one to five years and jungle regrowth for five to ten years. Sabah natives are restricted to collect resources from the land under fallow unless granted permission by the owner. Collection are to be made by household who owns the field. Tumo in Dusun and Umo in Murut and Paitan refers to the farming land which is currently planted. Secondary growth fallow land is called Tomulok in Dusun, Amug or Naumoh in Murut and Repa in Paitan while Kapanggor in Dusun, Katanaan in Murut and Nokakas in Paitan refers to fallow land undergoing jungle regrowth.

Besides that, areas which the natives plant long-term commercial corps is call Kabun in Dusun, Murut and Paitan. Normally, they would plant crops like rubber, fruits, coconuts, oil palms or crops which have good commercial price in the market at that time. Families may sometimes buy Tana’ Pongindopuan which means land for income generation when lands are scarce in the kampung. Old village or farm site is called Pogun or Pogun Laid in Dusun, Namahunan in Murut and Pogun in Paitan. Even though it is abandoned, there are still fruit trees growing there.

The Kalabangan in Dusun, Kalavangan in Murut and Taw in Paitan is a designated cemetery for the kampung. Cultivation or development of cemetery land is strictly prohibited. Outsiders are also prohibited from entering caves for communal burial areas. Other than that, there are a few types of ceremonial spots in the communities of Sabah. Sogindai or Labot is headhunting ceremonies while Pamamaganaan Do Jangkil acts as the notice board of the kampung prohibitions. Ceremonies to perform Monubak is to appease the forest spirits so that the hunting expeditions will be successful.

Primary forest within the boundary of a kampung is called Talun in Dusun, Himbaan in Murut and Imbaan in Paitan. It is normally owned and managed collectively by the community. Therefore, the rights of the forest reside with the community that owns it and other village are not allow to hunt and collect resources from that particular forest. Meanwhile, Paun or communal grazing area still exists in many villages. Rivers and streams are also communally managed and open for access.

Generally, the Adat guides the community with regards to the rights accorded to individuals or households within a village territorial domain, individual acquisition of land for cultivation, land boundaries and inheritance. The individual or household who first opens a certain forest area secures rights which is permanent and heritable over that piece of land. Individual plot is marked by natural boundaries ‘streams, watersheds or ridges’ or with planted markers ‘rokok plant’ or erected markers ‘hugu or menhirs’. Specific trees with wild bee nests ‘mengaris’ or caves with bird nests can be owned, descendants of the tree or cave have rights over these recources.

When North Borneo Chartered Company was established in North Borneo, the main mission was to achieve economic growth by exploiting the territory’s natural resources. However, it was obligated to respect the rights of native and their customs. There were conflicts between these two considerations as the property rights and native legal institutions that Company officials were charged to respect became an obstacle to the expansion of commercial agriculture. As a result, the Company instituted a system of legal pluralism which some native customary laws were supported while those that interfered with the exploitation of land were replaced with western legal concepts. Legal pluralism was the incorporation of native customary laws into the Sabah Land Ordinance (SLO).

Section 15 of the SLO 1930 which defines the Native Customary Rights (NCR) to land was adopted from standard British India land law and has not changed much over the years. Section 15(a) of SLO states that lawful possession of land by native is deemed through continuous occupation or cultivation for three or more years. However, hill rice cultivation that is practiced by the native consists of one cultivation year followed by a fallow period of three to ten years to restore soil fertility. NCR claims that fallow period of hill rice fields are not recognized and not considered to be part of planting cycle. Therefore, it does not fulfil the requirement of three consecutive years of continuous cultivation and the land may not be deemed as the native’s possession. Section 15(b) of SLO prescribe number of fruit trees per hectare of land and isolated fruit trees, sago, rotan, or other plants of economic value under Section 15(c) when ascertaining NCR. Traditional native agriculture involves diversified number of crops and useful plants using inter-cropping technique in certain areas. They may plant fruit trees interspersing with trees for firewood, medicines, crafts, or as building materials. This is to ensure there is enough food supply for family and other purposes. Unfortunately, NCR only cover fruit trees and plants which have economical value which will not capture the actual customary land use. NCR also does not allow communities to harvest forest product for their use as there is no provision that states so. But, Section 41 of Sabah Forestry Enactment 1968 allows communities to harvest forest produce for its use. Section 16(b) of SLO ensures the protection of resources in NCR land. Protection of traditional knowledge and conservation of biological resources are also stated under Section 9(1)(j) of the Sabah Biodiversity Enactment 2000. Section 16 of Water Resources Enactment 1998 have provision for private right to take, use and control, sufficient for household and subsistence for purpose of agriculture. Communities recognize the significance of water by maintaining clean water supply for domestic, irrigation and recreational use. However, NCR does not have any provision that states the rights of native over natural water resources. Another missing NCR criteria under Section 15 is with respect with rivers and coastal areas within native territory that are used and managed by communities. Rivers and coastal areas are a source of food and mode of transportation for the communities. It is usually shared with other communities which involves shared management responsibilities. The traditional Tagal system has already incorporated with the Sabah Fisheries Enactment and the State has also adopted coastal management plan with some elements incorporated in Sabah Conservation Enactment yet section 15 of SLO has not been harmonized. Recognition of communal hunting should also be included under Section 15 of SLO 1930. Hunting is a crucial economic and social activity for the natives as it is one of the food sources for them. Sabah Conservation Enactment 1997 recognizes community hunting areas which is under Section 32 and honorary wildlife wardens under Section 7 from the community.

In Assistant Collector of Land Revenues & Ors v Alfeus Yahsu &Anor and Another Appeal case, the land in dispute was part of the land alienated to one Sudi Kembang (‘the plaintiff’) which the plaintiff was the registered owner. The plaintiff commenced an action in the High Court against the first and second defendants (‘the respondents’) as an injunction to stop the respondents from trespassing onto the disputed land. The respondents affirmed that their case fell under common law as their forefathers had acquired Native Customary Rights (‘NCR’) before North Borneo Chartered Company came to North Borneo and before the enactment of written law on ownership and alienation of land such as Sabah Land Ordinance 1930. The respondents claimed that their forefathers had lawfully occupied the land. Therefore, it cannot be considered as land of the State as stated in Section 4 of SLO. The respondents also filed third party proceedings against, inter alia, the Assistant Collector of Land Revenues (‘ACLR’), Registrar of Titles, The Director of Lands and Survey Department Sabah (‘director’) and the State Government of Sabah seeking declarations against the third parties on ground, inter alia, that impugned alienation was contradictory to the procedure of Land Ordinance for non-compliance of Section 13 of SLO and was invalid on the ground that the obligatory notice of the plaintiff’s land application to natives claiming native customary rights pursuant to Section 13 was not issued or published by the ACLR. The High Court granted declaratory relief to the respondents and held that any claims relating to native customary rights occurring before 1930 would be permitted to pursue a claim in common law. Judgement delivered by Prasad Sandosham Abraham JCA is that the rights from whatever date the natives accrue must be dealt with by the existing Land Ordinance as the consequence of a successful claim for NCR would result in a native customary title being issued by the third party or pursuant to Section 16 of SLO the claim to NCR could be dealt with monetarily (paras 15&17). The order granted by the High Court should be set aside and the ACLR be ordered to conduct a public inquiry within 60 days from the date of the present order, relating to the respondents’ NCR claims pursuant to Sections 13, 14, 15 & 16 of SLO (paras 20 &25).

Traditionally, land was held collectively by communities. Section 78 of SLO provides provision for community collective ownership whereas Section 76 of SLO deals with Communal Titles but it is hardly use to recognize collective ownership. Nowadays, only communal forests, village settlements reserves, and rivers are held collectively. Most agricultural land and grazing areas are individual properties. Section 15(c) of SLO spells out that land is a private rather than collective resource.

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