3/10/2021 0 Comments
Written by Fabian Meringgai ak Sebastian, a third-year law student of the Faculty of Law, University of Malaya.
Edited by Chelsea Ho Su Ven.
Reviewed by Luc Choong and Celin Khoo Roong Teng.
Indisputably, Sarawak is rich in its nonpareil cultural diversity, which brings about the peculiar legal status of native customary land in the state. The natives’ proprietary rights over traditional land are deeply rooted in the various social practices and customs of the native ethnicities therein. Throughout this article, the author unveils his outlook on the Sarawak state government’s initiative towards protecting native customary land in peril.
I. UNDERSTANDING THE TORRENS SYSTEM
The Torrens system is a land registration system introduced in South Australia by Sir Robert Richard Torrens in 1858. The introduction of which in Malaysia and its subsequent emergence has presumably played a role in resolving the intricacies of land ownership faced in the country, especially in Sarawak. Under this system, the registration of land functions as conclusive evidence signifying the ownership and interests attached thereto. The objective of the Torrens system can be seen in a statement made by Lord Watson in Gibbs v Messer, that is ‘to save persons dealing with registered proprietors from the trouble and expense of going behind the register, in order to investigate the history of their author’s title, and to satisfy themselves of its validity’.
There are two fundamental principles of the Torrens system, namely the mirror principle and the curtain principle. The mirror principle portrays a concept in which the land title mirrors all relevant and material details that a prospective purchaser, lessee and chargee ought to know. This means that a person can obtain all such material information of the land, based on what is endorsed on the register document of title and the issue document of title — thereupon improving the efficiency of land transactions. On the other hand, the curtain principle is a concept that dispenses with the need to look beyond the register — a metaphoric curtain — as the land title itself provides all relevant information reflecting the validity of the same. Ostensibly, this ‘curtain’ is where the principle took its name from.
II. THE RECOGNITION OF NATIVE TITLE RIGHTS IN AUSTRALIA
Since the Torrens system originated from Australia, we shall discuss the status of native customary land therein — whether it is related to the Torrens system or purely customary in nature. There are two significant cases that set forth the position of native customary land in the country. First, the case of Mabo v Queensland. In this case, the plaintiffs were inhabitants of the Murray Islands and members of the Meriam people, whereas the defendants were the State of Queensland and the Commonwealth of Australia. The plaintiffs alleged that the defendants had threatened to deprive the former’s native rights to the Murray Islands which had been in existence from time immemorial. The High Court found the Queensland Coast Islands Declaratory Act 1985 — which purported to abolish proprietary rights and interests of the plaintiffs over the islands — to be invalid. This is because the legislation stood in contradiction with Section 10 of the Racial Discrimination Act 1975 that safeguards the holder of traditional native title to own and inherit property, free from unconstitutional legislative interferences.
The second case is Mabo v Queensland (No. 2). In this case, three declarations were sought by the plaintiffs; first, that the Meriam people are entitled to the Murray Islands; second, the Murray Islands are not considered as ‘Crown Lands’; and third, the State of Queensland is not entitled to extinguish the title of the Meriam people. The High Court upheld the plaintiffs’ claim to a native title over the disputed land. The doctrine of terra nullius, which had substantially dispossessed said indigenous group of their traditional lands, was rejected. Consequently, the doctrine of native title was inserted into the Australian legal system under this landmark decision. Therefore, it is apparent that the native title stands on a different footing compared to the Torrens system in Australia — with the former being based on customary rights and the latter relying wholly on the registration of land ownership.
III. THE POSITION OF NATIVE CUSTOMARY LAND IN SARAWAK
To better understand land law in Sarawak, one must note that the Sarawak Land Code (SLC) is modelled on the Torrens system. This is clearly reflected in Part 7 of the SLC which provides for all matters in regard to registration. This is further fortified by the fact that the doctrine of indefeasibility of title is adopted in Section 132 of the SLC which provides for indefeasibility of title towards the registered proprietor of the land unless the contrary is proven. However, the question remains: is the Torrens system applicable to native territorial domain?
A. Revisiting the Landmark Case of Director of Forest, Sarawak & Anor v TR Sandah Ak Tabau & Ors
Before plunging into the legal aspects of land ownership in Sarawak, let us first scrutinise the decision in Director of Forest, Sarawak & Anor v TR Sandah ak Tabau & Ors. Similar to the aforementioned Mabo’s cases, the plaintiffs who were natives of Sarawak claimed to assert customary rights over their land by virtue of the pulau galau and pemakai menoa customs. Nonetheless, their claim was dismissed as the Federal Court ruled that the state government does not recognise such undocumented customs, and therefore cannot be legally effectuated. The natives, not limited to plaintiffs in this case but in Sarawak generally, could still be seen struggling to establish proprietary rights over their traditional lands because most claims rely heavily on customs that are not properly endorsed on the documents of title. Unfortunately, complications that reduce the likelihood of such customs being legally recognised ensues. Be that as it may, the fight for better recognition of native customary land does not end here. The recent intervention of the legislature has successfully restored the hopes of natives in terms of protection over their customary rights, which will be further elucidated in the paragraphs below.
B. Understanding the Terminologies
1. Pemakai menoa and pulau galau
Pemakai menoa is described as a territorial domain of a longhouse community where customary rights to land resources were created by pioneering ancestors. Usually, pemakai menoa is created by the natives where abundant resources can be found on a piece of land, on which they would build longhouses and inhabit thereon as a community. The community may then preserve a forest, if necessary. This preserved jungle is known as pulau galau, which is usually relied on by the Iban community for domestic purposes. To put it simply, pulau galau is derived from the establishment of pemakai menoa.
2. Native territorial domain
A native territorial domain is expressly defined in Section 2 of the SLC as an area or territory ‘within or conjoining or immediately adjacent to an area where native customary rights have been created by that community in accordance with section 5’; and ‘wherein members of a native community have from a date prior to first day of January 1958, exercised usufructuary rights or preserved by them for such purposes’. This is, however, subject to areas or territories that have yet to be constituted as communal forests under Part III of the Forests Ordinance 2015.
IV. ADDRESSING THE CONCERNS
In 2019, the Federal Court in Jeli Anak Naga v Tung Huat Pelita Niah Plantation Sdn Bhd reaffirmed that the customs, pulau galau and pemakai menoa, are not legally recognised. Similar to the earlier decision in TR Sandah, the plaintiff’s claim to customary rights over traditional land was dismissed on the grounds that both customs are not expressly stipulated under the Sarawak state laws. Hence, it does not fall within the ambit of Article 160(2) of the Federal Constitution.
The author respectfully disagrees with the decision of the Federal Court in this case for a simple reason. Some customs are so firmly entrenched in society that to impose such a necessity for its codification — as a prerequisite of recognising its legal validity — would be absurd and extremely unjust to the native community as a whole. Moreover, it is with due respect that the author believes that it is impractical and unrealistic to impose such a requirement for the codification of every existing custom in this ethnicity and culturally diverse state, so as to provide each of the customs with the legal recognition it most certainly deserves. On top of that, the author echoes the dissenting judgement of Federal Court Judge Tan Sri Zainun Ali (as Her Ladyship then was) in TR Sandah’s case, in which Her Ladyship opined that native customary rights are a sui generis form of law. It is undeniable that customary rights are not part of the common law; nevertheless, they must be protected and respected by the legal system.
After the judicial pronouncements in TR Sandah and Jeli Anak Naga, the Sarawak state government found it necessary to legally recognise both the pulau galau and pemakai menoa customs. Alas, the Orang Ulus, the Bidayuhs and the Ibans amongst all other native ethnicities in Sarawak have different interpretations of the aforesaid customs. As a consequence, this delicate issue hindered the legislature from proffering an acceptable definition for a consensus to be reached.
Regardless, with the promulgation of the Land Code (Amendment) Bill 2018, it appears that there is indeed light at the end of the tunnel. Under this amendment, pemakai menoa and pulau galau are merged as one and included under the term ‘native territorial domain’; and ‘native communal title’ is included under the definition of ‘document of title’ under Section 2 of the SLC. Besides, the newly added Section 6A enables the natives to claim usufructuary rights over a native territorial domain through the issuance of a native communal title, provided that the application is met with approval from the state authority. On a side note, the introduction of such a native communal title is presumably premised on the Torrens system. Most significantly, native customary rights are now statutorily protected under Section 15(1) of the SLC which provides that land issued with a native communal title shall not be alienated or used for public purposes unless all such rights have been surrendered, terminated or where compensation is provided. Hence, this could be seen as an amicable solution provided by the Sarawak state government to insure the natives against further deprivation of their native customary land.
In conclusion, prior to the amendments on the SLC, many cases have illustrated the difficulties faced by the natives in their attempts to assert customary rights over disputed lands. While it is generally possible to establish such rights, precedents have proven it to be procedurally difficult, as conclusive evidence to prove such customary rights have not been determined. With the coming into force of the amendment — specifically, the introduction of the native territorial domain — the aforementioned issue is supposedly resolved. In the event that a dispute regarding a native territorial domain arises, the native communal title is concrete evidence to prove such native customary rights, thereupon settling the dispute with ease.
However, to the author’s dismay, this issue still exists hitherto as many native territorial domains have yet to be registered. It is to be hoped that the natives will have a better understanding of their statutorily safeguarded proprietary rights as time goes by. All in all, the author agrees with liberating native customary rights to the extent that is expedient for its protection rather than sticking to the status quo which could indirectly inflict injustice towards its application. The custom should not be static, but instead, flexible without destroying its roots; as Tacitus once said, ‘custom adapts itself to expediency’.
Disclaimer: The opinions expressed in this article are those of the author and do not necessarily reflect the views of the University of Malaya Law Review, and the institution it is affiliated with.
 REISA. (n.d.). Torrens Title Explained. REISA. Retrieved from <https://www.reisa.com.au/publicinfo/general-tips-and-traps/torrens-title-explained#:~:text=The%20Torrens%20Title%20System%20was,system%20of%20dealing%20with%20land>. Site accessed on 12 Feb 2021.
 Gibbs v Messer Mcintyres and Cresswell  AC 248 (Privy Council).
 Mabo v Queensland  83 ALR 141.
 Queensland Coast Islands Declaratory Act 1985 (Qld).
 Racial Discrimination Act 1975 (Cth) s 10.
 Mabo v Queensland (No 2)  107 ALR 11.
 Land Code 1958 (Cap 81) (Sarawak).
 See footnote 7 above, s 132.
 Director of Forest, Sarawak & Anor v TR Sandah ak Tabau & Ors  2 MLJ 281.
 See footnote 7 above, s 2(a).
 See footnote 7 above, s 2(b).
 Forests Ordinance 2015 (Cap 71) (Sarawak).
 Jeli Anak Naga & Ors v Tung Huat Pelita Niah Plantation Sdn Bhd & Ors  MLJU 1311.
 Federal Constitution (Malaysia) art 160(2).
 See footnote 9 above, 331 (Tan Sri Zainun Ali FCJ).
 Chia, J. (2017, Jun 8). Definition of ‘pemakai menoa’ and ‘pulau galau’ by year-end — Uggah. The Borneo Post Online. Retrieved from <https://www.theborneopost.com/2017/06/08/definition-of-pemakai-menoa-and-pulau-galau-by-year-end-uggah/>. Site accessed on 12 Feb 2021.
 Land Code (Amendment) Bill 2018 (Sarawak).
 Goh, P. P. (2018, Jul 12). NCR lands to be given legal recognition. New Straits Times. Retrieved from <https://www.nst.com.my/news/nation/2018/07/390061/ncr-lands-be-given-legal-recognition>. Site accessed on 12 Feb 2021.
 See footnote 7 above, s 2.
 See footnote 7 above, s 6A.
 See footnote 7 above, s 15(1).