It is important that the NCR land be preserved for the survival of the natives’ cultural identity. In this two-part article, practising lawyer and SEEDS fellow Nelson Angang offers insights into the legal issues surrounding the NCR land in Sabah.
PART 11 – CLAIMS OF NATIVE CUSTOMARY RIGHTS
By NELSON ANGANG
COMMENT: Section 14 of the Land Ordinance states that claims of Native Customary Rights (NCR) shall be taken down in writing by the headman or by the collector, and shall be decided by the collector.
The provision shows that a claim for NCR seems to be a straightforward matter. However, the problem which has caused so many disputes to be filed to court is when a title had already been issued to a third party (individuals or companies).
This leaves the native claimant without any choice but to seek the court’s intervention on the matter. However, it has been decided time and time again that the High Court does not have original jurisdiction to determine Native Customary Rights.
For this reason, section 41 (2) of the Sabah Land Ordinance clearly specifies that the court’s jurisdiction on the matter is barred except on appeal. Original jurisdiction to grant Native Customary Rights is given to the collector and to the director under Sections 14 and 9 of the Sabah Land Ordinance.
Therefore this leaves the claimants the option of challenging the decision of the collector or the director by way of judicial review in that there was procedural non-compliance in the decision making process by the collector in issuing the title to the land concerned and therefore such decisions should be quashed.
But such an option is restricted by time limitation and in most cases when the native claimant has realised that this is the option they have to take, they are barred by limitation to file the review in the High Court.
One of the common allegations raised by claimants in challenging the decision of the collector in issuing a title is that the statutory notice under Section 13 of the Sabah Land Ordinance had not been complied with.
Section 13 provides that the collector must give a notice to the community or to any claimant of Native Customary Rights in such land who is yet in possession of a registered title to make or send in a statement of his claim to the Collector.
Section 13 of the Sabah Land Ordinance states that “upon the receipt of any application for unalienated Country Land it shall be the duty of the collector to publish a notice calling upon any claimant to Native Customary Rights in such land who is not yet in possession of a registered documentary title to make or send in a statement of his claim within a date to be specified in the notice.
If no claim is made, the land shall be dealt with as if no such rights existed.”
Naturally once a title had been issued in relation to an application for Country Land, it is deemed that the statutory requirements of Section 13 notice had been complied with and that no Native Customary Rights exist on the land. However, the problem lies in whether such publication of the notice had in actual fact been made?
Even if the notice had been issued, in what manner did the collector issue it? It has always been the practice of the authority that the posting of such notice is made at the notice board of the Land Office or District Office concerned. But is this sufficient for the purpose of bringing such a notice to the claimants as envisaged in Section 13 of the Sabah Land Ordinance?
In the case of Ensui Gudul @ Godol v Suin @ Abdul Samad Bin Dongkiris 7 Ors, the High Court held that there is no requirement for personal service to be made under Section 13 notice and to construe otherwise would be to read something into Section 13 which is not there.
The court decided that the posting of the Section 13 notice at the notice board at the land office is sufficient.
However in Borneo Samudera, His Lordship Douglas Christo Primus said although he agreed that there is nothing in the Rules (Land Rules) to say that it is sufficient for notices to be posted at the District Office notice Board, the collector must go beyond that.
This is for the reason that not all claimants regularly go to the District Office for diverse reasons (e.g., natives living deep in the interior would rarely go to the Land Office what more to anticipate a Section 13 notice) and that some are illiterate. The problem becomes more complicated as the notice usually gives the claimants only 30 days to stake their claim.
The authorities should devise a more effective system of informing the community or any claimant of Native Customary Rights. Steps such as doing a physical ground inspection on such land by the officers from the land office could shed some light as to whether there are occupiers on such land.
If it is discovered that there are occupiers on such land then this would give an indication of the possibility of claimants for Native Customary Rights. If such efforts and exercise are made, it will surely reduce or eliminate the problems of NCR claimants being unaware of the statutory notice under Section 13.
This will reduce the number of Native Customary Rights cases being referred to the courts which only burdens the government and the natives with the legal costs and time involved in the proceedings.
GRANTING COMPENSATION OR ISSUING A TITLE?
Section 16 of the Sabah Land Ordinance is another important provision concerning Native Customary Rights. When a collector is satisfied that there exists Native Customary Rights on such land, the collector can either grant the claimant money compensation or issue a title of the land.
Even though the collector is given the discretion to decide whether to grant compensation or issue a title, the authorities should take the first option of issuing a title to the claimant when no title had yet been issued to a third party.
Justice Ian Chin in the case of Burhan Ating & Others v Director of Lands and Surveys & Ors  2 CLJ 1203 said that even if the state land had ceased to be state land in that it had been alienated (title had been issued), there is nothing to stop the collector from hearing and determining the claim for Native Customary Rights and if such a claim is successfully established, the collector still has the discretion to award money compensation instead of issuing titles to the land.
The authorities should take heed of the decision of Burhan Ating and conduct an inquiry on cases where bona fide claimants of Native Customary Rights are denied having their claim heard before an inquiry for various reasons such as having no knowledge of Section 13 notices.
Such bona fide claimants have no recourse as the court is prevented by Section 41 (2) of the Land Ordinance of having no original jurisdiction to hear and decide Native Customary Rights claims.
We must not forget that Article 13 of the Federal Constitution states that no person shall be deprived of property saved in accordance with the law and that no law shall provide for the compulsory acquisition or use of property without adequate compensation.
It is an established principle that the government may acquire a radical title or ultimate title to the land but such right or interest is subject to any native rights over such land.
For the natives, the land is their life.
Keeping their lands ensures the preservation of not only their land but also their livelihood and culture for the present and future generations. Without it, their quality of life will be reduced enormously.
The collector should always take the option of issuing a title to the land to the native claimant if it was found that Native Customary Rights exist on such land. Having said that, if the facts show that a title had been issued to a third party and a subsequent inquiry finds that on such land there exists Native Customary Rights, then the granting of compensation to the native claimant should be made.
Even though no amount of compensation can replace the connection and values that the land holds to the native, this could the very least provide some comfort for the likes of Rosmine and many other natives so that they and their families can now move on to start life anew.
Photos used are for illustration purposes.
- Nelson Angang is a practising lawyer and SEEDS fellow
- READ ALSO: http://www.borneotoday.net/legislation-has-not-annulled-nor-smothered-native-customary-rights/