Native Customary Rights To Land Are Guaranteed Under The Constitution

By Tan Sri Hasmy Agam

The Human Rights Commission of Malaysia (the Commission) views with great concern and disquiet over the recent statements reportedly made by the Sabah Attorney-General that the Sabah Land Ordinance (SLO) that came into force in 1930 does not allow for the creation of fresh Native Customary Rights (NCR) to land in Sabah. According to the Sabah Attorney-General, there is no provision in the SLO for natives to go into occupation of land after 1930 and claiming NCR on it, which clearly contradicts the position that NCR to land is a fundamental right of indigenous communities guaranteed under our Federal Constitution.

The Commission is also taken aback by the remarks of the Sabah AG as the position represented is completely new and contrary to all existing policies and the interpretation of the SLO, in particular native customary law and perspectives. The stance taken is particularly worrying as it is likely to further exacerbate the difficulties that the natives of Sabah are already facing in relation with land ownership under existing policies and laws.

The Commission further calls for the authority to ensure that any policy decisions by the State, particularly on land matters must be based on effective and meaningful consultation, and consent by communities and other interested parties. It also urges for the postponement of any new policies in relation to land matters until the completion of its National Inquiry into the Land Rights of the Indigenous Peoples, where the Terms of Reference include a review of domestic land laws and other related laws and policies, aimed at incorporating a human rights focus and addressing, in particular, the problems faced by the Indigenous Peoples in the Peninsula and the Natives of Sabah and Sarawak in their land claims to ensure the full enjoyment of their right to land in accordance with their needs and requirements.