SARAWAK LAND CODE

(AMENDMENT) ORDINANCE, 2018

SARAWAK STATE ATTORNEY-GENERAL’S CHAMBERS
BACKGROUND
Director of Forest Sarawak & Anor v TR Sandah Ak Tabau & Ors
[2017] 2 MLJ 281

“[77]…the native customs of “pemakai menoa” through the

establishment of “pulau” falls short of the prerequisites as provided
for under section 5(2) of the Sarawak Land Code and thus, do not
have the force of law as envisaged under Article 160 of the Federal
Constitution…” Raus Sharif, PCA
Objectives of Land Code (Amendment)
Ordinance 2018

To give NTD force of law

To confer proprietary interest
To resolve problem arising from case relating to PL – principle of
deferred indefeasibility of title
APPLICATION OF SECTION 6A
 Section 6A allows any native community to claim usufructuary rights exercised and enjoyed by
its members within the native territorial domain by an application made to the Superintendent of
Lands and Surveys (“the Superintendent”) provided that:
a) any area claimed as native territorial domain shall not exceed 500 ha; or
b) the Minister may, with the approval of the Majlis Mesyuarat Kerajaan Negeri in
accordance with the Rules made herein, allow a claim of up to 1000 ha.
(Bill amended during DUN sitting)
 Once the Director of Lands and Surveys (“the Director”) approved the claim, the
Superintendent shall issue a native communal title (“NCT”), describing the area as a native
territorial domain, which shall be used exclusively by the native community for agricultural
purpose or such other purposes as may be approved by the Majlis Mesyuarat Kerajaan Negeri
and subject to any other terms and conditions that the Director may impose.

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Cont …
 NTD shall –
a) be issued in the name of a person or body of persons who shall hold the native
territorial domain in trust for the native community named in the NCT in
accordance with rules;
b) be in perpetuity, free of any premium, rent or other charges; and
c) not be assigned or transferred to any person who is not a member of the native
community named therein.

 Any person whose application is rejected by the Director may appeal to the Minister within
thirty days from the date when the decision of the Director is conveyed to him.

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cont …
 In the event there is any dispute as to whether any person is a member of the native
community named in the NCT issued, the person or body of persons in whose name the native
communal title is issued shall refer the same to the District Native Court for a decision, and such
reference shall be instituted and dealt with in accordance with rules made under the Native
Courts Ordinance, 1992 [Ordinance No. 9/92].
 No claim or application shall be made or allowed in respect of any area or land where, before
the coming into force of this section:
(a) there is a final decision by a court that no usufructuary rights have subsisted; or
(b) the usufructuary rights have been lost or abandoned by members of the native
community making that claim.

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SECTION 28
Sect 28(2): Every PL shall specify –
(e) that any land held under native customary rights created under section 5 or native territorial
domain under section 6A shall be excluded from the area covered by the PL.
Sect 28(3): Notwithstanding the payment by him of any annual rent in respect of the area
specified in the PL, the registered proprietor thereof shall not be entitled to the registration of a
lease in Form B in the First Schedule for an area equal to the area specified in the PL if upon
completion of the survey referred to in subsection (1) any such area is unavailable for reason
that –
(a) the land is already held under native customary rights created in accordance with section 5
or native territorial domain under section 6A
 Recognition of NTD under section 6A of Land Code:
No. Subject Matter Recognition under the Amendment Ordinance
1. NTD Recognition • Having force of law
2. Definition of NTD • General in nature
3. NTD Application • Applicable to natives
4. NTD Rights • Right to be issued title in perpetuity with equal status as other titles
under the Land Code.
5. Nature • Communal
6. Area Allowed • Maximum 500 hectares
• In exceptional circumstances: Minister may, with the approval of
Majlis Mesyuarat Kerajaan Negeri, allow a claim up to 1000 hectares.
7. Instrument • Provisional Native Communal Title/Native Communal Title
8. Instrument Holder • A person or body of persons (trust body) to hold in trust for the
natives.
9. Duration/ Period • In perpetuity
10. Power/Jurisdiction • Director of Lands and Surveys/ Minister/ Native Court
BACKGROUND

Came into force on

1st August 2019
 Sarawak Land Code
(Native Communal Title) Rules, 2019
SARAWAK STATE ATTORNEY-GENERAL’S CHAMBERS
SALIENT POINTS
1. Background
2. Provisional Native Communal Title
3. Registration of Native Communal Title
4. Development of Trust Land
5. Trust Body
6. Miscellaneous

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DEFINITIONS
“Native Communal Title” means a title issued in accordance with section 6A over a native
territorial domain in the name of a person or body of persons as trustee for the native
community concerned but without the right of sale or disposal, and such native communal title
shall be held to be a title under this Code.
“Native territorial domain” means an area or territory –
(a) 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
(b) wherein members of a native community have from a date prior to 1st day of January 1958,
exercised usufructuary rights or preserved by them for such purposes:
Provided that such area or territory have not already been constituted a communal forest
under Part III of the Forests Ordinance, 2015 [Cap. 71]
DEFINITIONS
“usufructuary rights” means the rights or privileges exercised or enjoyed by a native
community over a native territorial domain to:
(a) forage for food, including fishing and hunting;
(b) enjoy such rights and privileges exercisable by a native community in a communal forest
constituted under Part III of the Forests Ordinance 2015 [Cap. 71]; or
(c) Carry out such activities which are expressly authorized in the native communal title issued
under section 6A(3) or a permit issued under section 10(3) but subject to the terms and
conditions specified therein.
“beneficiaries” means the beneficiaries named in the document of title
PART II: PROCEDURE FOR APPLICATION
Rule 3. Procedure for Application
Rule 4. Particulars required in Applications
Rule 5. Application to be recorded
Rule 6. Register
Rule 7. Provisional NCT
Rule 8. Survey
Rule 9. Preparation of DOT
Rule 10. Issuance of NCT
PROVISIONAL NATIVE COMMUNAL TITLE
(rule 7)
 Provisional Native Communal Title may be issued by the Superintendent to any person or
body of persons entitled through Form 1 after receiving approval from the Minister or the
Director.
 Provisional Native Communal Title shall specify:
(a) the land’s description; and
(b) approximate area & location.
 Title holder is not entitled to the whole area specified until completion of survey under rule
8 and issuance of NCT.
Upon completion of survey, land to be re-classified into Native Area Land: Rule 8(3)

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ISSUANCE OF NCT
(rule 10)
Superintendent issue NCT upon directive from the Director in the name of
trustee established under Part III of the Rules
NCT in the prescribed Form 2 under the Schedule
Grant for perpetuity and for agricultural purposes, subject to such conditions,
obligations and restrictions, as the Director on the direction of the Minister, may
impose
REGISTRATION OF NATIVE COMMUNAL TITLE
Registration of Native Communal Title (rule 11)
 Registrar shall register the Native Communal Title and record all particulars in the Register.
 Registrar shall satisfy himself that such registration shall not contravene sections 8 (non-
natives) and 13A (no acquisition by foreigners) of the Code.

Effect of Registration (rule 12)

 No title or right to the land shall be acquired by possession or user adversely to, or in
derogation of, the title of the registered proprietor holding directly from the Government.
 Indefeasibility of title under section 132

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DEVELOPMENT OF TRUST LAND
(rule 13)

 The beneficiaries shall consult the trustee before making any agreement for the development
of the trust land with any third party.

 Otherwise, such agreement shall be voidable at the instance of the beneficiaries.

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PART III: TRUSTEE
 Appointment of Trustee (rule 14)
 Minister shall appoint a person or trust body to be the trustee.
 Appointment is valid until revoked by the Minister.
 Majlis Adat Istiadat Sarawak or Majlis Islam shall be the trustee under rule 10 until
appointment is made by the Minister.

 Execution of Trust Deed (rule 15)

 Upon appointment, trustee shall execute a trust deed with the representative of the
beneficiaries.
 The trust deed must be in the form approved by the Minister.

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TRUSTEE
 Functions of the Trustee (rule 16)
 To hold the trust land according to the Rules or any laws for beneficiaries' benefit;
 Consult & advise Minister on matters related to the trust;
 Carry out other functions as assigned under the Rules or any laws or by the Minister.
 Powers and Duties of the Trustee (rule 17)
 Receive & hold the trust land;
 Authorize changes in the registered address of the trust;
 Apply for variation in title condition of the trust land under Part X of the Code after
consulting the Minister when required by beneficiaries;
 Do or carry out or have such specific functions, activities or duties as permitted or allow
by the Minister or Majis Mesyuarat Kerajaan Negeri.
 Liability of Trustees (Section 18)
 No personal liability

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TRUSTEE
 Board of Trustees (rule 19)
 Members of the Board :
(a) Chairman;
(b) Deputy Chairman;
(c) 2 persons (among beneficiaries); and
(d) not less than 2 and not more than 3 among persons of relevant experience, knowledge &
skills.

 Secretary & Treasurer are appointed among the members.

 The members may resign at any time through letter addressed to the Minster.

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TRUSTEE
(rule 19 (4)
 Appointment of any member of the Board may be revoked by the Minster if he;
(a) Has been adjudged a bankrupt;
(b) Has breached the Code or Rules or the Trustee Act 1949;
(c) Has been convicted of any criminal offence or offences under Company Act 2016 & suffered
fine exceeding RM2000 or imprisonment more than 1 year;
(d) Has been convicted of an offence under any law relating to corruption;
(e) Has been absent from the State for a continuous period of more than 12 months; or
(f) Minister is of opinion he has failed or is unable to discharge duties.

 Minister may appoint any other person to fill vacancy due to death, removal or resignation.

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PART IV: MISCELLANEOUS
 General Penalty (rule 20)
 Non-compliance with the Rules is an offence liable to:
i. a fine not exceeding RM 5000; or
ii. imprisonment not exceeding 2 years; or
iii. to both fine and imprisonment
upon conviction.

 Delegation of Powers (rule 21)

 Minister or Director may delegate powers conferred upon him under the Rules subject
to such conditions as he may impose.

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THANK YOU

Sarawak State Attorney-General’s Chambers