NATIVE CUSTOMARY LAWS AND NATIVE RIGHTS OVER LAND IN SARAWAK
Prepared by the State Attorney-General's Chambers, Sarawak for Human Rights Commission in 2004.
Updated on 15 January, 2007
1. PREAMBLE
1.1. Native Customary law system prevailing in Sarawak is peculiar to our State. What is "native customary law" must be determined with reference to the laws of the State, and what constitutes "native customary rights" over land must also be determined with reference to the relevant State laws.
1.2 Native Customary Rights to land is also a system which recognises the rights of the native community to occupy and use land which by law belongs in the old days to the Crown, but nowadays by reason of Section 12 of the Land Code, belongs to the State.
1.3 The system of native customary rights over land had evolved over near one and half centuries; since 1841 when the Rajah James Brooke decided to make his first pronouncement pertaining to Land. Through this process of evolution, native rights to land were recognised, under certain conditions spelt out in the various Proclamations and Orders made by the Rajahs and subsequently, in various legislations passed by the Council Negeri (now Dewan Undangan Negeri of Sarawak).
1.4 As such, land occupied by natives under native customary tenure, are untitled i.e. there is no document of title to show ownership. Whether a native has rights to such land would depend on whether he or his forefathers fulfilled certain requirements under the laws prevailing at the time which rights to the land were said to have been created.
1.5 Native customs which could create rights over land had been modified in Sarawak by laws made by the Rajahs and subsequently by the Council Negeri. At this juncture, it ought to be pointed out that in all legal systems, indigenous rights may be modified or extinguished by legislative or executive action. Professor Douglas Sanders in his Paper on "Indigenous And Tribal Peoples: The Right To Live On Their Own Land" (presented at the 12th Commonwealth Law Conference held in Kuala Lumpur in September, 1999) stated;
"A leading Australian constitutional text summarises the basic rule from the Mabo decision as follows:
The indigenous population had a pre-existing system of law, which along with the rights subsisting thereunder, would remain in force under the new sovereign except where specifically modified or extinguished by legislative or executive action."
1.6 It must be emphasised that the evolution of our laws on native customary rights over land over more than 11/2 centuries was a peaceful and orderly process, without any serious discord amongst the various communities in Sarawak or between them and the Government, and has enabled the Government of the day to improve the social and economic position of these communities and bring about overall development and progress to the rural areas.
2. NATIVE CUSTOMS AND NATIVE CUSTOMARY LAW
2.1 It is pertinent to observe there is a significant difference between native customs (Adat) and native customary law.
2.2 AJN Richards (a former Resident and acknowledged authority on this subject) in his book Land Law and Adat at page 9, stated:
"As was pointed out by Mooney, as Crown Counsel and Hickling, the law does not, in fact, gives effect to any customs whatsoever except the codified law of delicts, ..."
2.3 The Land Code and its predecessor defines "customary law" to mean "a custom or body of customs to which the law of Sarawak gives effect".
2.4 The natives of Sarawak may have and in fact do have many customs, but for these customs to have effect as "customary laws", they must have the sanction of the Law. This is what characterised the difference between native customs and the customary laws; and this differentiation is acknowledged by the definition of "Adat" in the Majlis Adat Istiadat Sarawak Ordinance, Ord. No. 5 of 1977 where "Adat" is defined as "native custom or body of native customs to which lawful effect has not been given thereto".
2.5 Thus, in relation to land, the practice of native custom does not necessarily give rise to rights over land. It is only the practice of those customs which are part of the customary law of Sarawak, which can create rights to land and this is evident by the provisions of Section 5(1) of the Land Code which provides, inter alia, that native customary rights over land may be created "in accordance with native customary law". "Native customary rights" to land, however, received its first statutory definition in the Land Settlement Ordinance (also known as Rajah Order L-7 of 1933), enacted on 22.6.1933. It is defined by Section 66 of that Ordinance as follows:
3. PRE-1933 LEGAL POSITION ON NATIVE RIGHTS TO LAND
3.1 Although the Land Settlement Ordinance provides the first statutory recognition to native customary rights over land, the exercise of rights by natives over land were regulated by various pronouncements and orders made by the Rajahs prior to 1933,
3.2 In fact, the exercise by the natives of customary rights over land had been recognised since the days of the first Rajah. Writing in his journal In 1840, the first Rajah stated:
"The fruit trees about the Kampong, and as far as the jungle round, are private property, and all other trees which are in any way useful, such as bamboo, various kinds for making bark-cloth, the bitter kony ... and many others. Land, likewise, is Individual property, and descends from father to son; so, likewise, is the fishing of particular rivers, and indeed most other things ...".
3.3 Legislation was subsequently introduced to deal with specific aspect of customary law. In 1899,' the second Rajah issued the Fruit Trees Order, Section 1 reads:
"Such fruit trees which have chiefly sprung up from seeds thrown out of and about houses, and have become common property of the inhabitants of a long house or village, are in no cases to be sold or in any way transferred or claimed by individuals leaving such houses or villages."
And section 2 reads:
"Any Dyak removing from a river or district may not claim, sell, or transfer any farming ground in such river or district, nor may he prevent others farming thereon, unless he holds such land under a grant."
3.4 The significance of this Order is that It sets out the manner in which claims to native customary tenure may be made by a native community through the cultivation of fruit trees on land which was deemed to belong to the State. Another important characteristic of native customary tenure was apparent, i.e. rights so created through native customary tenure may be lost if a native moved from one river system to another.
3.5 The next development occurred in 1920 when the Rajah's Order No. VIII, 1920 was published on 21,10.1922, the relevant parts of which reads as follows;
"22,(I) Under this part lands may be occupied by Natives free of all charges for the cultivation of fruit trees, padi, vegetables, pineapples, sugar cane, bananas, yams and similar cultures in accordance with the customary laws provided that where possible claims to fruit groves and farming lands shall be registered. Records of such claims shall be kept by all Native Headmen and also in the Land Office In each district.
(ii) A certificate in the form of Schedule A of Notification No...... of 1920 may be issued to registered land holders under this part." {emphasis added}
A supplement to the Order reads:
"2.(I) Native land reserves shall be made in suitable situations and these shall be divided into lots of three acres and any native born subject of His Highness the Rajah shall be permitted to occupy one such lot free of all charges (excepting fees for demarcation) provided that no person not being a native of the Country shall occupy land in such reserves and further that no one person shall occupy more than one lot at one and the same time.
(ii) A record of the names of those occupying land under this section shall be kept by all Tuah Kampong and also in the Land Office in each district.
(iii) A certificate in the form of Schedule A may be granted to each native land holder on application," (emphasis added)
3.6 From these Orders and the Land Settlement Ordinance (formerly known as Rajah Order L-7 of 1933), it is obvious that the only recognition, given by written laws as pronounced by the Rajahs, requires physical occupation of an area before a native can establish his rights over the same. As AJN Richards noted in Land Law and Adat at page 8 - "Occupation under custom appears to have been generally regarded as 'lawful occupation' and 'lawful ownership'". The 1920 Order and the 1933 Ordinance even required some form of registration of such rights to accord natives protection of their claims over land. Additionally, it is to be observed that the Rajah did place a limitation on the amount of land that a native could occupy by the exercise of rights under his Adat. At that point in time, the Rajah only allowed each native to occupy one lot of three (3) acres. Also, under the 1933 Ordinance, land claimed on the basis of cultivation by a native must be in continuous occupation or had been cultivated on "within three years".
3.7 In 1939, the Rajah realised a need to prevent some communities from moving into territories occupied by other native communities. Hence, the Prohibited Areas Ordinance was passed to prevent some communities from moving into areas already occupied by others. In other words, native communities do not have absolute licence to move Into any area, clear virgin jungles and settle thereon. The Restricted Areas Notification (see: Vol. VII of the Revised Edition of the
Laws of Sarawak page 153) prohibits Sea Dayaks (Ibans) from remaining in the then Baram Administrative District for an aggregate period of more than 60 days in any calendar day without the permission in writing of the District Officer, Baram or District Officer, Limbang.
3.8 After the 1933 Land Settlement Ordinance, rules and administrative circulars were introduced to reinforce the requirement for natives to occupy and clear their land'before they could have rights over the same. This Is illustrated by the Appendix made to the Tusun Tunggu (Third Division) Order, published in Vol. VII of the Revised Edition of the Laws of Sarawak 1958, as a "guide to Judges, Magistrates and others on adoption, divorce, the acquisition and disposition of property as practised amongst Sea Dayaks of the Third Division, ratified at the Penghulus' Conference, held at Sibu on 15 July 1952". The relevant portions thereof read:-
"7. Theoretically all untitled land whether jungle or cleared for padi farming (Temuda) is the property of the Crown. The fact that Dayaks do clear a portion of virgin land for the site of their pad! farms confers on them a restricted right of proprietorship over the land thus cleared. Once the jungle has been cleared it becomes temuda. It is a recognised custom that temuda is for the use of the original worker, his heirs and descendants. This is the only way Dayaks can acquire land other than by gift or inheritance.
In former days there were no restrictions on anyone felling jungle provided that he did not destroy valuable commercial trees such as gutta, jelutong and engkabang. But it is not so now. Since the introduction of the Forest and Erosion Ordinance no one is allowed to fell jungle without permission from the proper authority.
No Dayak is allowed to sell, purchase or lease (by way of demanding rent either in kind or in cash) untitled land. It would be an infringement of the right of the Crown if they did so, and they may be prosecuted in view of the fact that selling of untitled land is prevalent in this division, and Dayaks seem to forget this custom.
There are no other ways in which Dayaks can part with possession of untitled land other than by gift or on death. When a Dayak abandons his land temuda and moves to another district he loses all his rights to it. The land that has been farmed by him reverts to the Crown (as legally it is Crown land) and it is usually set aside for the benefit of the general community or to help those who are otherwise lacking in land. In such a case the original owner has no right to prevent others from making use of the land and the user acquires the right." (emphasis added)
3.9 It ought to be pointed out that what is set out above has been made an Appendix to the Tusun Tunggu (Third Division) Order and was also adopted by the Tusun Tunggu (Fourth Division) Order and Tusun Tunggu (Fifth Division) Order. It therefore has the effect and authority and constitutes the customary laws of the Sea Dayak (Iban) in Sarawak.
3.10 What Is contained in this Appendix is also consistent with what was contained in Secretariat Circular No. 12/1939 which briefly outlined the creation of rights over land through native customary tenure as follows:-
(i) The right to cultivate cleared land vests in the community with priority to the heirs of the original faller of .the big jungle. This right must be exercised in accordance with a cycle compatible with the preservation of the maximum fertility of the land (and no longer) by methods of cultivation within the reach of the community. The cycle is, in their eyes,
not a matter for rule of thumb but for expert native opinion.
(ii) Where not inconsistent with the above, the existence of permanent cultivation of a reasonable density is evidence of customary ownership as opposed to customary rights of user.
(iii) Individual ownership is limited by the customary right of the community to a say in the matter of disposal to anyone outside the community.
(iv) No community or individual may hold up land in excess of requirements and, the extreme case, removal to another district automatically extinguished all rights of user. The old Order (a) dated 10.8.89 is an excellent exposition of this principle.
3.11 In summary, the creation and exercise of native rights over land, prior to the present Land Code which came into force on 1st January 1958, were regulated by laws or Orders made by the Rajah or Council Negeri and not just by the customs and traditions of the natives. These laws or Orders have the effect of modifying or overriding customs or traditions practised by the natives, and they set out the customary laws for creation or exercise of rights to land. They laid down the conditions and restrictions for the creation of native rights to land and limited the size of the land, without title, which natives may occupy and claim "ownership".
3.12 Subsequent to 1958, native customary rights may be cleared over
Interior Area Land upon these 2 conditions, viz:
(a) a permit is obtained' under section 10(3) of the Land Code from the Superintendent; and
(b) by deploying any of these methods -
(a) felling of virgin jungle and occupation of land thereby cleared;
(b) planting of land with fruit trees;
(c) occupation or cultivation of land;
(d) use of land for burial ground or shrine;
(e) use of land of any class for rights of way; or
(f) any other lawful method.
3.13 Other lawful methods must refer to the Appendix to the Tusun Tunggu - see paragraph 3.8 above i.e. by gift or inheritance. It is necessary to note that fishing or collection of jungle produce do not create rights over land.
4, RELATIONSHIP BETWEEN NATIVE CUSTOMARY LAW AND OTHER STATE LAWS
4.1 As the definition of customary law implies, the written laws of the State must take precedence over native customs. This is because for native customs to have the status of customary laws, they must be those which the laws of Sarawak gives effect. This is further reinforced by the provisions of Section 9 of the Native Customs (Declaration) Ordinance 1996, which reads:-
"If any provision of a code is found to be repugnant to or is inconsistent with a provision of any written law, the latter shall prevail."
4.2 This is further reinforced by Section 10(4) of the Land Code which reenacted Section 8(4) of the Land (Classification) Ordinance 1948. Section 10(4) reads :-
"The occupation of Interior Area Land by a native or native community without a permit in writing from a Superintendent shall not, notwithstanding any law or custom to the contrary, confer any right or privilege on such native or native community and, in any such case, such native or native community shall be deemed to be in unlawful occupation of State land and section 209 shall apply thereto." {emphasis added)
4.3 The legal position taken by the State with regard to the relationship between customs and written law is no different from that adopted in any other common law jurisdiction; that is, customs may be overridden by statutes.
5. COLLECTION OF FOREST PRODUCE, FISHING AND HUNTING BY NATIVES
5.1 Although natives have been collecting timber and other jungle produce from forests for their domestic or personal use, such as for firewood, building of houses and boats, the exercise of such rights by natives have been regulated by law since the end of the 19th century. The following are the relevant legislations governing the taking of timber or forest produce:-
(a) The Rajah's Order dated 22.6.1899 states, inter alia, that "any person wishing to work and collect timber for whatever purpose shall first obtain a permit at the Resident's Office.
………….
Any person working timber without a license on and after the 1st day of August, 1899 will render himself liable to a fine not exceeding $25."
(b) Order No. 1, 1912 states that, inter alia, "it is hereby ordered that the felling of Enkabang and Ketio trees is strictly forbidden".
(c) Order No. IX, 1912 provides, inter alia, that –
"Whenever any person or persons are desirous of planting plots of marsh land which have been cleared within three years previously or hill land which has been cleared within seven years previously, such person or persons will be permitted to destroy all kinds of Enkabang, Ketio and Jelutong trees found on such lands when necessary without penalty, but when a person or persons desire to clear marsh land covered with jungle of a growth of more than three years old or hill land covered with a growth of more than seven years old where such trees are growing, permission must be first obtained of the Officer in Charge of the district; otherwise the penalty will be enforced." (emphasis added)
(d) Similarly, Order XIV, 1921 provides, inter alia, as follows:-
"2.(i) Except as provided in rules 9 and 10 below no person shall -
(a) cut, saw, convert or remove any tree, timber or firewood on' or from State land; or
……
(c) cut, collect or remove on or from State land any of the kinds of forest produce mentioned in Schedule I, except under and in accordance with the
conditions of a license in Form 1 under the hand of a Forest Officer or other Officer duly authorised in that behalf.
9(i) With the written permission of the Conservator permits in Form 17 may be issued under the hand of a Forest Officer to cut, collect and remove on or from State land any forest produce therein specified.
ll(i). Notwithstanding anything In this Order contained It shall be lawful for any subject of H.H. the Rajah of Sarawak to cut and remove from State land any timber or forest produce required by him for his own use and not for sale, exchange or profit." (emphasis added)
(e) Section 108 of the land Ordinance (Cap. 27) provides inter alia, that any person who shall be found unlawfully occupying any Crown land either by cultivating any part thereof or cutting timber or produce thereon shall be guilty of an offence against the Ordinance.
(f) The Forests Ordinance (Cap. 31) of 1934 and Forests Rules, 1947
Collection of forest produce from State land forests or communal forests were also regulated by the Forests Ordinance of 1934 which has been superseded by the Forests Ordinance (Cap. 126) of 1953 which came into force on 1.1.1954. Section 37 of the Forests Ordinance of 1934 provides that when the Resident is satisfied that it is the desire of a majority of the members of a community that a communal forest shall be constituted he shall, with the approval of the Chief Secretary, publish a proclamation in the requisite form.
Once a communal forest has been duly gazetted, section 43(1) of the Forests Ordinance of 1934 provides that subject to any conditions imposed in writing by the District Officer under section 42, any member of the community may remove free of royalty or fee any forest produce for his own use and not for sale, exchange or direct profit. Section 43(2) provides that no other person shall remove forest produce for whatever purposes.
(g) The Forests Ordinance (Cap. 126) of 1953
This Ordinance came into force on 1.1.1954 and further regulates the taking of timber or forest produce, even by natives. For instance, section 65 allows any inhabitant of Sarawak to remove, from State land which is not a forest reserve, timber produce exclusively for his own use and not for trade or barter or profit.
5.2. (a) It is to be noted that under both the Forests Ordinance 1934 and the current Forests Ordinance 1953, the Government has the right to constitute Protected Forests, Forest Reserves and Communal Forests. In constituting Protected Forests, the Government would acknowledge and concede certain rights or privileges to the affected native communities. For instance, when the Lemiting Protected Forest (216,800 acres) was constituted on 15 September 1951, the Government acknowledged the rights of the communities expressly named therein "to farm their secondary forest {temuda) but it shall be an offence to clear high forest except with the authority of the Conservator of Forests. The persons named shall have the right to cultivate the rubber and fruit gardens named with the provisos that no tree may be felled and no more trees may be
planted" (emphasis added),
(b) Thus the rights of the natives within a particular protected forest are strictly regulated by the Notification constituting the same e.g. G.N.S. 881/1951 constituting the Lemiting Protected Forest.
5.3 (a) In the case of forest reserves, the amount of jungle produce that could be taken therefrom are controlled. For instance, in constituting the Binatang Forest Reserve (vide L.N. 791 dated 3.7.1951), it is stated, inter alia, that:
"The Forest Reserve is constituted for the benefit of the following longhouses and kampongs who shall have the right to take jungle produce for their own use and not for sale or barter. Provided that the quantity that may be taken annually shall be subject to the control of the Conservator of Forests,"
(b) Not only the taking of jungle produce but also fishing and hunting would be regulated when, for instance. National Parks are constituted. A typical example is the Gunong Mulu National Park Proclamations (G.N, 2852 and 2853 of 3.10.1974) which confined fishing and hunting by the communities named therein to certain specified areas of the Gunong Mulu National Park.
5.4 Where there is a .need to maintain a forest area for the benefit of a local community, the Government could declare an area as Communal Forest, see for instance, the Kabong Communal Forest (2,500 acres) (G.N.S 96/61) which is for the benefit of the inhabitants of Kampongs Kabong and Paloh.
5.5 All these show that the right of the natives to take timber and jungle produce have been regulated, even before Malaysia Day, by laws and are controlled by the Conservator (now Director) of Forests. Although the natives may have their own customs, such as, pemakai menoa and pulau galau, these customs are not part of the Tusun Tunggu or the Adat Iban or any other Codes produced by the Majlis Adat Istiadat Sarawak. Hunting, fishing and collection of jungle produce, therefore, do not create rights over land (see: Appendix to the Tusun Tunggu and Section 5 of the Land Code and Section 66 of the Land Settlement Ordinance). The natives unfortunately have a wrong perception that It is their customs, though not part of native customary law, which gives them rights to land, the jungles and in some cases, the streams and rivers near their longhouses. But, the written laws which have evolved over 160 years do not recognise certain of their customs as customary laws upon which they could create rights over untitled State land,
5.6 It must be noted that the natives do not have proprietary interests over forest areas where they go to collect jungle produce, fishing etc. In the Nor ak Nyawai case, the Court of Appeal approved the following passage of a Judgment of the Selangor High Court in Saqong bin Tasi v. Kerajaan Negeri Selangor, viz:
"Therefore, in keeping with the worldwide recognition now being given to aboriginal rights, I conclude that the proprietary interest of the orang asli in their customary and ancestral lands is an interest in and to the land. However, this conclusion is limited only to the area that forms their settlement, but not to the jungle at large where they used to roam to forage for their livelihood in accordance with their tradition. As to the area of the settlement and its size, it is a question of fact in each case. In this case, as the land Is clearly within their settlement, I hold that the plaintiffs' proprietary interest in It is an Interest in and to the land. (emphasis added),
6. GOVERNMENT POLICIES AND PRACTICES REGARDING RECOGNITION OF NATIVE RIGHTS TO LAND
6.1 When the Government introduced the Land Code (Amendment) Bill 2000, the Government's firm intention is to recognise native rights lawfully created over land. That is still the objective of the Government.
6.2 This means that the Government can only recognise those rights of natives which have been lawfully created. In other words, these rights must have been created in accordance with the native customary law i.e. law that gives force to native customs.
6.3 All land belongs to the State. In the case of native customary land, with no titles, natives, with legitimate customary rights to the land, (i.e. created in accordance with the law), occupy the land as licencees of the Government- Sections 5(2) & 44 of Land Code.
6.4.1 The Government intends to survey the land, settle or confirm their rights to the land and have their interests or rights registered and ultimately, grant them titles to the land. This process is bound to take time. Additionally, in the meantime, the Government wants the NCR land to be developed into plantation estates. In this regard, the Government has started the NCR land bank concept whereby the native NCR claimant can "pool" their land together into a large estate and enter into joint ventures with established plantation companies for the development thereof into oil palm plantations or the large scale cultivation of other cash crops. Under this scheme, the natives will have shares in the joint venture companies which would be granted leases over the NCR land for a term of 60 years. Upon expiry thereof, the land will either be reverted back to the natives or their heirs or if the natives agree, the lease to the joint venture companies can be extended. In this manner, the Government intends to facilitate the development of the NCR land and to bring better economic returns or value for such land to the natives,
6.4.2 Up to December 2006 the State Task Force on NCR Land Development had approved 58 NCR land areas for development under the New Concept. Thirty-one (31) of these areas that have been verified by the Department of Land & Survey comprise of approximately 292,247 hectares of NCR Land.
6.4.3 Currently, field developments are taking place in 23 of these projects, which cover a total gross area of 188,347 hectares. By 31 October 2006 picket survey of 57,413 hectares had been completed out of which 41,916 hectares had been cleared for field development. Of the area already cleared 33,193 hectares had been planted out of which 21,082 hectares were in production.
6.4.4To-date there are 11,952 landowners participating in the 23 projects where field development is on-going.
6.5 The objective mentioned in paragraph 6.4 is difficult to achieve if the native communities make claims which are not consistent with the laws governing the creation of native customary rights over land or where there are disputes between the natives themselves as to the size or boundaries of their respective holding.
6.6 As regards claims to forests (pulau), the Government will maintain the stand that the pulaus are not "temuda" (farming land) as they are never brought under cultivation. The natives have no proprietary rights to the pulaus and no legal rights to the land therein. If there is a need by any community for jungle produce etc. from a forest area for their own subsistence or use, the Government could declare such a forest area as a communal forests. The native community ought
not to claim jungles which they have never brought under cultivation as their NCR land.
6.7 The Government maintains that what a native could claim as his NCR land must be for his own farming requirement and must be limited to what he needs or is capable of cultivating based upon traditional farming methods. In other words, the size of his NCR land must not exceed what he needs for himself and his family, and using the conventional or traditional method of farming, able to bring under cultivation.
6.8 What a native claims as rights under native customary law must be restricted to what the laws over the last IVs centuries permit. If he requires more land than what he could obtain through the native customary law system, he may apply, like any other Sarawakian, to the Government to alienate him land. He should not attempt to increase the size or area of his land by pleading that he is entitled to have more land because of certain customs which are not recognised as, or not part of, the customary law of the State. The law on NCR which has evolved more than a century must be respected. For instance, the principle that NCR land is .temuda land (i.e. land cleared of virgin jungles for cultivation) and occupied by the natives or used as burial ground or right of way, has been part of the native customary law since 1933 and reinforced by the Secretariat Circular of 1939 and declared as part of the Tusun Tunggu of the Ibans and restated in section 5 of the Land Code. The Government cannot agree to any change in this fundamental concept which has governed land utilisation, planning and development for nearly a century.
6.9 NCR land like titled or alienated land may be required for public purpose. Under the Land Code, if NCR land Is needed for public purposes, the lawful holder of such land will be paid compensation. NCR land claimants will not be treated differently from registered proprietors of land; consistent with the relevant provisions in the federal Constitution for the protection of property and against discrimination.
7. CONCLUSION
7.1 The Government will always respect all native rights to land, lawfully acquired in accordance with the native customary laws of the State. Likewise, the Government expects the natives to respect such laws evolved in a peaceful and orderly manner over more than IVz centuries.
7.2 The Government will continue to facilitate the development of NCR land with a view to enabling the natives who lawfully have rights over such land, to enjoy better economic returns and value for the land; and in the process, also to enhance development of the rural areas and to improve the living standards of the rural communities.
7.3 The Government will respect and honour the constitutional protections accorded to the natives by awarding recognition of their legitimate rights to their NCR land and if such land are required for public purposes, to pay the due compensation.
7.4 The Government recognises the need of the natives to maintain their traditional way of life and farming and the need to take timber and jungle produce from, and to hunt and fish, in our forests. Where there is a need for the natives to take timber or timber products from a forest area, the Government will declare that area as'a communal forest. In cases where a particular native community needs to be settled In a specified area which suit their traditional way of life and farming, the Government would, pursuant to section 6 of the land Code, declare that area as a Native Communal Reserve. Examples of Native Communal Reserves declared recently are:
(a) The Native Communal (Agriculture) Reserve Order, 2001 (Swk. L.N. 77/2001);
(b) The Native Communal (Kampung) Reserve Order, 2001 (Swk. L.N. 65/2001);
(c) The Native Communal (Community Hall) Reserve Order, 2001 (Swk. L.N, 28/2001);
(d) The Native Communal (Surau) Reserve Order, 2001 (Swk. L.N. 93/2001); and
(e) The Native Communal (Agriculture) Reserve Order, 1992 (Swk, L.N. 21 (1992)).
7.5 But the natives must at the same time understand and respect the rights of the Government to realise, for the benefit of the country, the full economic potentials of the resources of our forests and land which are not part of our national parks, natural reserves and wildlife sanctuaries.
7.6 In a democratic society where the Rule of Law must be upheld, the interests and rights of any individual should be exercised or advanced without any disregard for the Law and the interest of the State and Nation. No one should not take the law into their own" hands by setting up blockades or intimidating those undertaking development projects in their areas. Their rights, if any, to land can always be enforced by proceedings either before the Civil Court or the Native Courts which are set up, amongst other reasons, to adjudicate on disputes or claims to NCR land. All non-Government bodies should encourage the people to uphold and respect the Law and help to explain the Law to those who are supposed to observe and abide by the Law.
