Report of the National Inquiry into the Land Rights of Indigenous Peoples 43 the discrimination that has resulted in the erosion of their rights to land as a fundamental human right. 4.36 As a proprietary right under the Constitution native title cannot be taken or terminated except in accordance with law and upon payment of just compensation. Recognition and protection for native title is also required as part of the constitutional right to livelihood, which guarantees native title based on the essential role of land in the economies and cultural identity of native communities. In determining adequate compensation for deprivation of native title, the role of land in the livelihood of native communities is a relevant factor. In addition, damages other than money compensation may be necessary in cases where the deprivation of property also constitutes a deprivation of livelihood, and right to life under Article 5 of the Constitution.   Native title represents a non-documentary title held by the community. Natives may only transfer the land subject to native title to other natives or the Government. The next part of this Chapter deals with domestic laws that provide for native or aboriginal rights. RELEVANT STATUTES IN SABAH, SARAWAK AND PENINSULAR MALAYSIA 4.37 The following sections will provide a brief outline of relevant statutes related to indigenous peoples’ land rights in Sabah, Sarawak and Peninsular Malaysia. It also presents the historical evolution of the laws that deal with land. SABAH HISTORICAL EVOLUTION OF LAND LAWS 4.38 From the time that the British North Borneo Company acquired the various territories, native customary laws were recognised by the British administrators. This was incorporated and enshrined under Article 9 of the Royal Charter that was granted by the British Crown on 1 November 1881. The company was enjoined to give careful regard to the customs and laws of the class or tribes or nation to which the parties respectively belonged. The provision bears reproducing here: In the administration of justice by the company to the people of Borneo, or to any of the inhabitants thereof, careful regard shall always be had to the customs and laws of the class or tribe or nation to which the parties respectively belong, especially with respect to the holding, possession, transfer and disposition of lands and goods, and … other rights of property and personal rights. (emphasis added). 4.39 In 1883, the Governor sent a circular letter prohibiting all dealings in land between natives and foreigners. This was later embodied in the Proclamation No.2. In September 1888 by notification No.76, legislation was passed to protect native holdings. 4.40 The condition was for them to remain in occupation of their holdings, otherwise the Government could resume possession after a year of being abandoned by native holders. The premise was that the land was the property of the State.87 Notification No 76 was followed by the Land Proclamation 1889-1902. 87 chapter 4_a4.indd 43 Prior to this, the Land Proclamation of 1885 under articles 26 and 27, no native could sell lands to foreigners unless such transactions took place through the State, thus placing the ultimate authority over land in the State. As Amity Doolittle pointed out, this set the stage for later laws which placed the property of all lands in the State and “native rights to land would subsequently have to be mediated by the State and made compatible with the broader State agenda of commercial development of the territory.” See Amity Doolittle, Native Struggles Over Land Rights: Property and Politics in Sabah, Malaysia, University of Washington Press, 2005, 35-36. 7/5/13 6:46 PM