56 Chapter 4 | LEGAL FRAMEWORK OF INDIGENOUS PEOPLES’ RIGHTS TO LAND Rights Based on Occupation 4.87 The recognition of NCR on land is primarily based on occupation The most common way NCR is created is by way of felling of virgin jungle, occupation and cultivation. The use of land for burial ground or shrine is related to and is evidence of occupation of land. Where occupation is recognised, it is only reasonable that the occupiers be given rights of way over the territory that is occupied by the community. Nature of the Right Under the Code 4.88 Permit Holder and Licensee: The term “permit” or permission implies that no proprietary rights exist.159 A permit expires by lack of renewal and is revocable at any time. In practice, the issuance of permits is rare if they are given at all. Permits had formally been discontinued through a Government directive in 1964160 further restricting creation of NCR. The requirement of a permit restricts the customary land use practices that have traditionally been part of native life and agricultural practices. By so doing, it makes certain native occupiers potentially “illegal occupants” on their own land. Be that as it may, it must be noted that even if their right was called a licence, the High Court in Nor Nyawai v Borneo Pulp Plantation has held that “such licence cannot be terminable at will.” This view was endorsed by the Court of Appeal in Superintendent of Lands, Bintulu v Nor anak Nyawai. That means that holders of native customary rights have proprietary rights that cannot be taken summarily or extinguished except in accordance with laws and that also after payment of compensation.”161 This constitutes recognition of a proprietary right to the land which is protected under Article 13 of the Federal Constitution.162 Where a proprietary interest based on occupation is recognised, a case for trespass could be maintained against a third party.163 A Grant in Perpetuity 4.89 The area claimed as NCL usually does not have documentary title but a native can apply for a grant in perpetuity title from the Lands & Surveys under section 18 of the Code where he has “occupied and used any area of unalienated State land in accordance with rights acquired by customary tenure amounting to ownership, of land for residence and agricultural purposes,164 he may, subject to section 18A. As to what is customary tenure amounting to ownership, it has been suggested that where an individual or family has the right to exclude other individuals or families from the occupation or use of a piece of land, the rights in that land must be regarded as amounting to ownership. 159 Note that the Superintendent may permit the temporary occupation of State land under temporary licences under s 29 of the Code. The licence is not transferable or transmissible and is not registrable in the Register. This is a separate provision from s 10 which provides for a specific permit for creation of NCR. 160 Zaidie Zainie, “Native Customary Land: Policies and Legislation”, Paper presented at the Seminar on Native Customary Land, Santubong Kuching Resorts, 29 September – 3 October 1994. In 1961, Richards wrote, “I know of no permits issued under s 10 of the Land Code or of any recently established rights denied under section 5.” 161 [1970] 1 MLJ 164. Following Nyalong and Udin anak Lampon, [1949] SCR 3, the respondent was said to have lost her right to her temuda because she had left it for 20 years. She had no power to alienate it, and the land was declared as tanah orang pindah and left for the people in the area. 162 Art 13 of the Federal Constitution States: (1) No person shall be deprived of property save in accordance with law. (2) No law shall provide for the compulsory acquisition or use of property without adequate compensation. 163 In Peninsular Malaysia, where aboriginal customary rights of aboriginal peoples were in question, the court in Sagong Tasi v Kerajaan Negeri Selangor [2001] 2 MLJ 591 had recognised Temuan (Orang Asli) customary interests in the lands occupied by them and they could maintain a case for trespass against intrusion of a third party. 164 Section 18 was amended in 1963 following a report by the Land Committee in 1962 to allow for replacement of customary tenure by a lease for 99 years. This was amended in 1974, reverting the position to providing for a grant in perpetuity where the rights “amount to ownership”. chapter 4_a4.indd 56 7/5/13 6:46 PM