28 Chapter 3 | INDIGENOUS PEOPLES’ PERSPECTIVE OF LAND and its workers do not have tawai for the land. Once they get what they want they leave, having no feeling for the place. The Penan feeling for the land is told and retold in tosok (oral narratives) to succeeding generations. It is also expressed in sinui or jajan sung for entertainment.37 3.42 Penan argue that their rights and attachment to the land are more solid than the mere felling of trees to open up land for cultivation to create customary rights land. In their relationship with the landscape, they continue to visit hilltops and depression between and connecting two hills, sites of former nomadic camps (la’a) to collect fruits that grew out from former occupations. They also frequent clusters of wild sago, rattan stands and wild fruit orchards which they nurture in the vicinity of campsites. Man-made jungle tracks are maintained with nicely resting places (lasan) creating a sense of ‘kinship’ with the environment. GAPS BETWEEN TRADITIONAL LAND TENURE SYSTEM AND THE SARAWAK LAND CODE 3.43 The Sarawak Land Code has created several challenges for native communities seeking to secure their native customary rights over lands. In general, these challenges relate to (a) the statute’s failure to recognise traditional forms of occupation according to native customary laws, and (b) the State’s broad authority to extinguish NCR. Failure to Recognise Traditional Forms of Occupation 3.44 This entails a discussion on the definition of NCR with primary reference to section 5 of the Sarawak Land Code (SLC). Section 5, and in particular sub-section (2), defines occupation for purpose of creating NCR as of 1 January 1958 in a limited manner failing to take into account the traditional practices and cultural essence by which natives have occupied lands, which include the maintenance of uncultivated jungle within their territories that they use for hunting, gathering, and other practices that record their customs, traditions and history. Some of these native customs have been recognised by the courts.38 Section 5(2) sets out a narrow category of occupation, primarily by settlement or cultivation. Although a residual category authorising the creation of NCR “by any lawful method” captured other methods of occupation based on native customs, that provision was deleted in 2000, although not enforced as yet. 3.45 The narrow definition of occupation requires evidence primarily of cultivation and settlement, disregarding the central traditional feature of the customary land laws of some natives (eg. Kelabit, Iban and Penan) where forest areas are kept uncultivated and preserved within their territories for hunting, gathering, recording their history and commemorating significant events or/and people. The definition in section 5 primarily disregards traditional feature such as pemakai menoa39 and pulau galau40, the important native criteria in establishing NCR. 37 Sinui is a popular tune sung by the Western Penan of Belaga District and Silat River, Baram District. Singing without instrumentation, the main singer sings an impromptu narrative in poetic rhyme that is accompanied by a form of choral ‘harmony’. Sinui often expresses feelings of love, happiness, merriment, sadness, loneliness or grief in praise or remembrance of a person, an event or a landscape. The beauty of the sentiment expressed in rhyme and narrative is often equally matched by the vocal style. The incredible skill of the lead singer’s improvised story-telling have no match in the modern or western musical world. The Eastern Penan jajan is sung by one person, and lacks the poetic rhyme and harmony of the Western Penan sinui. Like sinui, jajan is a vehicle for an individual to express his or her feelings on any topic, including the landscape. 38 In Superintendent of Lands & Surveys, Bintulu v Nor Nyawai [2006] 1 MLJ 256, 263.The Court of Appeal acknowledged the Iban tradition of pulau or pulau galau which is the forest area where there may be rivers for fishing and the jungles for gathering of forest produce. 39 Refers to a particular area as communal or territorial domain of an indigenous village. 40 Means a preserved protected virgin forest by the indigenous community. chapter 3_a4.indd 28 7/5/13 6:43 PM