46 Chapter 4 | LEGAL FRAMEWORK OF INDIGENOUS PEOPLES’ RIGHTS TO LAND Customary Tenure 4.50 One of the most common ways to establish native customary rights is through customary tenure. Section 65 defines what customary tenure is and section 66 States what customary tenure confers. “Customary tenure” means “the lawful possession of land by natives either by continuous occupation or cultivation for three or more consecutive years under the Ordinance or under the Poll Tax Ordinance95 or Part IV of the Land Ordinance 1913.” This definition accords with the English law where an occupier (that is, a person who is physically present on or in actual control of land) is accorded possession in the absence of circumstances which show that possession is in another. In other words, occupation is prima facie proof of possession.96 When a person enters into occupation of land, the occupant is accorded not only possession but a “title by occupancy” as well. This in part, is what is recognized as customary tenure. Customary tenure confers upon a native a permanent heritable and transferable right of use and occupancy in his land even if he does not hold a documentary title.97 So long as a native person is able to establish one of the stated rights under section 65, by submitting his claim through the headman or directly to the collector, in the absence of any other claim, he acquires a permanent interest in land. Native Title 4.51 Apart from continuous occupation, a native may also apply for alienation of State land directly to the Collector, under section 70(1) of the Ordinance. Land applied for under this part may not exceed 20 hectares and may only be used for agricultural purposes,98 which includes the cultivation of any crop (including trees cultivated for the purpose of their produce), herbs, market gardening, the breeding and keeping of honey bees, livestock and reptiles, and aquaculture or any combination thereof”. Upon the approval of such application, bona fide cultivation must commence within 6 months and the cultivation of the whole area be completed within three years. These terms, together with the perpetual nature of the title and the exemption from stamp duty on transfers, charges and subleases are generous terms accorded to native title.99 Like any other native interests, native title lands, cannot be transferred to non-natives. Where natives required land for commercial purposes, they may apply for lands to be alienated under leases to which the normal terms would apply. Communal Title 4.52 A communal title was given for land held for common use, particularly in areas where villages existed without demarcated individual boundaries, common grazing land for cattle and other domesticated animals, for burial grounds or shrines. In effect, the communal title was a formal recognition of a tradition of collective rights that has been practised by the natives on their territories since time immemorial. It serves to keep lands in native hands and facilitates the management of their collective resources, agricultural areas, water catchment and communal forests. Section 76, which provides for communal title, was amended in 2009 by the Land (Amendment) Enactment 2009. The amendment to section 76 in 2009 has given rise to apprehensions on the part of some members of the native communities, particularly with regard to its implementation. 95 The Poll Tax Ordinance was repealed by Ordinance No.14 of 1962. 96 Kent McNeil, Common Law Aboriginal Title, Clarendon Press, 1989, 73. 97 SLO section 66. 98 99 A new definition of agricultural purposes is introduced in section 4 through Land Amendment (No.2)(Enactment) 2002. Tan Sri Thomas Jayasooria, “Development of Land Law in Sabah” in Ahmad Ibrahim & Judith Sihombing (eds), The Centenary of the Torrens System in Malaysia, Malayan Law Journal, 1989, 213 at 228. chapter 4_a4.indd 46 7/5/13 6:46 PM