54 Chapter 4 | LEGAL FRAMEWORK OF INDIGENOUS PEOPLES’ RIGHTS TO LAND Sarawak to the British Monarch. The Cession of Sarawak Order 1946 transferred all rights of the Brookes and the State Government of Sarawak in all lands to the Crown “but subject to existing private rights and native customary rights”.142 4.81 With the cession, English common law and doctrines of equity were received afresh through the Application of Laws Ordinance 1949143 but they were to be applied only to the extent permitted by local circumstances and customs and subject further, to such qualifications as local circumstances and native customs render necessary.144 This signified the continued recognition of native customary laws, as the Brookes had done through the Rajah’s Order No L-4 in 1928. Notably, these provisions are reproduced in the Civil Law Act 1956.145 As such, all the legislation on land should be interpreted in the light of this foundational principle. 4.82 The first notable legislation passed by the colonial Government was the Land (Classification) Ordinance 1948 (the 1948 Ordinance).146 The stated aim was to “regulate land use in a multiracial society and to define and protect the land rights of the indigenous people.”147 The Sarawak Annual Report 1951 reported that it was intended to “control non-native colonisation, and also to protect native interests in land.”148 The Land (Classification) Ordinance 1948 gave “statutory recognition to a system of land classification which had in fact been created by rules of doubtful validity promulgated under the Land and Land Settlement Ordinances.”149 4.83 That system of land classification has continued to this day under the present Land Code 1958. It classifies all land in Sarawak into one of five categories: (i) Native Customary Land (“NCL”) which is land in which customary rights whether communal or otherwise, have been declared by Order of the Governor in Council for use by any native community, regulated by the customary law of the community. (ii) Mixed Zone Land (“MZL”) which may be held by any citizen without restriction. (iii) Native Area Land (“NAL”) which is land with a registered document of title but to be held by natives only.150 (iv) Reserved Land (“RL”) which is land (1) the Government reserves under s 38 of the Land Code 1958 or prior law, (2) located within a National Park, Forest Reserve, Protected Forest, or Communal Forest, (3) occupied by the Federal or State Authorities. (v) Interior Area Land (“IAL”) which is land that does not fall under Mixed Zone or Native Area Land or Reserved Land for which title cannot be registered. 142 Order No C-24, Sarawak Government Gazette, XXXV (7) Notification No 111, dated 25 May 1946, Laws of Sarawak, id at p 34. See Notification No 113, Laws of Sarawak, id at p 35. 143 Ordinance No 27 of 1949. The ordinance came into force in 1949. English law was originally received under the Sarawak Application Ordinance 1928. 144 Cap 2 of Laws of Sarawak, Note that this is a restatement of the Rajah’s Order No L-4 of 1928 which had adopted the law of England as the law of Sarawak subject to modifications by the Rajah and, as was applicable, having regard to native customs and local conditions. The official acknowledgement of customary law as a restriction on statutory law was thus perpetuated. 145 Act 67 (Revised 1972). 146 No 19 of 1948, Sarawak Government Gazette, Vol III, No 44, Notification No 1356, 16 December 1948. 147 Porter, supra, n 80 at p 60. 148 See Annual Report on Sarawak For The Year 1951, Kuching, Government Printers at p 143. 149 Hickling, R H, Hansard, Land (Classification) Amendment Bill, Council Negeri Sitting on 21 May 1952. 150 Land declared as such under the Ord. No 19/1948 remains. Native Area Land may also be declared as such under s 4(2) or (3) or (4)(b) or s 38(5) of the Land Code 1958. chapter 4_a4.indd 54 7/5/13 6:46 PM