Report of the National Inquiry into the Land Rights of Indigenous Peoples 55 The Sarawak Land Code 1958 4.84 The primary legislation on land in Sarawak is the Land Code 1958. The Land Code took effect on 1 January 1958 and was an integral part of the land law system when Sarawak joined Malaysia in 1963. The preamble to the bill stated that its aim was to consolidate the existing land laws into one piece of legislation, to fill the gaps in the existing law by amending those parts that were found to be unworkable or overlapping. One of the objectives of the law was to clarify the law relating to NCR.151 The Code is largely made up of previous legislation with further imports from existing ordinances at home and abroad. This raised doubts about its suitability.152 Indeed it is a contradiction in terms. It is based on a Torrens system of title by registration, where a person claiming ownership or interest must have a document of title in the form of a grant, lease or other documentary evidence of title or interests. It also provides for a system based on customary rights for which no registration is envisaged. The Torrens system envisages the survey and permanent markings of individual boundaries of land held under title and imply Government guarantees of both boundaries and title. This guarantee however does not extend to native customary lands.153 Creation of NCR after 1957 4.85 Section 5 (1) of the Land Code prohibits the creation of native customary rights after 1 January 1958, except in accordance with the requirements of the statute.154 NCR can be created in Interior Area Land (IAL) if a permit is acquired from the Superintendent under section 10. The methods by which native customary rights may be created are: i. felling of virgin jungle and the occupation of the land thereby cleared; ii. the planting of fruit trees; iii. the occupation or cultivation of land, iv. the use of land for burial grounds or shrines, or v. the use of land of any class for rights of way; or vi. any other lawful method (deleted in 2000 but yet to be enforced). 4.86 The residuary provision for the creation of NCR ‘by any lawful method’ was deleted from the law in 2000,155 but is yet to be enforced. The occupation of NCL or RL other than according to requirements of law is unlawful occupation.156 Until the Government issues a title, natives in lawful occupation of State land are deemed licensees.157 The Code however recognises NCR created prior to 1 January 1958.158 151 Hansard, The Land Code Bill Reading, Council Negri Sitting, Wednesday, 22 May 1957. 152 See Richards, AJN, Sarawak Land Law and Adat: A Report (Kuching: Sarawak Government Printers, 1961) Part II para 38, 11. The new legislation covers land registration, settlement of customary rights, alienation and land acquisition. In formulating the Land Code, the Government took into consideration existing ordinances at home and abroad. These included: The Land Ordinance (Cap 27); The Land Settlement Ordinance (Cap 28);The Land (Classification) Ordinance of Sarawak 1955 ;The Land Act of 1948, New Zealand; The Land Code, Federated Malay States (Cap 138); The Land Transfer Act 1952 of New Zealand; The Property Law Act 1952 of New Zealand; The Land Acquisition Ordinance of Brunei; The Transfer of Land Act (Victoria) Australia 153 See Ramy Bulan, supra, n 82. 154 Land Code 1958, s 5(1). 155 A78/2000. 156 Land Code 1958, section 10(2). 157 Land Code 1958, section 5(2)(i). Superintendent of Lands and Surveys v Nor anak Nyawai & Ors [2006] 1 MLJ 256, 269-270, held that native title confers a property interest in and over land. Contrary to the definition of proprietor in section 2, which excludes those persons holding land under a licence from the Government, natives holding their lands pursuant to a licence do have a property interest in those lands. 158 Land Code 1958, section 5(2)(ii). chapter 4_a4.indd 55 7/5/13 6:46 PM