State AG entitled to his opinion but courts decide: Kong
Published on: Saturday, February 11, 2012
Tawau: The State Government should table a motion to amend the Sabah Land Ordinance to give certainty to the law and Native Customary Right (NCR) claims by the natives of Sabah in the next State Assembly sitting, said Parti Keadilan Rakyat (PKR) Sabah Bureau Chief for Land Development and Natural Resources, Datuk Kong Hong Ming.He said the amendment was needed if the statement by State Attorney-General Datuk Roderic Fernandez that no fresh Native Customary Rights (NCR) available to the natives of Sabah after 1930 represented the present policy and stand of the Sabah Barisan Nasional (BN) State Government. "By his statement on such a major issue of fundamental and constitutional importance, the State Attorney General appeared to have decided unilaterally without any reference to any clear and express provision in the Sabah Land Ordinance that the present BN State Government has already abolished fresh NCR after 1930," he said.
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"Further, I also invite BN component parties and their leaders to state their stand clearly as whether they were aware of and in support of the stand taken by the State Attorney General. "This is relevant because only recently, the impression given was that BN leaders appeared to be in full support of the preservation, protection and realisation of NCR claims for the natives, which to me, was light at the end of the tunnel to the natives whose land rights had been eroded due to the neglect of the State Government. "I must say that the so-called conflict mentioned by the State Attorney General was caused mainly by inefficiency and indifferent culture of the relevant department and the lack of political will of the State Government coupled with a poor delivery system. "As a result of extremely long delay in processing land applications, the ordinary folk who have limited resources and political connection, especially those in the rural areas, suffered the loss of their land rights," he said in a statement, Friday.
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Kong said based on the court decisions and precedents, the Malaysian courts had made it very clear that extinguishment of NCR must be by way of clear and unambiguous words in the legislation and not by implication. Further, both the High Court and Court of Appeal had decided that NCR claims for natives in Sabah subsist until today.
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"Therefore, the people of Sabah, especially the natives, would want the State Attorney General and the State Government to enlighten them which is the law or express provision that makes it clear and unambiguous that no fresh NCR claims for natives after 1930. "Of course, the State Attorney General is entitled to his own opinions. But, it is of paramount importance and public interest that the BN State Government declare whether the views of the State Attorney General is the official policy of the State Government that have been put to practice by the relevant authorities such as Department of Land and Survey. "Since the State A-G made reference to other countries, I would like to make it known that in other countries such as Australia and New Zealand, the public authorities took it upon themselves to defend and protect the rights of the indigenous people, especially on NCR, using substantial public funds and yearly allocations. "They have created native reservations and have bargained beneficial treaties for the native communities to preserve and protect their rights and interests in land to enhance their general wellbeing. "Unlike in Sabah, our poor natives, despite having little and no resources, have to fight the State Government and authorities other than the powerful corporations in order to defend their ancestral land held by them and their ancestors since time immemorial which are being systematically taken away from them unconstitutionally. NCR is the last hope to get the natives out of poverty, he said, adding that loss of NCR claims is not only affecting property rights, but also a tragic loss to custom, tradition, culture and survival as a people of this land. "I believe the State Attorney General has a duty to give certainty to the law on NCR and the land rights of the natives of Sabah since the Malaysian Federal Constitution has imposed a fiduciary duty on the State and Federal Government to safeguard the wellbeing of the natives of Sabah. "Put it in simple terms, NCR means land and people are one and together. From the beginning, land is a resource from mother earth. Land is a God-given right and gift to the original people of the land, who are in need of the basic to live. "Without land, there is no life or livelihood, let alone the future generations. Traditionally, natives live on their land. They build and plant on their land. They hunt in the forests and fish in the rivers. "They take timber produce and traditional medicine from their land. At the end of the day, they bury their dead back to the land where they belong. They share their land resources by way of custom and traditional practices. "Now, the native people call it 'tanah adat' or native customary rights to land."The Malaysian Federal Court has recently expressed agreement with the principle of common law that 'Crown did not thereby acquire absolute beneficial ownership of the land. The Crown's right or interest is subject to any native rights over such land. They adopted the view of the Privy Council in Amodu Tijani v Secretary, Southern Nigeria [1921] 1 AC 399.""The true meaning of the word 'pre-existing' because native customary rights of the natives to land or simply NCR are not rights dependant on any enactment or any written law or any executive actions by the State," he said.Stay up-to-date by following Daily Express’s Telegram channel.
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