Sarawak Land Code, (Chapter 81)

LAWS OF SARAWAK LAND CODE CHAPTER 81 (1958 EDrTrOlO lncorporating all amendments and modifi cations' up to L 1.1999 Conpiled in the STA'IE ATTORNEY.GENERAL'S CIIAMBERS, KUCHINC DICETAK OLEH PERCETAI(AN N,4SIONAL MALAYSIA BERHAD, KUCHNC, SARAWA( 1999 : 1 - . ] . Part II Native customary rights 5.---(1)'' As ftom the lst day ofJanuary, 1958, native customary rights may be created in accordance with the native customary law of the cornmurity or conmunities concemed by any of the methods specilied in subsection (2), ifa permit is obtained urde! section 10, upon Intgrio! Ar€a Land. Save as aforesaid, but without Fejudice to the provisions hereinafter contained irt respect of Native Communal Reserves and rights ofway, no recognition shall be given to any mtive customary rights over any land in Sarawak created after the lst day of January, 1958, and if the land is State land any person in occupation thereofshall be deemed to be in unlawful occupation of State land and section 209 shall apply thereto. At The methods by which native customary rights may be acquired are (a) the felling of virgin jungle and the occupation of the land ahereby cleared; (b) the planting of land with fruit trees; (c) the occupation or cultivation ofland; (d) the use of land for a burial ground or shrine; (e) the use ofland ofany class foirights ofway; or (, any other la\{ul method: Provided that (i) until a docunent of title has been issued in respect thereof, such land shall coriti[ue to be State land and any native lawfully in occupation thereof shall be deemed to hoid by liceoce from the Government and shall not b€ .equired to pay any rent in respcct thereof unless and until a document ofiitle is issued to him; aid (ii) the question whethq any such dght has beed acquired or has been lost or extidguished shall, sd[e''in so far as this Code makes contrary provision, be determiried by the law in force immediately prior to the lst day of January, 1958. 2"1 Part U (3) (a) any narive customary rights may be extinguished by dircctioo issued by the Minisier which shall be (i) published in the Gdzette arld one rpwspaper circulating in Sara'.la! and (ii) €xhibited at the trotice board of the District Oftice for the alea whele the land, over which such rishls aJe to be extinguished is situate, and on the date specified in the direction, the native customary rightJ shail be €xtinguished a.rd the land held under such rights shall revert to the Goverunent: Provided that where such rights are extinguished in pursuance of this lection compedsation shall be paid to ary person who can establish his claims to suoh rights in accordance with paragraphs (r) and (c); or other land over which such rights may be exercised may be made available to him with or without the paymert of additional compensatioE whethgr for disturbance, or for the costj of rqmoval, or otherwise. (b) Any pe6on who desires to rnake any claim for compensation mtst submit his claim with evidence in suppofi thereof to the Superintendent, in a folm to be pr€scribed by him, within such period as may be stipulated in the direction issued by the Minister under paragraph (a), provided that the period so stipulated shall not be less than sixty days from the date of publication or exhibition thereof. (c) No claim for compensation for extinguishment of native customary rights shall be entedained by the Superintendent ulrless such claim is submitted within the period stipulated in paragraph (D). [Sub. Cap. A42]. (4) (d) Any person lvho is dissatisfied with any decision made by the Superintendent under subsection (3) on the ground that . (i) bis claim to native customary rights has been rejecred or not lecognised by the Supedntendent; 28 29 Part II (ii) the allocation of land over which such rights are to be exercised, is inadequate or inequitable; or (iii) the amount or apportionment of compensation is inadequate, uofair or uueasonable, may within twenty-olle days from the date of receipt of the decision of the Superintendent, by notice in rwiting addressed to the Superintendent, require the matter to be referrgd to arbitratiof| in a.cordance rtith section 2 1 2. (b) Upon receipt of the notice of arbitration, the Superintendent shall dircct that any compensation payablo to the person who desires to have his claim or matter refered to arbitration, to be deposited in the High Court, pending the outcome of such arbitation prcceedir€s. [Sub. Cap. 442]. $l Subsection (3) shall apply whether the land over whioh the customary rights are exercised is required for a public purpose or the extinction of such dghts is exp€dient for the purpose of facilitating alienatioo, but shall have no application to cases io which the Forests Ordinance [Cap 126 (1958 Ed.)], tLe National Pa*s anq Nature Reserves Ordinancc, 1998 lCap 271 ot any other wrinen law, includiag Part V, makes other plovision for the extinguishmont thereof. [Iis. Ord. No.2 /74]. 1S The Majlis ves,'uarat Kerajaan Negeri may make mles for the Fssessrnent of compensation payabie for extinguishment of native customary dghts under this section ard section 15. [Am Cap. 459]. @ lvh"n"u", -y dispute shall adsc as to whether any native cusiornary rights exists or subsists over any State land, it shall be presumed until fie corhary is proved, that such State land is free of iurd not encumbered by any such rights. [Ins- Cap.442; An. Cap. A59J. ; i : : + ?ertrl 3a NatiYe Commural RereweE 6.{1) The MiDister msy by order signified in be G@ette declare any area of State ltnd to bc I NEtiv€ CoE.munlt Rcsewc fot the use of any comm Jtrnity having a ,atjye systgm of porsona.l law and may, bJ such ordei or by sublequcnt order, <tecl8lc that thc customsry law of such coElmunity in relatioq to tlre arquisitio4 kansf€r a;l t "ans-mission ol rights and pdvileges i! or over land, and itr any building or other structurc ereoted thcreiD, shalt apply with sgci modifications as may be specified or provided for in any zuch oder. ^ .(2) Save in so far .s fte concary may be specifed or provided tor in any sucb order or by this section, rights in stry land declar€.d to be a Native Coemunal Reserve under subsectiotr 0) shall be regulated by the customary law ofthe community for whosc use it was declarcd to be reserved. .: :i (3) Notwithstanding subsectior (2), but without ptEjudic, to subsections (4) to (7) inclusive, any such land shall cotrtinue 10 be State latrd, and the-native cottrmunity fol whose use it r|las rcserved or any member thereofacquiring any rigbts ther€in sba[ hold lhe Eame as a licensee fiom the Govemment, and if, by virtue of the Fovisions of this section (ircludiog the provisions of any ord€fl made under subsectioir (l)), any individual nativ€ customary rights become established, the issu€ of any docrulent of title in respect thercof shall be in the absolute discretion ofthe Director; Provided that the Minister may of his own motion or upon petition review and confirm or amend any exercise ofsuch discretion. [Mod. Swk L.N.6A6a]. 3 l Part II fMod. Swk L.N. 68/64]. (4) If the Ministq is satisfied that any part ol any area .o--ir.a in any declaration rurder subsection (l) is no longer ."quit"a ^ u N"ti"" Communal Reserve and that this subs€ction may be'applied *ifiout causing injustice or oppression, he may -by order .ignin"a in the Gazette d(flarc th:d such part shall cease to form part of'*"tl N"tiu" Corn-unal Reserve, and as ftom such date' if any' as no- *t i"tt .u"n a""taration is e{pr€ss€d io come into efiect' or' if no "-J dut" i" expressed, then as Aom the date of publicatior in the 7^"*r"'of u"V,,t"h orde,, such part shall be at the disposition of the c"""*a*t as free and unencumbered by any right' privilege. or Jqriry-it t"tp"", ,tt*"of as if it has never beel declared to be a Native Cornmunal Reserve (5) The Minister may, if ho considers that the settlement orovisions in Part v slould be applied to the whole or arly part of any ilutJ" io-rn*uf n"sewe, by order signified b the Gazette so direct' and the Director shall in such case proceed accoldingly' (6) This section shall apply also to native land -r9serv91 "on"tXt"d urrd"r """tion 9l of thi fotmer l:arld Otditatce lCap' 27 iiil!'raLf *a latr"e communal Areas constituted under rule l9 of *r" l*a S'entem"nt Rules in like malrner to all intents and purposes ".-ii,ft"" i"a U."" ."n$iruled by order undcr this seclion' save that if ii" ioiii.aion it.u.l under that sectron or that rule' as the case may i". iu, not "p""lft"a for which cornmunity any reserve was constituted ,frJ t"*" "t'itt be deemed to have been reserved for the commumty it i"t iutin t*t -oa" use of the same or if any dispute or question ;;;,;;; th" .""t"t*itv for which the Minister may bv order issued i"i"i J*"i"t tli tubsequently declare it is to be deemed to have beeo reserved. Part Il 32 I i(7) In any case in which this section applies, the question as to yl:1"1 -t *T"1 whethe! or not sucr person is a member of theqalrve coftnunify for whose use the reserve is o. is a".q,"a io ie i,"ljYT9:-"I "Il*ise any dghts or privileges within ,uJ;;;sna|| be determiDed by lhe customarv t"* of *"f, "oln^*ity ,o? Oysuch orders, if any, as may have been made uoOe, ttri. ,"ctioo, aaj,saye to ths extent that aoy such perscoccupationr-y;;;*;;,1*;i;"1"J"rT.::f .:"#:il,t: ffilTjol n,:"*'a*ril occupation of s,ur" t*a'*i ;il;; Govemment Reserves 7,-{l) In any case where an ar****m**'"#x:n;;l"*;""r"m r#'*:"#T;the Director may by notification in the Gazen" a""f"r" ,u"f, ar"ui-il #;:ffi :1 :ff nltJffihe?ubric purpose ro''ili;;'i*; H;#id.Ts##rrflrlilH"ffirjf.;*il j the change of.d purpose previously rcrified o. tl" O""farurion'oiti" ;H:::. 3il|j::.'tr* ;:'o:,T:"*'' t'"u r.' *v'p""ir"J p"u'iii ::.*'i]q:J#.,fiilTx#.1,:1.:::fr ilTfl 5:H:,';.ffinotification in the Gazerle declare tbat tie area rs no longer required as F:ffi ;!ff ffi *"hnuilfli.lritrl"tiri,;,'],",J case of other State land. Part II Illegal for lotr-nativ. to acquire rights or privileges ov€r land of certain classes 8. Save as provided in section 9 (a) a persotr who is not a native of Sarawak may not acquire any rights or privileges whateve( over any Native Area Land, Nalive Customaiy Lalld or Interior Area Landi (b) any agreement, purporting to tnnsfer or confer any such rights ot privileges or which would result in such person enjoying any such right or privilege, shall be deemed to ha./e been entered into for an illegal consideration; and, in particular but without prejudice to paragraph (/), any consideration *,hich shall have been paid or fumished shall not be recovetable in any court nor shall any reliei be afforded to any person claiming thar any consideration promised has not been paid or fumished; (c) any person purporting to eoter into an agreement to which paragraph (D) applies shall be guilty of an offence: Penalty, a fine ofone thousand ringgii and, in the case of .l native offender, an additional fine of a som equivalent to the value of any consideration which the court is satisfied has been received by that native ofender or has been received by another person on his behalf or by his direction; (/) in a,ry oase in which a pe$on is convicted of aa offence under pa$graph (b), dre court may, if there is reason to believe that such peNon did not appreciate he was contravening pangraph (a) and had no reason to believe he, was entering into a prohibited transactioit, impose no fine and rnay also, if; it has imposed an additional fine on a lative offender and this paragraph applies to the norl-native offender, order the payment 10 such non-native offender out of such fine of such sum by rvay of cornpensation to the non-oati\.e offeoder as it may dgem fit in all the ciroumstatrces; (e) subject as aforesaid and to any remedy for the recovery of any fine imposed, the rights and privileges of ary native shall not be adversely aflected by any agreement to which paragiaph (6) applies; Part U (l) upon aay conviction ofan offenct under paragraph (c) the coud shall have power to ordor the eviction of any person, being a nos-native or a pelson claiming under a non-nativc in possession or occupation of any land ia relation to \r&ich thc ofence was committed, ud may for such purpose by warrant addresscd to any police offic€r ordor him to remove any such person as aforcsaid; (g) a complaint ofan ofence undcr paragnph (c) nay b€ made by a Dishict Offic€r o! a Superintendcnt or by aoy person geoerally or specially authorized in rhat behaf by the Public Prosecuto!, but may not be made by any othcr person; and (l) notwithstanding anything in any othcr wdttcn law, a cou of a Magistrate of the First Classr may oxercis€ without any limitation the judsdiction confered on the aout by tltis section. * Nov r& also seotiots 3 and I I I otthe &botdirnte Courts Act 1948 (Act 92r. Acquisition of lard by trotr-trstiv€a 9.{1) Section 8 ehall not be deemcd to prohibit the ac4uisition by any nol-native of any land to which the Fovisiots of that section appll or of atly rights or interest itr o! over such lan+ (a) under or by vfutue of any la\Y for the time being regulating Fosp€ctilg for minemls, iduding mineml oils, or the taking of forcst produc€i (D) whenever such non-native has become identified with and subject to any native system ofpersoDal law; (c) whenever such non-native has been issued with any pemit rclating to Native Area Land or Nalive Customary 1,4n4 issued under any rules made under section 8A oflhe former Lald (Ctassification) Ordinance, 1948 [Od No. 19t194$, or isstte.d under rules in that behalf under section 213, to the extent of the dghts confeEed by such pelmit: 34 i { Part II35 (d) where such non-native has beeo deemed to be a nauve' uu *,J't.luiti, t't".r"r*at Kerajaan Negeri' by notification in the A;;;,;:l; r.rp".i or unv catigory of dealing over Native Area Land as stipulated in the notificationl [Sub CaP. A50]' (e) whenev€r such norFoative has been issued with any lic.nc-J unde. this Code to extract.and remove eadh' gravel' clay' stone, coral, shell, guano, sand or llme' fAdded Qrd. l8/71]' Q\ For the purposes of this section' a person shall be deemed to liil u""o." identihed wirh and -suhiect to anv native system or oersonal law upon any event upon wntcn any written law provides he fi;i;;"-;" ia"i ln"a *a subject or if he is accepted bv anv ffi."""-t*tat * oeing identified witi and subject to the system of peisonal law of such communitY Occupriion of different classe! oflsrd 10.-{l) Without prejirdice to sectio! 5 (2Xe) -to:::111::,:: to tti p.ou#ont oi*y wrinen law' no person may occupylr.exerclse """'ilio ". d"lf"g"' ou"' -y Mixed Zone Land or Native Area ill'd"il il;; ;;ia -t 'ukl"ti"g document of title and' ir tlrc "f"iir"'a"Jt" rt *alienated, any ocrupier thereof shall be deemed ;;i;il;;tuil;oation oi state lani and section 209 shall applv thereto. (2) No person whether a native or non-native may occupy any N"riil'c*,"r,l"w Land or any Reserved Land save under and in ;il;;;iilonditions applicable thereto bv vittue of this or i" o,fro *rin* fu* and any person in occupation thereof shall be lji-"j-l u" i" u;mtl occupation of statc land and section 209 shall aPPIY thereto t l Part II 36 Wirhorlr prejudice ro ary law for the rime being reguJating tj|e prospecting for minerajs and mineral oils or *le tating oi forestproduce, any narive who, withoul a prior permit in writi-ng Fom a l]i3". ll1:"9:"1 ""*pies any Interior Arca uana o, r.rrs o, uriernjltJre vugth Jungle upon any such land or at&mpts to create customarvrrgnB upon any such land shall be gujlty ofan ofTence: penalty, ia thecase of a first offence, a fine of orie thousald ringgit and, i, il";;;of a second or subsequent offence, imprison-ent-fi. two'r"*r;; fine of five thousand dnggit. (4) . rhe occupation "rr*"n,, *":X:{, ::tX#:" community without a pemit in writing ftom a Superintendenr shalinot, not\'r'ithstandi[g any law or custom to the "onOu.y, "onf". *yright or privilege on such nalive or native commuruty and, in anv suchcase. such narive or nadve community sf,ufr u" i"".J to-'U" i"unlawtul occuparion ofState land and sectio" ZOS ,ldl ;;ly ;"r"t". 6) rhe consent of a Superintendenr ,", ̂ "t#J{" JoT,permit shall not be given if he considers either rrr"*i "l""ra j.Ji prejudice Lhe indjvidual or communal righrs of ",b.^ o, th;;;;;;; mereDy preJudrce the interests of Sarawak or its inhabirants in the aleawnere fte tarrd applied for is situate. [Am Cap. Aa2J. ^ (9) Any person aggrieved by any decision of therupeflnrendent may within twenty one days appeal against sucb l::,i:ion to the.?ir:ctor, who may make suctr oraer in resfgct ttrereo?as he may consider iust. [Am. Cap. A42J. , (7). Any person aggrieved by any order of the Direclor under :J:o,s:c]ron 16) m1y appeal, by way of peririon to lhe Minister, withinlnury.qays.ther€:tner or within such longer period as the Minister may,ln any partrcular case. Dermil [Mod. Swk. L.N. 68/64; Am. Cap. A42t. i I ! Part II Director may clsssify latrd rnd resolve doubts as to classification ofsny particuhr sr€a of hnd 1f.-{1) The Director may divide Sarawak into Land Districts and may, for tho pupose of giving effect to this o. any other wri6en law, by notification in tJ:re Gazette declare any area of land to be a special development arca or to be town, sububan or land comprised in a bazaar or to be land of such class or descriplion as may be provided for under such wdtten law or as may be prescribcd by rules under this Code. [An. Cap. A17J. (2) The Director may, if he is satisfied that alty parcel of land is Mixed Zone Land or Native Area Land within the meanins of section 2 as read with this PaA and thar it is expcdienr that this section shall apply thercto, by notification il the Gazette declare that such parcel is Mixed Zone Land or Native Area Land, as the case may be. (3) Suoh declaration shall, unless revoked or varied by the Court rmder subsection (4) o. unless the classification ofthe said land is subsequently altered by virtue of anlthing in this parf, be sufficied autholity for the Registrar, any prcprietor thereofand any other person to register and deal with such land as Mixed Zo[e Larrd or Native Area Land, as the case may be. (4) Any person aggrieved by any declalatiotr tmder subsection (2) may by notice in writing require the Director to state a case fbr the opinioD of the High Cout, and the Director shall comply with such requ irement. (5) The High Court shall have power upon any case being stated under subsection (4) to detemine the matter aad for such purpose to amend the case stated in any mannef it thiJ*s fit. (6) The Coqt's determination under subsection (5) shall for the purpose ofany appeal be deemed to be made in a civil proceeding. (1) The expression "any person aggrieved,' shall include any person having a right or interest in the land concemed and also the State Attomey-General actitig on behalf of the public or of any class of the Dublic. [Mod. Swk L.N. 68/64]. 37 Part III Jtr PART III STATE I"AND AND THE AI.IENATION TI{EREOT Property in and cotrtrol ofstate lards alld wrterrrayc . 12. The ertire prolerty in and cortol of State la.d ad ofallnvers, steatrs, carals, creeks and watef coursss and the bed thergofi;and shall be vested solely in the covemmen. Di.scretioE to dienate , .13.{t) Subject !o &e direction of the Minister under section 1(1A), the Director may alienate Sbre land, other than NativeCuslomary Lard [Sub. Ord. No. 8/84J. (a) in perpetuity or for such terms as may be fixed bv rulesmade under this Code for tlte respedive clasr* of funa ,"d,r"Ji. in such ruleq (6) in consideration ofthe parment ofan armual rent; (c) in consideration, unless the Majlis Mesyuarat KemjaaD I:C:d rbinks fir ro exempt thereftom in any p.,il; ;;;he.palment ot a premiun, and where the alienation bas beeu made in consideration of the payment of a pr"aiutn, Aa " ountol ue premium shali be skted. Tbe palment of thc prEmiurD, ifany, may be madc either by a single payment or by instalments :,":.1-!:T1 not exceeding teo years as may be determhed byIne bupenrtendent: [Am. Ord. No. 9n6; Cqp. A2gJ. (4 subject, unless the Dbector otherwise dirccts, to acategory of land use being endoned on the document oftitle: anJ (e) subjed to any such other conditions and reshictions asmay be irnposed by the Director. Part III (2) Subsection (1) shali apply with such modifications as may be nec€ssary to the issue of licences or permits io respect of State lard. (3) The powers hereby vested in the Director may be exercised by a Superintendent sBbject to the Director's inskuctions and the Minister's directions. [Am. Ord. No. 18/7];Ord" No. 8/841. (4) The powers hereinbefore confened sha.ll i[clude power to consent to modification of any conditions imposed by or on behalf of the Government, wh€ther befofe o! after the lst day ofJanuary, 1958. [Am. Ord. I8/71]. (5) Notwithstanding the powers coderrod by this section, State land shall not be alienated to arly person except [Sub. Ord. 18/71]. (a) a natural perso!!; (r) a coryoration having poiirer uoder its constitution to hold land; (c) a sovereign or government; (a) an orgaoisation or other persori authorized to hold land under the provisions of any law for thc time being in force relating 10 diplomatic atd consular privileges; (e) a body expressly empowered to hold land under any other wdttel laq and (/) any person or body, not refered to in paragraphs (a) to (e), approved by the Majlis Mesyuant Kerajaan Negeri as a person or body who may be registered as the proprietor of land. [An. Od. No. 9/76; Cap. A28]. 39 LAND CODE (AMENDMEN"Ti )OOO Amendm€nt of 6ection 5 3. Section 5 of the Code i$ amended (a) in subsection (2): "oo" jll,l',,iJ1",1t,11ffi 1il;.ilT"1[*;3i"T*'* ,r. (ii) bV adding the word,,or,'to the end of paragraph . (iii) by substituting the semi-colon and the word.,o/,at the end of paragrapl (e) with a ""f"r; *A'"^- "^ (iv) by detering para$aph A; (r) by delering subsectioDs (3), (4), (5) and (6); . (c) by renumbering subsectior (7) as subsection (3); and ,n" ,!?"JrtdXtii*,:f;3i||l"lv arter the new subseation (3) . "(4) Ary Dative customary rights lawfully created,xX':'"".t'iT[f; !,J#n*"*l"m:'*,".tt""!$i ffil"T;#d*"$:rffiru;*;:ne*'rn*I[i,: Amendmetrt of sectio|r 6 4, Section 6 of the Code is amer(4) wirh the following new ,uor""o'jjo,li, tuo"'tuting subsection :^=;{X}fi 'l;I;uHii"T'i'ii:ltf;igff i?i',fl ff f;j i[ry{":!i!'lir"T'.;ffi 'f ,tl':iJl,'trf it1fl "'si"tlTl]ar1d compeosation to.be paid to lf, T,p#?iii;il;J","Xil:""#'o"f ',i::"iiyl"il'J#: AB€ndment of s€ction 7 5. Section 7 of the Code is ametrded ""b"#lr.,lJ addiag after subsecrion (2) thc following new