No one wants to lose the land their family has been living in for generations. But this is the sad plight of many of Malaysia’s indigenous communities, whose customary land is being taken away and exploited for their natural resources and developments.
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Customary land is a little-known yet big issue in Malaysia for the indigenous people. It is different from land backed by a title or a deed. They have their characteristics, and there are many downsides to customary land due to the lack of its title and deed.
While customary land is getting rarer in Malaysia, there are still some that exist. Listed at the end of this article are some examples of customary land in Malaysia and the problems faced by native communities regarding their customary land.
What is the meaning of customary land
Customary land is a type of land that is owned and jointly managed by a particular community – typically a group of native inhabitants including indigenous people – based on generally accepted practices and norms (i.e. customs) of a specific ethnic group.
Generally, customary land is a piece(s) of land that has been passed from the forefathers of natives since they settled in that area, so long ago that people no longer have knowledge or memory of it. Moreover, customary land serves as the bedrock that supports the life of native communities, and it is administered following their customs. Notably, customary means the usual practices of a particular native community.
In Malaysia and Indonesia, the customary law of the indigenous people is called the ‘adat,’ the unwritten, traditional law overseeing all aspects of a person from birth to death. However, adat differs per locality as well as between ethnic groups.
Who owns a customary land
Typically, customary land is held by a community of indigenous people. They also belong to the Bumiputera group in Malaysia. According to the World Bank, indigenous people are culturally and socially distinct groups who share collective ancestral ties to the land they live in and the natural resources contained therein from which they derive their livelihood.
In Peninsular Malaysia, the indigenous people are collectively called Orang Asli, who are deemed as the oldest inhabitants of Peninsular Malaysia. Overall, there are about 18 Orang Asli subgroups. Over in Sarawak, the natives are collectively known as Dayak or Orang Ulu. They consist of the Iban, the state’s biggest ethnic group. Another indigenous group there are the Ukit, the Punan, the Penan, the Kayan, the Kelabit, the Bisayah, the Kenyah, the Berawan, the Bidayuh, the Kedayan, the Melanau, the Kejaman, the Sekapan, and the Lunbawang.
In Sabah, there are 39 various ethnic groups and they are collectively called Anak Negeri. The primary indigenous groups there are the Bajau, Paitan, Murut, and the Dusun. Interestingly, they account for more than half of the Sabah population.
As for Malays, they are also considered indigenous to Malaysia. However, they are not considered as indigenous people as they comprise the majority, in addition, to being the socially, politically, and economically dominant race in the country.
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Customary land tenure in Malaysia
For countries practising the common law system like Malaysia, land tenure refers to the legal framework by which land is owned by a person or a group, who are said to be ‘holding the land’. This determines who can utilise the land, for how long, and under what conditions is the land ownership valid.
In particular, land tenure rules state how real estate rights to land are distributed, utilised, transferred, or managed in a specific society. Notably, land tenure may be based on either legislated rules or informal customs.
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What is customary land tenure
Simply put, these are land ownership rules based on the generally accepted practices and customs of a particular group of people. An interesting example is the Minangkabau, a matriarchal community that favours females by limiting inheritance and ownership of native land in the hands of female members.
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What is statutory land tenure
On the other hand, in statutory land tenure, the ways in which land rights are acquired or transferred is following the rules passed by a government’s legislative body. Usually, this uses the land title and deed system, wherein such formal documents function as proof of owning a piece of land. This was introduced by colonizers like the British during the colonial period. Notably, each state in Malaysia has a purview on its land rules.
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What is the difference between customary and statutory land
Essentially, the main difference is that ownership rules in customary land tenure are typically unwritten and are per the customary practice of a particular indigenous group. Conversely, that under statutory land tenure is written and is explicitly stated in the law.
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Characteristics of customary land tenure
Based on the aforementioned, the main elements of customary land tenure are the following:
- Based on unwritten customs and practices
- The rules are administered by leaders of indigenous people, like tribal elders
- The rules are either enforced by the tribal leaders or the community at large
Disadvantages of the customary land tenure system
There are many problems involved in the land tenure system when it involves native land, some of which include:
- Difficulty in enforcing customary land rights
- Difficulty in tracking ownership of customary land
- State laws often supersede customary land rights
As the customary land tenure system is just ancient unwritten rules on land ownership for native communities, it has several downsides. For instance, it is difficult for indigenous people to enforce their rights over their customary land compared to legislated laws which can be easily enforced by the courts and the police.
It is also sometimes hard to track ownership as documentation of land owned under customary tenure is complicated as the land is often held communally. Aside from that, while customary land tenure is generally protected by Malaysian law, prior cases have shown that the state law is often superior to it, or there are loopholes in state law that enable amoral people to carve out the land of native communities.
Examples of customary land in Malaysia
There are many existing customary land rules in the country as there are people who still practice customary law in Malaysia. While they differ per area and indigenous group, there are some commonalities in them, such as the prohibition of transferring ownership of the land to an outsider, or a person who is not a member of the indigenous group.
Another similarity is that land held by a family is passed down within the same family. But the most notable commonality is that such land has been used and occupied by the ancestors of indigenous people since time immemorial.
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Malay customary land
Malay customary land and Malay Reserve Land (Tanah Rizab Melayu) cannot be transferred to a non-Malay unless the state government permits it, as the Malaysia Federal Court has ruled. Therefore, the court cannot recognise a non-Malay’s ownership over such land, even if the sale of the land to a non-Malay has been completed.
According to Article 160 of Malaysia’s Constitution a Malay is a person who professes the religion of Islam, habitually speaks the Malay language, and conforms to the Malay custom. Moreover, they should be a person who was born before Merdeka Day in Malaysia or Singapore, or during that day is a resident of either country or is born from such parents. Notably, Malay citizens who change to a different religion outside of Islam are no longer considered Malay under the law.
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Sarawak native customary land
Ethnic groups in Malaysia have recognised and enforced customary land rights for hundreds of years. In Sarawak’s Iban people, a customary territory’s entire domain is called the ‘Tanah Pemakai Menoa’, which consists of two broad land-use types. The first one is the cultivated farms owned by families and these are known as ‘Temuda’.
The second is the common areas collectively owned by the entire community. These include communal forest (Pulau Galau), where tribe members travel, fish, hunt, harvest wood, and gather plants as well as obtain water from rivers. Also included are sacred sites, burial grounds, and community residential areas.
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The Orang Asli customary land
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Orang Asli refers to the ‘original inhabitants of the land. Officially, the phrase is used to refer to all the native tribes in Peninsular Malaysia. They comprise three primary communities, namely the Senoi, Negrito, and Proto Malay. In turn, these three are further classified into 18 sub-groups.
Traditionally, Orang Asli identifies themselves based on the territories they have lived in and occupied for generations. Consequently, these indigenous people deem their customary land as extremely crucial as it holds their sense of identity and history, in addition to ensuring their survival via a subsistence economy. Notably, Orang Asli’s land rights in Malaysia are also a contentious issue as their customary land is also being plundered for resources.
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The indigenous people of Sabah customary land
In Sabah, customary land is inherited as a real estate that is passed down by a family’s ancestor within the family. The ownership of customary land and the rules pertaining to it are overseen by the adat of a particular ethnic group.
Issues and problems surrounding customary land in Malaysia
Customary land in Malaysia, particularly in Sarawak, has become controversial to the point that it has rallied human rights activists and green warriors across the globe. This is because many of the indigenous people in the country are among the poorest people in the country, and there have been many cases where their prized possession, their customary land, was plundered by logging and mining firms. Worse, the state governments failed to protect or even recognise their rights to their land.
For example, Sarawak’s native people have faced logging issues arising from the land surveys carried out following the legislation of Sarawak’s Land Code of 1958, under which the state government had demarcated some native customary land as “native communal reserves” under Section 6 of the law. Under this section, the law only recognized the boundaries of farms cultivated by the indigenous, leading to the loss of land to some native communities like the nomadic Penans.
Another loophole in the law is that the State Government of Sarawak is not compelled to recognise the sovereignty of indigenous communities over their customary land unless they possess a state permit. The Land Code also states that no new customary land rights can be made without the consent of the state government after 1958.
As a result, the native people of Sarawak have witnessed their customary land taken away from them for public use, for logging, mining, or plantations. This injustice has led to rampant deforestation and destruction of the environment from which these local communities eke out a living.
This is also the same problem faced by Orang Asli in Malaysia. While they are now more open-minded and their awareness of education is growing, there are still many of them who maintain their original way of life and traditions. There have been many issues of ancestral land that took place between the government and the Orang Asli community. The jurisdiction of customary land usually falls within the State Governments, Menteri Besar (MB), or Chief Minister. Thus, their rights should be respected and must not be encroached on by any groups or agencies.
One of the most famous cases on Orang Asli customary land is between Sagong Tasi vs the Federal and Selangor State Governments, where customary lands of Kampung Bukit Tampoi, Dengkil Orang Asli Temuan community were forcibly taken away to make way for a highway to Kuala Lumpur International Airport (KLIA) without paying full compensation. Sagong Tasi won the case which led to his name to the first legal precedent that recognised the rights of the Orang Asli to their full customary land ownerships in Peninsular Malaysia.
Invasion of customary land continues to be an issue in Malaysia for all of its indigenous people in Sabah, Sarawak, and the Orang Asli. While there are laws in place to protect them, the lack of enforcement and corruption has caused not only these groups of people to suffer but also the environment due to rampant deforestation.
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Edited by Rebecca Hani Romeli