An Introduction to Sabah Native Land Law
In the global perspective pertaining to the native land law, there are several instruments that have been formed in order to tackle this important issue. The foundation documents for indigenous land rights in international law include indigenous and Tribal People Convention, 1989 (“ILO 169”) and the Declaration on the Rights of Indigenous Peoples. For instance, the Indigenous and Tribal Peoples Convention, 1989 also known as ILO-convention 169, or C169. On the other hand, Sabah Land Ordinance is unique for being aspired by Native Customary Rights land law unlike other states in Malaysia.
Sabah land law is not derived from the Torrens system as those of other states. Sabah operative land law is the Sabah Land Ordinance; unlike Peninsular Malaysia National Land Code and the Sarawak Land Code. A special feature of the Sabah Land Ordinance is that it does not have provisions on indefeasibly of title, aimed to protect natives’ rights in Sabah. The discussion covers cases and issues related to Native Customary Rights, indefeasibly of title, registration of title, disposal of State lands, dealings and restraints of native land, and adverse possession and encroachment.
Among major issues highlighted are those arising from manipulations of the Ordinance provisions and lacuna pertaining to Native Customary Rights (NCR) vis a vis the non-natives rights to acquire and develop native land. Suggestions are made toward amending several provisions in the Sabah Land Ordinance to avoid a quasi-judicial exercise of power and manipulation of law by irresponsible parties with vested interests in dealing with Sabah land issues. The recommendations call for Sabah government, judicial and enforcement agencies to continue upholding the law and enhance enforcement to enable Sabah development program and native NCR land rights prosper as aimed to be.