Divers Paths to Justice - English - Forest Peoples Programme

Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast AsiaUncodified and codified customs are therefore equally valid sources of law,as uncodified customs are still practised and govern the lives of thecommunities. 36 In Nor anak Nyawai v Superintendent of Lands 37 (NorNyawai) Ian Chin J concluded that “customs are not dependent for theirexistence on any legislation, executive or judicial declaration ... They existlong before any legislation”. Ian Chin J described native customary rights inthe words of Brennan J in Mabo No 2, saying that “it has its origins and isgiven its content by the traditional laws acknowledged by and the traditionalcustoms observed by the indigenous inhabitants of the territory”. Indeed,some of the most important customs that have not been codified arecustoms relating to land tenure, which continues to be practised by variousnative groups. These customs lie at the core of the economic, spiritual andcultural longevity of native communities and touch on the fundamentalaspects and values of these native communities. This is clearly borne out inNor anak Nyawai where the Iban customary practice of pemakai menoa, orcustomary territorial domain, is declared as a valid existing custom of theIbans.”It is instructive at this juncture to say something about native customaryrights (NCR) to land in Sarawak and the statutory provisions through whichthey are acquired. The relevant law is embodied in sub s (1) of s 5 of theLand Code 1957 which provides that, as from January 1st 1958, “nativecustomary rights may be created” in accordance with native customary lawof the community or communities concerned, by the methods specified insub-s (2) which are: the felling of virgin jungle and the occupation of theland thereby cleared, planting of land with fruits, occupation of cultivatedland, use of land for a burial ground or shrine, use of land for rights of way,and by any other lawful method (the last phrase was deleted in 2000). 38Existence of native customary lands also need to be seen in the context of aspecified classification of land under the code, namely: Mixed Zone Land(may be held by any citizen without restriction), Native Area Land (land36 Nor Nyawai I [2001] 6 MLJ 241, 268, 28737 [2001] 6 MLJ 24138 A 78/2000. This amendment is yet to be enforced.51