By Majangkim Office
KOTA KINABALU: Before any claim to Native Customary Rights can be assessed, a more fundamental question must be answered: Who, in the eyes of the law, is a “native”?
This is not merely a matter of ancestry or self-identification. It is a question of statutory definition, and the answer determines who may hold native titles, who may claim NCR, and whose customary practices the law will recognise.⁷
In Sabah, the governing provision is Section 2 of the Interpretation (Definition of Native) Ordinance (Sabah Cap. 64) . The Ordinance defines a “native” as a person who is a citizen of Malaysia, whose parents are or were members of one of the indigenous ethnic groups of Sabah, and who habitually speaks the language of that community and follows its customs.
The Schedule to the Ordinance lists the recognised indigenous groups, including Kadazan, Dusun, Bajau, Murut, and dozens of others.
For persons who cannot prove both parents are indigenous, the Ordinance provides alternative pathways: those whose father is a member of an indigenous group and who habitually speaks that community’s language and follows its customs; or persons ordinarily resident in Sabah who are members of specified groups (including Suluk and Kagayan), have lived in a native community for at least three years, are of good character, and are not illegal immigrants.
Crucially, any claim under these alternative categories must be supported by a declaration from the Native Court, which issues a Native Certificate (Sijil Anak Negeri) .
This definition serves several critical functions:
It determines standing. Only a person who meets this definition may apply for a Native Title under the Sabah Land Ordinance.¹⁰
It governs inheritance. Native titles descend according to native custom, not the general law of inheritance, and only to persons who are themselves natives.
It limits alienation. Native land may not be transferred to non-natives without the consent of the Land Office, a restriction designed to prevent the erosion of native holdings.
For our hypothetical community, the threshold question is whether its members are “natives” within this definition. If they are, the door to an NCR claim is open. If they are not—if, for example, they are citizens of long residence but not members of a recognised indigenous group—then they have no standing to claim native rights at all. They would be, in the eyes of the law, simply occupiers of State Land, with no special protection.
This is not a theoretical distinction. In Sarawak, similar definitions have been the subject of intense debate. In February 2022, Sarawak State Assemblyman See Chee How argued that all Sarawak citizens born in the state, including those of Chinese and Indian descent, should be considered “natives” under the Sarawak Interpretation Ordinance, pointing to historical Land Orders from the Brooke era that defined a native simply as “a natural born subject of His Highness the Rajah.”¹¹
The Sarawak government, however, maintained that native status must be tied to membership in an indigenous race, a position reflected in the Federal Constitution’s Article 161A.
Sabah’s definition, while distinct, raises similar questions of inclusion and exclusion. For the community in our story, the first battle may not be over the land itself, but over whether the law recognises them as native at all.
