By Remy Majangkim (Majangkim Office)
Second in the series following “The Brother We Carry”.
KOTA KINABALU: Native Customary Rights (NCR) are not a legal abstraction.
It is the memory of a grandfather planting paddy on a hillside he cleared with his own hands. It is the stream where a child caught fish. NCR is living proof that natives were here before the surveyors, timber licences, and plantations. And it is under constant assault.
Three Legal Traps
1. The 36‑Month Statute of Limitations
A native who wishes to challenge a secret land grant must do so within 36 months of its publication. But what if the grant was never published? In Limbang, the Penan, Kelabit and Lun Bawang lost 32,000 hectares because they discovered the bulldozers after the clock expired.
The law did not care.
2. Burden of Continuous Cultivation
Courts require continuous cultivation to claim NCR. Natives practise shifting cultivation (tadah), leaving plots fallow for years. That fallow period is routinely declared “abandonment”. The land becomes a plantation.
3. No Native Land Registry
NCR claims are proved through oral history, witness testimony, and old photographs. In court, documentary evidence wins. A tycoon’s licence printed on paper beats generations of memories.
Brooke Era Roots of the Land Code
The 1863 Land Regulations under the White Rajahs granted the Brooke regime rights over “unoccupied and waste lands” – a category that excluded native customary occupation. Those “wastelands” could be leased to private interests.
When Sarawak was ceded to Britain, these regulations were consolidated into the Land Code, enacted in 1957 and operating from 1st January 1958. The Code introduced a cut‑off date: only NCR that existed before 1958 would be recognised, unless the minister later gazetted new land. Native rights created after colonisation were rendered suspect.
Two key native concepts were left in legal limbo: ‘pulau galau’ (communal forest reserve) and ‘pemakai menoa’ (territorial domain). The Federal Court has ruled these have no force of law. The forest where your ancestors gathered medicinal plants and the river where they fished – if not “continuously cultivated” before 1958, they are state land.
As Ramy Bulan (University of Malaya) writes: “The Land Code should not be used as the sole basis for NCR, because native title is based on occupation, in accordance with traditional laws and customs.” But courts continue to use the Code as a blunt instrument. The Brooke‑era classification of “wastelands” lives on.
Orang Asli Struggle – Constitutional Echo
The same traps appear in Peninsular Malaysia. The Temoq tribe of Rompin, Pahang, discovered that 8,498 hectares of their ancestral land had been secretly alienated for an oil palm plantation – they only knew when bulldozers arrived. An EIA recorded that 85% of Orang Asli interviewed did not agree.
After years of litigation, a consent judgement in 2025 gave them back 728.5 hectares. A win – but only after exhausting themselves in courts that should never have forced them to fight.
Lawyer Khoo Guan Huat, representing Kelantan in a separate case, invoked Article 8 (equality before the law) to argue that Putrajaya had no standing to sue on behalf of Orang Asli. The irony: the very article meant to protect natives was used to block federal action.
The foundational precedent remains Sagong Tasi (2002), where the court declared that Orang Asli have native title at common law – a right predating the Constitution – and that acquiring their land without compensation violates Article 13 (right to property).
Decades later, the bulldozers still come.
Siti Kasim: The Warrior Who Wins
No discussion of native land rights is complete without Siti Kasim – the lawyer who has repeatedly beaten the state in court.
Bera Orang Asli (2021): The Court of Appeal ruled for the Semelai tribe, overturning a decision that allowed a private company to take over 2,000 hectares for oil palm. Siti Kasim said, “Orang Asli cannot be evicted like trespassers.”
Jawi raid (July 2025): Awarded RM160,000 for unlawful arrest during a private fundraising event.
Police raid (Dec 2025): Awarded RM274,375 for unlawful police raid on her residence. The judge ruled the police showed “reckless indifference to the plaintiff’s constitutional rights” under Article 5(1) (personal liberty).
Siti Kasim has done all this without holding elected office. Imagine what she could do inside Parliament.
Demand Five: Siti Kasim for Parliament
With a seat in the Dewan Rakyat, Siti Kasim could introduce a bill to repeal the 36‑month statute of limitations, demand a parliamentary inquiry into past land grabs, and push Malaysia to codify Free, Prior and Informed Consent (FPIC) into domestic law. No current MP has her record of constitutional victories. We need Siti Kasim in Parliament.
Sarawak State Election: A Crucial Moment
The Sarawak state election is approaching. This is the single most important opportunity for native communities to secure representation at both levels of government – the DUN (State Legislative Assembly) and Parliament.
Why both? NCR land is a state matter. The Land Code, Native Courts, and 36‑month limitation are under DUN jurisdiction.
Without strong native voices in Kuching, no federal MP can fix the law. Without federal MPs to challenge national policies and hold the Home Ministry accountable, the DUN’s work can be undermined by Putrajaya.
We need native representatives in Kuching to amend the Land Code – starting with the repeal of the 1958 cut‑off date and recognition of pulau galau and pemakai menoa. And we need native representatives in Kuala Lumpur to defend those amendments from federal override.
Ask every candidate: Will you fight to repeal the 1958 cut‑off date? Will you recognise Pulau Galau and Pemakai
Menoa? If they cannot answer yes, they do not deserve your ballot.
Demand Six: Chinese‑Led Parties Must Recognise Native Rights
DAP, SUPP, and Larry Sng have campaigned for third‑generation Sarawakian Chinese to be granted Bumiputera status. That appeal is understandable. But it cannot come at the expense of native land rights.
None of these parties has ever made a public, sustained declaration of support for NCR land. We demand a binding declaration:
Recognise that NCR land is ancestral property and oppose land grants that extinguish those rights without FPIC.
Support the repeal of the 36‑month statute of limitations and the 1958 cut‑off date.
Work in tandem with native representatives – not against them – to pass structural reforms.
If they refuse, their advocacy for Bumiputera status is a political transaction that ignores the deeper crisis. The Chinese and native communities have lived side by side for generations. That coexistence must become a political alliance – not a zero‑sum fight over who is “more native”.
Four‑Point Native Customary Agenda
Repeal the 36‑month statute of limitations and the 1958 cut‑off date. Replace with a 10‑year minimum for secret grants, and allow NCR to be proven by oral history.
Recognise shifting cultivation and communal forests as continuous use. Amend the Land Code to include pulau galau and pemakai menoa.
Establish a public, accessible native land registry. Every recognised NCR claim must be searchable online and at district offices.
Reform the Native Courts. Appoint permanent, trained, politically‑independent judges. Give them final say on NCR disputes.
The Call: From Silence to Action
International declarations will not save you – only domestic law will.
The Brooke‑era Land Code must be rewritten – starting with the 1958 cut‑off date.
Once natives are in the DUN and Parliament, pass these four reforms in the first 100 days.
Put Siti Kasim in Parliament.
In the coming Sarawak election, vote for candidates who commit to NCR defence
Chinese‑led parties must work in tandem, not in opposition.
A Reflection for Kaamatan and Gawai
This year, as we pour the tapai and cut the first rice, let us remember that our harvest is not just of the land but also of our shared struggle. The Kadazan says, ‘Misumpuru Tokou’ – let us unite. The Dayak says, ‘Aram kitai bekerja sama’ – let us work together. These are not just festival greetings. They are battle cries.
Let us create our own narratives. Not the ones written by land developers or gazetted by ministers who never walked a paddy field. But the stories we tell our children: that this land was never given, never bought, and never conquered. It was entrusted to us by our ancestors. And we will pass it on, still wet with rain, still rich with memory.
Selamat Kaamatan. Selamat Gawai. And let us work together.
