Alternatively, said Jeffrey Kitingan, a separate Native Land Tribunal should be empowered to deal with native customary rights (NCR) land issues.
“The Federal Court, and the civil courts, are not competent bodies to pass judgment on Adat and the customary laws of the Borneo natives,” said Jeffrey in a statement.
He suspects the Federal Court does not want to open the floodgates in the peninsula where the Orang Asli are pressing NCR claims.
The Bingkor assemblyman was commenting on the Federal Court ruling earlier this week that “pemakai menoa” and “pulau galau” were not NCR land. These are a territorial domain and communal forest respectively.
Jeffrey had earlier attended the Borneo Dayak Forum, a Pan Borneo NGO which he heads, and the Borneo Heritage Festival.
He noted the Federal Court recognised that Adat had the force of law on “temuda”, cultivated land next to longhouses.
He does not see why the Federal Court could not agree with the Native Court, High Court and the Court of Appeal that Adat had the force of law on pemakai menoa and pulau galau as NCR land.
In addition, he said, Article 160 of the Federal Constitution defined “law” as “written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof”.
“The Federal Court ruling allows the Sarawak government to alienate NCR land, except temuda, to anyone,” said Jeffrey. “The ruling overturned the earlier decisions of the High Court and the Court of Appeal on NCR land.”
He cited additional reasons why the Federal Court should not preside over NCR matters.
Firstly, he said, the Federal Court was made up of Malayan and/or Malay judges. “These judges are not familiar with Adat.”
Secondly, unlike the Land Ordinances in Sabah and Sarawak, the National Land Code, applicable only to Malaya, does not recognise NCR land.
Malaysia has, however, ratified the United Nations Declaration on the Rights of Indigenous Peoples, adopted by the General Assembly on Sept 13, 2007.
Revisiting the case for the Native Court, or a Land Tribunal, to deal with NCR issues, Jeffrey said this would be in line with land being a state matter. “Land is not a federal matter, so there’s no need for the Federal Court to deliberate on NCR land issues,” he said.
The Native Court and/or Land Tribunal should not only be the court of first instance but the final arbiter, he said. “They would be equipped and knowledgeable.”