Besides temuda (cultivated land), natives also used pemakai menoa (territorial domain) and pulau galau (communal forest) in Borneo, said a ABD spokesperson in a telephone interview.
Pemakai menoa and pulau galau have come under scrutiny following a Federal Court ruling earlier this week that Adat does not have the force of law on such NCR land.
Adat is customary law.
“It would be difficult for the authorities concerned to dislodge the people from pemakai menoa and pulau galau and give others provisional leases over such land,” said the spokesperson. “The natives are already occupying such land, in the hundreds of thousands.”
She cited a principle in law which states that law ceases to exist — “as if there’s no law” — if it’s unenforceable and was not enforced. “The Federal Court ruling is case law that cannot exist,” she said. “The people would not allow it.”
The ABD spokesperson recalled the High Court did rule earlier, and the Court of Appeal concurred, that the Orang Asal have “beneficial ownership” of pemakai menoa and pulau galau even if the state government declared them as state land.
“This particular law would be something the Federal Court would not be able to overturn and sustain,” she said.
“Article 5 of the Federal Constitution provides for the ‘right to life’. Land is life to the Dayak.”
The Federal Court had ruled that pemakai menoa and pulau galau were just “incidental” to temuda, and therefore, it could not be said that Adat had the force of law on such land.
“It’s obvious that pemakai menoa and pulau galau are extended usage of NCR land, after temuda,” said the spokesperson. “That doesn’t mean such usage is not as important as temuda. The Federal Constitution guarantees property rights.”
Besides, she added, it was a contradiction in terms to say that Adat had force of law over temuda only.
“Adat is Adat. Adat has force of law over all three categories of NCR land.”
She hoped the Federal Court would review its decision soon, but under a new panel of judges from only Borneo.
“The judges in Malaya are unlikely to be familiar with the traditional Dayak lifestyle (which has been in practice) since time immemorial.”
Saying state governments in Malaya (peninsula) were facing pressure from the Orang Asli on customary land, she added: “In deciding against opening the floodgates in Malaya, it opened the floodgates in Borneo.”
It’s a principle in law, she said, not to open the floodgates. “The focus should be on Sarawak, not on Malaya, on the floodgates issue.”