What are the legal implications of limiting native territorial domain size?

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Legal Implications of Limiting Native Territorial Domain Size

The proposed amendments to the Sarawak Land Code, specifically concerning the statutory definition and proposed limitations on "native territorial domain" (pemakai menoa), raise significant legal concerns for indigenous communities. The Society for Rights of Indigenous Peoples of Sarawak (Scrips) has voiced strong opposition, arguing that these changes are unconstitutional and undermine established native customary laws. The core of the dispute lies in the Bill's attempt to redefine pemakai menoa as areas with only usufructuary rights and to impose a size limit of 500 hectares per native community, potentially infringing upon fundamental property rights.
Re-definition of Native Territorial Domain and Usufructuary Rights

Scrips contends that the proposed statutory definition of "native territorial domain" (pemakai menoa) to mean an area with only usufructuary rights is "repugnant to the legal and universal meaning of native customary laws and judicial interpretation." Usufructuary rights, in a legal context, typically refer to the right to use and enjoy the fruits of another's property, but not to own the property itself. Historically, native customary laws in Sarawak have recognised broader rights over these ancestral lands, often encompassing a form of ownership and integral connection that extends beyond mere usage. By limiting the definition to usufructuary rights, the Bill could diminish the scope of claims and the inherent rights indigenous communities believe they possess over their traditional territories, which are deeply tied to their cultural and subsistence practices.
Violation of Federal Constitutional Property Rights

A central argument against the Bill is its alleged violation of Article 13 of the Federal Constitution. Article 13 guarantees the right to property and stipulates that no property shall be compulsorily taken possession of nor shall any right over or interest in them be compulsorily acquired except by law which makes provision for adequate compensation. Scrips argues that by seeking to redefine and limit native territorial domain through written law, the amendments could be seen as compulsorily acquiring or diminishing the rights indigenous communities have historically held over these lands without adequate compensation or due process, thereby contravening this constitutional safeguard.
Imposition of Size Limits and State Authority Over Customary Lands

Section 6A(2) of the Bill, which seeks to limit native territorial domain to 500 hectares per native community, is a significant point of contention. Scrips maintains that any territory legitimately belonging to an indigenous community, irrespective of its size, should be protected and not be made "modified or defeasible by any written law." This position underscores a fundamental disagreement over the authority of state legislation to unilaterally impose restrictions on lands traditionally held under customary law. Furthermore, Scrips opposes the proposed power granted to the director of Land and Survey to approve or disapprove territorial domains not belonging to the government. They argue that pemakai menoa are inherently native customary rights lands, and thus, the director's role in approving or disapproving them is considered "irrelevant and illegal" as it bypasses the established customary ownership structures.

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What are the legal implications of limiting native territorial domain size?

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