The results of a survey carried out in 1976 (FAO 1980) revealed that out of a total of 12,325,208 hectares of land in Sarawak, 26% was cultivated in various crops. Twenty-three percent of this 26% was under shifting cultivation, 0.4% in wet rice, and 2.5% in various tree crops (rubber, pepper, cocoa, fruit trees, etc.)
At any given time, large areas of land under shifting cultivation were left fallow and were held under native rights based on customary law or adat. The Iban farm over 69% of the total area cultivated, and accounted for 47% of all holdings. The Chinese farm 8% of the area and accounted for 16% of the holdings, and the Bidayuh farm 16% of the area and had a total of 11% of the holdings. The Malay and Melanau farm almost 6% and 4% of the area respectively, and accounted for 15% and 6% of the holdings.
Sarawak Land Code (SLC: Part II, page 27), (3) customary rights to land could only be created prior to 1 January 1958 in accordance with the native customary law of the community, based on any of the methods specified in Section 2, if a permit were obtained under section 10
In Section 5(2) of the Sarawak Land Code, these rights may be created by: (a) the felling of virgin jungle and the occupation of the land; (b) the planting of land with fruit trees; (c) the occupation or cultivation of land; (d) the use of land for a burial ground or shrine; (e) the use of land of any class for rights of way; or (f) any other lawful methods. However, historical evidence suggests that the above land law clearly reflected legislative efforts to deconstruct native rights and reconstruct them based on foreign laws, which were alien to the Iban community.
Sarawak, with two-thirds of its population indigenous Dayaks, (4) had a long history of Brunei rule prior to Brooke and colonial rule, and traditional land tenure, based on customary law or adat was in existence even before the Dayaks came under Brunei influence. Brooke land administration gave due recognition to the intimate relationship between adat and traditional land tenure.
Customary law or adat has always been instrumental in maintaining order and providing a state of balance between individuals, between individuals and the community, and between the community and the environment, both physical and spiritual (Langub 1999).
Today, adat is still widely practiced among the Dayaks of Sarawak. It is under the custodianship of the village headman and a crucial aspect of adat (Richards 1961; Porter, 1967) is the definition of rules of access and rights of ownership to land and other natural resources within a longhouse territorial domain. Adat dictates the rules of inheritance and/or transferability of land from the pioneering ancestors to the present generation and is used by every longhouse community to regulate social relations and farming and other economic activities (Langub 1999). It is also a collective community framework for regulating resource utilization and management in a sustainable manner for the common good.
In 1842 James Brooke cautiously introduced the Code of Laws, which was principally characterized by respect for people's customs and traditions. James said that:
I am going on slowly and surely, basing everything on their ownlaws, consulting all their headmen at every step, reducing theirlaws to writing what I think right, merely in the course ofconversation--separating the abuses from the customs... I follow,in preference, the plan of doing justice to the best of my ability in each particular case, adhering as nearly as possible, to the native law or customs.
(Quoted by Porter 1967:27.)
Recognition of native customary law led James Brooke to provide an important provision in the Land Regulation of 1863, in which he declared that no scheme of alienation or land development should ever be introduced except in respect to land over which no rights had been established.
The Code of Laws of 1842 permitted Chinese immigrants to settle only on lands not occupied by Malays or Dayaks. A paternalistic relationship between the White Rajah and the natives encouraged subservience to Brooke rule.
When James Brooke was installed the first Rajah of Sarawak in 1841, he deliberately created a dualistic political economy: commercial agriculture and mining for the Chinese immigrants, on the one hand, and a subsistence economy for the natives, on the other. .
Economic dualism reflected the Brookes' policy of non-interference in the native way of life. By invoking such policy, the Brooke administration also intentionally created legal pluralism (Hooker 1999) which defined and categorized two types of land tenure. One was based on native customary law or adat perpetuated among the natives. The other was a codified land system, which legalized private land ownership and supported the commercialization of agriculture.
The Iban community, which today constitutes 30.1% of the state population of 2.5 million people (Leete 2004), is the largest single ethnic group in Sarawak. Residing in more than 5,000 longhouses scattered throughout the rural areas of Sarawak, they are predominantly found in the Sri Aman, Betong, Kapit, Sibu, and Bintulu Divisions.
Based on 69% of the total arable land area in Sarawak being cultivated by the Iban, the estimated cultivated area farmed by members of this group could be as high as 1,020,000 hectares out of the 1.5 million hectares of native customary land in Sarawak (Zainie 1997). This fact has significant implications for land administration policies and practices in Sarawak, especially with respect to poverty eradication and equity distribution in the context of Malaysia's "Vision 2020" policy.
A close relationship between land, farming practices, and resource use among the Iban reveal important features of the community's agrarian roots. The traditional Iban farming system comprised a rich mixture of religious rites and cultural practices (Sather 1980, 1990 and Freeman 1955), and formed the basis upon which the pioneering ancestors of the present-day Iban first created customary rights to land in Sarawak.
Creation of customary rights to land and other natural resources within the territory of a longhouse community began when a ritual ceremony calledpanggul menoa was carried out by the pioneering ancestors in a particular area (Lembat 1994). Once this ritual has been performed, pioneering households known as bilik families would then clear plots of virgin jungle to establish individual parcels of farmland called tanah umai. These pioneering individuals who first cleared and cultivated the land thereby created rights to the land which were then passed on to their descendants through succeeding generations of bilik family members.
Individual plots of farmland are separated from one another by boundaries called antara umai in Iban. Traditionally, antara umai were demarcated by streams, rivers, watersheds, ridges, and other permanent landmarks used as natural boundaries between individual parcels of farmland. Such boundaries defined the size and extent of individual bilik rights over farmland. Rights of ownership are transferable in this system from parents to children. Distribution of plots of farmland among children is not necessarily equal. It is common among the Iban to accord more cultivation rights and privileges to children who look after ageing parents than to those who do not.
A territory or area of land which belongs to a longhouse community within defined boundaries is called its pemakai menoa in lban (Lembat 1994). Each pioneering longhouse has its own territorial domain. A longhouse is separated from others by a garis menoa (village boundary). The garis menoais a very important mechanism for resource distribution among pioneering longhouse communities. It also functions as an important resource management strategy because it helps to define areas of constrained space and so reduces inter-community conflicts between pioneering longhouses. At the same time, it also regulates access to natural resources and cultivation rights among the members of the same longhouse within a pemakai menoa.
The pemakai menoa, both physically and as a concept, is central to Iban resource management. It is the hub of Iban resource tenure and, in a physical sense, constitutes a collective pool of natural resources, such as native farmland, fruit orchards or groves, primary and secondary forests and forest products (i.e., timber and wild vegetables, edible ferns and palm shoots, rattan, herbs and/or medicinal plants, fruit trees and bamboo); rivers and streams that run through a territory, and water catchments (Ngidang 2000, Lembat 1994, Richards 1961). Thus, pemakai menoa is the territorial domain of a longhouse community where customary rights to land and other natural resources were acquired by pioneering ancestors (Ngidang 2000).
Rights to a piece of land can be lost either by a transfer or when a person moves to another village through migration or pindah. Section 73 of Adat Iban (1) on pindah states that whoever moves from the longhouse to another "shall be deprived of all rights to untitled land or any customary land that has not been planted with crops and all such land shall be owned in common by the people of the longhouse." (2) (Majlis Adat Istiadat 1993: 31). If an individual or family migrates to another village from the longhouse (pindah), such rights can also be transferred to a relative who will in turn provide him with tungkus asi. The term tungkus asi describes a token gift provided by the recipient or as a form of compensation, "ganti tebi kapak, tebi beliong, a replacement of effort and the chipped axe blade, the rice eaten during clearing" (Richards 1961:42). Today, tungkus asi has been replaced a token monetary gift known as ganti rugi.
Thus tanah umai, or farmland, can be either private or common property, or both, depending on whether rights of access are held by individuals or by the community. A resource sharing concept is applied here when cultivation rights and rights of access to land are vested in the community. A community may invoke free access only to certain types of natural resources such as wild vegetables, shoots, etc. when taken for personal use. At the same time, it reserves the right to restrict access to resources which have a high economic value, such as rattan, timber, and fruit trees, the benefits of which are shared by the whole community.
It is customary to leave harvested farmlands fallow. Forest-fallowing as practiced by the Iban is divided into four main stages (Freeman 1955). The first stage of fallow is called jerami. The term jerami or redas (in the Batang Rajang area) refers to bush-fallow land at 1-2 years after a padi crop has been harvested. The next stage is temuda, which has a fallow period of 3-10 years, then damun with a fallow period ranging between 10-20 years. Finally, resembling virgin forest, pengerang is temuda which has been left uncultivated for more than 25 years.
Rights to cultivate temuda land initially belong to, and then are inherited from, the person who first felled the virgin forest. In the past, when resources were still abundant, any member of a longhouse had free access to resources in a temuda. For instance, he could take firewood and bamboo; gather wild fruits and vegetables, etc. without consulting the bilik family having cultivation rights over the land.
In addition, a longhouse community has its own forest reserve or pulau. The term pulau refers to an area of primary forest within a pemakai menoa. Pulaucan be collectively owned under a common property regime and managed by a longhouse community, or individually owned. An individual creates the latter adjacent to the cultivated plot of land he first cleared at the time when a longhouse community established pemakai menoa. This reserve is calledpulau umai and acts to preserve certain natural resources for future use. These resources can be rattan, tapang trees, fruit trees, timber, and so on. Rights of access to these resources belong to those who first cleared the land and to their descendants thereafter. In the case of community-owned pulau, there are four types of communal forest reserves set aside for hunting, gathering building materials and water catchments within a pemakai menoa.
During the process of creating a pemakai menoa in the pioneering days in the past, individuals might claim rights to a variety of special trees such as terasor belian, engkerebai (the fruits of which are used to produce textile dyes),engkabang, and tapang trees (the latter providing a place for honey bees to build hives). Tree tenure is established when the first person who finds the trees clears the undergrowth around them and thereby claims rights to these trees. Such rights were, and continue to be, heritable and passed down to the descendants of the claimant (cf. Sather 1990). The same applies to a planted tree; tenure rights apply to the tree and to the harvest of its fruits. Once an individual has tenure rights over certain trees, whether planted or found, the planter's or finder's descendants have the right to demand compensation if these trees are burned or felled by someone else.