Sabah and Sarawak Land Law and Native Customary Rights (NCR)

Buy a house in Kuala Lumpur and one federal statute governs your title. Do the same in Kuching or Kota Kinabalu and you step into an entirely different legal world — one with its own ordinances, its own categories of land, and a form of tenure that no piece of paper created: Native Customary Rights.

Sabah and Sarawak keep land law that predates the Federation. Understanding why, and what “NCR” means, is essential to understanding land in the two Borneo states.

Why do the Borneo states have their own land law?

Under the Federal Constitution, land is a State subject. The Ninth Schedule State List (List II) places land — including tenure, the landlord-and-tenant relationship, registration of titles and deeds, and compulsory acquisition — within the legislative authority of each state. A further list, List IIA, adds matters specific to Sabah and Sarawak, including native law and custom.

A second safeguard reinforces this. Article 95D of the Constitution provides that an Act of Parliament dealing with a State List matter — land among them — does not take effect in Sabah or Sarawak unless the State Legislative Assembly adopts it. This is one reason the National Land Code, which governs Peninsular Malaysia, does not apply in the two states.

The result is two parallel statutes:

• Sabah applies the Sabah Land Ordinance (Cap. 68), a law dating from the pre-war North Borneo period (commonly given as 1930).
• Sarawak applies the Sarawak Land Code (Cap. 81), which came into operation on 1 January 1958.

What kinds of land exist under these ordinances?

Both statutes classify land into categories that do not map neatly onto Peninsular concepts. Sabah, for example, recognises Native Title (NT) reserved for natives, alongside Country Lease and Town Lease for general use, with unalienated land remaining State land. Under the Sabah Land Ordinance, land not formally alienated as Native Title or a Country Lease remains State land.

Feature	Peninsular Malaysia	Sabah	Sarawak
Governing statute	National Land Code	Sabah Land Ordinance (Cap. 68)	Sarawak Land Code (Cap. 81)
Native tenure category	Malay reservation land	Native Title / native customary rights	Native customary land / Native Area Land
Recognises NCR	Limited (Orang Asli, separate law)	Yes, under section 15	Yes, under section 5

A defining feature of native land in both states is restriction on transfer. In Sabah, section 17(1) of the Land Ordinance forbids dealings in land between natives and non-natives except with written permission — a rule intended to keep native land within native hands.

What exactly is “Native Customary Rights” land?

NCR is land that a native comes to hold not by grant but by custom — through occupying and working it in ways the law accepts as creating rights.

In Sarawak, the Land Code recognises native customary land in several forms, including land where native customary rights were lawfully created before 1 January 1958 and still subsist, land within a reserve, and interior-area land where rights were created under a permit. Section 5 of the Code sets out the methods by which such rights may be created, which have historically included the felling of virgin jungle and occupation of the cleared land, the planting of fruit trees, the cultivation or occupation of land, and the use of land for burial grounds or shrines. The Code provides that no recognition is given to native customary rights created after 1 January 1958.

In Sabah, section 15 of the Land Ordinance recognises native customary rights through categories tied to active use of the land — including land held by customary tenure, land planted with fruit trees, and isolated fruit trees, sago, rattan, or other plants of economic value that the claimant has planted or maintained. Where the State acquires such land, compensation provisions are framed around these same categories of economic plants.

Eligibility to hold native land turns on being a “native,” a status defined by statute in each state by reference to indigenous parentage — a threshold question that itself carries legal weight.

How have the courts shaped NCR?

Statute is only half the picture. A line of court decisions has defined how far customary rights reach.

The turning point was the Federal Court’s decision in Superintendent of Land & Surveys Miri Division v Madeli bin Salleh, delivered on 8 October 2007. The court accepted that Malaysian common law recognises the pre-existing customary rights of native people over their land, drawing on the reasoning in the Australian case Mabo (No. 2) and the Canadian case Calder. On this view, the Crown (the State) holds radical title, but subject to native rights that survive unless clearly extinguished by law.

That recognition did not resolve how much land NCR covers. The question returned in Director of Forest, Sarawak v TR Sandah (Federal Court, 20 December 2016). Iban claimants argued their rights extended beyond their cultivated plots (temuda) to a wider territorial domain (pemakai menoa) and communal forest reserve (pulau galau). A 3:1 majority held that these two customs did not have the force of law, and confined enforceable NCR to cultivated land. One judge dissented, taking the view that custom formed part of the law recognised by the Constitution and that rights over the surrounding foraging lands should be recognised.

The two rulings illustrate the tension at the heart of the subject:

• One position holds that NCR should track indigenous practice as a whole — settlements, farms, and the forests, rivers, and reserves that communities have long used and managed together.
• Another position holds that legal certainty requires rights to attach to identifiable, cultivated land, and that broader communal claims are matters for legislation rather than the courts.

Both positions are advanced in litigation, in policy debate, and in the periodic amendments the states have made to their land laws.

What’s next

NCR remains an active area of law. Claims continue to be filed and contested in the Sabah and Sarawak courts, and the scope of communal rights after TR Sandah is still being worked out case by case. State governments have from time to time amended their land ordinances and introduced mechanisms for communal titling, and how those mechanisms interact with customary claims is an evolving question.

For readers, the practical points are steady even where the law is not: land in Sabah and Sarawak is governed by state ordinances, native land carries transfer restrictions, and NCR is a real but bounded interest whose limits are defined by both statute and a developing body of case law. Anyone dealing with specific land should consult the relevant state Land and Survey authority and qualified legal advice.

This is an unpublished AI-assisted draft prepared for human review. It describes the legal framework and the range of positions neutrally and does not constitute legal advice.