Bridging the Gap: The Quest for Effective Protection of Native Customary Rights (NCR) In Sarawak

Abstract

The Native Customary Rights (NCR) in Sarawak is a deep intersection of ancestrality, traditional adat, and the law. Although the Malaysian judicial system has traditionally recognized NCR as preexisting rights based on communal practices, modern claimants are increasingly encountering an increasing enforcement gap. This paper focuses on the systemic obstacles to legal recognition as it becomes effective protection, particularly exploring how the tension between indigenous territorial ideas (including pemakai menoa and pulau galau) and the limiting structures of the Sarawak Land Code are connected. The study draws on the doctrinal review of landmark cases, such as the move towards expansionary recognition in (Nyawai, 2001) to the restrictive interpretations in (2017), to emphasise how overwhelming evidentiary burdens and technical mapping requirements tend to dismiss valid customary claims. The example of (Tebari, 2018) can be used as a point of reference to exemplify how a dependence on oral history is often compromised by incongruent technical evidence and procedural obstacles. Based on a comparative analysis with the Australian model of the native title system, the paper suggests that judicial recognition cannot be successful in the absence of institutional support. This paper therefore suggests the creation of a dedicated NCR forum or an enhanced Native Court system that is well equipped with multidisciplinary skills and adaptable evidentiary principles. This kind of reform is necessary to close the gap between the paper recognition and the real protection of the land rights of indigenous people in a culturally-appropriate and legally-uniform way.