Customary Disputes Research Articles

Boundry and Customary Land Ownership Dispute in Sarawak

Customary land ownership dispute have been clearly attributed to three main factors, namely status, ownership validity and the actual area of land owned. Society’s conflict in relation to the matter can be attributed to the way the information is obtained. Most of the customary land owners obtained their land information orally; through word of mouth information.This matter has finally become a major challenge to the community when it comes to various assumptions and different interpretations related to the status and validity of the customary land owned. Hence, this study aims to reveal the feedback from the customary landowners in relation to the determination of the boundaries of the land among the Bidayuh community in Serian District, Sarawak. Besides that, the study also drew attention to the delimitation of the customary land disputes and its implications among the customary landowners. Information related to the purpose of the study was gathered through the focus group discussions and in-depth interviews with the customary landowners in the study area. The study found that there are several ways of defining the boundaries among the landowners. Accordingly, it can be concluded that land disputes in the study area are driven by issues of status and validity of ownership of land owned by customary land owners.To reduce the conflict, it was suggested that the available land are be measured by a qualified surveyor. Thus, when the land was measured, the landowner will obtain a clearer land title in terms of status and ownership of validity. DOI: 10.5901/mjss.2015.v6n4s3p17

The Methodology Used to Interpret Customary Land Tenure

Customary land tenure is normally not based on codified or statutory sources, but stems from customary traditions and norms. When westernised courts have to interpret and adjudicate these customary traditions and norms, the normal rules of statutory interpretation cannot be followed. The court has to rely on evidence of the traditional values of land use to determine the rules connected to land tenure.Previously courts in many mixed jurisdictions relied on common or civil law legal principles to determine the nature of customary land tenure and lay down the principles to adjudicate customary land disputes among traditional communities, or between traditional and westernised communities in the same jurisdiction. Many examples of such westernised approach can be found in case law of Canada and South Africa. The interpretation of the nature of customary land tenure according to common law or civil law principles has been increasingly rejected by higher courts in South Africa and Canada, e.g. in Alexkor Ltd v The Richtersveld Community 2004 5 SA 469 (CC) and Delgamuukw v British Columbia 1997 3 SCR 1010.This paper explores the methodology the courts should follow to determine what the distinctive nature of customary land tenure is. As customary land tenure is not codified or based on legislation, the court has to rely, in addition to the evidence of indigenous peoples, on the expert evidence of anthropologists and sociologists in determining the nature of aboriginal title (in Canada) and indigenous land tenure (in South Africa). The court must approach the rules of evidence and interpret the evidence with a consciousness of the special nature of aboriginal claims and the evidentiary difficulties in proving a right which originates in times where there were no written records of the practices, customs and traditions engaged in. The court must not undervalue the evidence presented simply because that evidence does not conform precisely with the evidentiary standards that would be applied in, for example, a private law tort case.

Bricks Without Straw: Arbitration in Roman Britain

There is little evidence of dispute resolution in those parts of Britain which from AD43 to cAD400 were under Roman colonial administration, and almost none for the rest. But from references in Latin writers, Justinian's Digest , some archaeological background, and analogy with other colonies, a partial picture can be drawn of how Roman law was applied and disputes managed. Lawyers practised; some wrote about arbitration; appeals went to Rome. There are hints that colonial life comprised Roman arbitration as part of its colonial culture. The administration respected British customary law and left disputes among the unromanised British to themselves. And Pharaoh commanded the same day the taskmasters of the people, and their officers, saying: ‘Ye shall no more give the people straw to make brick, as heretofore; let them go and gather straw for themselves’.… And the taskmasters … spake to the people, saying, ‘Thus saith Pharaoh, I will not give you straw. Go ye, get you straw where ye can find it; yet not ought of your work shall be diminished’. Exodus 5.6–11