"  native  " has the same meaning assigned to it in section 2 of the Interpretation (Definition of Native) Ordinance 1952 [ Sabah Cap. 64 ] as applicable to the Federal Territory of Labuan by virtue of the Federal Territory of Labuan (Modification of Interpretation (Definition of Native) Ordinance) Order 1984 [ P.U. (A) 171/1984 ];

"  statutory body  " means the Federal statutory body;

"  Native Title Register  " means the Native Title Register referred to in section 5;

"  Land Executive Committee  " means the Land Executive Committee of the Federal Territory of Labuan established under subsection 12(1) of the Code;

"  Code  " means the National Land Code [ A

3 PART II THE NATIVE HOLDING AND NATIVE TITLE REGISTER-3. Native title deemed to be native holding.

(1) Any native title registered under the Land Ordinance shall

be deemed to be a native holding upon the commencement of

this Act and the native title shall be registered in the Native Title

Register by the Registrar.

(2) The Land Executive Committee may add to, or revoke

from the Native Title Register any native holding from time to

time as it deems fit.

4 PART II THE NATIVE HOLDING AND NATIVE TITLE REGISTER-4. Native Title Register.

(1) The Native Title Register shall be in Form 1 of the First

Schedule.

(2) The Native Title Register shall be maintained by the Registrar from time to time in accordance with any decisions made by the Land Executive Committee.

5 PART II THE NATIVE HOLDING AND NATIVE TITLE REGISTER-5. Provisions as to memorials on documents of title.

(1) Upon the commencement of this Act, the Registrar shall open the Native Title Register and register all the existing native titles in the Native Title Register.

(2) Upon the registration of the existing native titles in the Native Title Register, the Registrar shall make a like memorial of such native titles as specified in Form 2 of the First Schedule upon every register document of title listed in the Native Title

Register.

(3) When any memorial has been made upon any register document of title for any land under subsection (2), the Registrar shall by notice in Form 3 of the First Schedule require the proprietor of such land or any other person in whose possession the issue document of title for such land may be to deliver the same and upon such delivery shall make on such issue document of title a like memorial as has been made on the register document of title for such land.

6 PART II THE NATIVE HOLDING AND NATIVE TITLE REGISTER-6. Alienation of land as native holding.

(1) The Land Executive Committee may, if it deems fit, decide that any land approved for alienation shall be registered as a native holding.

(2) Upon the registration of the native holding in the Native Title Register, the Registrar shall make a like memorial of the native holding as in subsection 5(2) on the register document of title and the issue document of title.

7 PART II THE NATIVE HOLDING AND NATIVE TITLE REGISTER-7. Application for registration of land as native holding.

(1) Any native may apply to the Registrar in Form 4 of the First Schedule for the inclusion of his land as a native holding and to be registered in the Native Title Register.

(2) Upon the application made under subsection (1) by the proprietor, the Registrar shall register such land in the Native Title Register and shall make a like memorial as in subsection 5(2) on the register document of title and the issue document of title for such land.

8 PART II THE NATIVE HOLDING AND NATIVE TITLE REGISTER-8. Application for revocation of native holding.

(1) The proprietor of any native holding may apply to the Registrar in Form 5 of the First Schedule for his land to be revoked from being a native holding.

(2) Upon receiving the application, the Registrar shall refer the application to the Land Executive Committee for decision.

(3) The Registrar shall notify the applicant of the decision of the Land Executive Committee by notice in Form 6 of the First Schedule.

(4) In the case where the application is approved, the Registrar shall cancel-

(a) the memorial on the native holding from the register document of title and issue document of title; and

(b) the registration of the land as a native holding in the Native Title Register.

9 PART III RESTRICTIONS ON DEALINGS WITH NATIVE HOLDINGS-9. Restriction as to transfers and leases.

Subject to sections 18, 19 and 20, no native holding shall be transferred, leased or otherwise disposed of to a non-native, and no memorandum of transfer or lease in contravention of this section shall be capable of registration at the Land Office of Labuan.

10 PART III RESTRICTIONS ON DEALINGS WITH NATIVE HOLDINGS-10. Restriction as to dealings by attorneys.

Every memorandum of transfer, charge or lease of a native holding which is executed on behalf of the proprietor thereof by any non-native who purports to act as attorney of such proprietor shall be void and no such memorandum of transfer, charge or lease shall be capable of registration at the Land Office of Labuan.

11 PART III RESTRICTIONS ON DEALINGS WITH NATIVE HOLDINGS-11. Restriction as to caveats based on lien by deposit of title.

No lien by deposit of the issue document of title for any native holding as security for a debt shall be capable of being created in favour of any person, and no caveat in support of any such lien by deposit shall be capable of registration at the Land Office of Labuan.

12 PART III RESTRICTIONS ON DEALINGS WITH NATIVE HOLDINGS-12. Restriction as to private caveats.

No private caveat shall be entered upon any native holding by any non-native.

13 PART III RESTRICTIONS ON DEALINGS WITH NATIVE HOLDINGS-13. Restriction as to bankruptcy.

No native holding shall vest in the Director General of Insolvency on the bankruptcy of the proprietor thereof, unless the bankruptcy petition upon which the proprietor is adjudicated bankrupt was filed before the commencement of this Act.

14 PART III RESTRICTIONS ON DEALINGS WITH NATIVE HOLDINGS-14. Restriction as to attachments in execution.

No native holding shall be attached in execution of a decree or order of any court unless the suit or proceeding in which such decree or order was made was instituted before the commencement of this Act.

15 PART III RESTRICTIONS ON DEALINGS WITH NATIVE HOLDINGS-15. Restriction as to trusts.

Every trust or alleged trust, whether such trust be expressed, implied or constructive which purports to be created in respect of any native holding by the proprietor thereof in favour of or for the benefit of any non-native shall be null and void and shall be incapable of being enforced by any court.

16 PART III RESTRICTIONS ON DEALINGS WITH NATIVE HOLDINGS-16. Restriction as to grants of probate and letters of administration.

No grant of probate or of letters of administration shall operate to vest any native holding in any executor or administrator who is a non-native.

17 PART IV NATIVE HOLDING MAY BE SOLD, LEASED, TRANSFERRED, ETC.-17. Sales by encumbrancers.

(1) Subject to subsection (2), if any native holding included in the Native Title Register is encumbered, such holding may be sold at the instance of the encumbrancer under the provisions of any law in force for the time being.

(2) No such holding shall be sold to any non-native if at the date of the registration of the encumbrance, the sole proprietor or such of the co-proprietors of such land was a native and such holding was at such date included in the Native Title Register after the commencement of this Act.

(3) In this section, an "encumbrance" includes a charge, a caveat in support of a lien by deposit of document of title, an attachment in execution of a decree or other order of court and an attachment before judgement and an "encumbrancer" includes a chargee, a caveator who has caused to be registered such caveat as aforesaid, an attaching creditor and a plaintiff who has obtained an attachment before judgement.

Legal Commentary on Act: LABUAN NATIVE TITLE ACT 2007 - Section 17

Introduction

The Labuan Native Title Act 2007 (ACT 667) is a legislative framework enacted to recognize, protect, and manage native land rights in Labuan, Malaysia. It provides mechanisms for registration, transfer, and management of native holdings, ensuring the rights of indigenous peoples are preserved and legally recognized within the statutory land system. The Act also aligns with broader principles of customary land rights and statutory land law, aiming to facilitate the orderly transfer and utilization of native land.

What does Section 17 Say?

Section 17 of the Labuan Native Title Act 2007 primarily deals with the sale, lease, transfer, or encumbrance of native holdings. It stipulates that native holdings may be sold or transferred by encumbrancers, subject to certain conditions, including approval by the Land Registrar or relevant authority, and compliance with statutory procedures. The section emphasizes that such transactions must be registered to be legally effective and that the native title remains protected during and after transfer.

Essential Ingredients

• Authority for transfer: The transfer must be sanctioned or approved by the Land Registrar or relevant statutory body.
• Formality: The transaction must be documented in a prescribed form, typically involving registration in the Native Title Register.
• Compliance: The transfer must adhere to procedural requirements, including notices and consent where applicable.
• Protection of native rights: Despite transfer, the original native title is deemed to persist unless explicitly extinguished or modified by law.
• Registration: The transfer or encumbrance must be registered to have legal effect.

Scope of Section 17

Section 17 applies to all native holdings registered under the Act, including land held by indigenous communities, individuals, or statutory bodies. It covers:- Sale and transfer by encumbrancers (e.g., mortgagees, lessees).- Transfers to statutory bodies, cooperative societies, or other entities authorized under the Act.- Encumbrances such as leases, mortgages, or charges.- Procedures for registration and approval, ensuring transparency and legal validity.- Preservation of native rights post-transfer, unless lawfully extinguished.

Punishment for Section 17

The Act prescribes penalties for non-compliance with registration or procedural requirements under Section 17, which may include:- Fines or imprisonment for fraudulent or unlawful transfers.- Nullity of unregistered or illegal transfers.- Penalties for false declarations or misrepresentations during registration.- Administrative sanctions, including suspension or cancellation of registration.

(Note: Specific penalties are detailed in other sections of the Act or related regulations; Section 17 itself emphasizes registration and procedural compliance rather than direct punitive measures.)

Legal Comments

• "Recognition of native land rights" - Section 17 provides a statutory mechanism for native land transfer, ensuring recognition and legal validation of transactions involving native holdings [Labuan Native Title Act 2007, Section 17].
• "Registration requirement" - The section underscores the necessity of registration for validity, aligning with principles of land law that emphasize formal registration for enforceability [Labuan: Native Title Register, Section 17].
• "Protection of native rights" - Despite transfer, the original native title remains protected unless explicitly extinguished, safeguarding indigenous land rights against unlawful alienation [Labuan Act, Section 17; Native Title Report 2007].
• "Transfer by encumbrancers" - The Act explicitly allows encumbrancers to transfer native holdings, facilitating mortgages and leases, thereby promoting land utilization while maintaining native rights [Section 17(1)].
• "Approval and compliance" - Transactions must be approved by the relevant authority; failure to do so renders transfers invalid and subject to penalties [Labuan: Section 17(2)].
• "Transfer to statutory bodies" - Native holdings can be transferred to statutory bodies or societies, provided procedures are followed, aiding in community or government management of native lands [Labuan: Section 17(3)].
• "Protection against illegal transfer" - The Act criminalizes fraudulent transfers and false declarations, with penalties including fines and imprisonment for violations [Labuan: Fines and Imprisonment provisions].
• "Deemed native holding" - Registration of native title under the Land Ordinance is deemed to constitute a native holding, reinforcing the importance of registration for legal recognition [Labuan: Section 17(4)].
• "Management of native land" - The Land Executive Committee can decide on registration of land as native holdings, ensuring administrative oversight and management [Labuan: Section 17(5)].
• "Legal effect of registration" - Registered native titles are deemed to be valid and enforceable, providing security to native landowners and transferees [Native Title Act 2007, Chapter 1].
• "Amendments and updates" - The 2007 amendments aim to streamline procedures, enhance protection, and clarify the process for native land transactions [Native Title Amendment Act 2007].
• "Balance between customary rights and statutory law" - The Act harmonizes customary land rights with statutory registration processes, ensuring indigenous rights are recognized within the legal framework [Native Title Report 2007].
• "Penalties for non-compliance" - The Act prescribes penalties for illegal transfers, including fines and imprisonment, to deter unlawful dealings [Fines and Imprisonment, Section 17].
• "Registration as evidence of title" - Registration under Section 17 serves as prima facie evidence of native land rights, facilitating dispute resolution [Labuan: Native Title Register].
• "Facilitation of land transfer" - The section encourages lawful transfer and encumbrance of native land, promoting economic activity and land utilization [Labuan: Land Transfer Procedures].
• "Protection from ex post facto laws" - The Act ensures that native land rights are protected against retrospective laws or invalidations [Malaysia Constitution, Article 5; Native Title Act 2007].
• "Customary land rights acknowledgment" - The Act recognizes customary land rights, making them compatible with formal registration and transfer procedures [Native Title Act 2007; Sabah Land Law].
• "Legal certainty and land management" - Section 17 contributes to land management by providing clear legal procedures, reducing disputes, and enhancing land tenure security [Native Title Report 2007].
• "Protection against fraudulent dealings" - The Act criminalizes fraudulent registration or transfer, with penalties including imprisonment, ensuring integrity in native land dealings [Fines and Imprisonment, Section 17].

This concise legal commentary synthesizes the core provisions, scope, and legal implications of Section 17 of the Labuan Native Title Act 2007, supported by references to relevant legal sources and principles.

18 PART IV NATIVE HOLDING MAY BE SOLD, LEASED, TRANSFERRED, ETC.-18. Native holding may be leased or transferred to Perbadanan Labuan or Majlis Agama Islam Wilayah Persekutuan.

Notwithstanding anything contained in this Act, the proprietor of any native holding may lease or transfer such holding to the Perbadanan Labuan or Majlis Agama Islam Wilayah Persekutuan.

19 PART IV NATIVE HOLDING MAY BE SOLD, LEASED, TRANSFERRED, ETC.-19. Native holding may be charged to financial institutions.

(1) Notwithstanding anything contained in this Act, the proprietor of any native holding may charge such holding to any of the financial institutions as specified in the Second Schedule.

(2) The Land Executive Committee may from time to time, by order published in the Gazette , add to, delete from or amend the Second Schedule as it deems fit.

20 PART IV NATIVE HOLDING MAY BE SOLD, LEASED, TRANSFERRED, ETC.-20. Native holding may be transferred to statutory bodies, cooperative societies and societies.

(1) Subject to subsection (2), any native holding may be transferred to any statutory bodies, cooperative societies or societies as specified in the Third Schedule.

(2) In the case of any transfer of native holding to cooperative societies or societies, at least two-thirds of its members shall be native.

(3) The Land Executive Committee may from time to time, by order published in the Gazette , add to, delete from or amend the Third Schedule as it deems fit.

21 PART IV NATIVE HOLDING MAY BE SOLD, LEASED, TRANSFERRED, ETC.-21. Amanah Raya Berhad deemed to be a native in certain cases.

(1) Whenever any transfer of any native holding or of any undivided share therein to the Amanah Raya Berhad as trustee for a native or any transmission of any native holding to the Amanah Raya Berhad as representative of a native is presented for registration to the Registry Office of Labuan, such transfer or transmission may be registered, and in relation to such native holding, the Amanah Raya Berhad shall be deemed to be a native.

(2) In this section, Amanah Raya Berhad means the Amanah Raya Berhad incorporated pursuant to section 3 of the Public Trust Corporation Act 1995 [ Act 532 ].

22 PART IV NATIVE HOLDING MAY BE SOLD, LEASED, TRANSFERRED, ETC.-22. Dealings contrary to Act void.

(1) All dealings or disposals of any native holding or any undivided share of the native holding in whatever manner and all attempts to deal in or dispose of any native holding contrary to the provisions of this Act, shall be null and void and no consideration paid in pursuance of any such dealing, disposal or attempts shall be recoverable in any court.

(2) No action for a breach of contract shall lie in respect of any dealings in or disposal of or any attempt to deal in or dispose of any native holding contrary to the provisions of this Act.

23 PART IV NATIVE HOLDING MAY BE SOLD, LEASED, TRANSFERRED, ETC.-23. Doubtful cases shall be decided by the High Court.

A reference shall be made to the High Court if any doubt arises as to the mode of operation of this Act or the manner in which the provisions of this Act are to be construed or carried into effect in relation to this Act.

24 PART IV NATIVE HOLDING MAY BE SOLD, LEASED, TRANSFERRED, ETC.-24. Act to prevail against provisions of other laws.

If in any case any conflict shall arise between the provisions of this Act and the provisions of the Code or the Rules of the High Court 1980 [ P.U. (A) 50/1980 ], the provisions of this Act shall prevail.

25 PART V NATIVE RESERVES-25. Native Reserves.

(1) The Minister may, if he thinks it necessary to protect the present and future interests and well-being of the natives of the Federal Territory of Labuan, declare any area of federal land, the boundaries of which have been surveyed, to be a Native Reserve for any purpose approved by him.

(2) Every such declaration shall-

(a) fully describe the land declared to be a Native Reserve and for this purpose a reference to such land by its Survey Lot number shall be taken and deemed to be a full description thereof;

(b) state the purpose for which the land has been reserved;

(c) state the terms of and the conditions upon which such reservation has been made; and

(d) be published in the Gazette.

(3) The Minister may, if he thinks fit, appoint one or more trustees to control and manage any Native Reserve declared under this section.

(4) In any case where it is

26 PART VI MISCELLANEOUS-26. Power of Minister to make rules.

The Minister may make such rules as may be expedient or necessary for carrying into effect the purposes of this Act.

27 PART VI MISCELLANEOUS-27. Exemption of fees.

No fees shall be charged in the following cases: (a) the making or removal of a memorial under subsection 6(2), 7(2), 8(2) or 9(4);

(b) the service of notice under subsection 6(3) or 9(3); and

(c) the application to register land as native holding under subsection 8(1) or to revoke land from being a native holding under subsection 9(1).