I refer to the letter Penangites, rise up and stop reclamation land conversion in which the writer claims that the approval of ‘conversion of leasehold land titles into freehold title’ by the Penang state government is illegal. He justified his claim by quoting ‘lawyer Agatha Foo’ on the following :-
- Section 76 of the National Land Code expressly prohibits the state from disposing of ‘any part of the foreshore or sea-bed for a period exceeding ninety-nine years’
- ‘Consequentially, the said proviso would also prohibit the state from re-alienating or converting any part of the reclaimed foreshore or sea-bed to freehold land.’
Based of ‘Agatha Foo’'s opinion he concluded that :
‘Any subsequent attempt by the state to re-alienate or convert any part of the foreshore or sea-bed to freehold, notwithstanding that the foreshore or sea-bed have now been reclaimed, would tantamount to a circumvention of the prohibition in section 76 and hence be ultra vires the NLC.’
My question :
Was Agatha Foo's contention (consequentially, the said proviso would also prohibit the state from re-alienating or converting any part of the reclaimed foreshore or sea-bed to freehold land) her personal opinion, or was it based on some provision from the NLC or was it a ruling from our courts?
If it was her personal opinion I believe it is worth very little if not nothing. If it is based on part of the NLC, then to be fair to people they are trying to recruit to their crusade, they should quote the relevant section number.
Likewise, if it was a court ruling they should quote the case from which this ruling came from. I am sure they would rather have well-informed and thinking people instead of unthinking ones as followers.
Until and unless ‘lawyer Agatha Foo’ shows that her contention that ‘Consequentially, the said proviso would also prohibit the state from re-alienating or converting any part of the reclaimed foreshore or sea-bed to freehold land’ is based either on the NLC or on a ruling by legal authority, this is how I understand the subject of land titles issued to land which either forms part of foreshore and/or seabed or was previously part of foreshore and seabed.
My understanding is based on the following sections of the NLC which I quote in full:
Section 76: The alienation of state land under this act shall consist of its disposal by the state authority -
a. for a term not exceeding ninety-nine years
(aa) in perpetuity (b) - (e) (not relevant to this discussion)
Proviso to Section 76 (aa):
Provided that nothing in paragraph (aa) shall enable the state authority to dispose of any part of the foreshore or sea-bed for a period exceeding ninety-nine years.
Section 5: Interpretation:
‘State land’ means all land in the state (including so much of the bed of any river, and of the foreshore and bed of the sea, as is within the territories of the state or the limits of territorial waters) other than -
(a) alienated land
(b) reserved land
(c) mining land
(d) any land, which, under the provision of any law relating to forests (whether passed before or after the commencement of this act) if for the time being reserved forest
(Note that there is reference to ‘bed of any river, and of the foreshore and bed of the sea’ but no reference to land which were formerly ‘bed of any river, and of the foreshore and bed of the sea’).
- ‘foreshore’ means all that land lying between the shore line and the low water mark of ordinary spring tides
- ‘shore line’ means the high water mark of ordinary spring tides
- ‘sea-bed’ is not interpreted in the NLC but is commonly understood to be land below the low water mark
- ‘low water mark' and ‘high water mark’ are not interpreted in the NLC but are commonly understood to mean ‘That part of the shore of the sea to which the waters recede when the tide is the lowest and to which the waves ordinarily reach when the tide is at its highest’ respectively.
Basing on the above, I agree that land below the shore line (high water mark) could not be alienated with a title in perpetuity (commonly and erroneously referred to as freehold title), which explains why the Queensbay land was originally alienated with a leasehold title.
However, after alienation with a leasehold title, and if the foreshore or seabed were reclaimed by the land title holders in such a way that all of what was previously below the shore line is now above the shore line, then the said land is now no more part of the foreshore or seabed.
I am not aware of any provision of the NLC which stipulates that land which was formerly foreshore or seabed but is now above the shore line, either due to (natural) accretion or by human reclamation shall continue to remain as part of the foreshore and seabed.
If there is such a provision, then lawyer Agatha Foo and the writer should educate potential recruits on any such provision.
If the Queensbay land had been reclaimed such that all of it is now above the shore line, and if this land had been surrendered back to the state, then this land has become normal state land and not part of the foreshore or seabed.
In my opinion, the proviso to Section 76 (aa) does not apply to it. Therefore, if the state government decides to alienate this land with a title in perpetuity, either to the former owner or to a new applicant, I don't see any illegality or conflict with the NLC.
It is certainly within the writer’s, Agatha Foo’s or any other citizen’s right to disagree with and oppose in principle the state government decision in allowing leasehold land to be surrendered and then re-alienated with a title in perpetuity. However, I feel that to call a practice illegal just because you disagree with it is being extreme and illogical.