Natives welcome with Federal Court’s decision

Taken from http://www.malaysiakini.com/news/103985

The recent Federal Court’s decision on native customary rights (NCR) land will open a floodgate of legal actions against the Sarawak state government, a prominent NCR land lawyer, Harrison Ngau said today.

Ngau was commenting on the decision of the Federal Court which last Tuesday rejected the application of the Sarawak government to review the decision of the same court, i.e. earlier Federal Court, but comprising a different panel.

Among others, the Federal Court accepted the law on NCR land as stated by justice Ian Chin in the High Court in the Nor Anak Nyawai case in which he held inter alia that NCR land includes both cultivated or cleared land, for example “temuda”, gardens, and burial grounds, former longhouse sites, and communal forests or “pulau galau” in Iban within the communal land boundary or antara menua of a longhouse.

In dismissing the said application, the Federal Court held that the earlier panel of the Federal Court did not commit any error of law or fact which requires or justifies a review.

“The significance of the Federal Court decision is that the NCR land of the natives covers or comprises all the land within the communal land boundary of their longhouses, i.e. both cultivated and forested areas therein.

“Licences for logging and planted forests and leases for oil palm plantations issued by the state which overlapped with the land within the communal land boundary of the longhouses do not or cannot extinguish the prior NCR of the natives.

Natives can sue the government

More than one million hectares of land, the bulk of which is NCR land, have been leased out over the past 20 years to many companies and state agencies.

“As such the natives can sue the state government for lawfully interfering or impairing their native customary rights and stop or blockade the companies issued with the licences or leases for encroaching onto their NCR land,” Ngau said.

He said the decision would also have some bearing on 203 NCR land cases which would start their hearing from September this year.

He suggested that the Sarawak government should now start gazetting the communal land boundary of the natives throughout Sarawak, what the Brookes and British governments did during their times.

During the Brookes times they even issued an official circular N0. 12 of 1939, directing district officers and land and survey department to record communal land boundaries of the natives. This had resulted in the compilation of the record of such land boundaries of the longhouses in the Baram district in the registrar of land boundaries now kept at the district office in Marudi, Baram.

Rights of natives over their land restored

Ngau said: “The native courts have upheld the land boundaries in many cases. Unfortunately, the Sarawak government failed to respect the NCR land of the natives as what the Brookes and British did. That resulted in the tragedy befalling the natives in Sarawak until today.”With this decision of the Federal Court, it is imperative for the Sarawak government to immediately give effect to it and stop arbitrarily issuing licences or leases over NCR land within the communal land boundaries,” he said.

Another NCR land lawyer, Baru Bian said that he was absolutely delighted as the decision of the Federal Court had finally sealed the finding of the High Court in the landmark case of Nor Nyawai that NCR land was not only confined to temuda land, but it included “pemakai menua” (territorial domain) and “pulau galau” (communal forests).

“This concept is now settled. This is because Nor Nyawai says common law recognises the pre-existence of adat and custom. Now it is a question of adducing evidence,” he added. In welcoming the Federal Court’s decision, the Sarawak Dayak National Union (SDNU) was happy that the Federal Court had put back the rights of natives over their land.

Be sensitive to needs of natives

Its publicity officer, John Anthony Brian, said that SDNU urged the NCR land owners to take this opportunity to move forward and develop their land.

“We hope the Dayaks can establish their own investment vehicle to develop their land into an economic enterprise so that we do not blame the government any more,” he said, and urged the government to be sensitive to the needs of the natives and support their efforts to develop their land in order to eradicate poverty.

Meanwhile, efforts to get the State Minister of Land Development James Masing and Minister of Rural Development, Alfred Jabu anak Numpang, who is also chairman of the NCR task force, to response to the Federal Court’s decision were unsuccessful.

Being Dayaks, both ministers should be the right persons to comment on behalf of the state government on the implications of the Federal Court’s decision.

It is understood that the state legal counsel, J.C. Fong, who represented the state government had briefed the chief minister Abdul Taib Mahmud on the decision.

Meanwhile, NCR land lawyers and NCR land owners are watching closely what the Taib government’s next move will be to avoid being sued.

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May 11, 2009 · Filed Under Culture

Comments

4 Responses to “Natives welcome with Federal Court’s decision”

KuncitMuncit on May 12th, 2009 12:51 am

Lets hope that Taib’s BN government will cease to
create new legal hurdles for what has been decided
by the Federal Court. But honestly, I dread,it
will.
Mr Nice Guy on May 12th, 2009 7:15 am

With Sarawak Government had been defeated at Federal Court level,CR land owmers should keep the sketch map issued by District or Subdistric offices ib 1930s as proof of evidence to claim their right.

I still can recall clearly a Chinese bloke( their operations manager for Plane forest in Bintulu) advising me not to go against the government policy.

He added that Pemakai Menoa which we showed to him was not legaly recognised b the government.

Today, it is shown to the whole world that it is legal….
SaveTheFort on May 12th, 2009 3:16 pm

“……He added that Pemakai Menoa which we showed to him was not legaly recognised b the government…..”

Whoever the chinaman was, he has no authority to make such unqualified statement and/or judgment and that tantamount to ignorance of the roots and not knowing how NCR came into existence and acquired.

We lost in the “B(uy)- election in Batang Ai but in NCR matter, DAYAK won!!!….history has been created and we should now start getting all our acts together to make an advancement to reclaim our rights, justice and fairness over our ancestral temuda land and any other land falls within the meaning of NCR.

In true sense, we are one step towards achieving to remove the current state government. Let start planning on the next course of action. As the saying goes…”If we fail to prepare, be prepared to failed”

1DAYAK in the making.!!!!!!!
SaveTheFort on May 12th, 2009 4:07 pm

Absolutely impressed and totally inspired with the leading advocates Messr. Sandhu & Co who took up on this litigant case, involving a tremendous amount of research work right from the start at the High Court which decided a the favor of the Plaintiff against the Supt of L & S and Statement Government and despite the appeal to the highest court – Federal Court in Kuching, thence won again.

What matter most in the aftermath of the Fed court decision in rejecting the administration’s Appeal, is the profound “IMPACT” in which Taib and gangs will have a lot to worry about.