The Federal Court has upheld the concept of native customary rights (NCR) to land as including not only one class of such land called "temuda" (cultivated land), but also "pulau galau" (communal forest) and "pemakai menua" (territorial domain).
The apex court delivered its ruling today in Kuching, in an application by the Sarawak government in a case initiated by local Malay Madehi Salleh to claim NCR rights over former Shell concession land in Miri.Lawyers dealing in NCR cases were quick to point out the implications of the decision for some 200 land cases filed to date against the state government and companies that have obtained leases mainly for plantation and logging activities.
So long as NCR claimants can provide sufficient evidence to support their claims, logging and plantation companies may now find themselves in a quandary unless they are prepared to negotiate.
Madehi had taken the state government to court in 2007 over his rights to 6.6 acres of land and won the case.
However, the state government successfully appealed the decision in the Court of Appeal, following which Madehi turned to the Federal Court and won his case in October 2007.
The court recognised the pre-existence of NCR before the coming into force of any statue or legislation, in particular the Rajah Order of 1921. It said the reservation of the land under the Rajah’s Order for Sarawak Oilfields Ltd (SOL) did not have the effect of extinguishing NCR to the land.
There was no provision whatsoever in the Rajah’s Order that extinguished Madeli’s NCR to his tract of land, the judges said, noting that all it did was to reserve the land for SOL.
Furthermore, the Federal Court said native rights to occupy untitled land in accordance with customary laws subsisted in an area reserved for operation of SOL. Individual rights of natives were the same as communal rights, it added.
Application dismissed
The Sarawak government, unhappy with the decision, then applied to the Federal Court to review its own decision.
Today, however, the court disagreed that the applicants had met the threshold requirement and dismissed the review application with costs.
The Federal Court’s quorum comprised the Chief Justice of Sarawak and Sabah Richard Malanjun, Hashim Yusuf and Zulkifli Ahmad Makinudin.
Appearing for the applicants (Sarawak government) were State Legal Counsel JC Fong and his assistant Safri Ali. Miri-based lawyer Mekanda Singh Sandhu and his son Sathinda represented Madehi.
Sathinda told Malaysiakini later that the judgment can now be applied to all NCR land cases after this.
Millions of hectares of land have been leased out over the past 20 years to many companies and state agencies.
The Federal Court ruling re-affirmed a similar landmark finding in the Nor Nyawai & Others v Borneo Pulp and Plantation case in Bintulu in 2001.
10 comments:
This is great news to other land owners whose NCR land cases are still pending in court.
We hope that this landmark ruling will also be applied in other NCR land cases.
Good news. ` Land unsurveyed or without title, including land under NCR claim, belongs to government`. Awang Middle, what say you now?
Well, this is the first step to show that PEOPLE is right all these while. Hopefully, more people will come forward to fight for their RIGHTS.
Paloi! Don't ngirup just yet! The light at the end of the tunnel is still very dim. The government will still have the last laugh. You can never defeat the Sarawak government. Just look at the just concluded batang ai election. In the next sitting of the DUN, the stroke of the pen on the Land Code will reverse the ruling. Behold, all Dayak YBs will raise their hands and say in unison in support to changes in the Sarawak Land code to by pass this
ruling......lama laun pun perintah meh menang ni ulih laban.
On second thought Apai Semalau is very correct. Just the tip of the pen and the very word of taik Mammoth will change the scenario.
Behold.. the dayaks..
Awang in the Middle, Awang Setengah Tiang. You think the Court belongs to you?? Who are to judge that NCR land belong to the Government.
unsurveyed Iban land at Merdang Limo, next to Sg Kuap bridge, doesnt belong to the gomen but to NAIM. can somebody pls help these Iban to sue NAIM
JC Fong is the bane of Dayak misery caused by Taib. All able bodied dayak must piss on his graveyard when he died.
to seek devine forgiveness he would go to pray at Carmilite church at 5am every morning but the damage has already been done.
Who is JC Fong to go against Taib.JC fong knew the truth.He had briefed Taib,but Taib is very stubborn.Actually Taib is a Bully.Taib should answer to the people's miseries especially Dayak.
Apai Semalau, no doubt the state govt still has the edge by payingidrty but that is tantamount to abuse of power. They have to beyond today, the impact and legacy of their deed.
Any legislation or by-laws which clearly contravenced the rights of the rakyats is deemed to be null and void by any means. Then the have to spent another embarrrasing moment when someone, the rakyat takes them to Court, remember that.
tq
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