Another victory for Nor Anak Nyawai

(The story was first published by Free Malaysia Today and is reproduced here for the readers of The Broken Shield).

KUCHING: Native customary land owners Nor anak Nyawai and three others yesterday (4 August) won another round of victory against Tatau Land Sdn Bhd, Superintendent of Lands and Surveys, Bintulu and the State government of Sarawak, when the Kuching High Court allowed their application for an injunction until the disposal of the case.

The disputed land is described at Lots 15 and 16, Block 3 Sangan District respectively in Tatau, Bintulu.

The plaintiffs represented Baru Bian of M/S Baru Bian & Advocates are asking for various declaratory reliefs including a declaration that the issuance of provisional leases is null and void.

Additionally, they are also seeking a prohibitory injunction restraining the first defendant, Tatau Land Sdn Bhd, its servants and agents from entering, clearing and occupying the land over which they (the plaintiffs) claim native customary rights.

The instant application is the plaintiffs’ application for an interlocutory order in relation to the prohibitory injunction which is one of the reliefs the plaintiffs are asking for in the action.

In their affidavit to support their application, the plaintiffs asserted that their ancestors and through to them, have for many generations past until now continued to occupy, cultivate and use the land they are claiming to be entitled to under native laws and custom.

They said that they were neither aware of nor consented to the issuance of the provisional leases to the first defendant, Tatau Land Sdn Bhd which constituted the extinguishment or termination of their native customary rights over land covered under the provisional leases.

Towards the end of November 2010, the servants of the first defendant and the second defendant, the superintendent of lands and surveys, demolished 25 houses within Lot 16 and unless restrained 30 more houses belonging to the plaintiffs would also be demolished and at the same time the physical evidence constituting proof of the plaintiffs’ claim to native customary rights at the trial of the action would be destroyed.

The first defendant resisted the application for interlocutory injunction. The first defendant by an affidavit filed on its behalf admitted to being the registered proprietor of the 650 hectares of land under Lot 16 which was alienated on 23 December 2002 and to be developed into a new township called Samarakan.

The first defendant had though its director, one Ghazali bin Ismail had ascertained from the second defendant that Lot 16 was devoid of any native claims. It was asserted on behalf of the first defendant that a previous action commenced by the plaintiffs in 1999 and finally determined, Lot 16 fell outside the area which had been adjudicated to be land under native customary rights to which the plaintiffs were entitled to.

On 18 December 2008, the first defendant successfully obtained an order of possession granted by the High Court at Bintulu against persons in occupation of Lot 16 and it was conceded by the first defendant that only the fourth plaintiff was a party to those proceedings.

There was no application for stay of the order for possession. The plaintiffs were granted an ex-parte order which prevented the first defendant from proceeding to develop the township and thereby sustained substantial losses caused by the delay to the project, hence the inter-partes hearing of the plaintiffs’ application for interlocutory injunction.

In his ruling, Justice Linton Albert said that he did not think that the decision in the suit commenced by the plaintiffs in 1999 on the extent of their native customary rights over land is of any consequence because the case was in relation to land alienated to Borneo Pulp Plantation Sdn Bhd, the defendant in that case in respect of which the first defendant was not a party.

“It stands to reason, therefore, that the decision in the 1999 case did not exhaustively limit the plaintiffs’ entitlement to and order under native customary rights and preclude the plaintiffs from pursuing what they perceive to be their rightful claim to native customary rights outside the area determined in the 1999 suit which allegedly includes the area alienated under Lot 16.

“Clearly, it did not matter that Lot 16 was outside the confines of the area determined in the 1999 suit.

“Likewise, the fact that the High Court in Bintulu had ruled in favour of the first defendant by granting it an order of possession did not ipso facto extinguish the plaintiffs’ claim because not only were the plaintiffs except the fourth plaintiff, not parties to the proceedings where the first defendant obtained the order of possession, there were also difficult questions concerning complex legal issues involving res judicata and these are matters which could only be effectively determined at the trial,” he said.

Justice Linton allowed the application and costs to be in the cause.

Leonard Shim of Reddi & Co. Advocates, Kuching represented Tatau Land Sdn Bhd, while the superintendent of lands and surveys, Bintulu and the State Government of Sarawak were represented by Joseph Chioh of the State Attorney-General’s Chambers, Kuching.

Najib's assurance on NCR land 'too little, too late' ~ Malaysiakini

Taken from http://www.malaysiakini.com/news/106904

Sarawak’s leading NCR lawyer Baru Bian has described Prime Minister Najib Tun Razak’s assurance that the Sarawak Barisan Nasional government will not take away NCR land from the Ibans as coming “too little and too late”.

“The fact and the truth is that the people’s land, in particular the native customary rights land have already been taken, grabbed and snatched under the BN government," he said in a press statement to Malaysiakini today.

A local English daily The Borneo Post quoted the prime minister as saying in its front page report on June 19 that the BN government will not take away the native customary landsof the natives of Sarawak.

The prime minister was also quoted as urging the people to “... have confidence in the Barisan Nasional government. We have no intention of grabbing anybody’s land. The Ibans should not worry. The BN government will not snatch your property.”

Baru, who is also a member of PKR political bureau and supreme council, said that the fact that Najib had to make the statement shows that the people, in particular the natives, are complaining that their NCR lands had been taken away summarily all these years.

He added: “The fact that my legal firm is handling over one hundred cases of NCR - related cases show proof that NCR land have been taken, grabbed and snatched all these years, under the BN government, headed by the present Chief Minister Abdul Taib Mahmud.”

Baru said despite the landmark decision in the case of Nor Anak Nyawai which was affirmed by Madeli Salleh’s case in the Federal Court, the present state BN government of Sarawak refused to accept the said court’s decision that NCR land includes not only “temuda” (secondary forest) but it extends to their “Pemakai menua” (territorial domain) and “Pulau” (reserved or preserved virgin forests).


Return NCR land to the people

“This refusal to accept the court’s decision is reflected in the state Attorney-General’s chambers’ defences representing the state government, in the cases now pending hearing in the various High Courts throughout the state of Sarawak," he pointed out.

He urged the prime minister to order, instruct and/or at least advise the present Sarawak BN government through the chief minister to return to the people all the NCR land that had been “taken, grabbed and snatched” summarily all these years by revoking timber licences, provisional leases and replanting permit or other licences that includes and/or encroaches onto NCR lands.

Secondly, order that an independent Land Commission of Inquiry be set up to investigate all these violation of claims of NCR lands in Sarawak, including the abuses by the police force of complainants relating to NCR disputes with companies, to show to the people of Sarawak, and Malaysian at large that the prime minister walks the talk.

Baru said this Land Commission of Inquiry should also look into all the hundred over cases now pending in the High Courts in Sarawak, thus helping in the backlog of cases in the High Court.

“If the above proposal is not done within one month from today, I am afraid these statements are mere political gimmicks just to mislead the people, in particular the natives of Sarawak that this BN government is now concerned with their affairs and problems", he said, adding that these are but signs of the impending state general election now looming in the horizon.

It was also reported that “the prime minister said from his discussions with the chief minister, he was convinced that the state’s model of native customary rights land development would ensure a better future for the Dayaks, particularly the Ibans”.

The Orang Ulu NCR lawyer said the state’s model of native customary rights land development referred to is the “new way” of developing NCR land popularly referred to as “The New Concept” or “Konsep Baru” - the idea of the present chief minister.


No confidence in 'Konsep Baru'

Under this “Konsep Baru”, the landowners would have 30 per cent shares equity, the developer 60 per cent and the state government 10 per cent.

“I am sad to say that the very first project launched in Kanowit based on this concept is a total failure. After 10 years of its launching, the developer is still unsure whether they can break-even in the years ahead thus causing much anxiety and trepidation to the natives who were lured into participating in this project years ago.”

He had been instructed by some of these natives to take legal action against the state government to protect the natives’ right over their NCR lands, as they have no confidence in this so called “Konsep Baru”.

“I dare say in the light of my knowledge of these issues, the statements made by the prime minister are mere political rhetoric, unless and until we can see in one month’s time, my suggestion referred above are implemented; i.e. the return of NCR lands that had already been taken away and the setting up of a Land Commission of Inquiry to investigate these complaints of violation of NCR land in Sarawak.”

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PRESS STATEMENT

It was reported as front page news in the Borneo Post on the 19th June 2009 that the BN Government will not take away the native customary lands of the natives. The PM was quoted to urge the people to “...have confident in Barisan Nasional (BN) government. We have no intention of grabbing anybody’s land. The Ibans should not worry. The BN government will not snatch your property.”

In reply I wish to say that this assurance if true, come too little too late. The fact and the truth is that the people’s land, in particular, the natives’ customary lands had already been taken, grabbed and snatched under the BN government. The fact that the PM made this statement today shows that the people in particular the natives are complaining that their NCR lands had been taken away summarily all these years.

The fact that my legal firm is handling over one hundred cases of NCR related cases show proofs that NCR lands had been taken, grabbed and snatched all these years, under the BN government, headed by the present CM Pehin Sri Abdul Taib Mahmud. Despite the landmark decision in the landmark case of Nor Anak Nyawai which was affirmed by Madeli Salleh’s case in the Federal Court, (the highest court in Malaysia), the present State BN Government of Sarawak refused to accept the said Court’s decision that NCR Land includes not only “temuda” (secondary forest) but it extends to their “Pemakai menua” (territorial domain) and “Pulau” (reserved or preserved virgin forests). This refusal to accept the Court’s decision is reflected in the State Attorney-General’s Chambers’ defences representing the State Government, in these cases now pending hearing in the various High Courts through out the State of Sarawak.

I therefore urge the Honourable Prime Minister, to order, instruct and/or at least advise the present BN State Government through the CM Pehin Sri Abdul Taib Mahmud to return to the people all the NCR lands that had been “taken, grabbed and snatched” summarily all these years by revoking timber licences, provisional leases and replanting permit or other licences that includes and/or encroaches onto NCR lands. Secondly, order that an independent Land Commission of Inquiry be set up to investigate all these violation of claims of NCR lands in Sarawak including the abuses by the police force of complainants relating to NCR disputes with companies, to show to the people of Sarawak, and Malaysian at large that this PM walks his talk. This Land Commission of Inquiry should also look into all the hundred over cases now pending in the High Courts in Sarawak, thus helping in the backlog of cases in the High Court. If the above proposal is not done within 1 month from today, I am afraid these statements are mere political gimmicks just to mislead the people in particular the Natives of Sarawak that this BN Government is now concerned with their affairs and problems. I believe these are but signs of the impending State General Election now looming in the horizon.

Lastly, it was also reported that “The Prime Minister said from his discussions with Chief Minister Pehin Sri Abdul Taib Mahmud he was convinced that the State’s model of native customary rights land development would ensure a better future for the Dayaks, particularly the Ibans.”

I believe that the State’s model of native customary rights land development referred is the “new way” of developing NCR Land popularly referred to as “The New Concept” or “Konsep Baru” the ‘brain-child’ of the present CM. Under this ‘Konsep Baru’, the landowners would have 30% shares equity, the developer 60% and the State Government 10%. I am sad to say that the very first project launched in Kanowit based on this concept is a total failure. After 10 years of its launching, the developer is still unsure whether they can break-even in the years ahead thus causing much anxiety and trepidation to the natives who were lured in participating in this project years ago. I have been instructed by some of these natives to take legal action against the State Government to protect the natives’ right over their NCR lands, as they have no confidence in this so called “Konsep Baru” or as the PM said the “State’s model of native customary rights land development” referred in the news report.

I dare say in the light of my knowledge of these issues, the statements made by the Honourable PM are mere political rhetoric, unless and until we can see in one (1) month time, my suggestion referred above are implemented; i.e. the return of NCR lands that had already been taken away and the setting up of a Land Commission of Inquiry to investigate these complaints of violation of NCR over lands in Sarawak.

So Honourable PM, prove to us natives of Sarawak, that you walk your talk in these matters!

Dated this 20th June 2009

MR. BARU BIAN

NCR LAWYER CUM PKR POLITICAL BUREAU & SUPREME COUNCIL MEMBER

Natives welcome with Federal Court's decision ~ Malaysiakini

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

Natives welcome with Federal Court's decision

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.