Apex court gives plaintiffs leave to appeal Miri native land case

KUCHING, Sept 25 — The Federal Court has today allowed the native plaintiffs’ application for leave to appeal on points of law relating to their native customary rights (NCR) land, which they claim have been leased out to a company.

The apex court, presided by Chief Judge of Sabah and Sarawak Tan Sri David Wong Dak Wah, allowed the application after hearing arguments from counsels for both sides.

The group, led by longhouse chief Ramba anak Bungkong, is suing Asco Green Sdn Bhd and the state government to reclaim over 3,500 hectares of NCR land at Sungai Liam, Bakong in Miri Division.

Lawyer Simon Siah, who represented the group, told reporters that prior to the company coming into the NCR land, the native plaintiffs were given grants from the Malaysian Palm Oil Board to plant oil palm in the area.

“When they had finished clearing their land, the company came in with a lease for their land,” he said.

Apart from Wong, the panel of judges also included Federal Court judges Datuk Rohana Yusuf and Datuk Nallini Pathmanathan.

Among the points of law that the group posed was whether the alleged practice of the Iban to preserve an area of jungle or forest as “pulau” for access to food, wildlife and forest produce gives rise to exclusive rights to said land.

They also posed whether an extinguishment exercise of native customary rights over land as provided under Section 15 of the Sarawak Land Code is required prior to the alienation of lease of state land.

Siah said the Federal Court, in granting leave to appeal, has also decided to revisit its own decision in the case of Director of Forest Sarawak & Another vs TR Sandah anak Tabau & Others and other appeals on whether the Iban Adat of Pemakai Menoa (territorial domain) and Pulau Galau (Communal Forest Reserves) have the force of law in Sarawak.

He said this issue was not fully addressed in the decision by a different panel of apex court when hearing the application for a judicial review of the TR Sandah & Others case earlier this month.

In 2016, the Federal Court decided that Pemakai Menua and Pulau Galau had no force of law and therefore, were not part of the law of Sarawak.

“However, the chief judge has opined that the decision in the TR Sandah case ought to be revisited and ventilated again in the Federal Court in the present case. Several other cases were also granted leave to the same effect,” Siah said.

He said it has been the common grievance among the indigenous community who claim their NCR over land that has been leased to companies without their knowledge.

He said they only come to know of it when they see tractors entering the land.

“However, it is provided under Section 15 that extinguishment has to be done first before alienation of land for whatever purposes,” he said, adding that this has not been done for most of the NCR claims that are in court.

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