Baram dam: Hearing of government's application to strike out suit by plaintiffs postponed for 11th time

By James Luhat Ngau

MIRI, May 14, 2015 - The Miri High Court  today postponed to June 16 this year the hearing of an application by the Minister of Resource  Planning and Environment and State Government to strike  out a civil suit  filed by a group of villagers from Ulu Baram challenging the move by the state to extinguish their customary rights over their traditional land.

Judge Lee Heng Cheong postponed the hearing of the application after hearing submissions from counsels for the respondents and the plaintiffs.

The ethnic Kayans at the blockade site at Long Naah

This is the 11th time that the hearing of the application has been postponed.

The plaintiffs are claiming that it is wrong for the government  to extinguish their native customary rights (NCR) in the areas earmarked for the proposed construction of the RM4.5bil Baram dam.

The plaintiffs are farmers Anyi Eng, Edward Jok Wan, Engan Eng — all of them from Long Naah, Anyi Ajang, Matang Laing and Wan Jok — all of them from Long Kesseh.

In their suit, they named the Minister for Resource Planning and Environment as first respondent and the state government as second respondent.

In the affidavit, the villagers said their NCR land of about 4,000ha in Long Naah and Long Kesseh had been extinguished via a public notice from the state government effective Aug 6, 2013.

Speaking to reporters after the postponement today, counsel for the plaintiffs, Harrison Ngau Laeng said the plaintiffs felt that the move by the state government had contravened the Federal Constitution.

“The main ground of their suit is that they are challenging the constitutionality of Section 5 (3) and Section 5 (4) of the Sarawak Land Code that was used to extinguish the land rights.

“The plaintiffs said that extinguishing their land rights violated Article 5 (1) of the Federal Constitution, which guarantees them a right to a living on their land.

“The article in the Federal Constitution said the people have a right to the land and the land is a source of life and livelihood,”  Ngau said.

 He added that the same points were challenged in the Federal Court three years ago in a case against Bakun dam.

“That case went up to the Federal Court, but somehow it was not answered. In fact, the judges did say there might be such cases in the future where the same points could be articulated again before the court.

“The land where the NCR had been extinguished in Long Naah and Long Kesseh are within the communal boundary.

"The plaintiffs want the High Court to declare illegal the state’s move to extinguish their NCR and to return the land to them.

"We are arguing that even if the extinguishment of the customary rights over the land is proven to be constitutional, we are saying that the minister is abusing his position to extinguish the customary rights.

"He is in conflict of interest because his family company is also involved in the construction of the road to Baram dam.

"Secondly,  there is, as of today, no official decision has been made by the state government on when it wants to implement the Baram dam and suddenly, we hear of the dam going to be implemented despite the fact we have not heard of Social and Environmental Impact Assessment being approved by the Natural and Environmental Board.

"The law prohibits the commencement of such huge project without the NREB approval," Ngau said.

Over 1,000 villagers from 100 families from Long Naah and Long Kesseh are affected by the extinguishment of their NCR titles.

All of them are from the Kayan ethnic group. Over 100 of them turned up at the Miri High Court this morning.