Over 2,000 turned up to lend support to TR Sandah in landmark land appeal case by the government

By James Joseph

KUCHING, Sept 9, 2015 - Over 2,000 customary rights Dayak landowners crowded the High Court building  today to give support to Tuai Rumah Sandah anak Tabau, TR Lajang anak Lang, Semawi and Paong, Semunggah anak Janda, Muli Paong, Bonyoi Jawa, Suluk Paong and Bajing Apong, all of Kanowit, in a land mark case.

 Baru Bian (wearing black coat) with the crowd at the Kuching Court building after the Federal Court has heard of the appeal

In this case, the Forest Department and the State government are appealing before the Federal Court against the decision of the High Court, which was affirmed by the Court of Appeal.

On March 13, 2011, High Court judge Datuk Yew Jen Kie allowed a civil suit filed by the eight Dayak landowners against  Kanowit Timber Company Sdn Bhd and the State Government for encroachment into their NCR land, including their "Pemakai Menoa" vide a timber licence issued by the State Government to Kanowit Timber Company Sdn Bhd.

The defendants had argued that NCR should be restricted to the cultivated land (temuda) covering an area of 2,712 hactares, which had been cleared before 1958. 

On June 13, 2013, the Court of Appeal  held that pemakai menoa was part of natives customary rights land.

In their appeal, the Forest Department and the State Government are posing questions to the Federal court:

(1) Whether the pre-existence of rights under native laws and customs, before the arrival of James Brooke in 1841, and which the common law respects, include rights to land in the virgin/primary forests which natives, like the respondents or their ancestors (who are Iban by race), had not felled nor cultivated but were forests which they reserved for food and forest produce?

(2) Whether the High Court and the Court of Appeal are entitled to uphold a claim for native customary rights to land in Sarawak based on native custom (namely pemakai menoa and/or pulau galau) where:

(a) there is no proof that such custom was practised among the native communities (particularly among the Ibans) for the creation of rights to land prior to the arrival of the first Rajah in1841;

(b) such a custom was never reflected or recognised as having been practised by the native communities in relation to the creation of rights to land,  in any of the Orders made and legislations passed by or during the Brooke era or by the Legislature of Sarawak; and

(c) such a customs was never part of or recognised in the Tusun Tunggu and the Adat Iban 1993, which declared, pursuant  to the Native Customary  Laws Ordinance, the customary laws of the Iban community in Sarawak.

(3) Whether the Court of Appeal's decision in Supt of Lands and Surveys, Bintulu Division & Ors vs Nor Nyawai & Ors (2005) 3 CLJ 555 that the rights of natives is confined to the areas where they settled and not where they foraged for food is a correct statement of the law relating to the extent and nature of rights to land claimed under native customary rights in Sarawak.

Lead counsel for the Dayak landowners is Baru Bian, assistant by Joshua,  Yogeswaran Subramaniam, Simon  Siah and Chua Kuan Ching while the Forest Department and the State government are represented by the State Senior Officer  Datuk J.C. Fong, assisted by two legal officers from the State Attorney-General Chambers.

Baru Bian speaking to the Dayak landowners at the Kuching High Court building.

"Legal arguments heard on whether it was necessary for these pre-existing native customs to be expressly given the force of law by the legislative or executive arms of the Government of Sarawak or their predecessors before such customs are given legal recognition," Baru told reporters.

"The question before the Federal Court, if determined, may potentially carry major legal implications for large tracts of customary lands currently occupied, used and enjoyed by the natives of Sabah and Sarawak and Peninsular Malaysia Orang Asli," he said.

According to Baru, since 2007 the apex court has recognised the pre-existing laws and customs of indigenous inhabitants relating to their customary lands without the need for formal recognition of such laws and customs by the relevant Legislatures and Executives unless such rights are validly extinguished by the government.

"These rights are determined in accordance with the customs, practices and usages of the particular indigenous communities," he said.

Fong, in his submission, said the words of having the force of law are important qualifying words to give legal effects to the customs.

"It distinguishes itself from the customs which do not have the force of law in the federation or any part of the feeration," he added.

He said the continuous occupation does not cover foraging food and collecting jungle produce over an area.

"They do not have complete control on that area and therefore, not a continuous occupation," he said.