Kanowit land dispute: JV is valid, CoA rules

KUCHING, Aug 6, 2014: The Court of Appeal today ruled that a native customary rights (NCR) land development scheme at Sungai Kelimut in Kanowit is valid, overturning a Sibu High Court's decision delivered over two years ago.

The CoA , comprising Balia Yusuf Wahi, Tengku Maimun Tuan Mat and  George Varghese, declared that the scheme, under a new concept, does not contravene Section 8 of the Sarawak Land Code.

The CoA overturned the decision of the Sibu High Court delivered on 30 April, 2012 which ruled that the development of the NCR undertaken by a joint venture company (JVC), Boustead Pelita Kanowit Sdn Bhd, formed by LCDA, the trustee for the 168 native landowners and Boustead Plantation Berhad, was illegal, because the JVC was not yet declared a “native” under section 9(1) (c) of the Land Code when the project started.

The  of CoA ruled that by a Principal Deed signed by the native landowners, Government and Pelita Holdings Sdn. Bhd., a subsidiary of LCDA, the landowners had voluntarily agreed to have their 1,886 heactares of NCR land developed under the new concept and that LCDA be appointed their trustee.

Pursuant to the Principal Deed, the JVC was appointed to undertake the development of the land and the native participants were issued with 30% shares in the JVC.

The major shareholder in the JVC, Boustead Plantation Bhd., had spent over RM400 million in developments and maintenance of the oil palm plantation which had reached maturity when the natives started the action in 2009 at the Sibu High Court.

The Appellate Court held that the natives are stopped from denying that they have allowed their land to be developed under the said scheme, and it would be unjust for them to prevent the JVC from continuing to occupy the land which the company is developing in reliance of the Principal Deed signed by the native landowners.

The court said that the JVC was subsequently declared a “native” and that declaration was made retrospective to date prior to the date of the Principal Deed and the commencement of development of the NCR land.

Hence, there is no contravention of section 8 of the Land Code which prohibits a non-native from having rights or privileges over Native Customary Land.  

The CoA set aside the High Court’s order that the NCR land, which had been planted with mature oil palms, be returned to the 163 NCR landowners led by Kadam Embuyang.  

Baru Bian, counsel for the NCR landowners, said he would file, in due course, an appeal with the Federal Court aganst the CoA's ruling.

"Let the apex court makes the final decision," he said, adding that the core of the appeal with the Federal Court will be on the validity of the JV.

He said if the apex court decides that the JV is valid, the landowners will then ask for dividends  which have not been paid to them since their lands were developed many years ago.

He said the failure to pay the dividends is one of the reasons why the landowners took the court action against the company and the state government.

He asserted that of the Federal Court decides that the JV is not valid, then the landowners would want to manage their own lands.

State Legal Counsel, J.C. Fong and Mcwillyn Jiok appeared for the state government, Sim Hui Chuang and Alex Lim represented Boustead Pelita and Leslie Linton acted for Pelita Holdings in the appeal.

Baru and Joshua Baru acted for the 168 NCR landowners.