KUCHING: A full bench of the Federal Court is scheduled to hear Sarawak government’s appeals on the extent of native customary rights (NCR) over land at the Kuching High Court on Wednesday.
Starting at 9am, the whole case is set to be a landmark.
During the hearing of the appeals, the Federal Court will hear legal arguments on, among other matters, whether the pre-existing rights under native laws and customs which the common law respects go beyond felled and cultivated lands by natives (in this case, the Iban customs of ‘temuda’) and include or extend to rights to land in and over trees, fruit trees, hunting grounds, fishing grounds, grazing grounds and areas for the gathering of food and forest produce in uncultivated areas within their broader territorial domain or communal areas (in this case, the Iban ‘pemakai menoa’ and/or ‘pulau galau’/‘pulau’/’galau’).
Arguments will also be heard on whether it is 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.
From 2007, the apex court of Malaysia has recognised the pre-existing laws and customs of indigenous inhabitants (including natives of Sarawak, natives of Sabah and Peninsular Malaysia Orang Asli) 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 community and established as a matter of fact through the continuous occupation and/or the maintenance of a traditional connection with the land claimed.
In essence, the Federal Court will hear arguments on whether these customs are legally enforceable, notwithstanding the fact that they are not contained in codified laws.
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.