I have read with much fascination the public debate that followed the delivery of the Federal Courts Judgments (now available on the Court’s official website) in the case of Director of Forests v Tuai Rumah (TR) Sandah ak Tubau, commonly referred to the TR Sandah case.
Having read the Judgments and all that had been said in the media by politicians and NGOs, a lot of emotions have been aroused, unfortunately, over which is perceived as non recognition of the customary practices of pemakai menoa and pulau by the highest Court in the country. In response, the late Chief Minister, Datuk Patinggi Tan Sri Adenan Satem had, through his office, said he wanted to meet leaders of all native communities to discuss issues arising from the TR Sandah case. That itself is a clear indication that the concerns of the Dayak Communities over their rights to land would be addressed by the State Government.
In dealing with these concerns, the Government has to act in a rational manner and in the interests of all native communities as well as the overriding interests of the State. Thus, the statement by the Deputy Chief Minister, Datuk Amar Douglas Uggah, that an “in depth study” would be made by his Committee on Pemakai Menoa and Pulau reflects the approach of a responsible State leader who is committed to find a just, practical and implementable solution that would be acceptable to all native communities and which could be accommodated into our Torrens System of land Administration.
Even if, as some quarters claimed, the solution can be achieved by amending the Land Code, it is necessary to consider not only the legal implications of the proposed amendments but whether the amendments made would ultimately be acceptable to all native communities or meet with their expectations. Therefore, before embarking on designing any solution, it is firstly important to have a clear understanding of what the Federal Court has decided.
What was claimed by TR Sandah?
The TR Sandah and the other claimants sought the Court’s declaration that that have native customary rights in the nature of title (ownership) to about 5,600 ha of land comprising 2,802 ha of temuda and 2712 ha of pulau where they or their ancestors had foraged for food and timber products, fish and hunt. The State Government conceded that they have title/ownership rights to the 2,802 ha of temuda land but they did not have similar rights to the land within the 2712 ha of virgin forests next to their temuda land.
As noted by the majority in the Federal Court, the central legal issue was whether the Iban customs of pemakai menoa and the establishment of pulau enable TR Sandah and other natives to have a valid claim to native customary rights in the form of ownership or title to the land within the preserved forests (pulau) where they foraged for food, hunt and fish.
Majority Judgments
Of the 3 Judges in the majority, Justice Abu Samah bin Nordin decided that, on the facts, TR Sandah did not even discharge the burden of proving NCR over the disputed area of 2712 hectares. In the result, he “did not find it necessary to answer the questions posed to the Court”.
The other 2 Judges in the majority (Justices Raus Md Shariff and Ahmad Maarop) decided that only the custom of clearing virgin jungles, cultivating and continuously occupying the cleared area, had been recognized by the laws of Sarawak, to have created rights to the land in the cleared area.
Minority Judgment
The minority Judgment by Justice Zainion Ali (a well respected appellate Judge with fine intellect) was widely welcomed by TR Sandah’s lawyer, the Assemblyman for Ba’kelalan, Mr Baru Bian. From Mr Baru’s recent public statement he has filed a application for a Review by the Federal Court of the decision in TR Sandah and would want the Court to uphold the minority Judgment as the Judgment of the Court, if the Review were to be allowed.
Therefore, it is essential to know what Justice Zainion Ali had decided.
I would now like to reproduce the following passages of her Judgment verbatim:-
“57. In my view, the idea that only settled land can be claimed ONLY MAKES SENSE if WHAT is claimed is TITLE (whether a right of occupation or possession of the land, or anything amounting to freehold of the land.”
“58. We have to first reiterate that rights to land can be understood as a bundle, with freehold being the largest bundle which contains all the rights. But lesser bundle can exist. An easement or a right of way or a right to forage is simply a lesser bundle. I posit that it is a smaller bundle than that of “occupation”. So if a right of occupation (or greater) was claimed, then it makes sense that in order to recognise that “pre-existing native customary right”, then some form of occupation must exist. But in the present case, if all we are according to the natives is the right to forage in that land (and any interference with that right must be adequately compensated), we are not according occupational title to the natives. Conceptually, it does not make sense that for recognition less than occupation, we require a standard of occupation to establish that right.”
“77. The NCR claimed by the Respondents in the customary practice of pulau is a site specific right to engage in a particular activity. Though they may not be able to demonstrate title to the land, they can show that these interests are those which demonstrate their particular rights in engaging in such activity for their livelihood. Their rights cannot be taken away without compensation. The State’s interest in these lands are subject to the Respondent native rights over the land.”
Acceptance of Minority Judgment
Since Mr Baru and TR Sandah had applied for Review of the Federal Court Judgment with the specific aim of having the minority Judgment made the final decision of the Court, it must be assumed that they agreed with the above passages of the Justice Zainion Ali’s Judgment.
This means that the custom of pemakai menoa and pulau do not accord the natives ownership or proprietary or even occupational rights to land. Theirs would be the “lesser” bundle of rights as described by Justice Zainion Ali. If the right to foraging for a livelihood is lost, then damages would be paid for loss of such foraging rights and NOT for the value of the land over which they foraged.
In his press statement, published in the Borneo Post of 9.2.2017, Mr Baru advised DCM I to look into “the case laws pertaining to these issues particularly the celebrated case of Nor anak Nyawai, which is easily accessible.”
If the DCM I accepts his advice, given through the media, he would find the passages of the Judgment of Justice Zainion Ali quoted above and that in Nor Ak Nyawai, the Court of Appeal quoted Mr Baru as having submitted to the Court that a claim for native rights to land is based upon the concept of continuous occupation having regard to the laws at the relevant time”.
QUESTIONS
In the circumstances, Mr Baru should enlighten the DCM I and the public as to the following:_
(1) Should the Land Code be amended to the effect that the practice of pemakai menoa and establishment of pulau confer NO title, whether occupational, possessory or proprietary or freehold right, to the land, to the natives as stated by Justice Zainon Ali whose Judgment Mr Baru has publicly declared to be correct?
(2) That loss of foraging rights over land would be compensated based only on loss of the rights to engage in such activities (of foraging for food etc) for a livelihood? and
(3) Whether any native like himself, who has been practising law and/or working and living in Kuching would still be considered as still dependent on virgin jungles to forage for a livelihood and be paid compensation for loss of foraging rights in the event such virgin jungles where his ancestors had foraged and hunt for food, had been lost or destroyed by persons issued with forest licences or provisional leases by the Government.
CUSTOMS AND LEGALLY ENFORCEABLE RIGHTS
Justice Zainion Ali ruled that:
“91. In general, for a custom to be regarded as conferring legally enforceable rights, it is essential that such customs be immemorial, certain, reasonable and acceptable by the locality”
That is the standard common law test on whether a particular custom can or cannot be enforced by the Courts.
Mr Baru should clarify whether a custom of foraging for food or hunting in a virgin jungle without any limitation as the extent of the area used for hunting or roaming or foraging or without a right to prevent others from having similar access thereto, satisfied this test for a legally enforceable custom?
For instance, in the case of Matu Tugang a group 43 semi normadic Penans claim ownership rights to a huge area of land in Ulu Belaga, equivalent to the size of Perlis and Malacca combined, based on their custom of tana’ pengurip i.e territory which they roamed and depended for their livelihood. Would such a custom satisfy the common law test of legal enforceability particularly in terms of “certain” and “reasonable” aspect of that test?
Justice Rhodzariah Bujang dismissed the claim. Mr Baru Bian’s legal firm acting for Matu Tugang has appealed against this decision. The Appeal is pending hearing by Court of Appeal.
RIGHT OF APPEAL
The right of any litigant, whether private or Government, to appeal against any decision of the Court, is a right accorded by Law or in the case of appeal to the Federal Court, if leave or permission is granted by that Court.
For this reason, I find it extremely unethical for Mr Baru to continuously complain about the State Attorney General’s Chambers appealing against decisions of the High Court in NCR cases. After all, when a High Court decision like in Matu Tugang is unacceptable to Mr Baru’s client, his legal firm also filed appeal. Even today, 9 February, appeared before the Federal Court on behalf of TR Aling to seek, unsuccessfully, the Court’s leave to appeal against lower Courts’ decisions dismissing his client’s NCR claims.
To the eternal credit of the legal officers of SAG Chambers, they never publicly criticised Mr Baru or any of his clients for appealing against lower Courts’ decisions in NCR cases. Hence, I do find that Mr. Baru’s constant complaints against the SAG officers doing their professional duties to protect the State Government’s interests and alleging that they had given “wrong advice” to the Government to be behaviour unbecoming of a member of the legal profession.
EPILOGUE
Issues pertaining to Native Customary Rights can be resolved so long as they are not politicised and no one is attempting to make political capital by raising such issues. The emotional element, though understandably would attach to any issue relating to land, should be contained. Issues of such nature could only be resolved in a rational way, with due respect to the customs, rights and interests of all communities and the well being of the State.
Public discourse of the nature that has taken place since delivery of the Federal Court Judgment in TR Sandah could not be considered to be helpful in assisting the State Government of DCM I in arriving at a satisfactory resolution of this complicated issue of Native Customary Rights to Land in Sarawak. Let us all pray that the State Government leaders in their wisdom will find a solution that will preserve the peace and harmony of the State and retain the confidence and trust in the integrity of our Land Administration System.
The author is an Advocate on the Roll of Advocates, Sarawak.