KUCHING: The Federal Court here has granted leave to the government and a plantation company to appeal a case of Pemakai Menoa and Pulau Galau in Ulu Machan, Kanowit.
The unanimous decision was made by a panel of five judges led by its president Tan Sri Md Raus Sharif during its sitting here yesterday. The other four judges were Tan Sri Abdul Hamid Embong, Tan Sri Ahmad Ma’arof, Datuk Zainun Ali and Tan Sri Jeffrey Tan.
This case was highly publicised on whether the Iban customary practices of Pemakai Menoa and Pulau provide a basis for a valid claim of native customary rights over land to be decided by the Court.
Tuai Rumah (TR) Sandah Tabau and a group of Ibans from Ulu Machan are claiming native customary rights (NCR) over 5,630 hectares of land.
The government contended that they only have right over 2,802 hectares which they or their ancestors had acquired from clearing virgin jungle for farming as shown in aerial photos taken in 1951, but no rights to the land in the adjoining primary forests of 2,712 hectares which the claimants alleged was their ‘pulau’ where they hunted and foraged for food and medicine.
The Court decided that the following issues of law should determine on appeal what was the native law or Adat on right of the land, recognised by common law, which existed before the arrival of the first Rajah in 1841; whether a native custom, Pulau Galau or Pemakai Menoa, which is not found in the Adat Iban Order 1993 or the Tusun Tunggu or any of the Orders made by the Rajahs, falls within the definition of ‘customary law’ in the Land Code and Native Code Ordinance or the definition of ‘law’ in the federal Constitution; and whether in the light of the Court of Appeal decision in Superintendent of Lands and Surveys vs Nor ak Nyawai, native customary rights land extends beyond the occupied and cultivated areas (Temuda) to the primary forests (Pulau Galau) where they foraged for food and forest produce.
The Court noted that these issues have not been decided by the Federal Court previously.
A decision by the highest Court on these points of law would clarify the law on native rights to land in Sarawak and put to rest the argument on what is native customary land and its extent.
State Legal Counsel Datuk JC Fong and Legal Officer Mcwillyn Jiok represented the State Government. Defence counsel George Lim and Simon Siah represented Rosebay Sdn Bhd and the respondent, respectively.