KUCHING: The Federal Court in Putrajaya, in another landmark case pertaining to native customary rights (NCR) land in Sarawak, on Jan 30 ruled that a Tagal and Lun Bawang can still acquire NCR land through inheritance when such land has been obtained by his/her ancestor through sale or otherwise for value.
This unanimous ruling was handed down in a case involving two timber companies – Lee Ling Timber Sdn Bhd (first appellant/defendant) and Limba Jaya Timber Sdn Bhd (second appellant/defendant).The respondent/plaintiff in the case was Alau Baru, a Tagal woman from Trusan, Lawas.
The parties argued the following main question of law on ‘whether the plaintiff/respondent could still acquire NCR land through inheritance when such land had been obtained by her ancestor through sale or otherwise for value’.
The Federal Court unanimously answered the above question in the positive because the adat/custom of the Tagals and the Muruts or Lun Bawangs allow sale of NCR land. (The earlier Federal Court case of Bisi Jinggot vs Superintendent of Lands and Surveys Kuching Division & Ors [2013] 6 CLJ 805, was distinguished).
The plaintiff/respondent lost in the High Court after a full trial but won on appeal at the Court of Appeal. The defendants appealed to the Federal Court.
According to the summary and background of the case, Alau claimed that she had inherited a parcel of NCR land from her late father, Baru Puek @ Puak.
Her father had purchased about 3,000 acres of NCL land (the said NCL land) from another native – from a Murut/Lun Bawang community according to the adat of the Lun Bawangs or Muruts and Tagals.
Her father had subsequently given the respondent/plaintiff a part of the said NCL land – about 124 hectares – as a gift in accordance with the adat of the Lun Bawang or Murut and/or Tagal.
Alau claimed that in Aug 2008, the first and second appellants/defendants had trespassed onto her NCR land by constructing a logging road and a bridge on her land, leveling the said land, setting up temporary camps and parking heavy machinery on the said land.
The appellants/defendants claimed that the second appellant/defendant (Limba Jaya Timber Sdn Bhd) had been issued with a Licence for Planted Forests No. 0038 (LPF/0038) by the director of Forests on Dec 6, 2004 for a period of 60 years over a forest area measuring approximately 37,084 hectares, which included the said plaintiff/respondent’s NCR Land.
The first appellant/defendant (Lee Ling Timber Sdn Bhd) is the contractor under the licence. The first and second appellants/defendants claimed that they were in the forest area lawfully since 2005 to carry out works pursuant to the licence.
They also denied that the plaintiff/respondent has any or has acquired NCR over the said land and deny that they have trespassed the respondent’s NCR land.
The plaintiff/respondent claimed that her NCR land had not been extinguished, that no compensation was paid to her in respect of her land. She was not given a right to be heard before the licence was issued, that she had a legitimate expectation to be issued a title to her NCR land over the first and second appellants/defendants, that the licence was subject to the plaintiff/respondent’s NCR and should not have been issued to the first and second appellants/defendants in the first place.
Besides that, the plaintiff/respondent also claimed that the issuance of the said licence to the first and second appellants/defendants had impaired her constitutional rights.
Consequent to this ruling, the Federal Court ordered that the plaintiff/respondent’s NCR land be excised out of the second appellant’s licence.
Alau’s lawyer Baru Bian in commenting on the decision, said although they did not have the full written judgment yet, the above decision of the Federal Court confirmed their view that ‘as long as the adat or custom of any of the native communities in Sarawak is still practised, it should be enforced notwithstanding that it does not appear in their codified Adat, as in this case’.
“In Bisi Jinggot’s case, the Federal Court ruled that since the adat of the Iban does not allow transfer of temuda land to any person from outside the community, the transfer therein was not upheld.
“In our case it was proven through expert witness at the trial the adat of the Tagals and the Muruts or Lun Bawangs allows transfer of their ancestral native land, the same adat or practice had been upheld nothwithstanding Section 90(1) of the Lun Bawang Adat 2004 which prohibits transfer of customary land to person outside the community.
“Secondly, the said decision gives us some hope, in view of Tuai Rumah Nyutan’s case that was decided by the same apex court recently, where damages is the only remedy available to the natives when their NCR land happened to be included within a Licensed area.
“In our present case, the order of rectification by excising out the said NCR land from the licensed area that was made accordingly thus appears to give an alternative remedy to the native person in such a case.”