Sunday, June 7

Decision on legal recognition of NCR land in S’wak to be delivered tomorrow

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KUCHING: A full bench of the Federal Court in Putrajaya will be delivering a decision on the applications to review its judgement on a case involving the legal recognition of native customary rights (NCR) on land in Sarawak tomorrow morning.

The review applications are not only much awaited by the public, especially NCR land owners, but it is also interesting to note that the decision will be delivered after the amendment to the Sarawak Land Code last year, which was aimed at providing the native customs pemakai menoa and pulau galau force of law and proprietary rights.

The current case involved two tracts of land totaling nearly 18,000 hectares in Kanowit-Ngemah.

Lawyers acting for Tuai Rumah Sandah and Siew Libau had filed applications to review the judgement delivered on Dec 21, 2016 in the case of Director of Forests, Sarawak, and another v TR Sandah and others .

The review applications were jointly heard on July 15 at the Federal Court in Putrajaya.

The panel of Federal Court judges who presided over the hearing of the review applications were Tan Sri Azahar Mohamed, Tan Sri David Wong Dak Wah, Datuk Alizatul Khair Osman Khairuddin, Datuk Mohd Zawawi Salleh and Tan Sri Idrus Harun.

The native applicants were represented by counsel Joshua Baru, Clarice Chan and Dr. Yogeswaran Subramaniam.

Arguments were raised on the fallacies of Federal Court judgment delivered in the civil appeals (Director Of Forest, Sarawak & Anor v TR Sandah Ak Tabau & Ors [2017] 2 MLJ 281; [2017] 3 CLJ 1 [“the Appeal”]).

Prior to the Appeal, the Sibu High Court had on May 27, 2011 held that Tuai Rumah Sandah and his community had NCRs over the entire 5,639 hectares of land that was leased by the state government of Sarawak.

In the case of Siew Libau’s community, the area of interest initially covered approximately 11,822 hectares. There were nine longhouses that brought a suit against Rosebay Enterprise Sdn Bhd but the High Court held that only Siew’s longhouse had successfully established native customary rights over a limited area.

The decision of the High Court in Sibu was later upheld by the Court of Appeal but on Dec 21, 2016, the Federal Court reversed the decisions of both the Court of Appeal and High Court, thus denying the principle of NCRs to Tuai Rumah Sandah, who is the head of a village of approximately 30 families, and Siew.

During the hearing of the review applications, lawyers representing the native applicants had submitted amongst others that the Appeal was a “hung” decision, that is, on the questions of law, the panel was split 2-2 in its judgment.

In addition, arguments on infringements of law and lack of quorum were also raised. The applicants contended that none of the judges who heard the appeal had sufficient Bornean experience to hear the Appeal.

“The case essentially involved the enforceability of Sarawak native customary rights. As such, the panel in the Appeal is believed to be improperly constituted and accordingly, any decision of such panel would be null and void,” the lawyers said.

They said the crux of the appeal was whether the native customs of PMPG contained within it the force of law, pursuant to Article 160 of the Federal Constitution, and therefore an enforceable right.

A panel of five judges heard the appeal but only four delivered the judgment after Tan Sri Abdull Hamid Embong, retired prior to the decision.

It was inter alia decided by two judges that the customs of pemakai menoa and pulau galau did not carry with it the force of law within the meaning of Article 160 of the Federal Constitution, and thus could not be legally enforced.

While another two judges held that the adat of pemakai menoa and pulau galau did contain the force of law, and hence was enforceable, one of them said the natives had not proven their claim on the balance of probabilities.

The decision of the Federal Court in this respect may potentially carry major legal implications for large tracts of customary lands currently occupied, used and enjoyed by the natives of Sarawak under the common law and native customs.