KUCHING, Nov 24 — A group of native landowners today lost their final legal battle when the Federal Court dismissed their appeal to reclaim over 3,500 hectares of native customary rights (NCR) land at Sungai Liam, Bakong in Miri Division, from a company.

Their lawyer Simon Siah said the apex court ruled that the decision of the Miri High Court and affirmed by the Court of Appeal in dismissing the native appellants’ claim was correct as it was made prior to the amendment of Sarawak Land Code in 2018 that sought to remove NCR land from any state land leased to any company.

"Thus, the Federal Court will not disturb the decision of the Court of Appeal and the High Court,” Siah said in a statement.

The group, led by longhouse chief Ramba anak Bungkong, sued Asco Green Sdn Bhd and the state government to reclaim over 3,500 hectares of NCR land at Sungai Liam, Bakong in Miri Division.

Siah said the court, presided by Chief Judge of Sabah and Sarawak Tan Sri Abang Iskandar Abang Hashim, also ruled that since the land has been issued with the lease of state land to Asco Green Sdn Bhd, the land is therefore indefeasible and could not be excised out to be returned to the native appellants even if NCR land is found to within the land.

The other members of the panel were Datuk Vernon Ong Lam Kiat, Datuk Zabariah Mohd Yusof, Datuk Sri Hasnah Mohammed Hashim and Datuk Harmindar Singh Dhaliwal.

Apart from Siah, the native appellants were also represented by Clarice Chan and Joshua Baru, while Asco Green Sdn Bhd was represented by Gabriel Kok and Amanda Yong.

The state government was represented by state legal counsels Mohd Azrul Adzlan and Ronald Felix Hardin.

On September 25, 2019, the Federal Court had allowed the native appellants’ application for leave to appeal on points of law relating to their NCR land, which they claimed had been leased to a company.

The apex court, presided by the then Chief Judge of Sabah and Sarawak Tan Sri David Wong Dak Wah, allowed the application after hearing arguments from counsels for both sides.

Siah had then told reporters that prior to the company coming into the NCR land, the native appellants were given grants from the Malaysian Palm Oil Board to plant oil palm in the area.

He said when they had finished clearing their land, the company came in with a lease for their land.

Among the points of law that the group posed was whether the alleged practice of the Iban to preserve an area of jungle or forest as "pulau” for access to food, wildlife and forest produce gives rise to exclusive rights to said land.

They also posed whether an extinguishment exercise of native customary rights over land as provided under Section 15 of the Sarawak Land Code is required prior to the alienation of lease of state land.

Siah then said the Federal Court, in granting leave to appeal, had also decided to revisit its own decision in the case of Director of Forest Sarawak & Another vs TR Sandah anak Tabau & Others and other appeals on whether the Iban Adat of Pemakai Menoa (territorial domain) and Pulau Galau (Communal Forest Reserves) have the force of law in Sarawak.

He said this issue was not fully addressed in the decision by a different panel of apex court when hearing the application for a judicial review of the TR Sandah & Others case earlier this month.

In 2016, the Federal Court decided that Pemakai Menua and Pulau Galau had no force of law and therefore, were not part of the law of Sarawak.

"However, the chief judge has opined that the decision in the TR Sandah case ought to be revisited and ventilated again in the Federal Court in the present case. Several other cases were also granted leave to the same effect,” Siah said.

He said it has been the common grievance among the indigenous community who claim their NCR over land that has been leased to companies without their knowledge.

He said they only come to know of it when they see tractors entering the land.

"However, it is provided under Section 15 that extinguishment has to be done first before alienation of land for whatever purposes,” he said, adding that this has not been done for most of the NCR claims that are in court.