Selangau MP: Federal Court’s decision to dismiss NCR land appeal ‘dangerous, worrying’

KUCHING, Nov 26 — Selangau MP Baru Bian today expressed his disappointment with the decision by the Federal Court to dismiss an appeal by the native landowners to reclaim over 3,500 hectares of native customary rights (NCR) land at Sungai Liam, Bakong in Miri Division, from a company.

He said in effect, the decision meant that as long as the lease had been given by the government, NCR were extinguished, regardless of whether it was given legally or in accordance with the Sarawak Land Code.

“This means that the native claimants will have lost their land, having recourse only to compensation,” he said in a statement when responding to the apex court’s decision delivered two days ago.

“This is a very dangerous and worrying development as it appears that if the government wants to take an area of NCR land, all they have to do is to issue a lease, even a Provisional Lease, over that land, and the NCR over that land is extinguished,” Baru, who has been representing many NCR landowners in court, said.

He said native landowners face uphill battles in NCR cases when their land is taken from them, often without their knowledge.

“All their problems stem from the policies and practices of the government, helmed since the formation of Malaysia by Barisan Nasional, renamed GPS in 2018.

“Although the government pays lip service to the protection and recognition of the rights of the natives to their customary land, the actions taken by the government agencies betray their intentions,” Baru added.

In its ruling, the Federal Court stated that since the Court of Appeal and the High Court’s decision were made prior to the Sarawak Land Code (Amendment) 2018, their decisions were therefore correct.

The court has also ruled that since the land had been issued with the lease of state land to Asco Green Sdn Bhd, the lease is indefeasible, and the land could not be excised out to be returned to the native appellants even if it is found to be NCR land.

On November 24, a group of native landowners, led by their longhouse chief Ramba anak Bungkong, 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, Asco Green Sdn Bhd.

The group had sued the company and the state government as respondents.

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.

Lawyer Simon Siah, representing the natives, 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.