MIRI, (31 July 2001) - The Miri High Court on Wednesday, 25^th July, 2001, ordered that the civil suit ("Miri Suit")¹ filed by Borneo Pulp and Paper Sdn. Bhd. (BPP) in December, 2000 against the Iban natives from 12 longhouse communities in Tatau, Bintulu in Sarawak to be stayed pending determination of another earlier civil suit filed by the community against BPP in the High Court in Kuching ("Kuching Suit")².

The Court had further ordered that the injunction it granted against the Iban natives last March directing the Ibans to dismantle their blockades on BPP's access road to the site of its proposed pulp and paper mill and prohibiting them from putting up further and/or maintaining their said blockades be also stayed until further order.

In 1997, the Sarawak Chief Minister, Abdul Taib Mahmud, who is the Minister in-charge of land in the State had signed an order extinguishing the native customary rights of the said Iban communities to their native customary land for the purpose of establishment of a pulp and paper mill on the affected land by BPP. Pursuant to the said extinguishment, the Land and Survey Department granted a Provisional Lease to BPP over the said or same land.

Alarmed by such extinguishment what the Ibans regard as an abuse of power by the Chief Minister in extinguishing their customary rights to their customary land, the affected Ibans represented by Jalang ak Paran and Kampong ak Amih filed a representative action for and on behalf of all the affected families against BPP and Sarawak State Government in the Kuching High Court in 1999 (Kuching Suit). In the Suit they asked for, inter alia, declarations that:

1. the extinguishment of their customary rights was not for a "public" purpose and therefore it was not authorised by the law, as such, was and is null and void; and
2. the Provisional Lease issued to BPP over their said customary land was and is void as their customary rights thereto had not been validly extinguished and/or their said rights were still subsisting thereon and therefore no lease, provisional or otherwise, could be issued over their said customary land.

As the "Kuching Suit" is still pending, they argued that BPP should not enter, clear or occupy their said customary lands and had therefore set up blockades on an access road which BPP had constructed to the site of its proposed pulp and paper mill. Unable to proceed with the works at the said site, BPP filed the "Miri Suit" and sought declarations, inter alia, that:

1. they have the right by virtue of its Provisional Lease to enter and occupy the land comprised therein and to use and enjoy free passage through its access road to the site of the proposed mill.
2. that the Ibans were trespassing on its land within its Provisional Lease and/or were guilty of nuisance by setting up blockades on its access road.

BPP also at the same time of the filing of the Miri Suit applied for the abovesaid injunctions against the Ibans.

On 10^th March, 2001, BPP's application for the injunction was heard and granted by the Miri High Court although it was strenuously opposed by the counsels of the Ibans, Mr. Paul Raja and Mr. Harrison Ngau on the grounds, inter alia, that: -

1. the Ibans cannot be deemed trespassers and/or were guilty of nuisance at this point in time because whether or not they are trespassers will depend on whether the Kuching High Court would find that the extinguishment of their customary rights over the said customary land was valid or not. If it was invalid, they cannot be trespassers and in fact, it would be BPP which would be trespassers on their said customary land.

Aggrieved by the decision of the Court granting the injunction they had also filed an appeal to the Court of Appeal which is still pending.

At the same time, the Ibans also applied to strike out BPP's Miri Suit on the main ground that it was an abuse of the process of the Court because the issues raised in the BPP's Miri Suit are the same issues raised and are still pending in the Kuching Suit, i.e. its bad for duplicity.

After obtaining the said injunctions on 10.3.2001, BPP has also filed an application to cite the Ibans for contempt of Court for continuing to maintain their blockades on its said access road. The application is yet to be heard. But with the order now staying the injunction and BPP's application cannot be proceeded with.

Last May, the Kuching High Court (in Nor ak Nyawai's case) also dealt a big blow to BPP when it ruled that the Provisional Lease issued to it by the Land and Survey Department which conversed or overlapped with what the Ibans of Rumah Nor claimed was part of their communal native customary land, was null and void, for inter alia, being issued in breach of the rule of natural justice (no notice to the affected Ibans) and no compensation was paid to the affected Ibans although their customary rights were impaired (breach of Article 13 of the Federal Constitution which provides, no compulsory acquisition of property without adequate compensation).

Not less than 20 other longhouse communities between the region of Tatau and Sibu are also affected by different Provisional Leases issued by the Land and Survey Department to BPP for its plantation to feed its proposed pulp and paper mill where it will clear-cut the entire primary and secondary forest areas of 300,000 hectares which comprised mostly of customary land of the affected communities. Protests by the affected communities are increasing.

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