RIGHTS WERE EXERCISE BY THE PLAINTIFFS

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RIGHTS WERE EXERCISE BY THE PLAINTIFFS
Judge: " … there is no Sunday market in the jungle"

A major point of contention during the trial was whether the Plaintiffs and their ancestors exercised the Native Customary Rights on the lands concerned.

After detailed deliberation on the historical background of the custom and longhouse of the Plaintiffs and their ancestors Justice Datuk Chin drew the conclusion that: "the Plaintiffs and their ancestors had exercised those native customary rights known as temuda, puIau and pemakai menoa".

"I can also conclude that where you find a longhouse in a remote area, that is in an area with jungles and rivers, you can assume that activities connected with temuda and pulau and pemakai menoa have been carried out since it is the livelihood of the folks staying in the longhouse."

"They are dependent on them for survival. The longhouse is located in the district of Sekabai, Bintulu, Sarawak. It is built near a main river called Sekabai."

The judge also found evidence that "the Plaintiffs and, at least their more immediate ancestors, have planted fruit trees along the northern end of the disputed area The growing fruit trees are living testimony of that.

All these support the Plaintiffs' assertion that they have farmed, fished and hunted in the disputed area. If they have, I see no reason why their ancestors could not have."

"After all, there is no Sunday market in the jungle like the Kuching Satok Sunday Market where you can simply drop by to buy your meat, fish, vegetable and building materials."

"Even if there is, they would need to have money which would be wanting if they live in the jungle. They do not need it because they live off the jungles. Therefore, the Plaintiffs and their ancestors must have turned to these rivers and forests for the supply of those necessities," he wrote.

The judge also provided several reasons as to why he believed "there must be a limit as to the extent of a pemakai menoa."

"No direct evidence"

To the contention of the counsel for the First and Second Defendants, that the Plaintiffs had not produced any direct evidence that their ancestors exercised those rights, the judge asked: "How is it possible to produce a witness who can testify to what he did or saw some 200 years ago...?"

"If the present generation can prove that they are practising which historians described as having been practised 200 years ago, then that is sufficient proof that native customary bean practised 200 years ago."

Quoting from an authority which supports his proposition he commented further: "Therefore, once it is established that there is a longhouse in a particular area, it can be assumed that all those activities which I have mentioned earlier had been carried out. There is no dispute that the various tembawai exist and the present longhouse Nor/Luang is still being occupied giving rise to the conclusion that the various activities had been carried out before."

" I find on a balance of probabilities that the disputed area (as shown in the map P172) was the area where the Plaintiffs and their ancestors had cleared for cultivation, accessed for fishing, hunting and to gather forest produce, all rights associated with temuda and galau and they fall within the pemakai menoa of the Plaintiffs."