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Extracted from Utusan Konsumer July 2001
HISTORIC VICTORY FOR SARAWAK NATIVES
The High Court in Kuching, Sarawak, made history on 12 May when it ruled that natives of Sarawak who have native customary rights (NCR) to land, continue to possess those rights, as these rights have not been abolished by any law.
Presiding judge, Justice Datuk Ian H.C. Chin, also held that native customary rights extended not only to the longhouse area and the cultivated lands around it, but also included the areas in the jungle used by the natives to hunt, fish and source forest products.
The judge made these landmark rulings in a representative action brought by Iban natives of Rumah Luang/Nor at Sungai Sekabai, Sungai Tajem, Sungai Ipuh, Sebauh and Bintulu Division against Borneo Pulp Plantation Sdn Bhd (First Defendant) which had been issued titles to two parcels of land; Borneo Pulp and Paper Sdn Bhd (Second Defendant), the sublessee of the land; and the Bintulu Superintendent of Lands & Surveys (Third Defendant) which was the authority that issued the titles to the lands. The action had commenced on 26 January 1999.
The natives had claimed in their legal action that they have acquired native customary rights, described in the Iban language as temuda, pulau and pemakai menoa, over certain parts of the lands ("the disputed area").
They had also claimed that the Borneo Pulp and Paper Sdn Bhd had trespassed and damaged the disputed area. The company had engaged contractors to clear the land and planted trees to feed a paper mill.
In holding that the Plaintiffs are entitled to exercise native customary rights over the disputed area, His Lordship granted an injunction against the First and Second Defendants from entering the disputed area.
He also held that the titles issued to the First Defendant which included the disputed area, was also declared void and he expected the Third Defendant to take the necessary steps to rectify the titles so as to exclude the disputed area from the grant.
This means that Borneo Pulp and Paper Sdn Bhd cannot work in areas which are native customary lands.
Implications
This decision is a very major victory for the natives of Sarawak who have been for years battling against the State Government for allowing logging operations, oil palm plantations and dam building activities on lands which the natives assert to be native customary lands.
In most cases, the State Government has been prepared to concede that the natives have some customary rights in relation to their longhouse area and the surrounding lands used for cultivation.
What they have consistently disputed are the native's claims to the high forest, where hunting, fishing and gathering of forest products take place. It is also in the high forest areas that logging concessions and dam building activities are becoming increasingly rampant.
Even when the State extinguishes native customary rights, as in the case of the Bakun Dam, compensation to the natives is only confined to the cultivated areas and for the longhouse. Thus, the decision has very far-reaching implications.
It is learnt that the Defendants have filed an appeal against the decision.
(In the accompanying stories, Utusan Konsumer reproduces excerpts of Justice Datuk Ian H.C. Chin's decisions on several major Issues in the case. Paragraphing In the original text has been modified to facilitate convenient reading.)