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Extracted from Malaysiakini
Federal
Court's NCR decision lauded
Tony
Thien
Oct 16,
The Federal Court agreed with the Court of Appeal in citing the cases of Adong bin Kawau & others vs the Johor state government (1997) and Nor Nyawai & others vs Borneo
Pulp Plantations Sdn Bhd
(2001) which provide the principle that common law respects the pre-existence
of such rights under native laws and customs.
This came in the wake of a landmark judgment made by Federal Court
judges Allaudin Mohd Sheriff,
Arifin Zakaria and Azmel Maamor in the Miri High
Court last week that NCR exists over the ex-Shell concession area in Miri
despite the Rajah’s Order 1921.
The 47-page judgment, read out by
There was no provision whatsoever in the Rajah’s Order seeking to extinguish
the plaintiff Madeli Salleh’s
native customary rights over his 6.6. acre land, the judges said, adding that
all it did was to reserve the land for SOL.
Further, the Federal Court said native rights to occupy untitled land in
accordance with customary laws subsisted in an area reserved for operation of
SOL. Individual rights of natives were the same as communal rights, it added.
It would be wrong to say that NCR in
As Section 66 did not purport to nullify the NCR prior to coming into force of
the Ordinance and thus it had no respective force, the Federal Court pointed
out.
Continued
to exercise control
The judges said evidence showed that Madeli continued
to exercise control over the land, inspite of the
fact that he ceased to live on the land prior to losing his home in a fire but
this did not mean he actually ceased to live on the land.
The Federal Court had been asked to determine whether NCR over the land could
still subsist or had been lost or extinguished in an area reserved by the
Rajah’s Order which came into force on
A large tract of land in Miri, once known as
A religious school was built on the affected land and the plaintiff went to
court to seek redress and compensation for it.
The Court of Appeal declared that Madeli had native
customary rights over the land and ordered compensation to be paid for the use
of his land for building the Sekolah Agama. The state
government was granted leave by the Federal Court to appeal against the Court
of Appeal’s decision.
The landmark judgment is of great interest to many parties as there are other
NCR claims over the ex-Shell Concession Area, most of which have been alienated
by the state government to private companies.
Commenting on it, well-known NCR lawyer Baru Bian told Malaysiakini: “I am delighted. Now without going on
appeal on the law in the Nor Nyawai case, the Federal
Court has specifically referred to Nor Nyawai and the
decision has been upheld as to the legal position of NCR.”
What it meant basically is that the NCR does not owe its existence to any
statute or legislation but to customary laws or adat
or native customs, he added.
“Now I am quite at peace with the interpretation of NCR which includes temuda, pemakai menoa and pulau galau,” Baru, who represented the plaintiffs in the well-known Nor Nyawai case.
Brighter
future
The Federal Court finally re-affirmed that the principle of common law applies
in
“Now with the Federal Court’s decision I see brighter future for actions like
this, namely, in dealing with infringements of the law and trespassing of NCR
lands by miners, timbermen, planters and investors.
This could also involve claims of billions of ringgits
ultimately,” added Bian.
The NCR lawyer who handles dozens of NCR claim cases throughout
Sarawak Dayak National Union (SDNU) president Nicholas Bawin
told Malaysiakini he too was elated over the Federal
Court’s decision which he said would have serious implications on the
government over the issue of NCR land claims.
This expert on native laws and customs relating to land said: “I am very happy
(with the Federal Court’s decision), as this is in fact exactly what we have
been telling the Court all this time, that NCR pre-exists any written law or
legislation, and that NCR can only be extinguished if there is a legal
provision and only with compensation after both parties agreed, and not
before.”
Bawin said there is definitely a more hopeful future
for NCR landowners following the Federal Court’s decision.
According to Bawin, whose expert views are often
sought in litigation cases brought by landowners against the authorities, said
there are presently more than 150 cases on NCR claims in courts throughout
“Therefore, the implications of the Federal Court’s decision are only too
obvious on many of the cases now pending hearing before the court.”
A Kuching-based senior academic who asked not to be identified told Malaysiakini
that the decision represented a triumph of right over wrong and re-affirmed the
natives’ inalienable rights over NCR land.
He added that the authorities must now engage the NCR landowners to find what
he called reasonable and fair solutions on their claims for damages and
compensations in order not to exacerbate the situation any further as it could
lead to more conflicts on the ground between natives and land-owners.
In cases where the government is the plaintiff taking action against NCR
claimants, the government or companies should withdraw their suits and instead
find ways to settle the matter.