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Extracted from Malaysiakini
Court overturns
decision on NCR land made in 2001
Jul
9, 05 12:37pm
The Court of Appeal has overturned a Kuching High Court's May 2001
decision that a group of Iban longhouse dwellers in Bintulu could exercise native
customary rights over a disputed land within a provisional lease issued for a
tree plantation.
The appellate court's main reason for allowing the appeals by the Bintulu
Superintendent of Land & Survey (the lease issuing authority), Borneo Pulp
Plantation Sdn Bhd (the leasee) and Borneo Pulp and Paper Sdn Bhd (the
sub-leasee) was that it found 'a lack of credible evidence' supporting the
Ibans' NCR claim on the 672.8-ha disputed land.
A group of Ibans from a 64-door longhouse led by Tuai Rumah Nor
anak Nyawai in Sebauh, Bintulu sued in 1999 after the government issued two
provisional 60-year leases for two companies involved in tree plantation and
pulp making, claiming their NCR land had been wrongly included in the leases.
The High Court ruled in their favour in May 2001, saying the Ibans were
entitled to exercise their NCR over the disputed land and the court also ganted
an injunction to stop the companies or their agents from entering the same
area.
But it found insufficient evidence to support any award for damages.
The government and the two companies appealed and the decision was delivered
yesterday in Kuching.
But the appellate court affirmed the concept of native customary rights on what
have been described as temuda ( cultivated land), pulau (
communal reserve) and pemakai menoa (community reserve land).
Sufficient
evidence
Counsel for the Ibans, Baru Bian (photo right), later told
reporters: “In a way the Ibans have won, although in this appeal they lost due
to lack of evidence. Therefore in NCR cases we have to bring sufficient
evidence to prove NCR.”
Appellate court judge Hashim Yusoff said in court: ''Despite the aerial
photograph of the disputed area in 1951 showing the disputed area covered with
jungles the trial judge (Ian HC Chin) factually concluded that on a balance of
probabilities, the disputed area was the area where the respondents and their
ancestors had cleared for cultivation, accessed for fshing, hunting and to
gather forest produce, all rights associated with temuda and halau
and they came within the pemakai menoa of the respondents."
The panel consisted of Hashim, Richard Melanjum and Tengku Baharudin Shah
Tengku Mahmud.
Hashim said that such a finding was made in complete disregard to the
unchallenged testimony of a witness, Sapit, who said there was no 'temuda' in
the upper reaches of Tajem and Anyie rivers.
His 33-page judgment was read out in open court by the High Court of Sarawak
and Sabah Senior Registrar Gabriel Gumis.
''To justify his finding in the face of the physical evidence in the form of
the photographs of the disputed area in 1951, the judge proceeded to agree with
the assumption advanced by Baru Bian (counsel for the plaintiff in the lower
court) in that the area could have been cultivated before 1951 only to return
to jungles subsequently,” he said.
Cross-appeal
dismissed
Hashim added: “Hence, we are unable to agree with the approach taken by the
trial judge. We are inclined to accept, in the absence of any evidence to the
contrary, that in the relevant time the disputed area was covered with jungles
as shown in the 1951 photographs.”
“And at the appellate level, we are entitled to do so since the
finding of the trial judge is not a primary finding of fact but an inference at
most.”
The appellate court also said there was no evidence to show the disputed area
was under continuous occupation of the Ibans and their ancestors.
In allowing the appeals, the appellate court set aside all orders by the High
Court. It also dismissed a cross-appeal by the respondents against the lower
court's decision not to fix for damages when it found in their favour.
It also ordered that each party pay its own costs, taking into account that the
case was one of public interest and “morever it is not in dispute that the
respondents are persons of little means.”
Baru Bian told reporters that he would apply for leave to appeal to the Federal
Court.