MIRI, (26 February 2002) - The Iban community in Sungai Bawan, Mukah has taken legal action against 2 logging companies that are trespassing into their native customary land. The application for injunction was filed by 4 representatives of the community of Rumah Juti, Rumah Demong, Rumah Tawan and Rumah Mulok located at Sungai Bawan, Balingian, Mukah, Sibu Division, Sarawak.

In the main suit filed by the Iban natives in October, 2001, the Ibans named the Sarawak Government, Lien Hoe Sawmill Berhad and Esteemac Timber Sdn. Bhd. as the 1st, 2nd and 3rd Defendants.

The Ibans claimed that they have acquired native customary rights over the native customary land around their villages and which land comprises both cultivated areas as well as forests. Their communal native customary land boundary has been surveyed using Global Positioning System (GPS) and the GPS surveyed map had been filed in the Court.

They also claimed that when the Sarawak Government issued the Forest Timber Licence No. T/0113 (logging licence) to Lien Hoe Sawmill in 1981, they were not consulted although their native customary land are all included or covered by the said licence. They alleged that the licence is therefore void for being issued in breach of the rules of natural justice.

They further alleged that the issuance of the licence which had affected and/or deprived them of their rights to their customary land and the resources on their said land deprived them of their right to life (their customary land and forest being their source of livelihood) and therefore is in violation of Article 5 of the Malaysian Federal Constitution (which states - "No person shall be deprived of his life or personal liberty save in accordance with law"), as such is void. Alternatively, the Ibans averred in their Statement of claim that the issuance of the licence is also in breach of Article 13 of the Federal Constitution which states "No person shall be deprived of property save in accordance with law"

The total area covered by the licence is 46,218 hectares but only about 4,000 hectares of the 46,218 hectares are claimed by the Ibans as their customary land. No Environmental Impact Assessment (EIA) was done or has been approved for the logging activities although under Section 11A of the Sarawak Natural Resources and Environment Ordinance (NREO), 1994 logging within a forest area of 500 hectares or more is a prescribed activity for which an EIA is mandatory.

At the first hearing on the application for the injunction on 25th January, the judge asked the counsel for the Ibans to convince him whether or not and how the Ibans would suffer irreparable damage if the injunction is not granted. In the judge's view, logging as claimed by the companies is only done "selectively" and therefore there are still forest and timbers left within the licensed/logged area over which the Ibans claimed customary rights and the Ibans can still carry on with their life on these remaining forest or timbers.

He also commented that the companies would lose hundreds of thousands of Ringgit a day if they are injuncted.

This case for injunction, if successful, would create a good precedent for the other native communities in Sarawak, particularly, the Penans who can file similar suits and apply for similar injunction to protect their rights over whatever remaining forests are left in their areas.

If anyone knows of any precedent on injunction granted by the Court against logging within customary land, please let us know immediately and give us the case citation.

For the time being the companies has stopped their logging operations because of protests and blockades put up by the Ibans. - BRIMAS