by Tony Thien
from Malaysiakini.com 05 May 2009
The Federal Court has upheld the concept of native customary rights (NCR) to land as including not only one class of such land called temuda (cultivated land), but also pulau (communal forest) and pemakai menua (territorial domain).
The apex court delivered its ruling today in Kuching, in an application by the Sarawak government in a case initiated by local Malay Madehi Salleh to claim NCR rights over former Shell concession land in Miri.
Lawyers dealing in NCR cases were quick to point out the implications of the decision for some 200 land cases filed to date against the state government and companies that have obtained leases mainly for plantation and logging activities.
So long as NCR claimants can provide sufficient evidence to support their claims, logging and plantation companies may now find themselves in a quandary unless they are prepared to negotiate.
Madehi had taken the state government to court in 2007 over his rights to 6.6 acres of land and won the case.
However, the state government successfully appealed the decision in the Court of Appeal, following which Madehi turned to the Federal Court and won his case in October 2007.
The court recognised the pre-existence of NCR before the coming into force of any statue or legislation, in particular the Rajah Order of 1921. It said the reservation of the land under the Rajah’s Order for Sarawak Oilfields Ltd (SOL) did not have the effect of extinguishing NCR to the land.
There was no provision whatsoever in the Rajah’s Order that extinguished Madeli’s NCR to his tract of land, the judges said, noting that all it did was to reserve the land for SOL.
Furthermore, 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.
The Sarawak government, unhappy with the decision, then applied to the Federal Court to review its own decision.
Today, however, the court disagreed that the applicants had met the threshold requirement and dismissed the review application with costs.
The Federal Court’s quorum comprised the Chief Justice of Sarawak and Sabah Richard Malanjun, Hashim Yusuf and Zulkifli Ahmad Makinudin.
Appearing for the applicants (Sarawak government) were State Legal Counsel JC Fong and his assistant Safri Ali. Miri-based lawyer Mekanda Singh Sandhu and his son Sathinda represented Madehi.
Sathinda told Malaysiakini later that the judgment can now be applied to all NCR land cases after this.
Millions of hectares of land have been leased out over the past 20 years to many companies and state agencies.
The Federal Court ruling re-affirmed a similar landmark finding in the Nor Nyawai & Others v Borneo Pulp and Plantation case in Bintulu in 2001.
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