The Federal Court today (20 December 2016) gave the Natives of Sarawak a big dent in their long battle to gain rights over their customary lands, particularly to the wider traditional subsistence territories. The decision also has major implications and repercussions on all current and future native title cases in Malaysia.
In its decision in the TR Sandah case in Kuching today, 3 judges in the 4-judge panel ruled that the custom of ‘pemakai menoa’ and ‘pulau’ does not fall within the definition of ‘law’ under Article 160(2) of the Federal Constitution, although they recognize that they exist.
(A fifth judge did not give any decision as he has since retired. The appeal proper was actually heard more than a year ago in September 2015!)
With this decision, the Federal Court is in agreement with the state government that NCR lands is only limited to the temuda land.
Iban land-use terms
The pemakai menoa is the territorial domain held by a distinct (Iban) longhouse and includes farms, gardens, old longhouse sites, fruit groves, cemetery, water and forest within a defined boundary.
Pulau galau refers to the area of primary forest outside the cultivated area, but within the pemakai menoa of the longhouse, and is normally owned by the community.
Temuda refers to farm land left fallow on which there are secondary growths.
Background to the case
In 2011 in the Kuching High Court, Tuai Rumah Sandah and 7 others had sued Kanowit Timber Company Sdn Bhd and the state government for encroaching into their NCR land, including their pemakai menoa (territorial domain) vide a timber licence issued by the state government to Kanowit Timber Company Sdn Bhd.
The company had argued that NCR should be restricted to the temuda covering an area of 2,712 hectares, which had been cleared before 1958.
However, Justice Yew ruled in favour of TR Sandah and the others, declaring that they were the rightful owners of the NCR land including the pemakai menoa, and that the company had unlawfully encroached into the Ibans’ land.
The High Court had declared that the Ibans have customary rights and/or native customary rights over the lands.
The court also declared that the company and agents had trespassed on the land and that they be restrained from further trespassing, clearing, using or occupying the Iban’s customary rights land.
The Court of Appeal upheld the decision of the High Court in 2013, after which the state government filed the current appeal.
Encroachments by the state government into NCR land have always been a hot issue in Sarawak, with huge areas of NCR land being encroached upon or alienated to others by the state government.
Counsel for the natives, Baru Bian, said that today’s decision “completely finishes off” ten other cases which were won by the landowners at the Court of Appeal, and 20 others pending at the same court.
“It also affects over 100 cases pending in the high courts,” he told reporters after the Federal Court had made its ruling.
The Federal Court decision has also far reaching effects for the Natives in Sabah and the Orang Asli in Semenanjung Malaysia who regard what the authorities call their ‘kawasan rayau’ (roaming areas) as part of the customary territories.
Baru Bian, who is also a PKR state assemblyman, told the large crowd of native peoples in court today that, “Our last hope is applying for a Review of this decision at the Federal Court but before a different Panel of Judges. And we hope that the panel will include judges from Sabah and Sarawak, as they understand our situation better. Our prayer is that God do intervene in this last step. Thank you for praying all this while for us. He has a reason or reasons for this decision for now. God bless us all. God bless the Natives of Sarawak.”
Apart from Baru Bian, the legal team for the Ibans included Simon Siah Sy Gen, Chua Kuan Ching, See Chee How and Dr. Yogeswaran.
[Photos by Mark Bujang | Thomas Jalong.]
Source: COAC-JOAS Media