Sarawak Natives Lost Ancestral Land

The natives of Sarawak today suffered yet another setback in their fight to preserve their ancestral land. A five-man Federal Court bench allowed the appeal by the Sarawak government and the Land Custody and Development Authority (LCDA) in a case involving a piece of disputed land.

Justice Suriyadi Halim Omar said the apex court was setting aside the decisions of the 2011 High Court and the 2014 Court of Appeal rulings as the development order, the principal deed and the joint-venture agreement were found to be valid.

A group of 12 natives had gone to court after the Sarawak Government entered into an agreement with three firms to develop some native customary right (NCR) land, including the disputed 600ha.

Suriyadi, who delivered the judgment on the eve of his retirement, said a 600 ha “red area” in D75 was NCR land owned by some of the 12 respondents. “The authorities are to regulate the compulsory acquisition of the NCR lands from the original owners in the red area,” Suriyadi said of the unanimous ruling.

The bench, chaired by Chief Justice Raus Sharif, and which included Zainun Ali, Balia Yusof Wahi and Jeffrey Tan Kok Hwa had earlier heard the appeal in Kuching.

Suriyadi said an inquiry should be held to identify the rightful NCR owners in the red area and they (NCR owners) were to be compensated by the authorities in accordance with section 15 of the LCDA Ordinance.

Surprisingly, in delivering its ruling, the bench did not answer 15 legal question posed when leave was granted.

In 2014, the Court of Appeal ruled in favour of 12 native customary rights land owners led by Masa Nangkai from Pantu Sri Aman when it dismissed two appeals submitted by the LCDA and three others and the state government.

The appellate court also ruled that LCDA and the other defendants should vacate the disputed land, after declaring that the agreements (including joint venture agreements) that were entered into by LCDA (acting on behalf of the native villagers) were null and void.

The villagers first filed their case in 2005 and won after a long trial at the Sri Aman High Court through a judgment delivered on Feb 18, 2011.

The villagers were represented by counsel Dominique Ng and Daniel Tajem, a former Sarawak deputy chief minister.

Dominique said it would be an uphill task for the natives to reoccupy the land as the law now enabled the state to acquire their property by paying compensation.

“But the struggle of the natives will continue as they hold dear to their ancestral land,” he told reporters.

Last month the Federal Court also ruled that the High Court could not order for the rectification of title to exclude NCR land that had been leased. The bench led by Raus held all the court could order was compensation to the affected natives.

That ruling was also made in favour of TH Pelita Sadong Sdn Bhd and TH Pelita Gedong Sdn Bhd (TH companies), RHB Islamic Bank Bhd, LCDA and the state government.

In that case, on September 2013, the High Court ruled that Nyutan Jami and others had proved they had NCR to their land.

Nyutan said he inherited several parcels of land from his ancestors but the property was now gone for good as it had been leased to the companies.

On Dec 20, the Federal Court in a majority decision also ruled that native customs had no force of law to allow the Dayaks to own communal land and forests next to their cultivated farmlands.

The majority led by Raus held that there was no law in Sarawak that gave the force of law to customary rights claims by the Dayaks over forest reserves (pulau galau) and communal land or territorial domain (pemakai menoa) as NCR lands.

That legal pronouncement came after the court allowed the state government’s appeal in response to an action by Tuai Rumah Sandah Sabau of Sandau longhouse in Ulu Machan, Kanowit, and eight other NCR landowners.