KUALA LUMPUR, Feb 9 – A court nod allowing five Penans to sue the state government and a timber company for trespass has renewed the community’s fervour to fight for the protection of their native customary rights (NCR).
On Monday, the Court of Appeal in Kuching unanimously ruled there was no time limit for the Penans to sue the state government, the forestry department and a timber firm for encroachment.
The three-man panel of judges overturned a 2008 Miri High Court decision that determined the suit had been filed too late.
For the Penans, the landmark ruling marked a major step forward in their protracted fight to assert their native customary rights (NCR).
“This decision is very important for NCR claims because a lot of NCR cases are brought to court only after the natives realised that their customary land had been trespassed upon or worked on by timber licensees or lessees of oil palm plantations,” said lawyer, Baru Bian(pic).
The Sarawak PKR chief had represented the Penans in the Court of Appeal.
In his media statement today, Bian explained that frequently licenses were awarded by the state government to big timber companies without the knowledge of the natives.
“It would be a great injustice to the indigenous people of Sarawak if they were expected to file their cases within a certain period of time when these licences or leases are normally issued in confidentiality by the relevant authorities.
“This is therefore a landmark decision because it means that the natives of Sarawak are not time barred from filing actions against the Government in such cases,” he added.
The Court of Appeal also ordered the respondents to pay RM20,000 in court costs to each of the five Penans who filed the suit – Balare Jabu, James Lalo Keso, Toreng Gia, Stanly Petrus, and Stephen Belare who are from Long Lamai, a settlement deep in the Sarawak interior of Baram.
When the suit was brought up in the High Court in 2008, the judge cited two laws that prevented the case from being heard.
Sarawak Limitation Ordinance under Item 97 states that suits must be filed within six years from the date of the cause of action.
Section 2 of the Public Authorities Protection Act 1948 also states that any action against the government must be filed within 36 months of the act that forms the basis of the complaint.
The five Penans had first filed their suit in 2007, more than a decade after timber company Merawa Sdn Bhd, was given the licence by the state government.
They lost their case at the Miri High Court the following year without the benefit of a full trial.
The case will now be moved back there for trial, another lawyer for the Penan group, See Chee How, told The Malaysian Insider over the phone today.
He was unsure when the trial date would be, but said it would likely be heard by judicial commissioner Stephen Chung in place of the previous high court judge who has since been transferred to Seremban. - Malaysian Insider
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