Baru Bian : NATIVES OF SARAWAK WON ANOTHER NCR CASE

Press Statement from Baru Bian

GAYAN ANAK TUPAI & 3 ORS vs. VITA HILL SDN BHD & 2 ORS

SUIT NO: 21-4-2009 (SIBU)

Today, another judgment handed down by the High Court in Sabah and Sarawak at Sibu, is another clear proof that the land grab by the present State Government of Native Customary Land (NCL) in Sarawak is on the rise.

• FACTS

1. The Plaintiffs who are all Iban natives of Sarawak, headed by their longhouse Chief or Tuai Rumah Gayan anak Tupai, and 3 others brought a legal action on their own behalf, as well as on behalf of 15 other residents who claimed to be proprietors, occupiers, and claimants of Native Customary Rights (NCR) land approximately 3,308.15 acres, (“the said NCR Land”) situated at their longhouse known as Rumah Gayan, Dassey, Budu, Krian, Saratok, Sarawak, against 3 Defendants a timber licensee Vita Hill Sdn Bhd and the issuing authority, the Director of Forests, Sarawak and the State Government of Sarawak.

2. The Plaintiffs claimed that on or about the 13th day of June 2006, without the knowledge and/or consent of the Plaintiffs, the Director of Forests Sarawak, the 2nd Defendant had issued out to the Vita Hill Sdn Bhd, the 1st Defendant a Timber Licence No. T/3456, (“the said Timber Licence”), which area includes or overlaps onto the Plaintiffs’ said NCR Land. The Plaintiffs had proven in the trial that the 1st Defendant and/or their servants or agents had constructed timber roads or feeder roads on the Plaintiffs’ said NCR Land and therefore trespassing thereon causing extensive damages.

3. The Plaintiffs amongst other things also claimed that there was no extinguishment of the Plaintiffs’ NCR within the land covered by the said Timber Licence before the same was issued to the 1st Defendant and/or no provision as to compensation in accordance with the Land Code of Sarawak, Forest Ordinance Sarawak and the Federal Constitution was ever made or paid to the Plaintiffs. Therefore alienation of the said Timber Licence is unlawful, unconstitutional, and improper and therefore the Plaintiffs said that the issuance of the Timber Licence was null and void. Further, the Plaintiffs argued that the said Timber Licence is subject to their NCR and therefore their NCR should prevail over the said Timber Licence.

• COURT’S RULING/JUDGMENT

4. The High Court Judge Puan Yew Jen Kie, handed down her judgment this afternoon concurring with the Plaintiffs claims, made the following orders:

i. A Declaration that the Plaintiffs had acquired and/or inherited Native title and/or Native Customary Rights (NCR) and/or usufructuary rights over the said NCR Land as claimed by the Plaintiffs referred to and/or shaded in light Brown and marked in the locality map marked as exhibit “M” and annexed to their Statement of Claim.

ii. A Declaration that the 1st Defendant and/or their servants or agents had trespassed upon the said NCR Land of the Plaintiffs.

iii. A Declaration that the said Timber Licence T/3456, is subject to the Plaintiffs said Native title and/or Native Customary Rights (NCR) and/or usufructuary rights over the said NCR Land.

iv. As a consequence order the area under the said Timber Licence No. T/3456, be rectified to exclude the area claimed by the Plaintiffs as their native title and/or native customary rights and/or usufructuary rights land.

v. An injunction restraining the 1st Defendant and/or its employees, servants and/or agents from trespassing, clearing, using or occupying the Plaintiffs’ said NCR Land.

vi. An order that the Plaintiffs be given vacant possession of their said NCR Land and the 1st Defendant and/or its employees, servants and/or agents to cease operations and remove all structures and their equipments or machineries from the Plaintiffs’ said NCR Land forthwith.

vii. That the damages suffered by the Plaintiffs be assessed by the Senior Assistant Registrar of the High Court.

5. It is interesting to note that the Plaintiffs went back into their history to prove their case. They claimed that they are the 5th generation of Ibans who occupied the said NCR Land since the time of their ancestors Luyoh Anak Rekan when Sarawak was still under the control of the Brunei Sultanate. Some documentary proofs like Occupation Tickets issued in the 1930s to some of the Plaintiffs and their parents were evidences of legal occupation. More recent proofs were the fact that the Plaintiffs were compensated by the State Government due to the construction of a public road in 2001 across their NCR Land.

6. The Plaintiffs were represented by their Counsel Mr. Baru Bian of Messrs Baru Bian Advocates & Solicitors, Kuching, the 1st Defendant Vita Hill Sdn Bhd by Puan Siti Norashidah Binti Dollah of Messrs Huang & Co., Sibu, and the 2nd and 3rd Defendants, who are the Director of Forests Sarawak and State Government of Sarawak respectively were represented by legal Officer Encik Joseph Chioh Hock Hua.

7. We welcome this judgment and hope that it would inspire others to fight on to defend their NCR over land in Sarawak, notwithstanding the possibility that the Government of Sarawak may yet appeal against another judgment favouring the natives of Sarawak as in other cases won before this. If indeed the State Government and her present political leaders are true to their words of respecting NCR over land in Sarawak and the Court’s judgments as such as this, they should not appeal against this judgment.

8. On the other hand, I wish to urge the natives of Sarawak to think really hard of taking the alternative and most effective means of resolving this NCR land issues vis-à-vis logging companies, plantation companies, quarry licencees and dams constructions which had driven them to squatters and illegal occupiers status upon their own NCR land by voting for Pakatan Rakyat in the next General Election. This is because only a Pakatan Rakyat Government at the Federal and State level could understand the plight of the natives in Sarawak over their NCR land issues and has the political will to resolve it.

Dated this 23rd September 2011

BARU BIAN

PENGERUSI PKR SARAWAK