Court orders company to pay natives

Yet another oil palm company, which was issued a provisional 60-year lease by the state government, has lost its case against natives.

KUCHING: The Kuching High Court has ordered Nirwana Muhibbah Sdn Bhd, an oil palm company linked to State Assistant Minister Naroden Majais, to rectify the provisional lease on Lot 2979 in the Melikin land district because the natives there have rights over the land.

The court gave the company 30 days to exclude the native customary rights (NCR) land of the people of Kampung Merakai from the provisional lease as they have the customary rights over the land.

The court also restrained the Land Custody and Development Authority (LCDA) and Nirwana Muhibbah , their servants, agents, assigns and successors from entering, clearing or carrying out any works on the NCR land or on any part of it.

The order was made after the High Court declared that the residents of Kampung Merakai had acquired NCR over the land as it had never been extinguished by the superintendent of Lands and Surveys and the government.

Luking Anank Uding, Simah Anak Empaling, Bari Anak Barien and Nymbar Anak Suwat sued the parties concerned on behalf of themselves and longhouse residents of Rumah Luang, Kampung Merakai, Gedong and Simunjan.

In their claim, the natives said they had acquired the NCR land through their ancestors who have over the years settled in and occupied the area, the boundary of which also served as the border between Kampung Merakai and several other villages.

They contended that the issuance of the provisional lease to Nirwana was wrongful because there was no provision for compensation to the plaintiffs and no compensation was given nor expected to be given.

Concurring with the claim, Justice Linton Albert said that it was clear that the natives from the time of their ancestors had been in occupation of their “pemakai menua” which followed a defined boundary based on permanent landmarks which separated Kampung Merakai from the “pemakai menua” of neighbouring villages whose “pemakai menua” were contiguous to that of Kampung Merakai.

Albert said witnesses from these villages gave credible testimony of the long-established “garis menua” delineating the “pemakai menua” from their respective ancestors.

“Thus, applying the principle I have set out to the evidence adduced by the plaintiffs (natives) and the defendants, I am satisfied that it is more probable than not that the plaintiffs have established their native customary rights to the ‘pemakai menua’ which they claim, in accordance with the civil standard of proof required under Section 101 (1) of the Evidence Act 1950,” he said.

No action despite police reports

Albert said that the issuance of the said lease in respect of Lot No 2979 Melikin Land District was null and void.

“The first and second defendants within 30 days must rectify the provisional lease on Lot 2979 in Melikin land district by excluding the plaintiffs’ native customary right land from the area covered under the provisional lease,” he said.

The judge also ordered Nirwana Muhibbah to pay damages, to be assessed by the deputy registrar, to the natives with an interest of 8% per annum from the date of the writ until full payment.

The land dispute between the natives and Nirwana Muhibbah began in 2001.

Unknown to the natives, sometime in October 2000, the government had issued a provisional 60-year lease for Lot 2979.

Despite numerous letters to the authorities and police reports against the company, no action was taken.

On March 30, 2002, the natives decided to file their class action suit at the Kuching High Court and the trial started in March 2008.

The court decision yesterday has been hailed by the residents as the “victory of the natives” in defending their rights. - FMT