Twelve Sarawakians from the Iban community in Pantu, Sri Aman who brought a civil action against the Sarawak government 12 years ago over a Native Customary Rights (NCR) land dispute lost their case today at the Federal Court.
The apex court allowed the government's appeal after the High Court and Court of Appeal ruled in the Iban community’s favour in 2011 and 2014 respectively.
According to the plantiffs' lawyer Dominique Ng, the said property in question which measures about 600ha was granted NCR status in 1954.
Ng, who appeared with lawyer and former Sarawak deputy chief minister Daniel Tajem, said so far the indigenous communities in Sarawak have lost three cases, including this one.
He added that they had the strongest chance of winning this case because the land had been gazetted as NCR land.
The 12 plaintiffs were claiming rights over a stretch of NCR land which had been planted with oil palms.
Their names are Masa Nangkai, Christopher Ambu, Engkana Talap, Sinju Senabong, Uban Bundan, Albert Waler Skinner Tulis, Jacob Emang, Len Jubang, Liap Giling, Ivanhoe Anthony Belon, Morice Renggi and Gima Belon.
They were suing on behalf of themselves and 90 other occupiers, holders and claimants of NCR land situated at or around Kampung Tekuyong, Kampung Dadak Aping, Kampung Aping, Kampung Lubok Abok, Kampung Sungai Tenggang, Kampung Limau and Kampung Pantu.
The plaintiffs named the Sarawak government, state-owned land agency Land Custody and Development Authority (LCDA) and Pelita Holdings Sdn Bhd (PHSB), and Tetangga Akrab Sdn Bhd (TASB) as defendants.
The plaintiffs claimed various declaratory reliefs relating to their native customary rights in the disputed area, specifically land which was established to be within the oil palm plantation project.
They also sought damages and restraining orders against LCDA, PHSB and Tetangga; and for those parties to deliver vacant possession of the NCR land to the plaintiffs.
Today, a five-member bench led by Chief Justice Md Raus Sharif unanimously overturned the previous two decisions on the case.
Justice Raus sat with Federal Court judges Justice Suriyadi Halim Omar, Justice Zainun Ali, Justice Balia Yusof Wahi and Justice Jeffrey Tan Kok Wha.
The judgment was written by Justice Suriyadi, who will be entering retirement effective tomorrow.
NCR land development dispute
The dispute had been over the Sg Tenggang NCR Development Area in Pantu.
PHSB had entered into a joint venture agreement with TASB to develop the land.
The state government, through the Land Custody Development Authority (LCDA), had gone into joint ventures with developers to develop NCR land, with natives holding a 30 percent stake in the venture.
These joint ventures typically develop the land into oil palm plantations.
The plaintiffs' lawyer Ng previously said that although the concept was good, its implementation had been poorly executed and done without the consent of the natives, which had led to this dispute.
However, Justice Suriyadi ruled today that the joint venture agreement between PHSB and TASB was valid, along with the development order and principal order.
The Federal Court judge also ruled that the 600ha of the disputed land was NCR land owned by some of the plaintiffs.
He also ordered the authorities to regularise the compulsory acquisition of the said NCR lands from the landowners if necessary.
Justice Suriyadi also ordered a local inquiry be held to identify the rightful landowners, who are to be paid compensation in line with Section 15 of the Sarawak Land Code pertaining to land acquisition.
The Borneo Post reported in January last year that the decision in the Federal Court is significant as it could affect between 20 to 30 such joint ventures, which use similar sets of agreements and deeds.
Previous rulings
It was reported in 2011 that Kuching High Court judge Linton Albert had given a damning judgment when he ruled in favour of the 12 plaintiffs, saying that the encroachment was too scanty to conceal their (state's) violations of Articles 5 and 13 of the Federal Constitution. The defendants had been ordered to vacate the land.
Justice Linton ruled that land had been developed for the benefit of PHSB and Tetangga.
“The fact that the landowners were not parties to the agreement between PHSB and TASB, under which it was agreed for the commercial development of the native customary rights land by Tetangga, meant that the landowners’ rights in and over the oil palm plantation were also definitively zero,” said Linton in his judgment.
The appellate court upheld the Kuching High Court decision and ruled the 12 plaintiffs had proven their NCR over the disputed land in Pantu and also ruled that LCDA and other defendants should vacate the disputed land.
This was after the court declared that agreements, including joint venture agreements, that had been entered into by LCDA on behalf of the local villagers were null and void.
Besides this case, the Federal Court ruled in March that six locals from the Kelabit, Lun Bawang and Penan tribes were not entitled to a claim over disputed land, because they had resettled in another area.
The claim had been filed against four timber companies, the Sarawak Forestry Department and the state government for allegedly encroaching into NCR land. -Mkini
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