The Court of Appeal yesterday upheld the decision of the High Court in Kota Bharu not to stop several companies’ operations in a patch of jungle in Gua Musang, Kelantan, which a group of Orang Asli appellants claim encroached on their ancestral land.
The Temiar villagers from Kampung Kelaik had sought an injunction to stop further encroachment of the land by a collection of mining, logging and plantation companies that received the Kelantan government’s approval to operate on the land.
This is pending the settlement of a legal dispute brought by the villagers against the government and 10 companies over the status of the land, which the villagers say is their native customary right.
However, the three-member bench unanimously backed the earlier Kota Bharu court decision, saying that the court cannot grant an injunction against the government or its agents.
“We should not be against the government and also the private individuals because if you do so, it would be seen as injuncting the government,” said the panel’s chairperson Suraya Othman.
The other two judges on the panel are Supang Lian and Ghazali Cha.
At a press conference outside the courtroom later, lawyer Sachpreetraj Singh Sohanpal, who represented the Orang Asli villagers, said his clients will appeal against the decision at the Federal Court.
He said he disagrees with the court decision that considers commercial companies as “government agents”.
“We will be taking this to the Federal Court as we don’t think this accurately reflects what the law is, for what the law should be,” Sachpreetraj said.
The Kota Bharu court issued an injunction against the companies on March 18 last year, but rescinded it on Aug 29.
More than money
Among the main reasons given for the reversal was that the court could not injunct government bodies.
According to Sachpreetraj, the other reason cited by the High Court was the huge financial losses that the respondents would incur once the injunction is issued.
However, the lawyer countered that the Orang Asli folk stand to lose more than just money.
“Their very way of life will be decimated as opposed to the respondents who are all commercial entities who only stand to lose money.
“With respect to the four respondents who are government bodies, they don’t stand to lose anything. They would only be asked not to grant any further licence to prevent any further encroachment into the land,” the lawyer said.
Kampung Kelaik is located in the interior of the Gua Musang district, about one-and-a-half hour’s drive from town.
The Temiar village has about 200 people and is represented in the suit by three villagers – Ahak Uda, Aziz Angah, and Anjang Uda.
Respondents seek to strike out villagers’ bid
The respondents of the suit are the Kelantan state government, Kelantan Forestry Department, Kelantan Land and Mines Department, Orang Asli Development Department and 10 companies.
The companies are Syarikat Perlombongan Gua Musang Sdn Bhd, Redstar Capital Sdn Bhd, Aqua Orion Sdn Bhd, Damat Corporate Services Sdn Bhd, Sindiyan Sdn Bhd, Sindiyan Agro Park Sdn Bhd, Ladang Kelantan Sdn Bhd, Ikrar Bumi Sdn Bhd, Ladang Ulu Nenggiri Sdn Bhd and Iliasco Engineering and Construction Sdn Bhd.
About 40 Orang Asli folk attended court proceedings yesterday. Ahak told the crowd they would keep fighting the case at the Federal Court.
He said the situation at Kampung Kelaik has worsened as it faces water pollution and animal habitats become degraded.
Ahak hopes the development could be put to a stop, or the Orang Asli will not be able to live a comfortable life.
He also thanked their three lawyers for acting pro bono on their behalf. Apart from Sachpreetraj, the other two are Rajesh Nagarajan and Arun Ganesh Boopalan.
On another note, the respondents to the case are applying to strike out the villagers’ bid for a court declaration that the affected land is their native customary land.
The court is expected to deliver its decision on the application on June 26. - Mkini
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