This is yet another case of Native Customary Rights landowners won court fight against the intrusion of their land by private companies often with implied consent from the State government.
According to prominent activist lawyer, state assemblyman, Baru Bian, they have won several similar cases including the widely cited case Nor Nyawai vs Borneo Pulp Plantation Sdn. Bhd and there are still more NCR land disputes awaiting trial [see here pdf].
This was the fifth judgement from the Court of Appeal confirming in their ruling that ‘pemakai menoa’ and ‘pulau galau’ were native customary land under the Iban adat or customs in Sarawak.
“It is interesting to note that for the first time in NCR cases emanating from Sarawak, the court declared that the issuance of the Quarry Licence and the Provisional Leases without first extinguishing NCR, was a breach of the government’s fiduciary duty to the plaintiffs or appellants,” Baru said.
But he stressed it is often a hollow win because the Sarawak Government will appeal the case and often ignore such ruling when they lost.
In the latest win, the Iban of Rumah Meringai, Sungai Lembong Suai were given their land back after the the Court of Appeal overturned a lower court’s decision and affirmed their native customary rights over the disputed 3,000 acres land in Niah District.
The cases were tried in July 2011 before High Court judge Datuk Abdul Rahman Sebli, who struck off the two cases brought by some 22 Iban landowners, on grounds that the area claimed were not cleared or farmed before 1958, thus making no basis for the Native Customary Rights (NCR) claim.
Dissatisfied with the High Court decision, the Iban landowners – Plaintiffs appealed.
After prolonged legal battle, the Appeal judges Datuk Abdul Wahad Patail, Datuk Wira Mohtarudin Baki and Datuk Mah Weng Kwai on Tuesday ruled in favour of the plaintiffs with costs and damages.
The NCR landowners had filed two cases; the first against Fung Tai Sdn Bhd, Land Custody and Development Authority (LCDA), Miri Superintendent of Lands & Surveys and the Sarawak state government over the matter.
The Ibans claimed the Quarry Licence was issued to Fung Tai Sdn Bhd and/or LCDA without their consent.
And the second, Butrasemari Sdn Bhd, Miri Superintendent of Lands and Surveys and the Sarawak government were named respondents over two Provisional Leases issued to Butrasemari by the Miri Superintendent.
The appellate court judges further ruled that the issuance of the Quarry Licence and two Provisional Leases were “unlawful, improper, unconstitutional and therefore null and void”.
In allowing their appeal, the Appeal Court judges unanimously agreed that the Ibans, on the balance of probabilities, proved their claims of pemakai menua (communal land) and/or pulau galau (communal forest reserve) over their NCR land comprising about 3,475 hectares.