Court of Appeal’s landmark decision By SHARON LING [email protected] KUCHING: The Court of Appeal’s decision in a recent land case should settle any dispute over what constitutes native customary rights (NCR) land in Sarawak. Last week, the court ruled that pemakai menoa (communal land) is NCR land, upholding the decision of the Sibu High Court in the case of Tuai Rumah Sandah Tabau. The decision is expected to have repercussions on the state government’s land development plans, particularly with regard to large-scale oil palm plantations. Prominent land rights lawyer Baru Bian said the unanimous judgment by the three-member CA panel last Friday followed the landmark decisions of the Court of Appeal in the Nor Nyawai case and the Federal Court in Medeli Salleh that pemakai menoa and pulau galau (communal forest reserve) are NCR land. “This decision is very clear. Various interpretations were made in the submissions but we are delighted that, following Nor Nyawai, (the judges) reaffirmed that pemakai menoa is NCR land,” he told reporters here. However, he said the problem was that the state’s legal advisers chose not to accept the court’s decision that pemakai menoa and pulau galau were NCR land. In view of this, the state PKR chairman said he would furnish Prime Minister Datuk Seri Najib Tun Razak, Chief Minister Tan Sri Abdul Taib Mahmud and other state ministers with all the court decisions on pemakai menoa and pulau galau. “To date there are at least five decisions in the High Court that confirm pemakai menoa while Sandah’s decision is at the Court of Appeal. We will give them the judgments so that there will be no more excuses for them to say that pemakai menoa and pulau galau are not NCR land. Let them read the decisions of the courts,” he said, adding that huge areas of state land were in fact pemakai menoa and pulau galau but had been given to oil palm plantations. In the cases that we have won, the court has ordered the land to be returned to the landowners and the provisional lease (PL) nullified.” In an immediate response, Land Development Minister Tan Sri James Masing said the state government would have no choice but to abide by the court’s decision if it affirmed pemakai menoa as NCR land. However, he said this depended on whether the state government would appeal the Court of Appeal’s decision. “I do not know if the state Attorney-General and state government will appeal the decision. Until they make that decision, I cannot comment much,” he said. Asked if the state government would recognise pemakai menoa as NCR land in future cases if it chose not to appeal, Masing said: “So be it, if the law says so. But we have to see first if the state government will appeal the decision.” Baru, who is also Ba’Kelalan assemblyman, said the Court of Appeal’s decision in Sandah’s case was crucial because it was unanimous and had a lot of bearing. “In fact a few cases were postponed to wait for this decision,” he said, adding however that he would not be surprised if the government decided to appeal to the Federal Court. In the case, Sandah and several other landowners had sued Kanowit Timber Company Sdn Bhd and the state government in the High Court for encroaching into their NCR land, including their pemakai menoa. The defendants argued that NCR should be restricted to the temuda (farming land) covering 2,712 hectares, which had been cleared before 1958. But Justice Datuk Yew Jen Kie ruled in favour of Sandah and the other landowners, declaring that they were the rightful owners of NCR land covering 5,512 hectares, including the pemakai menoa. The state government appealed against this decision, which was however upheld by the Court of Appeal. Baru said the Court of Appeal’s decision would give even more confidence to native landowners to have the NCR issue addressed in court. He said the decision reflected well on the judiciary and showed that justice could still be obtained through the courts. “Even without this decision, earlier decisions in the Nor Nyawai and Medeli cases had already opened the floodgates for NCR cases. At least 200 cases are still pending in court and that itself is a reflection of what is going on,” he added. Besides calling on the state government to adhere to the courts’ decisions, he also urged them not to issue PL for oil palm plantations or licences for planted forest (LPF) without first consulting the people and obtaining their consent. He said should Pakatan Rakyat come into power, its policy would be to hold prior consultation with the people before issuing PL or LPF
Posted on: Fri, 28 Jun 2013 10:13:09 +0000
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