Appeal for review of native land rights ruling rejected

PUTRAJAYA: The Federal Court dismissed an application by a group of Sarawakians to review a 2016 decision over native customary land rights.

In a four-to-one majority, the bench ruled in favour of the Sarawak government and provisional leaseholder on grounds that the review application was more of an appeal rather than a judicial review.

The applicants from Tuai Rumah Sandah Sabau of Sandau longhouse and Siew Libau sought to declare the December 2016 judgment null and void, arguing that there was an infringement of law, a lack of quorum and that none of the judges, who heard the appeal, had sufficient Borneo experience to hear the case involving Sarawak native customary rights.

Panel chairman Chief Judge of Malaya Justice Azahar Mohamed said there was no obligation on the judiciary to implement a recommendation by the Inter-Governmental Committee report requiring judges with Borneo judicial experience when dealing with appeals rising out of Sabah and Sarawak.

The four other judges were Chief Judge of Sabah and Sarawak David Wong Dak Wah and Justices Alizatul Khair Osman Khairuddin, Mohd Zawawi Salleh and Idrus Harun.

Wong, the dissenting judge, said the quorum lacked Borneo judicial experience and highlighted quorum failure as the deciding panel then was made up of only four judges due to the retirement of Justice Abdull Hamid Embong prior to the decision.

Reading out his ruling for almost an hour, he said the April 2019 amendment to the Sarawak Land Code, legally recognising pemakai menoa (territorial domain) and pulau galau (communal forest reserve), allows to set aside the 2016 review judgment.

The applicants were represented by lawyers Joshua Baru, Clarice Chan and Dr Yogeswaran Subramaniam.

Joshua told reporters the ruling set a precedent for future cases as it was not a necessity for a panel to have a judge with Borneo judicial experience when hearing appeal matters rising out of Borneo.

“This is the end of the road for the applicants, ” he said yesterday.

Yogeswaran said the implication was that Sarawak natives could not claim native territorial domain based on customs because the ruling said customs have no force of law.

“In Sarawak, claims now will be limited to the cleared and cultivated area. You will not have a claim except under the Sarawak Land Code amendment. You will not have a claim to a virgin forest area unless you make a statutory claim, ” he said.On March 13,2011, Kuching High Court Justice Yew Jen Kie allowed a civil suit filed by eight Dayak landowners against a timber company and the state government for encroaching into their native land, including the pemakai menoa vide, a timber licence issued by the state to the company. The firm had argued that native customary rights land should be restricted to the temuda (farmed land), which had been cleared before 1958.

On June 13,2013, the Court of Appeal agreed with the High Court’s decision, saying that pemakai menoa and pulau galau were native customary rights lands.

But the Federal Court panel overturned the findings, ruling in December 2016 that the native customs of pemakai menoa and pulau galau have “no force of law in Sarawak”.

The landmark ruling stated that there was no law to customary rights claims by the Dayaks over forest reserve and communal land or territorial domain as native customary rights lands.

The apex court also ruled that the Sarawak Land Code, the Tusun Tunggu (Codified Customary Laws), Iban Adat 1993 and a number of Rajah Orders only recognised temuda as native customary rights land.