The Court of Appeal in Kuching deferred judgment on a milestone case involving native customary rights on land after hearing for two days the grounds of appeal by the state government's top legal adviser and submissions by the counsel.

In a lower court three years ago, trial judge Ian Chin held that the Ibans of Rumah Nor, Sungai Sekabai in Bintulu do have native customary rights over a disputed area of 672.08 hectares that formed part of a provisional lease of 8,854 hectares issued by the government to a plantation company Borneo Pulp Plantation Sdn Bhd.

The High Court decision in favour of the natives led by tuai rumah (longhouse chief) Nor Anak Nyawai effectively rendered the provisional lease null and void, so an appeal was filed.

The Court of Appeal Judges Richard Malanjun, Hashim Yusoff and Tengku Badarudin Shah deferred judgment yesterday.

The decision has wide implications for the government as there are no less than 50 similar cases brought against the government by native customary rights claimants, mostly Iban and Orang Ulu, throughout Sarawak.

At the appeal hearing, Sarawak Attorney-General JC Fong contended that native customary rights as recognised by Section 66 of the Land Settlement Ordinance1933 and the Tusun Tunggu only cover temuda land (cultivated land) and do not extend to pulau ( preserved virgin jungle) and pemakai menoa or communal land.

Fong told the judges that the total area claimed by the natives was over 18,000 acres.

"But only 1,700 acres is disputed by the superintendent of land and survey because the aerial photograph taken in 1951 showed the disputed area was covered by virgin jungle without cultivation and that the disputed area was an Interior Area Land which the natives could occupy at the pleasure of the government and they could only create rights if issued with a permit by the district officer in which the natives had no permit from the DO to occupy in the disputed area," he said.

Judge erred

He argued that the trial judge erred when equating native customary rights in Sarawak to common law as the "common law has no application in dealing with issues pertaining to ownership of land in Sarawak and that the famous Australian case of Mabo No 2 was decided according to the common law of Australia has no relevancy in Sarawak".

Fong referred to the evidence by a former tuai rumah Sapit, who claimed there was no temuda land in the disputed area and that the trial judge had accepted the evidence.

Fong said at the time the provisional lease was issued there was no pulau in the disputed area because, according to him, between 1984 and 1989, the area was logged twice and cleared of all merchantable timber.

And on both occasions, he said the natives sought payment from logging companies which, he added, the lower court held was evidence that they had sold timber from the pulau.

He further contended that pulau and pemakai menoa did not appear in any of the Rajah's Orders , Land Ordinances and the Land Code, as customs which give rights to land.

He went on to say that native customary rights, as recognized by statutes, only covered temuda land.

There was also no evidence to show that the natives from the Nor longhouse and their ancestors, who originally migrated from Kanowit in central Sarawak to Sungai Sekabai in the 1930s, had ever planted 34,000 fruit trees in the disputed area.

He asked the Court of Appeal to set aside the order and allow the land and survey superintendent's appeal with costs.

Correct decision

Meanwhile, the respondents' counsel Baru Bian said the trial judge had not erred by not making any legal distinction between the terms 'Native Customary Rights' over land or 'Native Customary Land', 'Native Customary Law' and 'Native Customs.'

He referred to a part of the trial judge's judgment in which the latter concluded: "This means ,the ancestors of the plaintiffs (the natives) were at Sekabai by the latest in 1930. But that does not mean that their customs developed overnight in 1930.The customs relating to temuda, pulau and pemakai menoa, is a way of life of the Iban that is intimately connected with the land and which was in existence even before the arrival of the First Rajah(1841).Therefore, it goes much further back than the year 1930"

During the lower court hearing, he said the government did not point to any writing of any historian that held a contrary view. "Therefore, I conclude that the plaintiffs and their ancestors had exercised those native customary rights known as temuda, pulau and pemakai menoa."

According to Baru, the clearing of primary/virgin jungle for farming or cultivation (temuda) was only one of the many means of how native rights over land could be acquired or created.

"Native customary rights is synonymous with common law rights. Common law in England , that is that part of the law of England formulated, developed and administered by the old common law courts, based on the common customs of the country, and unwritten.

"It is the 'common senses of the community, crystallized and formulated by our forefathers," he said.

Baru said the facts of the case showed that the natives had not abandoned, lost and/or extinguished their native customary rights over the disputed area.

Ample evidence

Baru said the absence of the terms pulau and pemakai menao in the Adat Iban or the Tusun Tunggus (which are now revoked) "cannot be sustained in support of the appellant's argument that such customs were, therefore, not recognized and enforceable in law."

Baru said the fact that the respondents' longhouse was outside the disputed area does not mean that no native customary rights exist within the disputed area..

"In fact, the trial judge agreed with us that the disputed area could have been cleared prior to 1958 as shown from the 1951 photographs," he added.

The tembawai/temawai sites as shown in one exhibit from the record of appeal proved occupation of the disputed area because of its proximity to the disputed area.

"From the testimonies of the respondents their occupation of the disputed area was clearly established prior to 1958," argued the lawyer.

Baru said native customary rights cannot be extinguished by the mere presence of a non-native person working within the disputed area. "The provisions of an existing law on extinguishment of native customary rights must be followed."

He further contended that there was ample evidence to show that the disputed area was the source of the natives' livelihood as it is their pulau.

Further, he added, the Adat Iban 1993 clearly provides recognition and the enforcement of other Iban customs recognised by the community though not expressly provided for in the Adat Iban 1993.

Baru said the trial judge was correct in referring to the Declaration of Human Rights of Indigenous Peoples being a universal expectation.

"Malaysia being a member of the United Nations ought to respect and enforce this universal expectation on human rights," he stressed.