The appeal in one of the biggest native customary rights (NCR) land cases, brought by three indigenous communities in Upper Limbang, Sarawak, against several logging and tree-planting companies was put off by the Court of Appeal sitting in Kuching yesterday.

The action was filed two years ago by Racha anak Urud @ Peter Racha Urud, Edison John Urud, Jalung Jok, Menit Along, Agung Taie and Wilfred S Lasong - who are representing the Penan, Kelabit and Lun Bawang communities in the area.

NONEThey named Ravenscourt Sdn Bhd, Billion Venture Sdn Bhd, Limba Jaya Timber Sdn Bhd, Kubang Sri Jaya Sdn Bhd, director of the Forests Sarawak, and the Sarawak government as the defendants.

The six plaintiffs claimed the land was part of their NCR land and that they were never consulted by the Sarawak government when timber and planting licences were awarded to those companies.

They further alleged that their sources of food, wild produce, irrigation, medicine as well as their living space, sacred grounds and recreational grounds were seriously threatened by the encroachment into their land.

They therefore sought a declaration that they had acquired and inherited native title of the NCR for those land, that the awarding of the licences to the companies violated their rights, and that the Sarawak government, in giving the licences, was wrong, unlawful and acted illegally.

The residents are seeking an injunction to restrain the companies from trespassing, encroaching or developing the land with machines. They are also seeking damages.

High Court dismisses case

However, judicial commissioner Stephen Chung Hian Guan ruled in the High Court in Miri on Feb 12, 2012, that the application by the six should have been for a judicial review and not by a writ of summons.

“The plaintiffs, in filing this action, are abusing the process of the court. Therefore, I allow the defendants’ application to strike out the plaintiffs' suit,” Chung had ruled.

NONEHowever, the matter came up at the Court of Appeal yesterday and the three-member panel decided to postpone hearing the appeal.

The appellate court is awaiting on a final decision of the Federal Court, the highest court in the country, in a landmark NCR land case.

The case involves 17 people led by James Jagah Nyadak of Serian, who are representing seven villages, and Abas Naun of Tebedu, representing six villages.

This comes after the Court of Appeal had, in February last year, allowed the 17 to file their claims through a writ of summons and not via a judicial review.

Judges Sulaiman Daud, Mohamed Apandi Ali and Mohtarudin Baki, who sat on the bench agreed with the arguments raised by the landowners’ lawyers that NCR claims involved issues of law and of facts and therefore, their claims against the Sarawak government must be filed with an ordinary writ that allows oral evidence be adduced in the trial, rather than affidavits as in a judicial review.

The appeal against this decision is pending in the Federal Court.

Sticky problem of defending NCR lands

NCR lands have long been a sticky issue between the natives, timber companies and the Sarawak government.

Many companies have applied to strike out writs of summons filed by native communities, arguing that such claims should be made via judicial review, under which such claims must be filed within 40 days of the issuing of the land lease or timber lease.

The fact is that the indigenous communities do not even know that the Sarawak government has been giving away their land to timber concessionaires or granting land leases for replanting.

NONEIn yesterday’s case, one of the defendants, Billion Venture, had come under the public eye after the expose by international NGO Global Witness earlier this month, in which company lawyer Huang Lung Ong was caught on video trying to strike a deal with a 'foreign investor'.

Billion Venture is said to be owned by timber tycoon Hii Yii Peng, whose family is claimed to have extensive and enduring commercial interests with Sarawak chief minister Abdul Taib Mahmud, and his immediate family, including in joint-ventures and common shareholdings in the oil palm, timber and hospitality industries.

In the video, Huang divulges that Hii would be expected to pay Taib a kickback of approximately 10 percent of the licence value in return for the directive from Taib's ministry to issue the logging licence.

However, Huang denied the contents of the video claiming it was coffee shop talk.

A formal complaint was filed last week by Advocates Association of Sarawak president Khairil Azmi Mohd Hasbie, against Huang and Alvin Chong Chee Vun, with the Advocates Inquiry Committee for professional misconduct. Chung is the other lawyer implicated in the Global Witness video.