Sarawak investors getting jittery over projects on NCR land

Anna Chidambar

Timber and plantation companies that had secured timber licences and provisional leases (PL) in Sarawak are now worried about their investments because of landmark cases in the Federal Court that affirmed the Native Customary Rights (NCR) over native land.

It is learnt that some investors met recently with non-governmental organisations (NGOs) in the state as part of their fact-finding mission to clarify their positions as most of their projects involve NCR land that required investments running into millions of ringgit.

They are concerned that they could lose their money if their projects fail to take off because of the court cases that have favoured the natives. All this time, they had thought they had the upper hand when it came to the law.

Sources say that prior to two landmark decisions meted out by the Federal Court, the final appellate court in the country, the investors had based their understanding of customary land rights on information provided by legal sources representing the state, including former state Attorney-General Datuk J C Fong.

Fong’s book entitled The Law on Native Customary Land in Sarawak, which was released in March 2011, stated that the acquisition of rights to land is by custom or practice recognised by law, such as clearing virgin jungle, planting and occupying the land continuously.

Detractors pointed out that he continued to insist that this custom and practice was confined to temuda or farmed land and felled settled areas only. They stated that both the former AG and the state continued to maintain that they only recognised customs and practice under the laws of Sarawak.

However, the Federal Court affirmed in two landmark cases that NCR lands extended to an area wider than the temuda, to encompass the pulau galau reserve virgin forest within the vicinity of the village and pemakai menoa communal territory covering hunting, fishing grounds, former longhouse site and virgin forests surrounding the village.

However, sources said the state repeatedly showed its “contempt” of the court ruling by continuing to issue PLs and timber licences for such lands, and appealing judgments made by the lower courts which favoured native landowners.

The Federal Court’s affirmation in two landmark cases – namely, Madeli bin Salleh and Bisi Jinggot – set a huge precedent and the tone for all other future cases that will be handled by the courts.

This is giving investors the jitters when dealing with projects involving land in the state and therefore raises a huge impediment in any case that involves NCR land.

Says NCR land lawyer Baru Bian, who is Sarawak PKR chief and Ba’kelalan assemblyman: “JC Fong maintains that the government has ‘recognised and protected indigenous people’s rights over land created by their recognised customs and practices’. What he failed to say is that the current government refuses to abide by the ruling of the highest court in this country relating to the definition of NCR.

“In two of our more recent cases heard in the Court of Appeal (Tamit Anjat and Nyutan/Luking), Fong persisted in arguing that the pemakai menoa is not considered in NCR land arguments, despite the courts having held to the contrary in earlier cases. In these two cases, the court again ruled in favour of the native landowners.”

Baru Bian and Associates is the leading law firm in the state dealing with NCR cases and handles around 70% of the existing cases. There are only a handful of lawyers in the state who handle NCR land cases mainly because these cases are difficult and bring in little money since the charges are determined according to the plaintiffs’ capabilities.

“We have records of more than 200 cases including cases that have been settled, withdrawn and decisions taken. At the moment, we have another 100 cases active in court; so to say there are a total of 400 cases throughout Sarawak also handled by other lawyers would be accurate.

“I embarked in this area of law out of necessity in late 1980s when my family land in Long Semadoh in the Lawas district was encroached upon by one of the state’s plantation companies. I took it to court but then settled out of court,” Baru said.