Hornbill Unleashed

February 11, 2011

Penan win appeal in landmark NCR decision

logging

Stephen Tiong, Malaysiakini

The Court of Appeal has ruled in favour of five Pen

ans in a landmark decision against a timber company, the Forestry Department and the Sarawak government, for encroachment into land to which Native Customary Rights (NCR) was exerted.

In a unanimous ruling on Monday, the three-member bench overturned the High Court’s dismissal of the Penans’ claim.

It also ordered the respondents to pay costs of the appeal amounting to RM20,000 to each of the five plaintiffs.

The bench comprised Court of Appeal judges Justices Suriyadi Halim Omar and Wahab Patail and Kuching High Court judge Justice Linton Albert.

They ruled that the time bar is not applicable to NCR claims, and allowed the appeal by the Penans who are from Long Lamai in the interior of Baram.

On April 1, 2008, the Miri High Court had decided that the action brought by Balare Jabu, James Lalo Keso, Toreng Gia, Stanly Petrus and Stephen Belare – on behalf of the members of their community – had failed.

penan lands in sarawak 060208This was on the ground that their action was statute- and time-barred by Section 2 of the Public Authorities Protection Act 1948. It states that any action against the government must be filed within 36 months of the act that forms the basis of the complaint.

The plaintiffs had claimed that Merawa Sdn Bhd, the Forestry Department and the state government had encroached on their tana pengurip or NCR land for logging purposes.

While the timber licence had been issued in 1992, the plaintiffs had only filed their suit in 2007.

High Court judge Justice Zulkifli Abu Bakar therefore struck out the case summarily, without giving the plaintiffs the opportunity to present their case at a full trial.

In addition, the High Court cited the Sarawak Limitation Ordinance under Item 97 which states that a suit has to be filed within six years from the date of the cause of action.

Significance of ruling

Lawyer Baru Bian said the crux of his argument was that “a claim for a declaration is a very efficient remedy for an aggrieved citizen against ultra vires actions of all public authorities or governmental bodies, and that limitation of time is therefore irrelevant”.

NONEThe Court of Appeal unanimously agreed with the argument and allowed the appeal.

“This decision is very important for NCR claims because a lot of (such) cases are brought to court only after the natives realise that their customary land had been trespassed upon or worked on by timber licensees or lessees of oil palm plantations,” Bian told reporters today.

“In many instances this would be years after the licences or provisional leases were issued to big timber companies without the knowledge of the natives.

“It would be a great injustice to the indigenous people of Sarawak if they are expected to file their cases within a certain period of time, when these licences or leases are normally issued in confidentiality by the relevant authorities.

“This is a landmark decision because it means that the natives of Sarawak are not time-barred from filing actions against the government in such cases.”

Related articles :-   No more ‘time bar’ in native land suits - FMT

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3 Comments »

  1. Linton Albert is a true blue anak Sarawak and a judge worthy of our pride.

    Comment by Pak Bui — February 11, 2011 @ 8:24 PM | Reply

  2. TANAH PENAN: VICTORY FOR PENAN CLASS ACTION IN INDEPENDENT COURT DECISION!

    VICTORY FOR ALL AGAINST TAIB GOVERNMENT & CRONIES!
    _________________________________________________________

    It is one of the best news of the new year.

    The Penans’ NCR land rights have been recognised by the Court of Appeal thanks to the efforts of Baru Bian & Co.

    It is a case in which justice has been seen to be done!

    This case is a landmark decision for 3 reasons:

    1. The Court of Appeal overturned the decision of a High Court judge who summarily struck out the Plaintiffs’ case on the technical point that its was filed outside the 6 year limitation period.

    The bench comprised Court of Appeal judges Justices Suriyadi Halim Omar and Wahab Patail and Kuching High Court judge Justice Linton Albert decided in favour of the Plaintiffs’ (respondents) argument that the limitation rule did not apply because their land had been illegally seized without prior notice.

    2. In reaching the decision against the government (and timber company) for encroachment on native a land, the Court recognised Native NCR land rights.

    3. The Court’s second decision is a significant statement of judicial independence in that the judges have made a decision without favour AGAINST the government.

    This case has further strengthen the claims of all NCR land owners following a series of similar decisions in the Courts.

    This put all NCR land thieves on notice in all similar cases where native land have been stolen by the Taib government and given to Taib family and cronies who made huge profits re-selling the land.

    It is a case in which justice has been seen to be done!

    The NCR land owners can now successfully claim back their land.

    Of course the problem is 30 years down the track a lot of changes have been made to the land such as all valuable timber has been logged and in many cases turned into dams or oil palm estates or built on with industrial commericial residential structures.

    Other tha getting the cost of appeal, the case does not mention compensation for the Penans who lost the use of their land for X number of years.

    The next important court action must be an action to declare that the amendments to the Land Code are illegal as they were in breach of trust of original intention of the government to protect native land rights from encroachment and further a breach of the following the 9 Cardinal Principles of the Sarawak Constitution (defunct?):

    “1. That Sarawak is the heritage of Our Subjects and is held in trust by Ourselves for them.

    3. That never shall any person or persons be granted rights inconsistent with those of the people of this country or be in any way permitted to exploit Our Subjects or those who have sought Our protection and care.

    4. That justice shall be freely obtainable and that the Rajah and every public servant shall be easily accessible to the public.

    6. That public servants shall ever remember that they are but the servants of the people on whose goodwill and co-operation they are entirely dependent.”

    _______________________________________

    The land of the Penans belongs to the Penans. All NCR land belongs to the native owners.

    Fair Land Sarawak belongs to all Sarawakians and we must take back our country.

    Tanah Penan! Tanah Sarawak!

    Comment by Undang-undang hal — February 11, 2011 @ 8:36 AM | Reply

  3. One more victory for the natives, more to come and thanks to Baru Bian!

    Comment by Christina S. Suntai — February 11, 2011 @ 8:22 AM | Reply


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