Hornbill Unleashed

August 12, 2014

NCR ruling is ‘head intact, body from waist severed’

Filed under: Politics — Hornbill Unleashed @ 8:03 AM
Tags: , , , ,

Mkini

The judgment delivered by Justice Stephen Chung in a packed courtroom on Friday Aug 8 at the Bintulu High Court was received with mixed feelings by the people of Long Bangan in the district of Belaga. They consider the judgment as ‘head we get but the body from waist to toes was severed’ and given to aliens.

The judge held that only the cultivated land also known as ‘temuda’ created before Jan 1, 1958, which the plaintiffs had successfully proven, can constitute native customary rights (NCR) land. Although the judge did not specifically mention that pulau galau (reserved forest) and pemakai menoa(longhouse territorial domain) did not form an integral part of NCR land, he omitted discussing the issue.

In this representative action, led by the first plaintiff, Douglas Ding Jangan, and four others on behalf of themselves and all residents of Uma Long Bangan, the plaintiffs asked  for a declaration that their temuda (cultivated land), pulau galau (reserved forest)  and pemakai menoa (longhouse territorial domain) be excised from the provisional lease issued by the Superintendent of Land and Survey Kapit Division to SOP Plantation (Borneo) Sdn Bhd, the fouth defendant and the licence for planted forest issued by the Sarawak Forest Department to Pusaka-KTS Forest Plantation Sdn Bhd, the fifth defendant.

The plaintiffs  had also claimed for general damages against the fourth and fifth defendants for damages caused to their temuda, pulau galau and pemakai menua arising from the use of the land by the defendants of the oil palm plantation and reforestation scheme.

The fifth plaintiff, Michael Mering Jok, who urged an immediate meeting with all the plaintiffs after the judgment was delivered, expressed his relief that the judge has ruled that all the temuda of the residents of Uma Long Bangan, in which their longhouse now stands and also where all their previous settlements or tembawai are located, as their legitimate NCR land and thereby keep all of their temuda intact.

However, Jok stated that there is a precedent in which the Federal Court, being the highest court of the land, has recognised in a landmark case of  Nor Anak Nyawai, that the temuda, pulau galau and pemakai menoa form an integral part of NCR land. There are several cases decided by the Court of Appeal applying and following the precedent in the Nor Anak Nyawai case.

Michael Jok regretted that the judge had not taken into account the precedent in the Nor Anak Nyawai case. But Jok is confident that the appellate court will put the matters right. The judge, he said, had unfortunately used as evidence  only land that can be seen being cleared through aerial photographs taken sometime in 1951 as proof that the land had once been cleared.

Oral evidence

However, the oral evidence of the plaintiffs showed clear proof that residents of Uma’ Long Bangan had been occupying the territory in question for many generations. They also have the sustainable practice of leaving the land fallow for years, thereby making aerial photography alone insufficient as the only tool to prove that the land had been used or the jungle had been felled, as new vegetation have grown back to its original state.

The plaintiffs regretted the reliance almost entirely on aerial photographs taken in 1951 as proof that the jungle had once been felled. These photographs were originally meant for mapping purposes. This has caused that part of the temuda that could not be proven by aerial photograph to be left out and thus mistaken as virgin  jungle or pulau galau and not recognized  as part of NCR land.

All the affected residents have given full mandate to the five plaintiffs to take up the next course of action. The plaintiffs will file their appeal in due course to reverse the   decision which they consider is wrong.

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3 Comments »

  1. It does appear the Judge is guided by the Land Code, s. 5(2), which has always been the position held by Sarawak government. This position was declared by the Chief Minister Tan Sri Adenan Satem in the Dewan’s last sitting. I think the Judge is a case of “err on the side of caution” quite deliberately. Nonetheless the earlier decided case of Nor anak Nyawai, been decided in the Court of Appeal and upheld in the Federal Court is a case of “stare decisis”” in point at issue. No worry for those plaintiffs I believe.

    Comment by Anek — August 13, 2014 @ 4:12 AM | Reply

  2. Give the judge the pleasure of felling a 100 ft tree with an axe or clear a patch of virgin forest as big as his house and ask him whether he would do it for free.

    Comment by telang usan — August 12, 2014 @ 10:52 AM | Reply

    • Just another one of those judges who adjudicate with one eye covered and blinded by the unseen. Very sad!

      Comment by brian — August 12, 2014 @ 11:08 AM | Reply


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