The Sarawak government can still remedy a Federal Court ruling that has nullified native customary laws by amending the state’s Land Code to expressly provide for the legality of native customary rights (NCR) over forest lands.
Yesterday, the Federal Court ruled that the Dayaks cannot apply their native customary rights (NCR) to claim virgin forests as their territorial domains and communal forest reserves.
In a 3-1 majority decision, the apex court allowed an appeal by the Forest Department and the state government in a case filed by headman Sandah Tabau and seven other NCR landowners over an area in Ulu Machan, Kanowit.
The Federal Court ruled the native custom of “pemakai menoa” (territorial domain) and “pulau galau” (communal forest reserve) had no force of law in Sarawak.
It set aside the orders of the Court of Appeal and High Court that recognised NCR over “pemakai menoa” and “pulau galau”.
Chong said it was a simple process to remedy this situation.
“The state government needs only to table an amendment to the Land Code to expressly provide for the legality of ‘pemakai menoa’ and ‘pulau galau’,” Chong told reporters at the state’s party headquarters here today.
Present were the party’s state vice-chairman Leon Jimat Donald and Mambong branch chairman Sanjan Daik
Chong also criticised a statement by Deputy Chief Minister James Jemut Masing who said the court has the liberty to define the concept of “pemakai menoa” and “pulau galau” because the Sarawak Native Customs Council – the definitive authority on the status of the land – has not come up with a clear definition on the status of such lands.
Masing said without a recognised authority to define NCR on the land claimed by the Dayaks, the judges had to depend on their own understanding of NCR status of “pemakai menoa” and “pulau galau” and came to the conclusion that it had “no force of law”.
“It is regrettable that the Sarawak BN government, with all its resources and expertise, refuses to do that but instead has James Masing crying crocodile tears attributing the present Dayak’s predicament to ‘lack of clear definition of NCR status’,” Chong said.
“This again is proof that the so-called local parties are the ones oppressing the Sarawakians.”
Chong said the ruling BN failed to come up with a clear provision on the concept of “pemakai menoa” and “pulau galau”, leading to the Federal Court to interpret the law.
Court of Appeal president Mohd Raus Shariff, in a written judgment yesterday, said there is no law in Sarawak that gives the force of law to NCR customary rights claims by the Dayaks over virgin forests.
He said the Sarawak Land Code, Tusun Tunggu (Codified Customary Laws), Iban Adat 1993 and a number of Rajah Orders only recognise cultivated land called “temuda” as NCR land.
He said the land dispute arose because the state government granted to a private company a provisional lease of land covering those lands also subject to “pemakai menoa” and “pulau galau”.
“This clearly shows the state government itself does not recognise the concept of ‘pemakai menoa’ and ‘pulau galau’.
“Otherwise, it would not have issued to private companies provisional leases of land covering them,” Chong said.
Chong pointed out that the decision of the Federal Court was made in this case where the state government is a litigant party.
“If the state government is of the view that ‘pemakai menoa’ and ‘pulau galau’ has the force of law, the state government can easily concede to this point of law without the court having to make a decision on it.
“The court has made the ruling on the state government’s argument that ‘pemakai menoa’ and ‘pulau galau’ has no force of law.
“We, the DAP, urge (Chief Minister) Adenan (Satem) and the Sarawak government to stop paying mere lip service about defending the NCR landowners.
“Instead, it should take positive action to amend the Land Code to give legal effect to the concept of ‘pemakai menoa’ and ‘pulau galau’.”
Source : Richard T.W. @ FMT Online