Wednesday, February 9, 2011

Court of Appeal overturns time bar on NCR claims.

PRESS STATEMENT for immediate release.
Issued by: Baru Bian, PKR State Liaison Chief, Sarawak.
Date: Wednesday, 9th February 2011

On Monday 7th February 2011, the Court of Appeal here in Kuching ruled in favour of five Penan plaintiffs from Long Lamai in the Baram who brought an action against a timber company, the Forestry Department and the State Government of Sarawak.

On 1st day of April, 2008, Balare Jabu, James Lalo Keso, Toreng Gia, Stanly Petrus and Stephen Belare acting on behalf of the members of their community had failed in their action against Merawa Sdn Bhd, the Forestry Department and the Government of Sarawak which they claimed had encroached onto their 'tana pengurip' or NCR land (the equivalent of the Iban 'pemakai menoa'). The action failed based on the ruling that their action was statute and time barred by Section 2 of the Public Authorities Protection Act 1948 (PAPA). This statute states that any action against the Government must be filed within 36 months of the act complained of. The timber licence was issued in 1992 whereas the action taken by the plaintiffs was only filed in 2007. The High Court therefore struck out the Plaintiffs/Appellants’ action summarily without giving them the opportunity to even present their case at a full trial and in addition, citing 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 accruing.

In a historic judgment, the Court of Appeal overturned the High Court's decision. The crux of the argument by the Penans’ Legal Counsel, Mr. Baru Bian, were 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". The Court of Appeal unanimously agreed with the said argument and allowed the appeal.

"This decision is very important for NCR claims because a lot of NCR cases are brought to court only after the natives realized that their customary land had been trespassed upon or worked on by timber licensees or lessees of oil palm plantations," said Bian.

"In many instances this would be years after the said licences or provisional leases were issued out to big timber companies without the knowledge of the natives. It would be a great injustice to the indigenous people of Sarawak if they were expected to file their cases within certain period of time when these licences or leases are normally issued in confidentiality by the relevant authorities," said Bian.

"This is therefore a landmark decision because it means that the natives of Sarawak are not time barred from filing actions against the Government in such cases," said Bian.

The Court of Appeal also ordered that the Respondents/Defendants pay costs of the appeal amounting to RM20,000-00 per Plaintiff/Appellant.


Abot said...

WEll done, this is a good victory for the natives of Sarawak. Long live BB !!

pulongtau said...

Congratulations to the people of Long Lawai, Baru Bian, and to the justice system in Malaysia! It's so encouraging to see that justice *can* prevail in a country and in the arena of illegal logging and NCR violations, where there has been so much injustice over so many years.

FirstFruits said...

The thief minister must be aware of the overturning of the high court's decision by the court of appeal.

Most probably,the timber company Merawa Sdn Bhd, must be coming the rascal fart for returning the
kick back commission of millions of ringgit in giving the licence to them.

The penans of Long Lamai must be kind of happy and grateful to Baru Bian for getting the land back.
Perhaps, PKR can use this case and other cases that BB has won to support their campaign for
a better chance of winning the election.