Wednesday, February 9, 2011

NCR cases not time-barred, rules court

Stephen Tiong

The Court of Appeal has ruled in favour of five Penans 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.

loggingIt 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.”

Taken from Malaysiakini.

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