Friday, March 29, 2013

Native land case postponed pending apex court decision

by Hafiz Yatim

The appeal in one of the biggest native customary rights (NCR) land cases, brought by three indigenous communities in Upper Limbang, Sarawak, against several logging and tree-planting companies was put off by the Court of Appeal sitting in Kuching yesterday.

The action was filed two years ago by Racha anak Urud @ Peter Racha Urud, Edison John Urud, Jalung Jok, Menit Along, Agung Taie and Wilfred S Lasong - who are representing the Penan, Kelabit and Lun Bawang communities in the area.

They named Ravenscourt Sdn Bhd, Billion Venture Sdn Bhd, Limba Jaya Timber Sdn Bhd, Kubang Sri Jaya Sdn Bhd, director of the Forests Sarawak, and the Sarawak government as the defendants.

The six plaintiffs claimed the land was part of their NCR land and that they were never consulted by the Sarawak government when timber and planting licences were awarded to those companies.

They further alleged that their sources of food, wild produce, irrigation, medicine as well as their living space, sacred grounds and recreational grounds were seriously threatened by the encroachment into their land.

They therefore sought a declaration that they had acquired and inherited native title of the NCR for those land, that the awarding of the licences to the companies violated their rights, and that the Sarawak government, in giving the licences, was wrong, unlawful and acted illegally.

The residents are seeking an injunction to restrain the companies from trespassing, encroaching or developing the land with machines. They are also seeking damages.

High Court dismisses case

However, Miri High Court judicial commissioner Stephen Chung Hian Guan, on Feb 12, 2012, ruled that the application made by the six should have been made by judicial review and not by a writ of summons.

“The plaintiffs, in filing this action, is abusing the process of the court. Therefore, I allow the defendants’ application to strike out the plaintiff's suit,” Chung had ruled.

However, the matter came up at the Court of Appeal yesterday and the three-member panel decided to postpone hearing the appeal.

The appellate court is awaiting on a final decision of the Federal Court, the highest court in the country, in a landmark NCR land case.

The case involves 17 people led by James Jagah Nyadak of Serian, representing seven villages, and Abas Naun of Tebedu, representing six villages.

This follows the Court of Appeal had on Feb, last year, allowed the 17 to file their claims through a writ of summons and not via judicial review.

Justices Sulaiman Daud, Mohamed Apandi Ali and Mohtarudin Baki who  make up the bench agreed to the arguments brought up by the landowners’ lawyers, that NCR claims involved issues of law and of facts and therefore, their claims against the Sarawak government must be filed by an ordinary writ that allowed oral evidence be adduced in the trial rather than affidavits like in judicial review.

The case is pending appeal at the Federal Court.

Sticky problem of defending NCR lands

NCR lands have long been a sticky issue between the natives, timber companies and the Sarawak government.

Many companies have applied to strike out the writ of summons arguing that such claims should be made via judicial review, which in hand requires that such claims must be filed within 40 days of the issuing of the land lease or timber lease.

This follows most of the natives do not know that the Sarawak government had been giving the land to timber concessionaire or granting land lease for replanting.

In yesterday’s case, one of the defendant, Billion Venture, was made famous following the expose by international NGO Global Witness earlier this month, in which company lawyer Huang Lung Ong was caught on video trying to strike a deal with a 'foreign investor'.

Billion Venture is allegedly owned by timber tycoon Hii Yii Peng, whose family is claimed to have extensive and enduring commercial interests with Sarawak chief minister Abdul Taib Mahmud, and his immediate family, in sectors including joint-ventures and common shareholdings in the palm oil, timber and hospitality industries.

In the video, Huang allegedly divulges that Hii would be expected to pay Taib a kickback of approximately 10 percent of the licence value in return for the directive from Taib's ministry to issue the logging licence.

However, Huang denied the contents of the video claiming it was coffee shop talk.

A formal complaint has been filed by the Advocates Association of Sarawak president Khairil Azmi Mohd Hasbie, against Huang and Alvin Chong Chee Vun last week, to the Advocates Inquiry Committee for professional misconduct. Chung was the other lawyer implicated in the video.

~ Malaysiakini

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