Sunday, December 29, 2013

Landmark NCR cases that gave ‘life’ to natives’ fight for rights to land


Anna Chidambar
KUCHING: The Federal Court's decisions in the cases of Madeli bin Salleh (2007) and Bisi Jinggot (2012) gave Sarawak natives the "weapon" they needed to fight encroachment into their native customary rights (NCR) land.

The rulings recognised native titles to indigenous lands, territories and resources and confirmed that customary land rights are based on native law and customs and that the customs of the various communities define the content of the customary title and may be proved under common law.

These decisions also opened the possibility of legal action against the Sarawak government when the Federal Court rejected the application of the state government to review the decision.

In dismissing the said application by the Sarawak government, the Federal Court held that the earlier panel had not committed any error of law or fact which requires or justifies a review.

Among others, the Federal Court accepted the law on NCR land as stated by Justice Ian Chin in the High Court in the Nor Anak Nyawai case decided in 2001 in which he held inter alia that NCR land included both cultivated or cleared land and communal forests within the communal land boundary of a longhouse.

Baru Bian said: "At the High Court, they studied history, customs and terminologies used and decided that for NCR land there were three areas, temuda or farmed and felled settled areas; pulau galau or the reserve virgin forests within a vicinity of the village and; pemakai menoa or the communal territory or territorial domain covering the hunting and fishing grounds and virgin forests surrounding a village.

"The boundary surrounding the village that marks the pemakai menoa is called garis menoa. Within them, you can find the old longhouse site called tembawai and also burial grounds pedam and pala umai refers to the fringe of the farmland.”

This is where expert witness Nicholas Bawin Anggat's role paved the way to determine the Dayak's way of life and establish the definition of the native adat (customs).

Bawin, who is a social activist and state PKR leader, has appeared in court almost 100 times for NCR court cases, including numerous landmark cases.

He said: "My first appearance in giving testimony which turned into a landmark case was in 1999 in the Nor Nyawai case, when I was deputy president of Majlis Adat Istiadat. Since then, I have appeared in almost 100 cases and the NCR landowners have won almost all the cases."

He was subsequently served a letter of termination from his post apparently for his role in interpreting the traditions and customs of the natives which eventually led to the courts' ruling in favour of the NCR landowners.

Bawin, an Iban originally from Batang Ai whose family was resettled in Engkari in Lubok Antu, said: "As an expert witness, I testify on the adat law and customs of the Iban community and the Iban way of life. From the natives' point of view, they believe their rights exist by the practice of their customs and traditions."

Baru revealed: "We have succeeded in arguing in the courts that NCR land is a source of life to the natives. Land means life -- it is their nyawa, a bloodline; thus taking away land is taking away life. The state government cannot extinguish NCR land the same way it can extinguish ownership of ordinary land. It has to be dealt with differently.

"In two cases, NCR land has been equated to life and protected under Article 5 of the Federal Constitution which states that every person has the right to life."

This is the third and final part of a series on NCR land.
~ The Ant Daily

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