Monday, December 23, 2013

NCR landowners riding on wave of awareness in fight for justice

Anna Chidambar
KUCHING: It is amazing what awareness can do in the fight against injustice. For Sarawak natives, their fight for justice against people who robbed them of their ancestral lands has taken on a different note – thanks to some activists.

The general consensus is that the number of Native Customary Rights (NCR) cases in Sarawak has increased.

"More people are coming to see me from far and wide in the state, and I think it is because people are more aware of their rights, that they can take their rights to court, and they can defend themselves by taking the government and companies to court,” said NCR land lawyer Baru Bian, who is Sarawak PKR chief and Ba'kelalan assemblyman.

Baru, 55, said publicity on their victories in NCR cases had also contributed to this, adding that they were getting cases from as far as Kapit, Ulu Baram, Limbang and Miri.
“NCR landowners are now more empowered to stand up for their rights, especially with the support of NGOs in the state."

Observers pointed out that the increasing number of cases could have resulted from the government's aggressive emphasis on oil palm plantations by handing out provisional leases (valid for 60 years) in virgin forest areas.

Previously, it was timber licences, which had a tenure of 10 years. As these companies expand and move into the interiors, more land is affected, resulting in conflicts.

According to Baru, as long as the state government refused to accept the decisions made by the Federal Court in numerous cases, the NCR land issue would continue to flare up.

"In his winding-up speech at the recently-concluded State Legislative Assembly (DUN) sitting, Special Functions Minister Tan Sri Adenan Satem made it clear that the state government only considered temuda as NCR land notwithstanding 10 cases won in the High Court, five Court of Appeal and two Federal Court cases.

"I can safely state that the state government's view is wrong in law. Firstly, our submissions in all cases are based on Section 2 of the State Land Code on the definition of NCR land, and secondly, the courts agreed that NCR land in Sarawak is not only protected by the State Land Code or by the statute but also by common law principle," said Baru.
Baru explained that the significance of the decision was that licences for logging and planted forests and leases for oil palm plantations issued by the state which overlapped with the land within the communal land boundary of the longhouses did not or, could not, extinguish the prior customary rights of the natives.

According to Baru, his firm had won 10 cases in the High Court that confirmed, affirmed and followed Nor Anak Nyawai on the concept of temuda, pulau galau and pemakai menoa.

"If you read the two cases, you have covered everything already, Madeli bin Salleh reflected Nor Nyawai which followed Adong Bin Kuwau, an 'Orang Asli' case from Johor which involved the acquiring of land for constructing a reservoir to supply water to Singapore.

"When Madeli's case went before the High Court, it did not win; so an appeal was lodged. By then, Nor Nyawai's case won at the High Court, so Madeli's case adopted Nor Nyawai's case and it won at the Court of Appeals and the Federal Court upheld the decision," he added.

Observers monitoring the scenario and legal implications are convinced that it is just a matter of time before the parties that had lost their cases in court to NCR landowners would contemplate taking legal action against the state authorities responsible for the fracas.

Said one observer: "I see the vulnerability of the office bearers; there were rumours some time ago that certain parties that had lost out on land due to the NCR issue were contemplating their next move in looking for redress for their predicament.

"It's not impossible since we are looking at very heavy investments to the tune of millions, they can sue for misinformation and misleading."

Baru agreed: "Legally speaking, the state government could be sued for the cases that the courts have ruled in favour of the NCR landowners by the investors such as the oil palm companies for being negligent in allotting an area that is encumbered by NCR land issues. The state government will feel more pressure as a lot of things are at stake."

Tomorrow, the third and final part of this series will look into the landmark cases.

~ The Ant Daily

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