Another decision of the Court of Appeal sitting this whole week at Kuching in Civil Appeal No. Q-01-301-11, Director of Forests Sarawak & 2 Ors v. Nicholas Mujah ak Ason & 2 Ors, has confirmed once again that NCR exists, this time in an area claimed by the residents of Rumah Ensika, Rumah Entanggor and Rumah Tingkah Dayak, Sebangan, Simunjan, as their pemakai menua (communal land) and/or pulau galau (reserved land/forests).
The decision was made by the three panel Judges on Monday the 10th February, 2014 on an appeal made by the Director of Forests and the State Government of Sarawak against the judgment of the High Court trial Judge Dato’ Rhodzariah Binti Bujang handed down on 29th March 2011 at Kuching. The Plaintiffs in the High Court claimed that two areas namely; the Proposed Stika Communal Forests and the Bukit Bediri Forests Reserve are both within the Plaintiffs’ pemakai menua and/or pulau galau by virtue of the admission made by the State Government in the document proposing the formal gazetting of the Stika Communal Forests and the Bukit Bediri Forests Reserve Gazette Notification itself made in 1952. These rights are as follows:
1. To take timber, poles, fuel, rattan and other climbers, bamboo, dammar, fruit, honey, beeswax and ataps for their own domestic use and for boat-building but not for sale or barter, provided that the quantity of, and the place and manner of collection of such forest produce shall be subject to the control of the Conservator of Forests; and
2. To hunt game and catch fish provided the exercise of this right shall be subject to the provisions of the laws of Sarawak relating to hunting and fishing.
3. To continue the exercise of rights over temuda already acquired prior to the constitution of the forest reserve on condition that no more virgin forest is felled.
The Court of Appeal Judges - Dato’ Balia Yusof Bin Hj Wahi, Dato’ Tengku Maimun Ninti Tuan Mat and Dato’ Varghese a/l George Varughese - unanimously agreed with the finding of the trial judge that these admitted rights confirmed that the Plaintiffs/Respondents from these 3 longhouses do have NCR over the areas claimed as their pemakai menua and/or pulau galau as they are rights normally exercised within a pemakai menua and/or pulau galau according to the custom of the Ibans of Sarawak. Their Lordships rejected the argument advanced by the Counsel for the Appellants (the Director of Forests and the State Government of Sarawak) that the native Plaintiffs/Respondents only have NCR on the temuda area or the farmed/settled area which were created before 1958.
One interesting aspect of the facts of this case is that the rights associated with and exercised by the natives of Sarawak within a pemakai menua and/or pulau galau as stated above, had been officially admitted by the predecessor of the present State Government of Sarawak. This supports the natives’ claim in all these NCR cases that it is not only the rights over the temuda areas that have been recognized by the State Government of Sarawak since the time of the White Rajahs and the British Administration as repeatedly alleged in the submissions of the State Government but in fact, rights associated with pemakai menua and/or pulau galau have always been recognized also.
With this decision, we have now at least six cases at the Court of Appeal where NCR over pemakai menua and/or pulau galau have been affirmed and upheld. It is time that the State Government of Sarawak should seriously consider our proposal to amend the definition of “Native Customary Land” appearing in section 2 of the Sarawak Land Code to include pemakai menua and/or pulau galau, to ensure that no more argument should be wasted on this issue anymore.
Baru Bian, together with Simon Siah & Chua Kuan Ching acted for the native respondents in the appeal. The appeal of the Director of Forests and the State Government of Sarawak was dismissed with costs and the decision of the High Court judge was upheld accordingly.
Dated this 13th day of February 2014