Thursday, November 20, 2014

Landmark victory as Sarawak natives win more time to challenge land grab

BY DESMOND DAVIDSON

Sarawak native landowners have often complained that they are only made aware that their land had been turned over to loggers or developers when land-clearing begins. – flickr pic, November 19, 2014.

Sarawak native landowners have often complained that they are only made aware that their land had been turned over to loggers or developers when land-clearing begins. – flickr pic, November 19, 2014.
Tribal communities won a landmark legal victory with a Federal Court ruling that now allows them to challenge public authorities in land disputes using a writ of summons.
This requires persons to appear in court to answer complaints, a move that buys appellants precious time in establishing their case.
The Federal Court yesterday upheld a Court of Appeal decision that native land owners can use a writ of summons instead of judicial review, as was argued by the Sarawak government.
Explaining the legal victory, lawyer and Sarawak PKR chief Baru Bian said the state government had argued that disputes could only be initiated via judicial review under which land owners only have 90 days to file their case in court.
In a writ of summons, landowners have three years to do so.
Baru said the state government's argument on judicial reviews meant that most landowners would have lost their case before it had even started.
“In most cases, landowners do not have the time to act because by the time they know that provisional leases (to log, clear or develop land) had been issued by the government on their land, it is too late to act.
“The government is trying to use the judicial review to give landowners little or no time to initiate legal actions,” said Baru, who is also the Ba'Kelalan assemblyman.
He was legal counsel for Samarahan landowners James Jagah Nyadak and Abas Naun who initiated the challenge against using judicial reviews.
“This is another landmark decision involving NCR legal issues,” Baru said.
In dismissing the appeal of the Sarawak government against the 2012 Court of Appeal decision, the Federal Court's five-man bench presided by the Chief Judge of Malaya Tan Sri Zulkefli Ahmad Makinudin said native customary rights to land was a constitutional right protected by the Federal Constitution.
The other members of the bench were Tan Sri Suriyadi Halim Omar, Tan Sri Hasan Lah, Tan Sri Zaleha Zahari and Tan Sri Jeffrey Tan Kok Wha.
Reading the decision in Kuching*, Suriyadi said NCR lands should be regarded as an exception under the O’Reilly principle as provisional leases or timber licences were issued without the knowledge of the native landowners, which led to great injustice.
Suriyadi also said procedural efficacy must give way to the supreme law of the land, which was the Federal Constitution.
Sarawak native landowners have often complained that they are only made aware that their land had been turned over to loggers or developers when land-clearing began.
“Despite numerous decisions in the High Court, as well as in the Court of Appeal favouring the native landowners, the state government, the timber companies and oil palm plantations continuously file such interlocutory applications and appeals to substantially delay many trials to date," Baru added.
He said the federal court decision has finally put to rest this long-standing question of law that has been used by the Land and Survey Department and the state government to deprive native customary land owners of their day in court.
“This decision is a sign that the court recognises the natives' legal right to seek justice.”
Baru said the decision also paved the way for more than 200 native customary rights cases now before the court to be heard properly. – November 19, 2014.
- See more at: http://www.themalaysianinsider.com/malaysia/article/landmark-victory-as-sarawak-natives-win-more-time-to-challenge-land-grab#sthash.AQqIxe1P.dpuf


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