LANDMARK APPEALS TO THE FEDERAL COURT ON THE EXTENT OF NATIVE CUSTOMARY RIGHTS
(FEDERAL COURT OF MALAYSIA CIVIL APPEAL NO. 01(f)-27-04/2015(Q) DIRECTOR OF FORESTS, SARAWAK & ANOR V TR SANDAH AK SABAU AND ANOTHER APPEAL)
6 September 2015
A full bench of the Malaysian Federal Court is scheduled to hear the Sarawak government’s appeals above at the Kuching High Court on Wednesday, 9.9.2015 at 9.00am.
During the hearing of the appeals, the Federal Court will hear legal arguments on, amongst other matters, whether the pre-existing rights under native laws and customs which the common law respects go beyond felled and cultivated lands by natives (in this case, the Iban customs of “temuda”) AND include or extend to rights to land in and over trees, fruit trees, hunting grounds, fishing grounds, grazing grounds and areas for the gathering of food and forest produce in uncultivated areas within their broader territorial domain or communal areas (in this case, the Iban custom “pemakai menoa” and/or “pulau galau”/ “pulau”/”galau”).
Arguments will also be heard on whether it is necessary for these pre-existing native customs to be expressly given the force of law by the legislative or executive arms of the Government of Sarawak or their predecessors before such customs are given legal recognition.
From 2007, the apex court of Malaysia has recognised the pre-existing laws and customs of Indigenous inhabitants (including natives of Sarawak, natives of Sabah and Peninsular Malaysia Orang Asli) relating to their customary lands without the need for formal recognition of such laws and customs by the relevant Legislatures and Executives unless such rights are validly extinguished by the Government (see Superintendent of Land & Surveys Miri Division & Anor v. Madeli Salleh  6 CLJ 509 (Federal Court)).
These rights are determined in accordance with the customs, practices and usages of the particular Indigenous community (see Kerajaan Negeri Selangor & Ors v Sagong bin Tasi & Ors  4 CLJ 169) AND established as a matter of fact through the continuous occupation of the land claimed (see Superintendent of Lands & Surveys, Bintulu v Nor Anak Nyawai & Ors and another appeal  1 MLJ 256 and/or the maintenance of a traditional connection with the land claimed in accordance with customs distinctive to the claimant community (see Sagong bin Tasi & Ors v Kerajaan Negeri Selangor & Ors  2 MLJ 591).
In essence, the Federal Court will hear arguments on whether these customs are legally enforceable notwithstanding the fact that they are not contained in codified laws. The question before the Federal Court, if determined, may potentially carry major legal implications for large tracts of customary lands currently occupied, used and enjoyed by the natives of Sabah and Sarawak and Peninsular Malaysia Orang Asli.
For further details of the questions of law to be determined by the Federal Court in the TR Sandah appeal, please see attached the draft Order granting leave to the Sarawak State government to appeal to the Federal court dated 11.3.2014.
If there are any questions regarding the appeal, please contact the advocates for the respondents.
Mr Baru Bian (firstname.lastname@example.org/082-455593)
Mr Joshua Baru (email@example.com/082-455593)
Dr Yogeswaran Subramaniam (firstname.lastname@example.org/+6013 340 2377)
(Advocates for the Respondents)