Wednesday, March 15, 2017

Natives lose NCR land case against S'wak Forestry Dept

Hafiz Yatim     Published     Updated
Just because six natives from the Kelabit, Lun Bawang and Penan tribes had re-settled at another area, the Federal Court today ruled they are not entitled to a claim made against four timber companies, the Sarawak Forestry Department and the state government for encroaching into their purported Native Customary Right land.

In allowing the appeal by the timber companies and the state government in Putrajaya today, the five-member bench led by Chief Justice Arifin Zakaria cited the Bisi Jinggut case, which ruled that when once abandoned, whatever NCR land that is created or acquired would have been lost.

The unanimous decision was written by Federal Court judge Justice Balia Yusof Wahi in the Racha anak Urud case today.

Racha, along with Edison John Urud, Jalung Jok, Menit Along, Agung Taie and Wilfred S Lasong had their case struck out by the High Court, only to see it reinstated by the Court of Appeal.

Justice Balia said what was vital was the continuous occupation of the land, that is occupying the land as with their forefathers had done before.

“It is found that they abandoned their NCR land and their claim to the NCR land came after the resettlement,” he said, adding that they had re-settled in their villages nearly 40 years and that the claimants no longer possessed the land where the logging activities had commenced 20 years ago, before this suit was filed.

“It is also conceivable that the plaintiffs do not know the presence of the defendants (the timber companies).

Justice Balia answered the first question of law in the negative, that the encroachment of the land is a violation of their constitutional right to the land and livelihood, where they no longer possessed or had abandoned them.

“Hence, we allowed the appeal with costs,” he said.

Justice Arifin allowed the parties to impose RM10,000 costs to be paid each to the timber companies.

The other judges who heard the appeal were Federal Court judges Justices Hasan Lah, Abu Samah Nordin and Azahar Mohamed

Racha was represented by Joshua Baru while JC Foong appeared for the Sarawak Forestry Department and the state government.

Four companies

Racha and the others named Ravenscourt Sdn Bhd, Billion Venture Sdn Bhd, Limba Jaya Timber Sdn Bhd, Kubang Sri Jaya Sdn Bhd, director of Forests Sarawak, and the Sarawak government as the defendants.

They claimed the land was part of their NCR land and that they were never consulted by the Sarawak government when timber and planting licences were awarded to those companies.
 
They further alleged that their sources of food, wild produce, irrigation, medicine as well as their living space, sacred grounds and recreational grounds were seriously threatened by the encroachment into their land.
They therefore sought a declaration that they had acquired and inherited native title of the NCR for the land, that the awarding of the licences to the companies violated their rights, and that the Sarawak government, in giving the licences, was wrong, unlawful and acted illegally.

The residents sought an injunction to restrain the companies from trespassing, encroaching or developing the land with machines. They also sought damages.

One of the companies, Billion Venture, was in the limelight four years ago, following an expose by international NGO Global Witness, in which the company lawyer was caught on video trying to strike a deal with a 'foreign investor'.

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