Monday, November 20, 2017

BARU BIAN: RESPONSE TO THE HONOURABLE DCM DOUGLAS UGGAH: THE GOVERNMENT DOES TAKE THE PEOPLE’S LAND


20 NOVEMBER 2017


I refer to the Honourable DCM Douglas Uggah’s statement in the Borneo Post on 14 November headed ‘Government will never take away people’s land – Uggah’ and to his winding up speech in the DUN on 17th November which has been widely reported in the media. As a People’s Representative, and one who is somehow connected to this issue of NCR land, I feel duty bound to put the background and the facts openly for all to see and judge as to how and why this issue of pemakai menoa and pulau galau has became a serious issue that eventually led to a street rally on the 13th November 2017.



With respect, the Honourable DCM is not very correct when he said “the government will never take the people’s lands from them”. This is because from the natives’ perspective, thousands of acres of native customary lands acquired or created in accordance with their adat or custom have already been taken and continue to be taken, by the Government by the issuance of provisional leases to companies and/or LCDA and/or individuals for oil palm plantation, quarries and licence to plant forests (LPF), even as I write this statement. Probably the DCM, being new to this very issue, had been ill-advised by those in authority or perhaps his view is the usual known Government’s view that the pemakai menua and pulau galau concept was and is never accepted by the Government as a basis for NCR claims over land in Sarawak.



In the landmark case of Nor Nyawai, the customary concept of pemakai menoa and pulau galau had been affirmed as having “the force of law”, meaning this customary concept is lawfully accepted as a basis for native customary rights (NCR) claim over land in Sarawak. The decision in Nor Nyawai was eventually affirmed in the case of Madeli Salleh at the Federal Court. With the greatest respect to the DCM, I am aware that the facts in Madeli Salleh are not about pemakai menoa or pulau galau per se. But on principle of law, it has a connection with pemakai menoa or pulau galau, which was the crux of the matter in Nor Nyawai’s case. This is because one of the questions posed before the Federal Court in Madeli Salleh’s case was whether Nor Nyawai was correctly decided in recognising the “pre-existence of rights’ i.e pemakai menoa or pulau galau. And the Federal Court reply was a resounding “YES”. I quote the Federal Court’s relevant judgment under paragraph 42, which states:



“[42] As for the fifth question our answer is that we wholly agree with the view expressed in Adong bin Kuwau and Nor ak Nyawai that the common law respects the pre-existence of rights under native laws or customs.” [2007] 6 CLJ 509



After the decision of Madeli Salleh in October 2007 affirming Nor Nyawai, the customary concept of pemakai menoa and pulau galau had been followed in more than fifteen cases that I know of, at the High Court and affirmed by the Court of Appeal after full trial, including TR Sandah’s case (High Court and Court of Appeal). Surely it cannot be said that all the judges who heard these cases did not understand the law or misinterpreted Nor Nyawai and the Federal Court’s decision in Madeli Salleh’s case!



Unfortunately, all these cases that were won on the authority of Nor Nyawai and Madeli Salleh were appealed against by the very Government who kept repeating publicly that “they respect and recognise NCR lands of the natives of Sarawak”.  In response to this, I had on numerous occasions said that if indeed the Government respects and recognises NCR lands of the natives of Sarawak, then they should show their sincerity by withdrawing all the appeals made by the State Government after Madeli Salleh’s decision at the Federal Court. The fact is that the State Government through the State Attorney General (SAG) Chambers kept appealing in all the cases they lost with the view that the decision in Nor Nyawai could eventually be overruled. This opportunity finally came when they successfully got leave to appeal to the Federal Court in TR Sandah’s case.



The Federal Court’s decision in TR Sandah was handed down in September 2016. The only issue eventually to be decided was whether the customary concept of  “pemakai menoa or pulau galau” “has the force of law”. This stemmed again from the definition of “Native Customary Land” under section 2(a) of the Sarawak Land Code to mean amongst other things “land in which native customary rights, whether communal or otherwise, have lawfully been created prior to the 1 January 1958, and still subsist as such; ...” Therefore we need to understand the meaning of “lawfully been created” which then takes us back to the definition of “law” under Art 160(2) of the Federal Constitution, which states: ‘law includes written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof.’



This is where the argument begins over the phrase “having the force of law”. The argument advanced by the Government’s lawyers was that the custom of pemakai menoa which is understood to mean ‘territorial domain’ in other jurisdictions has never been codified or provided for in the Tusun Tunggu (Adat of the Ibans) or any laws of Sarawak including the Land Code. This is because the Sarawak Land Code defines “Customary Law” to mean “a custom or body of customs to which the law of Sarawak gives effect”. 



On the other hand, it was our argument that the concept had already been codified or provided for in the definition of “Native Customary Land” in section 2 in the word communal’ as shown above. Further, we argued that custom does not need to be codified to have the force of law. Suffice that it exists, is recognised and practised by the natives concerned since time immemorial.  Those were the submissions in a nutshell before the Federal Court.



As to the Federal Court’s decision, many are unaware that in fact only four of the five Federal Court Judges that heard the appeal had given their written judgments, as the 5th judge had retired by the time judgments were handed down in September 2016. Secondly, many were unaware that two of the remaining judges affirmed the customary concept of pemakai menoa and pulau galau as “having the force of law” whereas two did not. Therefore, in law, this decision is not conclusive. Simply, we are saying the decision in Nor Nyawai affirmed by Madeli Salleh was not overruled. For this reason, I am aware that there is another case, which has been allowed by the Federal Court after the TR Sandah decision, to be fully argued again at the Federal Court, on the same or rather similar question of law in TR Sandah.



Unfortunately, the decision of the 2 judges favouring the opinion of the state government is now deemed to have overruled the understanding and decision in Nor Nyawai, which was affirmed in Madeli Salleh.



The question of whether the custom of pemakai menoa or pulau galau exists or not does not arise anymore as it was acceded to by the Government in TR Sandah, both at the Court of Appeal and Federal Court.  Therefore, in my opinion, the proposed amendment does not warrant detailed definitions as suggested by the DCM. Secondly, I believe that the concept is already captured in the word “communal” appearing in the definition of “Native Customary Land” under Section 2 of the Sarawak Land Code. Therefore suffice it for us, in my opinion, to just define further that word “communal land” which I did propose in my recent Bill to mean “native customary land or territorial domain created in accordance with the customs of the natives of Sarawak”. Secondly, we need to further add to the definition of “Customary law” appearing under section 2 of the Sarawak Land Code to read a custom or body of customs or practice of the native community to which the law of Sarawak gives effect including the custom of communal native land or territorial domain (my proposed amendments in bold). In my considered opinion, the amendment of these two words is sufficient to address the only issue decided in TR Sandah. There is no necessity for detailed definitions from various communities as to what amounts to their pemakai menoa or territorial domain because it is enough to enforce and legalise the concept or in the words of the Government’s lawyers “codify it” or to recognise it as a concept “to which the law of Sarawak gives effect”.  The concept of pemakai menoa, which is basically a concept of “territorial domain”, had already been recognised in other jurisdictions by virtue of common law principle in favour of indigenous tribal groups who are dependent on their forests and lands. Our courts have already decided that common law principles apply to native claims.



And as to the extent of claims of pemakai menoa, I am of the opinion that there is no necessity to legislate on this matter because this has to be in accordance with the adat or custom of the natives. Different communities may have different adat on the matter and therefore claims must be proven by the native claimants in accordance with their adat. I am aware that there is an adat, which talks about half a day’s walk from the village to measure the extent of the territorial domain of some native group. But they are others who say that theirs is one day or one and a half day’s walk from their village. We should not be too bothered with the difference here as perhaps those are indeed their adat or custom. In those cases, the native claimants have to prove that their adat exists and is still practised to this day. Secondly, many are unaware that at the trial of these NCR claims, one other crucial ingredients that the natives must prove besides the existence of their custom is the fact that they were in “continuous occupation” of that area claimed before the 1st day of January 1958 to this day. This has been decided by the Court in interpreting the definition of “Native Customary Land” under section 2(a) of the Sarawak Land Code, referred above in the phrase “and still subsist as such”.



The Honourable DCM further said that NCR must not be politicised by anybody. I beg to differ. Like it or not, NCR has now become a political issue. Inevitably, NCR is a political issue because the Government is the authority that issues all provisional leases, quarry licences and licences to replant forests (LPF), which areas encroach onto the NCR lands or pemakai menoa of the natives. When I joined Party Bansa Dayak Sarawak (PBDS) in the late 1980s, NCR was already a political issue. The Government could have addressed this much earlier by respecting the Court’s decisions after Medeli Salleh’s decision at the Federal Court or could have amended the Land Code as proposed by me twice in the DUN before the decision in TR Sandah at the Federal Court was given.  Now it has reached its boiling point, the government cannot be heard to say that we have politicised this issue when it is plain and obvious that it is grossly due to the Government’s own inaction.



In conclusion, I have no choice and neither do the many disappointed natives of Sarawak but to ‘wait patiently’ for the upcoming Bill in the next DUN sitting. It is true that I was invited to the meeting of the native lawyers in Bintulu on the 18th of April this year but due to other prior commitments I could not attend that meeting. However, I did convey my opinion to the group as to what needs to be addressed and which sections to amend. I was reliably informed by one of those attendees that my proposal was tabled for discussion, including my previous Private Bill. I wish to put on record too that I had written to the Honourable DCM of my recent Bill after meeting him on the 5th of October 2017 and informed him that I would withdraw my Bill if the Government had their Bill for the same purpose ready for tabling at the last DUN sitting. Nevertheless, it must be pointed out that although it was open for me to forward my suggestion to the Honourable DCM, I am not privy to the discussion and decision of this Special Committee chaired by the Honourable DCM himself. I hope this letter can be of assistance to the Special Committee as they discuss the upcoming amendment as indicated in the DUN.



My actions in this matter have been dictated by my responsibility as a People’s Representative, particularly the tabling of my Private Bill for the amendment of the Land Code. I did not expect it to go through, of course, because of past experiences but my conscience is clear as I have done what I have done inside and outside the DUN to the best of my ability in fulfillment of my oath of office as a People’s Representative and as a legal practitioner to uphold justice.



But let justice roll on like a river, righteousness like a never failing stream. ~ Amos 5:24 ~



BARU BIAN

ADUN N. 81 BA’KELALAN




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