Another watershed judgment: On 21 June, the Court of Appeal dismissed an appeal by the Sarawak state government and recognised pemakai menua as native customary land (NCR) in a victory for native land rights.

Justice Hishamudin Mohd Yunus

Justice Hishamudin Mohd Yunus

The verdict affirmed a decision in the Sibu High Court in the Tuai Rumah Sandah Tabau case. Costs were awarded against the state government.

Pemakai Menoa is an Iban description for the territory around a landhouse community which has been used to provide resources to support the community since the time of their ancestors.

The Court of Appeal decision has been lauded as a landmark judgment by NCR land defenders.

But Sarawak Land Development Minister James Masing poured cold water on the implications of the judgement. He said it was not a blanket recognition of all such native claims to the land. Instead it would have to be on a case by case basis, he claimed.

Why was he so quick to come up with this statement? Shouldn’t he have been celebrating with the natives that the court had come up with such a far-sighted judgment?

This leads to the question: whose interest are he and the Sarawak state government upholding?

This is Baru Bian’s statement

COURT OF APPEAL: NCR INCLUDES PEMAKAI MENOA

The Court of Appeal held today that Pemakai Menoa IS part of NCR land, dismissing an appeal by the State Government of Sarawak against the judgment of Justice Datuk Yew Jen Kie in the case Director of Forest, Sarawak & Anor v TR Sandah ak Tabau & 7 Ors (Civil Appeal No Q-01-463-11).

In the High Court, the Plaintiffs had sued Kanowit Timber Company Sdn and the State Government for encroachment into their NCR land, including their pemakai menoa vide a timber licence issued by the State Government to Kanowit Timber Company Sdn Bhd. The defendants had argued that NCR should be restricted to the temuda* covering an area of 2712 hactares, which had been cleared before 1958. However, Justice Datuk Yew ruled in favour of the Plaintiffs, declaring that they were the rightful owners of the NCR land covering an area of 5512 hectares, including the pemakai menoa, and that the Defendants had unlawfully encroached into the Plaintiffs’ land. The State Government appealed against this decision.

In a unanimous judgment, the Court of Appeal comprising Justices Dato’ Mohd Hishamudin bin Haji Mohd Yunus, Datuk Abdul Wahab bin Patail and Dato’ Balia Yusof bin Haji Wahi, following the landmark decisions of the Court of Appeal in Nor ak Nyawai and the Federal Court in Medeli bin Salleh, affirmed the decision of Justice Datuk Yew Jen Kie that pemakai menoa is NCR land and ordered costs against the State Government. Due to the significance of this case, the Court of Appeal will prepare a written decision for the benefit of future NCR claimants.

This decision of the Court of Appeal is a victory for the people of Sarawak who have been fighting for the recognition that their NCR lands is not limited to the temuda as the Government of Sarawak has been trying to claim. It remains to be seen whether the BN government will respect the decision of the Court of Appeal in carrying out perimeter surveys and whether they will be more respectful of the rights of the native people when issuing timber licences etc to logging and plantation companies.

BARU BIAN
MESSRS BARU BIAN
ADVOCATES & SOLICITORS FOR THE PLAINTIFFS/RESPONDENTS.

* cultivated land left to fallow

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