Amidst the judicial shambles, a stunning Federal Court decision

All that bad news about the judiciary and the shambles it is in. Yet, amidst the uproar and outrage (and rightfully so) over the Lingam tape, there was much cause for rejoicing especially in Sarawak: a sweet victory for natives over the Sarawak state government on the issue of native customary rights, courtesy of a landmark Federal Court decision.

Thanks to a reader for sending this news item to me with the following comments:

This was a bit dicey — but now, this is the end of the line for the Sarawak government’s position; the State AG, if he repeats the position he has been stating all this time, will be in breach of the law as this is now the law of the land. It is truly a great victory for the natives and for customary rights.

Congratulations to the Federal Court.

It is heartening to see a few judges, guided by their conscience and capable of distinguishing right from wrong – and deciding in favour of marginalised communities who were pitted against the might of the state.

This item is from the Borneo Post online:

Court rules NCR exists over ex-Shell concession area in Miri

KUCHING: The Federal Court has made a landmark judgment when it ruled that native customary right (NCR) exists over the ex-Shell concession area in Miri despite the Rajah’s Order 1921.

Justices Dato Allaudin Dato Mohd Sheriff, Dato Arifin Zakaria and Dato Azmel Maamor said in their judgment delivered yesterday by Registrar of the High Court in Sabah and Sarawak Gabriel Gumis that the reservation of land under the Rajah’s Order 1921 did not have the effect of extinguishing NCR over land.

Upholding the Court of Appeal’s (CA) April 1, 2005 decision, the Federal Court judges said: “We agree with the CA that there was no provision in the 1921 Order seeking to extinguish the respondent’s (Madeli Salleh) rights under the land. All it did was to reserve land for Sarawak Oilfields Limited (SOL).”

The Federal Court also agreed with the CA in citing cases of Adong bin Kuwau and others v Kerajaan Negeri Johor (1997) and Nor ak Nyawai v Borneo Pulp Plantation Sdn Bhd (2001) which provide the principle that common law respects pre-existence of rights under native laws or customs.

“Although the land was reserved for SOL, it was never taken by SOL. The respondent (Madeli) was in continued occupation of land,” the judges said in their 47-page judgment.

Rights of the natives to occupy untitled land in accordance with customary laws subsisted in area reserved for operation of SOL, the judges said, adding that individual rights of natives were the same as communal rights.

The High Court in 2000 was wrong to say that NCR in Sarawak was created by Section 66 of Land Settlement Ordinance, they said.

As Section 66 did not purport to nullify the NCR rights prior to coming into force of the ordinance and thus, it had no retrospective force, they explained.

The judges pointed out that actual physical presence was not necessary for occupation as long as one could show that there was control over the land.

“Even though Salleh ceased to live on the land prior to losing his home in a fire incident, this does not show that he ceased to live on the land,” they said.

Evidence also showed that he continued to exercise control over the disputed land, the judges said, adding that Salleh still had interest over the disputed land.

The Federal Court has been called upon to determine whether NCR over the land could still subsist or had been lost or extinguished in area reserved by the 1921 Rajah’s Order which came into force on Nov 15, 1921.

By that order, a large tract of land in Miri district was reserved by the Rajah for the operation of SOL and the area now is commonly known as the ex-Shell concession area.

This landmark case is of major interest to many parties as there are several claims filed in court claiming NCR over the same land.

On March 7, 2003, the Federal Court granted leave to the State government to appeal against a Court of Appeal decision which declared that Madeli had NCR over 6.60 acres of land (Padang Kerbau) within the ex-Shell concession area and that it should pay him compensation for building Sekolah Agama Islam on it.

The government (appellant) had contended that the legal effect of the 1921 Rajah’s Order is that NCR could not survive or would have been lost in the area reserved by the Rajah for a public purpose – which is oil exploration.

This legal position was stated by the Court in Ara bte Aman v Superintendant of Lands and Mines, 2nd Divison (1975) which ruled that publication of a gazette notification that land is reserved by the government for public use effectively terminates any NCR on the affected land.

Any rights which had been created by the grandfather of respondent Madeli, before the Rajah’s Order, had been lost as a result of the land being reserved for oil exploration by SOL which a non-native firm within the definition of the Rajah’s Order, the appellant had argued.

The Court of Appeal also failed to consider an issue based on Land Classification Ordinance 1948, the appellant had said adding that, when the land was reserved for SOL’s operation it was no longer native land, the appellant claimed.

When the land claimed by Madeli ceased to be Shell concession area, it was already classified as Town Land as well as Mixed Zone and not Interior Area Land and thus by that time, no NCR could be created over such land, the appellant had argued.

However on April 1 last year, the Court of Appeal declared that Madeli had NCR over the disputed land and also ordered the government to pay him compensation for building the school on it.

Madeli, in his 60s, claimed that his grandfather entered the land before the Rajah based on Order XXIX dated Nov 15 1921.

Counsel Satinder Singh Sandhu represented Madeli.