NCR: TR Sandah decision to be revisited as Federal Court allows leave to appeal in Ramba case

Simon (fifth right) in a group photo with the case applicants.

By Dorcas Ting

KUCHING, Sept 25:A three-man Federal Court bench led by Chief Judge of Sabah and Sarawak Tan Sri David Wong Dak Wah has allowed Ramba Bungkong and five others leave to appeal to the Federal Court on several points of law which will revisit an earlier decision of the Federal Court.

The applicants, Aning Simon, Dickson Jalang, Jarin Leng, Johnny Louis Nanta, Mujing Ragai, and Ramba, are represented by counsel Simon Siah.

Prior to this, the Federal Court in Director of Forest, Sarawak & Anor v TR Sandah Tabau & Ors and Other Appeals (TR Sandah) had ruled that ‘pemakai menoa’ and ‘pulau galau’ has no force of law and therefore is not part of the law of Sarawak.

However, the Federal Court today opined that the decision in TR Sandah ought to be revisited and ventilated again in the Federal Court in the present case. Several other cases were also granted leave to the same effect.

The Federal Court also granted leave over the question whether an extinguishment exercise of native customary rights (NCR) over land as provided under section 15 of the Sarawak Land Code is required prior to the alienation of lease of state land.

The Federal Court granted leave to the applicants over the following questions:

1. Whether the Court of Appeal’s decision in Superintendent of Lands & Surveys, Bintulu Division & Ors v Nor ak Nyawai & Ors (2005) 3 CLJ 555 (Nyawai) that the rights of the natives is confined to the area where they settled and not where they foraged for food is a correct statement of law relating to the extent and nature of rights to land claimed under native customary rights in Sarawak.

2. Whether the alleged practice of the Iban to preserve an area of jungle or forest as “pulau” for access for food, wild life and forest produce, give rise to exclusive rights to the land in the “pulau”.

3. Whether an extinguishment exercise of native customary rights over land as provided under section 15 of the Sarawak Land Code (Cap. 81) is required prior to the alienation of lease of state land.

4. If the answer to 3) is in the positive, whether the lease of state land alienated without prior extinguishment of native customary rights is therefore null and void and/or the areas encumbered with native customary rights to be excised out or excluded from the lease of state land.

Ramba and his fellow applicants argued that it has been the common grievance amongst natives claiming NCR over land that often time they have no knowledge that their NCR land has been issued with leases to a company. They only come to know that their land has been given to the company when tractors come in.

According to their counsel, it is provided under Section 15 that extinguishment has to be done first before alienation of land for whatever purposes. This has not been done for most of the NCR claims that is in court.

In the case of TR Nyutan, NCR has been proven, the Court has suggested the natives will only be compensated with money and their lands will be lost forever.

“This is not what the natives of Sarawak want when they bring such matters to Court. For the natives of Sarawak, their land is their life. As such, the Court has granted leave to also revisit the decision in the Federal Court of TH Pelita Sadong Sdn Bhd & Ors v TR Nyutan ak Jami & Ors and another appeal,” according to Simon in a statement.

“In fact, prior to the company coming into the natives’ NCR land, TR Ramba and his ‘anak biak’ were given grants from Malaysian Palm Oil Board (MPOB) to plant on their NCR land. When they finished clearing their lands, the company came in with a lease into their land.”

Prior to this, a Bidayuh group from Kampung Siru Dayak and Sebat Dayak from Sematan also successfully obtained leave from the Federal Court to revisit the decision in TR Sandah in Federal Court Application Binglai anak Buassan & 9 Others v Entrep Resources Sdn Bhd & 3 others. — DayakDaily