New hope on NCR as Court rules owner’s NCR land to be excluded from licensed area

A gavel. — DayakDaily.com file pic. // Photo: Pixabay

KUCHING, Feb 7: A Lun Bawang from Trusan, Lawas had successfully claimed her native customary rights (NCR) land as it was excluded from a timber company’s licensed area after the Federal Court ruled in her flavour.

The landowner’s legal counsel Baru Bian said the ruling had given hope to native landowners over NCR cases.

In the recent TR Nyutan case, it was ruled that damages is the only remedy available to the natives when their NCR land happened to be included within a licensed area.

However, in this case, handed down by the Federal Court on Jan 30, the order of rectification by excising out the said NCR land from the licensed area that was made accordingly thus appears to give an alternative remedy to the native person in such a case.

“Although we do not have the full written judgment yet, the above decision of the Federal Court confirms our view that as long as the ‘adat’ or custom of any of the native communities in Sarawak is still practised, it should be enforced notwithstanding that it does not appear in their codified ‘adat’, as in this case,” the prominent land rights lawyer said in a statement yesterday.

The landowner Alau Baru inherited a parcel of NCR land from her late father, who purchased it from another native which is according to the ‘adat’ of the Lun Bawang or Murut community.

In August 2008, a timber company and its contractor had trespassed onto the Alau’s land by constructing a logging road and a bridge on her land, leveling the said land, setting up temporary camps and parking heavy machinery on the said land.

The timber company Limba Jaya Timber Sdn Bhd had been issued with a License for Planted Forests by the Director of Forests on Dec 6, 2004 for a period of 60 years over a forest area measuring approximately 37,084 hectares, which included the said Alau’s land. The timber company denies that it trespassed on the respondent’s NCR land.

Alau claimed that her NCR had not been extinguished, that no compensation was paid to her in respect of her land, she was not given a right to be heard before the licence was issued and the licence has impaired her constitutional rights.

Alau lost in the High Court after a full trial but won on appeal at the Court of Appeal. The defendants appealed to the Federal Court where the parties argued the following main question of law: whether the Plaintiff/Respondent could still acquire NCR land through inheritance when such land had been obtained by her ancestor through sale or otherwise for value?

The Federal Court unanimously answered the above question in the positive because the ‘adat’ of the Tagals and the Muruts or Lun Bawang allow sale of NCR land. — DayakDaily