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Australian Indigenous Law Reporter |
Court and Tribunal Decisions - Malaysia
High Court (Sabah & Sarawak), Kuching (Datuk Ian HC Chin J)
Suit No: 22-28-99-I
12 May 2001
Definition of natives of Sarawak — Interpretation Ordinance (Cap 1) (Sarawak) — whether plaintiffs are natives (Ibans)
Native law and custom — existence of native (Iban) customs of pemakai menoa, temuda, pulau — proof by oral tradition evidence — boundaries marked according to Iban customary practices — whether recognised in law
Customary rights to land — no documentary title — whether recognised by legislation — proof of existence and past exercise of customary right — extinguishment of customary rights — whether abolished by legislation — whether extinguished by logging of the area
Civil Procedure — whether proper to commence representative action — remedies
The plaintiffs, belonging to an indigenous group, namely the Iban tribe in Sarawak, Malaysia, in a representative action sought a declaration that they remain legal owners of certain customary land known to them as pemakai menoa (an area of land held by a longhouse or village), temuda (formerly cultivated land, now secondary jungle) and pulau (primary forest reserved for natural resources, water catchment and hunting). The disputed area was to be cleared and planted with trees to feed a paper mill. Title to the area had been issued to the first defendant, Borneo Pulp Plantation Sdn Bhd, who subleased it to the second defendant, Borneo Pulp and Paper Sdn Bhd. The third defendant, the Bintulu Superintendent of Lands and Surveys was the authority that had issued the title.
It was necessary for the High Court in Kuching, Sarawak to examine the right of Ibans to the land and resources to which they had no documentary title, and determine whether there is common law recognition of pre-existing rights under native law and custom. It had to consider whether the various legislation passed throughout the period traversing the reign of the Sultan of Brunei in 1844, through the Brooke rule up to 1946 when Sarawak became a colony and to the time when Sarawak joined Malaysia in 1963, had extinguished the native rights to the disputed land.
The defendants argued:
(a) that the plaintiffs were not natives within the meaning of the term ‘native customary law’ and thus could not claim native customary rights;
(b) the plaintiffs did not practice customary rights in the disputed area; and
(c) such right, if any had been extinguished by legislation.
1. The plaintiffs’ assertions that they are Ibans and that they all spoke Iban are sufficient evidence to support their contention that they are Ibans. When that assertion was not challenged, the burden shifted to the defendants to establish that the plaintiffs or any of their ascendants were not of a native race under the schedule to Sarawak Interpretation Ordinance (Cap 1). There was nothing to rebut the prima facie evidence that the plaintiffs are Ibans in the defendants’ pleadings nor did they put their case to the witnesses. The plaintiffs have therefore discharged their burden of proof. Applying the civil standard of proof, it is more probable than not that the plaintiffs are Ibans.
2. Customary rights to land are established by the person who clears the primary jungle and from him to all male and female descendants. Such a right allows a native to clear virgin jungle, access the land surrounding a longhouse or village for cultivation, fishing, hunting and collection of jungle produce. It covers the longhouse vicinity and the jungle within a half a day’s journey by foot from the longhouse. The plaintiffs’ ancestors had exercised customary rights in the disputed area since at least the time of the first Rajah in 1841, as evidenced by an existing longhouse and old longhouse sites as well as other evidences of communal existence in the area. Prima facie evidence of contemporary existence of customary rights including the performances of certain ritual ceremonies during the clearing of the area shifts the burden to the defendant to disprove the customary rights of the plaintiffs and they had failed to do so.
3. If the present generation can prove that they are practicing what historians described as having been practiced 200 years ago, then that is sufficient proof that such native customary rights had been practiced 200 years ago.
4. The court accepted a boundary map produced by an unqualified surveyor with the aid of a global positioning system instrument, with input from members of the longhouse community. In accordance with customary practices, the boundary was marked with reference to various mountains, hills, ridges, rivers and trees, to locate areas that the plaintiffs described as land on which they and their ancestors had exercised customary rights. The court found that the disputed area is within the pemakai menoa of the plaintiffs. The defendants argued that aerial photographs taken in 1951 did not show any clearing in the disputed area and thus the land could not have been occupied at that date. However the court preferred the plaintiffs’ argument that the probability exists that the jungle shown in the 1951 photograph could be regrowth of secondary jungle where the land had been cleared and left to fallow by the ancestors of the present longhouse folks. The age of the trees in the area could have established that fact but they had been felled and destroyed. The court proposed that in future, notice should be given for any claims to native customary rights and an inquiry conducted to establish such claims, before any land is alienated, to prevent the loss of crucial evidence.
5. The native customary rights have consistently been recognised and have not been extinguished by the various executive and legislative acts from the time of Rajah Brooke to the present. The various laws have imposed restrictions on native customary land rights but have not extinguished them. The court relied on common law decisions in Australia, Canada and in Peninsular Malaysia to hold that the common law recognised pre-existing property rights unless those rights had been taken away by clear and unambiguous words in a legislation. Calder v AG of British Columbia (1973) 34 DLR (3d) 145; Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1, The Wik Peoples v Queensland (1996) 187 CLR 1; (1997) 2 AILR 35; Adong bin Kuwau & Ors v Kerajaan Negeri Johor & Anor [1997] 1 MLJ 418[1] followed.
Chin J warned of possible conflict between any legislation which adversely affects native customary rights and the constitutional protection of property in Art 13 and protection of ‘right to livelihood’ under Art 5 of the Federal Constitution.
6. The plaintiffs did not lose their native customary rights to the land by permitting logging of timber on the disputed area between 1984 and 1989. All that can be said is that by selling the timber, the plaintiffs had contravened Order XIV of 1921; the Forest Ordinance (Cap 31) 1934, s 55(1); and the Forest Ordinance 1953, s 65 (1). They can be subject to payment of fines but the law does not render such native customary rights to have been extinguished.
7. The plaintiffs’ possession of native customary rights over the pemakai menoa and the communal forests rendered this a proper representative action (Jok Jau Evong & Ors v Marabong Lumber Sdn Bhd & Ors [1990] 2 CLJ 625).
8. The court granted a declaration that the Ibans were entitled to exercise native customary rights over the disputed area. It granted an injunction preventing the first and second defendants and their servants or agents from trespassing into the disputed area but held that there was insufficient evidence to support an award of damages in favour of the plaintiffs. It ordered that the title be rectified.
The defendants have appealed to the Court of Appeal.
1. A longhouse consists of many families, usually of relatives living together in a literal long house with sufficient rooms arranged in a row, all joined together to accommodate the families. More units would be added as other families join them. Usually each longhouse community are members of the same tribe. Each longhouse has its own territory (pemakai menoa) and is separated from another by a boundary, which is reckoned by reference to mountains, ridges and rivers and other permanent landmarks.
2. On 31 October 2001, the Sarawak State government introduced the Land Surveyors Bill 2001 in the state legislative assembly. The Bill creates a Land Surveyors Board to regulate the activities of land surveyors. However, the combined effect of ss 20 and 23 of that Bill makes it an offence for a person who is not a licensed surveyor to make a map or to ‘certify the accuracy of any cadastral land survey or signs or initials any survey plan’. In other words the conduct of any form of community mapping such as has been recognised in Nor Anak Nyawai v Borneo Pulp Plantations would now be illegal.
[1] Adong bin Kuwau & Ors v Kerajaan Negeri Johor & Anor [1997] 1 MLJ 418 will be extracted in a later issue of the AILR.