Point of law on whether customs have force of law

Joseph Francis

joseph@asklegal.my

The High Court and Court of Appeal earlier recognised temuda, pemakai menoa and pulau galau as NCR (Native Customary Right) land.

Image source: https://radiofreesarawak.org/2015/04/baru-bian-nat...

IN COURT An Appeal by the Sarawak Government and a plantation company in the Federal Court in Kuching against an earlier decision of both the High Court of Sabah and Sarawak and the Court of Appeal which recognised temuda, pemakai menoa and pulau galau as NCR (Native Customary Right) land was on Wednesday put off to a later date. The Court may have taken cognizance of the fact that several hundred Orang Asal (Natives) had gathered outside the Court.

Court of Appeal President Md Raus Sharif, who chaired the hearing, made the decision to defer the date to deliver the decision. Other Judges who sat with him: Abdull Hamid Embong' Ahmad Maarop, Zainun Ali and Abu Samah Nordin.

Md Raus made the decision after hearing submissions by Sarawak Legal Advisor J. C. Fong, representing the Applicant, and from senior Sarawak lawyer Baru Bian and Yogeswaran Subramaniam representing the Respondents Tuai Rumah (longhouse chief) Sandah Sabau of Rumah Sandah in Ulu Machan, Kanowit and eight other NCR land owners.

The point of law to be decided, in the words of Baru, was whether customs have the force of law. "If we lose this case, that means that we cannot have NCR beyond temuda as pemakai menoa and pulau galau will be no more NCR."

Temuda under the Iban customary law called Tusun Tunggu, which generally refers to all Orang Asal including the non-Iban, refers to cleared/farmed land i.e. the acquisition of NCR beginning with the clearance of untitled virgin land or jungle by an Orang Asal, followed by the occupation of the cleared land. There's an argument that once such land is abandoned, the NCR created or acquired previously over the land would be lost.

Pakai menoa refers to land next to temuda land and means communal land while pulau galau is the land beyond covering the forested areas.

In 2009, Ulu Machan residents filed a case related to encroachment of their temuda, pemakai menoa and pulau galau land by a plantation company in 2008. The owners of the land which include Tuai Rumah (longhouse chief) Sandah Tabau, Tuai Rumah Lajang and seven other claimants from Ulu Machan, Kanowit had won the case in both High Court and the Court of Appeal which recognised temuda, pulau galau and pemakai menoa which span a total of 5,630 hectares of land.

In March, the Federal Court in Kuching granted leave to the government and a plantation company to appeal the case.

The government contended that they only had rights over 2,802 hectares which they or their ancestors had acquired from clearing virgin jungle for farming as shown in aerial photos taken in 1951, but no rights to the land in the adjoining primary forests of 2,712 hectares which the claimants alleged was their 'pulau' where they hunted and foraged for food and medicine.

The Federal Court will have to consider amongst other matters, whether the pre-existing rights under native laws and customs which the common law respects go beyond felled and cultivated lands by natives (in this case, the Iban custom of temuda) AND include or extend to rights to land in and over trees, fruit trees, hunting grounds, fishing grounds, grazing grounds and areas for the gathering of food and forest produce in uncultivated areas within their broader territorial domain or communal areas (in this case, the Iban custom "pemakai menoa" and/or "pulau galau"/ "pulau"/"galau").

Also to be considered is whether it was necessary for these pre-existing native customs to be expressly given the force of law by the legislative or executive arms of the Government of Sarawak or their predecessors before such customs are given legal recognition.

From 2007, the apex court of Malaysia has recognised the pre-existing laws and customs of Indigenous inhabitants (natives of Sarawak, natives of Sabah and Peninsular Malaysia Orang Asli) relating to their customary lands without the need for formal recognition of such laws and customs by the relevant Legislatures and Executives unless such rights are validly extinguished by the Government (see Superintendent of Land & Surveys Miri Division & Anor v. Madeli Salleh [2007] 6 CLJ 509 (Federal Court)).

These rights are determined in accordance with the customs, practices and usages of the particular Indigenous community (see Kerajaan Negeri Selangor & Ors v Sagong bin Tasi & Ors [2005] 4 CLJ 169) AND established as a matter of fact through the continuous occupation of the land claimed (see Superintendent of Lands & Surveys, Bintulu v Nor Anak Nyawai & Ors and another appeal [2006] 1 MLJ 256 and/or the maintenance of a traditional connection with the land claimed in accordance with customs distinctive to the claimant community (see Sagong bin Tasi & Ors v Kerajaan Negeri Selangor & Ors [2002] 2 MLJ 591).

In essence, the Federal Court has to consider whether these customs are legally enforceable notwithstanding the fact that they are not contained in codified laws. The question before the Federal Court, if determined, may potentially carry major legal implications for large tracts of customary lands currently occupied, used and enjoyed by the natives of Sabah and Sarawak and Peninsular Malaysia Orang Asli.

Sarawak Chief Minister Adenan Satem earlier argued in the Sarawak Assembly that the Sarawak Government was guided on NCR land by the decision of the Federal Court in the case of Bisi Anak Jinggot @ Hilarion Bisi Anak Jinggot vs Superintendent of Lands and Surveys, Kuching Division, delivered on 12 July, 2013.