Federal Court to hear Sipadan collectors on turtle eggs

Joseph Francis

joseph@asklegal.my

An Applicant’s grandfather’s customary rights on Sipadan Island helped Putrajaya win the case at the ICJ where it was ruled that the island belongs to Malaysia.

RIGHTS The Federal Court, sitting in the Sabah capital, has allowed the Application for Leave sought by two traditional turtle eggs collectors from Sipadan, Malaysia’s only oceanic island in the Sulawesi Sea along the south-eastern seaboard of Sabah. The Application was lodged eight years ago on seven questions of law on Native Customary Rights (NCR) and two questions on rights, their right to collect turtle eggs on the island which the International Court of Justice (ICJ) in The Hague awarded to Malaysia on 17 December 2002, along with Ligitan Island, over a competing claim by Indonesia.

The three-man Panel comprising Judges Ahmad Maarop, Abu Samah Nordin and Aziah Ali unanimously ruled in favour of Abdillah Abdul Hamid and Ab Rauf Mahajud. Sabah Attorney General Roderick Fernandez had requested dismissal for the Application for Leave.

Abdillah, represented by counsel Alex Decena, wants to know from the Federal Court whether NCR was extinguished by the Federal Government declaring an area a protected area and a protected place under the Protected Areas and Protected Places Act 1959 (Act 298). This is one of the seven questions.

Another question was whether the Protected Areas and Protected Places Act 1959 (Act 298) had clear provisions expressing clear and plain intention to extinguish NCR and private rights on Sipadan Island.

Abd Rauf, represented by counsel Mohd Nor Yusof, wants to know among others whether a Court of Appeal ruling was contrary to and/or repugnant to section 65 of the Sabah Land Ordinance (SLO) on the definition of customary tenure. Another question was whether the Applicant’s ancestral rights to exclusively collect turtle eggs on Sipadan Island was extinguished by virtue of section 15 of the SLO and/or upon enforcement of the Wildlife Conservation Enactment 1997 notwithstanding Article 13 of the Federal Constitution.

The High Court, which heard the assessment of damages for two suits filed by Abdillah and Abd Rauf, had on 20 April 2011 awarded damages of RM4,376,008.75 to Abd Rauf in respect of the right to collect turtle eggs and RM5,524,711.04 to Abdillah in damages.

Briefly, the case stems from the Sabah Government taking over Sipadan Island in 1997, and without consent, licensing 12 companies to run businesses there and thereby the two Applicants and their families were prohibited from collecting turtle eggs on the island and disallowed from running any tourism business. Earlier, by an Agreement on 4 November 1993, Borneo Divers and Sea Sports Sdn Bhd, and Pulau Sipadan Resort agreed to pay Abd Rauf RM50,000 annually to cease collecting eggs and thereby allow them to be laid on the island for natural hatching as tourism assets. In November 1998, the

In a Supporting Affidavit, Abd Rauf said that the Federal Government had recognized his grandfather’s right to collect turtle eggs on Sipadan Island. The government had also sought his grandfather’s co-operation to challenge Indonesia’s claim to the island at the ICJ in The Hague. He added that his grandfather’s customary rights on the island helped Putrajaya win the case at the ICJ where it was ruled that the island belongs to Malaysia. However, he lamented, the Sabah Government denied his family’s ownership of the island under customary tenure.

In his Supporting Affidavit, Abd Rauf said that he was the heir to Maharaja Ligaddung Samang who had the rights to collect turtle eggs on Sipadan Island. This right was recognized by the British Government via letters dated 25 January 1916 and 5 July 1957.

Picture Credit: cuti-cutimalaysia.net