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In pivotal decision, Dayaks in Malaysia state of Sarawak lose right to claim forests as communal area

By Sulok Tawie Malay Mail Online Tuesday December 20, 2016


The Dayak landowners, who come from all over Sarawak, with a banner outside Kuching High Court complex, giving their support to the headman Sandah anak Tabau and seven other landowners in Kuching December 20, 2016. — Pictures by Sulok Tawie

KUCHING, Malaysia – The Dayak people cannot apply their native customary rights (NCR) on land to claim virgin forests as their territorial domains and communal forest reserves, the Federal Court decided today in a crucial judgment that affect tens of other related disputes.

In a 3-1 majority decision, the apex court allowed an appeal by the Forest Department and the state government in a case filed by headman Sandah anak Tabau and other seven other NCR landowners over an area in Ulu Machan, Kanowit.

Court of Appeal President Tan Sri Mohd Raus Shariff, in a written judgment, said there is no law in Sarawak that gives the force of law to customary rights claims by the Dayaks over virgin forests as NCR lands.

He said the Sarawak Land Code, Tusun Tunggu (Codified Customary Laws), Iban Adat 1993 and a number of Rajah Orders only recognise cultivated land called “temuda” as NCR land.

Headman Sandah and the seven have claimed that they have customary rights over 2,712 ha of communal forest, also called “pulau galau”, in Ulu Machan, Kanowit, which they claimed as belonging to them since it is within their territorial domain, or called “pemakai menoa”.

Counsel for the natives, Baru Bian, said today’s decision “completely finishes off” 10 other cases which were won by the landowners at the Court of Appeal, and 20 others pending at the same court.

“It also affects over 100 cases pending in the high courts,” he told reporters after the Federal Court had made its ruling.

“It is a great disappointment for the Dayaks who will be celebrating their Christmas on December 25, and it is certainly a bad Christmas gift,” he said.

“Pemakai menoa” refers to a virgin forest where the Dayaks in rural longhouses go to forage for food and other forest products, while “pulau galau” is located within the “pemakai menoa”.

“It is hoped that judges from Sarawak and Sabah would be included to sit in the review panel,” he said.

He said the judges from Sarawak and Sabah would be more knowledgeable on the native customs compared to outsiders.

Apart from Raus, Federal Court judges Tan Sri Ahmad Maarof and Tan Sri Abu Samah Nordin also decided in favour of the appeal by the Forest Department and the state government while Federal Court judge Tan Sri Zainun Ali dissented.

Tan Sri Abdul Hamid Embong, who also sat as a panel member, did not make any decision since he is now retiring.

The High Court and the Court of Appeal had previously decided in favour of the natives.

On March 13, 2011, High Court judge Datuk Yew Jen Kie allowed a civil suit filed by the eight Dayak landowners against Kanowit Timber Company Sdn Bhd and the state government for encroachment into their NCR land, including their “Pemakai Menoa” vide a timber licence issued by the State Government to Kanowit Timber Company Sdn Bhd

On June 13, 2013, the Court of Appeal agreed with the High Court’s decision, saying that “pemakai menoa” and “pulau galau” were NCR lands.

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