KUCHING: The Kuching High Court yesterday handed down yet another landmark decision when it recognised the native customary rights (NCR) of Malays in the state over land.
In passing his judgment, Justice Linton Albert said that Malays in Sarawak have “customary rights over land as well as over swampy areas surrounding their NCR land”.
Their rights, he said, are similar to that of the Dayaks’ “pemakai menua” (territorial domain) and “pulau galau” (communal forests) where they forage for food and timber for their use.
Reading his decision, Albert said that the acquisition of NCR land has lately gained prominence and consistently recognised by the appellate courts.
“It is well defined and firmly established and it is an integral part of the corpus of our substantive laws. Evidence of the Malay custom, practice and tradition since time immemorial of acquiring native customary land which the Malays called ‘tanah pesaka’ by being the first to make a living or eke out a livelihood from nipah and mangrove forests which cover the area where they settled was undisputed and controvertible," Albert said.
He said the nipah palm and the mangrove forests in the neighbourhood of the villages afforded the Malays their livelihood.
Malays, he said, collected edible living creatures found in the swampy ground of these forests namely crabs, clams, snails while the nipah leaves gathered were for roofing materials and mangrove wood for charcoal and these were a few of the natural bounties presented to the Malays.
“I am satisfied that on the evidence adduced and tested against the statements of the law set out in the Madeli Salleh case, the plaintiff has succeeded on the balance of probability that the original claimants who transferred their native customary right land to him under the agreements had acquired native customary rights to land prior to Jan 1, 1958, the date when the Land Code came into force.
“In the light of the pronouncements in the Madeli Salleh case, the structures imposed on the creation of native customary rights under the Land Code upon which the first defendant (superintendent of Lands and Surveys Kuching Division) and second defendant (state government of Sarawak ) rely on and in respect of which their witnesses took pains to amplify have no application and it is therefore unnecessary to embark on a judicial scrutiny of the relevant provisions purporting to prohibit the acquisition of native customary rights over land referred to by their learned counsel.
“Reliance by the learned counsel for the first and second defendants on a passage in 'Superintendent of Lands and Surveys Bintulu against Nor Anak Nyawai and others' is woefully misplaced... that there were also self-serving testimonies by some of the respondents what should carry little or no weight is the absence of some other credible corroborative evidence.
“Clearly the testimonies of the witnesses for the plaintiff were not wholely self-serving. Indeed their testimonies were supported by documentary and other independent evidence in the form of the 65 agreements and the testimony of PW7 (Dr Claus-Peter Gross) which are vital in tipping the balance in favour of the plaintiff, " Albert said.
He noted that it was an “indisputable historical fact” that the Malays of Sarawak had lived a settled existence along the coasts and lower reaches of rivers well before the marauding Dayaks, mostly Sea Dayaks who are now commonly referred to as Ibans, came from across the border in Kalimantan and cleared vast tracts of forests for their slash and burn practice of farming in the hilly interiors of Sarawak.
“And until headhunting was totally eradicated during the colonial era, the Dayaks were predisposed to move constantly either as hunters or hunted and in so doing they fell even more areas of primary forests for the hill padi farming," he said.
The Malays, he added, were not so wasteful and destructive; their settled existence meant that they had to practise some form of sustainability which precluded destruction of existing area, hence the absence of large cleared areas in the serial photographs, he said.
The judge quoted various authorities to support his decision which is in favour of the plaintiff.
The plaintiff, Mohd Rambli Kawi, was represented by See Chee How and Baru Bian of Baru Bian Advocates, while the Superintendent of Lands and Surveys Kuching Division and the state government of Sarawak were represented by Joseph Chioh of the State Attorney-General Chambers.
Maisarah Juhari represented the Federal Lands Commissioner.