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Ahad, 17 Julai 2011

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The Broken Shield: Another victory for native landowners

Posted: 17 Jul 2011 04:51 AM PDT

KUCHING: The High Court in Kuching last Friday (15 July) declared as null and void the issuance of the Forest Timber Licence No. T/8329 to the Standard Point Sdn Bhd in native customary rights lands which are owned by more than 500 Ibans of Kampung Sungai Merah, Pantu.

The court presided over by Judge Sangau Gunting further ordered that the plaintiffs' NCR precludes the first defendant (Standard Point Sdn Bhd) and second defendant (Roundtree Timber Sdn Bhd), from impairing or abridging the plaintiffs' rights and a prohibitory injunction against both companies restraining them from trespassing, entering, clearing, felling and/or occupying the plaintiffs' said NCR Land.

The court also declared that the 4th defendant (the Superintendent of Lands and Surveys Sri Aman) and the 5th defendant (Sarawak State Government) take cognizance of such NCR and to enter and record in their Land Registry such right and thereafter to issue title to the said Land in accordance with the Sarawak Land Code.

The companies were ordered to pay agreed costs of RM20,000 to the plaintiffs within one month from Friday July 15, 2011.

On the other hand, costs by the Superintendent of Lands & Surveys Sri Aman, the Sarawak State Government and the Sarawak Forest Director were ordered to be taxed by the Court unless parties come to an agreement on it.

The order was made following a legal suit filed by the plaintiffs, Martin Ak Lindang, Biju Ak Nyelang and Buang Ak Jala and 500 natives from two longhouses of Rumah Musih and Rumah Usek, against the two companies, the Director of Forests, the Superintendent of Lands and Surveys Sri Aman and the state government for encroaching into their 'pemakai menua' which has been ruled as their NCR land.

The order was also based on consent order that was entered on February 25 before Datuk Linton Albert for a declaration that the plaintiffs had acquired native customary rights (NCR) over the Land known as 'pemakai menua'.

In their statement of claims filed in 2007, the natives claimed native customary rights over the said land as their ancestors were the first settlers in the area.

In March 2006 the plaintiffs found out that the first defendant had encroached into their land to extract timber destroying their farms, which are the source of their livelihood, and causing extensive damages and soil erosion on their land.

In Friday's hearing, after six witnesses of the plaintiffs had given their evidence the two parties have decided to settle the matter amicably.

Judge Sangau then recorded a consent judgment and made his ruling for the NCR land case litigated earlier before Datuk Linton Albert (now a judge in the Court of Appeal).

Commenting on the case, See Chee How of Baru Bian Advocates who acted on their behalf said that the native landowners have added their names to the list of proud native plaintiffs in Sarawak who have successfully defended the native customary rights land.

"It is not only another victory, but a great victory of the natives," he said.

Esther Wong Zhi Hua represented the companies while State Legal Officer Zainuddin Bin Hussaini represented the Superintendent of Lands & Surveys Sri Aman, the Sarawak State Government and the Sarawak Forest Director.

There are more than 200 NCR land cases that are pending hearing at the High Court, and many more are waiting to be filed.

The Baru Bian Advocates alone is handling more than 100 cases.

This victory should serve another eye-opener to the state government which has been accused of taking away NCR land which also includes 'pemakai menua' and 'pulau galau'.

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