2012 MarsdenLR 1743

HIGH COURT SABAH & SARAWAK LIMBANG
TR ALING ANGGAU & ORS – Appellant
Versus
GOVERNMENT OF MALAYSIA & ORS – Respondent
[Suit No: 22-7-2007(LG)]

Native customary rights can be recognized based on continuous occupation and cultivation, and such rights are protected against conflicting licenses issued thereafter.

Headnote:(A) Land Code (Cap 81) - Sections 2, 5 and 7A - Native Customary Rights (NCR) - Plaintiffs proved creation and acquisition of NCR over 1011 hectares at Pulau Brunei, Limbang, now overlapping with LPF/0038 - The custom of acquiring NCR through cultivation was acknowledged. (Paras 10, 11, 22, 35, 66)

(B) Onus of Proof - The burden is on the plaintiffs to substantiate NCR claims with cogent evidence rather than mere assertions. (Paras 12, 46)

(C) Licensing and Native Rights - LPF/0038 does not extinguish previously acquired NCR, and plaintiffs' claims supersede the license status. (Paras 48, 56)

Facts of the case:
The plaintiffs claimed communal and individual NCR which predate 1958 based on continuous occupation and cultivation of the land by their ancestors and themselves since the early 1900s. Licensing against their land by the fourth defendant led to the legal action. (Paras 3-6, 28)

Findings of Court:
The court affirmed the plaintiffs' NCR presence over disputed land, mandating that 206 hectares under LPF/0038 be excised due to pre-existing native rights while dismissing defendants' counterclaims. (Paras 66)

Issues: The issues included the verification of NCR existence prior to 1958, the implications of LPF/0038 on these rights, and claims of trespass by the fourth defendant. (Paras 1, 6, 66)

Ratio Decidendi: The court held that existing laws safeguard NCR unless explicitly revoked, asserting that native rights are paramount in conflicts with licensure unless properly extinguished, which was not demonstrated by the defendants. (Paras 46, 56)

Result: The plaintiffs' prayers for recognition of NCR were allowed, with ordered excisation of overlapping licensed areas from fourth defendant's LPF/0038; all counterclaims by the fourth defendant were dismissed.