Native customary rights must be recognized based on historical occupation, not solely on formal codification, and any actions infringing these rights without proper inquiry are unconstitutional.

[1] In this litigation the plaintiffs, Iban by race, are suing on their own behalf as well as for all other proprietors, occupiers, holders or claimants of native customary land situated at or around Rh Garai, Rh Chendai, Rh Siew, Rh Menuas, Rh Ngindang, Rh Gedong, Rh Chendai, Rh Kuching, Rh Tabor, Rh Encharang and Ru Lipu ak Ali. For convenience, I shall hereinafter refer to these longhouses collectively as the said Longhouses.

[2] The 1st Defendant is an incorporated company and a registered holder of the Lease of State Land known as Lot 13 Pelugau Land District.

[3] The 2nd Defendant is in the employment of the Sarawak Government (3rd Defendant) and has jurisdiction over the lands in the State.

[4] The plaintiffs assert that at all material time, they have acquired and subsisting individual and communal native customary rights over the lands at and around the said Longhouses, and the lands are more particularly set out in Map "M" annexed to the statement of claim and edged in red, covering an area of 11,822.26 hectares.

[5] The plaintiffs alleged that the provisional lease Lot 13 affects and cover the plaintiffs' native customary land.

[6] Hence, the plaintiffs come to court seeking various reliefs and orders, amongst which are declarations that the plaintiffs had acquired and/or inherited native title and/or native customary rights (NCR) over the area claimed by the plaintiffs' that this NCR precludes the 1st, 2nd and 3rd Defendants from impairing or abridging the rights; and that the acts of the 2nd and 3rd Defendants in issuing the Lease is unlawful, improper, unconstitutional and therefore null and void, and damages.

Lot 3 And Lot 13 Peluan Land District And Mukah Hill Protected Forest

[7] It transpired in the testimonies of DW3 Christina Lau Kieng Hung, Superintendent of Lands and Surveys, Sibu Division, and DW4, Romy Pudong, draughtsman with Lands and Surveys, Kuching, that Lot 3 Pelugan Land District was issued with a provisional lease on 20 February, 1999 to the 1st Defendant. Later, this provisional lease was cancelled. Subsequently, State of Lease known as Lot 13 Pelugan Land District comprising the cancelled Lot 3 Pelugan Land District and additional area was issued on 12 April, 2006 to the 1st Defendant.

[8] According to DW3 and DW4, based on the office records, prior to issuance of the provisional lease and the Lease of State Land, Lot 3 Peluan Land District and Lot 13 Peluan Land District were part of Mukah Hills Protected Forest as gazette under G.N. 790 dated 13 June 1958. See, exhibit 5 2DSBD (2nd and 3rd Defendants Supplementary Bundle of Documents).

[9] However, said the witnesses, part of the areas covered in the provisional lease and Lease of State Land which is under Mukah Hill Protected Forest ceased to be a protected forests with effect from 4 September, 1997 vide The Mukah Hill Protected Forest (1st Excision) Notification, 1998 as gazette under G.N.54 dated 1 January, 1999.

[10] DW3 also told the court that a further excision was carried out vide The Mukah Hill Protected Forest (2nd Excision) Notification, 1998 as gazette under G.N.2254 dated 17 July, 2003.

[11] Subsequently, according to the witnesses, vide Declaration Order, 2003 published on 14 august 2003 (Sek. L.N. 83 dated 24 July, 2003) with effect from 3 March, 2003, the area of land with the Lease of State Land was declared as Mixed Zone Land. DW3 explained under cross-examination that the purpose of the excision exercise was to enable the land concerned to b