Failure to prove native customary rights before the 1958 cut-off date results in denial of land claims.

Introduction

[1] The Penans are one of the indigenous tribes or natives of Sarawak. Any self-respecting Sarawakian would know that the Penans led a nomadic lifestyle, deriving their livelihood and sustenance from the jungles and forest where they roamed in the northern region of Sarawak. It is common enough knowledge too that the modern day Penans have all but abandoned that nomadic lifestyle and have embraced a more settled existence by living in longhouses.

[2] That is as far as the general information on the Penans goes and I have been privileged, in writing this judgment to have a deeper insight on the Penans not just from the evidence of the Penans themselves but from a rather unlikely source, a Professor on Anthropology from United States of America, ie Dr J. Peter Brosius ("Professor Brosius" for short) who was assisted by Professor Nathan P. Nibbelink ("Professor Nathan" for short) on transplotting the data gathered from his research on the Penan into maps produced at the trial. I also derived much assistance from Mr. Jayl Langub, a former State Administrative Officer of Belaga who wrote ten articles on the Penan and who is a Lun Bawang, another one of the indigenous tribes in Sarawak and from a report by the Human Rights Commission of Malaysia also known as Suhakam on "The Penans of Ulu Belaga: Right to Land and Socio-Economi Development" ("the Suhakam Report" for short). The above named persons have all testified as witnesses for the plaintiff, Matu Tugang, according to the intitulement of the writ and statement of claim who represents 42 other villagers from his longhouse at a place named Long Jaik, situated at the Seping River of Belaga, a district in the 7th Division of Sarawak. He has sued, for himself and his 42 other villagers, Shin Yang Forestry Sdn Bhd ("the company") who has been given a large swathe of land where they claimed to have long foraged and roam for their livelihood and sustenance and which the company has turned into an oil palm plantation. The Director of Forests, Sarawak ("the Director") who granted the planted forest licence to the company and the State of Government of Sarawak have for good measure, been included as the 2nd and 3rd defendants, respectively in this action of theirs where the prayer is, inter alia, for a declaration that they have native customary rights over the area claimed in the map marked as "M" attached to the statement of claim. The said pleading was amended on 5 June 2015 wherein another map marked "P" demarcating the area claimed has been included.

Representative Action

[3] I wish to say at the outset that there is nothing wrong with the plaintiff's capacity to represent his fellow villagers in this action as raised by the 2nd and 3rd defendants' counsel, Mr. Saferi Ali. Firstly, it cannot be denied that the requirement of a representative action as provided in O 15 r 12(1) of Rules of 2012 is satisfied in that the plaintiff and these 42 other villagers have the same interest which is to claim native customary rights over the area demarcated in the maps attached to the iramended statement of claim. They all have a common interest as well as a common grievance over the issuance of the licence to the company by the Director and a declaration to that as pleaded would benefit all of them (see Jok Jau Evong & Ors v. Marabong Lumber Sdn Bhd & Ors, ). Secondly, although the plaintiff himself admitted in his evidence that there are altogether 87 claimants of his longhouse (at lines 16 to 18 of page 310 of the notes of proceedings) however there is no evidence adduced that there were o