Native customary rights over land must be recognized and cannot be extinguished without proper compensation or consent.

Introduction

[1] This is another case of the natives of Sarawak going to court to claim native customary rights (NCR) over lands given to companies under a provisional lease (PL) of State land by the Lands and Surveys Department (L&S Dept) and the Sarawak State Government. The trial took 8 days of staggered sitting. Learned counsels Mr Simon Sia of Messrs Baru Bian & Co Advocates appeared for the plaintiffs, Mr Wee Wui Kiat of Messrs Battenberg & Talma Advocates for the 1st, 2nd, 3rd defendants and Mr Nur Azhar Bujang of the State AG Chambers was for the 4th and 5th defendants. 8 witnesses testified for the plaintiffs; 9 for the 1st, 2nd, and 3rd defendants and 2 for the 4th and 5th defendants.

[2] The documents and exhibits produced and admitted as evidence are:-

Part C documents and exhibits subsequently admitted as evidence and marked are:-

Hereinafter, I will refer to the documents in the Bundles of Documents by their exhibit or page number followed by their bundle markings. For instance p 1 of Bundle A will be referred to as BA p 1; p 68 of Bundle A as BA p 68; pp 1 to 3 of Bundle N as BN pp1-3 and so on.

[3] I delivered judgment on 11 July 2014 and held that the plaintiffs had proved their claim on balance of probabilities. Accordingly, I entered judgment for the plaintiffs and granted the following declarations and orders:-

1) a declaration that the plaintiffs have acquired NCR over land delineated with dotted lines in Map M (annexed to the SOC);

2) a declaration that this right precludes the 1st defendant or their servants or agents from impairing or abridging the plaintiffs' said NCR or native title;

3) a declaration that the 1st, 2nd & 3rd defendants and their servants and agents are trespassing the NCR land to the extent of the area shaded in pink on Map M;

4) a declaration that the acts of the 4th and 5th defendants in issuing the provisional lease in so far as it impairs the plaintiffs' NCR over the NCR land is wrong and void;

5) a declaration that the issuance of the provisional lease was subject to native title and NCR or usufructuary rights of the plaintiffs in or over the NCR land and the provisional lease does not affect the plaintiffs' said title and rights therein;

6) a declaration that in issuing the provisional lease the 4th and 5th defendants have acted in breach of their fiduciary duty to the plaintiffs and therefore the provisional lease to the extent that it overlaps with the NCR land is null and void;

7) a declaration that the area of the NCR land included in the provisional lease as claimed by the plaintiffs as part of their NCR land and indicated in pink on Map M and indicated as the overlapping part of the provisional lease (in purple stripes) over the Area of Interest (in red polyline) in N:7 - Appendix A and N:8 - Appendix B be excised out of the area of land under the provisional lease;

8) mandatory injunction against the 1st, 2nd and 3rd defendants and their employees, servants and agents to cease operations and remove all strucutres and their equipmeetnes or machineries from the plaintiffs' NCR land;

9) damages to the plaintiffs occasioned by the provisional lease be assessed by the Registrar and paid by the 1st, 2nd and 3rd defendants with interest at 5% per annum from date of writ to full payment; and 10) costs to the plaintiffs capped at RM40,000.00 to be borne equally between the 1st, 2nd and 3rd defendants on the one part and the 4th and 5th defendants on the other.

The defendants have appealed against the whole of the decision.

Factual Background

[4] The plaintiffs are all Ibans and natives of Sarawak. The 1st defend