Native customary rights must be proven through continuous occupation and cannot be claimed retroactively without valid evidence.

[1] This case concerns a claim by the plaintiff to native customary rights (NCR) over a parcel of land.

Background Facts

[2] From the evidence adduced by the parties I find that the following facts to be either proven, undisputed or indisputable:

i. The parcel of land is referred to and edged in orange in the locality map marked as "M" (the said Land).

ii. The said Land was previously known as Lot 13 and Lot 115, Block 6 Trusan Land District.

iii. The plaintiff, Langan Kamis and Beraok Kading are claiming their respective share of the said Land and identified in the "Surat Perjanjian Persetujuan Sempadan" at p 3 of PBOD.

iv. In 1985 vide Gazette No 3053 dated 1 August 1985 a Settlement Notification under s 84 of the Sarawak Land Code ( SLC ) was issued over the said Land as well as the surrounding land (Settlement Notification).

v. A Settlement Order No 171 under s 95 of SLC was subsequently issued over the said Land vide Gazette No 2809 dated 31 May 1989 (Settlement Order).

vi. The Settlement Notification and Settlement Order shall be referred to as the settlement exercise.

vii. Pursuant to the settlement exercise the said Land was registered as State Land on the 10 September 1990. Lot 13 was subsequently divided into Lots 135,136, 137 whilst Lot 115 was divided into Lots 138, 139 and 140 respectively.

viii. The plaintiff, Langan Kamis and Beraok Kading are claiming NCR over their respective shares within Lot 13 of the parcel of land shown on Map "M" which they have identified as 13(C), 13(B) and 13(A) respectively at p 3 PBOD which is now known as Lots 135,136, 137 at page 15 DBOD (the NCR Land).

ix. In 2011 a road called Jalan Mengkalap/Semampoan, Lawas (the said Road) was constructed passing through the NCR Land which is identified as Lot 136, Block 6, Trusan Land District.

The Plaintiff's Claim

[3] The plaintiff and those he represents which include PW2 claim against the defendants for the following orders:

i. A declaration order that the plaintiff had created and/or acquired and/or inherited Native title and/or Native Customary Rights (NCR) over the area as claimed by the plaintiff respectively referred to and/or edged in orange marked in the locality map marked as "M" and annexed hereto herein;

ii. A declaration that this native title and/or rights preclude the 1st and 2nd defendants from impairing and/or abridging the plaintiffs' said native title and/or NCR;

iii. A declaration that the acts of the defendants in constructing the said Road Project without the plaintiff's consent and/or consultation is wrong bad and/or void;

iv. A declaration that the acts of the defendants in constructing the said Road Project is unlawful, improper, unconstitutional and therefore null and void for want of extinguishment of the plaintiff's NCR over the said NCR Land;

v. Further and/or in the alternative a declaration that in allowing the said Road Project to commence without first consulting and/or discussing and/or extinguishing the said NCR over the said NCR Land the defendants were in breach of their fiduciary duty to the plaintiffs and therefore the said Road Project is null and void;

vi. Further or in the alternative a declaration that the defendants and/or their servants or agents or contractor was and is trespassing on the plaintiff's said NCR Land;

vii. General damages to be assessed by the Registrar;

viii. Costs of this action; and Any further order or relief deems fit and proper by this honourable court.

The Defendant's Defence

[4] The defendants denied that the plaintiff had created and/ or acquired and/or inherited over the NCR Land. The defendants say that any right to the NCR Land could only be acquired in accordance with