Plaintiffs failed to prove native customary rights over disputed land due to insufficient evidence and acknowledgment of rights transfer to another entity.

[1] In this representative action, the six plaintiffs who are Bidayuhs by race are claiming native customary rights over land situated in a small district called Tebedu which is Kuching Division of Sarawak. The claimants they are representing are from five villages situated in the said district ie Kampung Baru Mawang, Kampung Bunga, Kampung Tubih Mawang, Kampung Tubih Behemand Kampung Tubih Sungai Ujan. The rights that the plaintiffs are claiming for themselves and their fellow villagers covered, they alleged an area which represent not just their settlement but also cultivated land where fruits trees, paddy, rubber, cocoa and other essential crops were planted and all these were done way back in 1920s till present day. The area claimed also included areas of forest where the plaintiffs and fellow villagers gathered food, medicines, wildlife and other forest produce for their livelihood and sustenance. In 1976, pleaded the plaintiffs further the Agriculture Department of Sarawak even assisted the plaintiffs to develop eighty acres of their native customary rights land for wet paddy cultivation with a proper drainage system and which system is maintained by the Drainage and Irrigation Department. The said Department comes under the auspices of the Public Works Department of Sarawak.

[2] What led to the filing of this action was the grant of three provisional leases described as Lot 3, Lot 82 and Lot 83, Block 3 Bukar Sadong Land District to the 1st defendant, which is a limited company and the total acreage of land covered by the said leases of approximately 700 hectares overlaps, contended the plaintiff with the land which they have settled on and cultivated.

The Amended Statement Of Defence

[3] In their defence, the defendants disputed the plaintiff's contention that the official acts of the Agriculture Department was a recognition of their native customary rights over the land, saying that the said Department is not conferred with any power under the Land Code to give the plaintiffs such an acknowledgement of their perceived rights over the land. It is also pleaded that the land covered by the provisional leases have been declared as mixed zone land by an order titled Samarahan Division (Mixed Zone Land) Declaration Order, 2004 (Sarawak L.N 16 of 2004) which came into force on 20th May 2003. By virtue of that Order, the land cannot be encumbered by or subject to the plaintiffs' native customary rights when this action was commenced in November 2015. The defendants also pleaded that the plaintiffs have agreed with the 1st defendant company and another company, Tubih Plantation Sdn Bhd to jointly develop the land covered by the leases into cocoa and oil palm plantation and the 1st to 4th plaintiffs were in fact shareholders of Tubih Plantation Sdn Bhd. It was this agreement that led to the issuance of the said leases, pleaded the defendants further. Another fact pleaded by the defendants to resist the claim is that the land covered by the provisional leases were previously issued with a timber concession licence to Syarikat Ticos Timber and Syarikat Jaya Bakti and a General Prospecting Licence to Gladioh Enterprise Sdn Bhd with no objection by the plaintiffs. There was even confirmation from a Land Committee set up by the Sub- District Office of Tebedu, Serian that the land covered by the leases was not subject to native customary rights and that shifting cultivation for paddy only started in the area claimed in 1963. Based on the above facts, the defendants pleaded that the provisional leases were properly and lawfully issued and the plaintiffs have no native