The court upheld the arbitrator's findings regarding native customary rights based on historical practices, affirming minimal grounds for judicial intervention unless significant legal errors are evident.

[1] At the instance of the Superintendent of Lands and Surveys, Kuching the claims of 28 persons for native customary rights over land at Jalan Biawak Lundu, particularly that located at Kampung Sedaing and Kampung Kerangga, were referred for arbitration under s 5(4) of the Sarawak Land Code . These 28 persons were dissatisfied with the decision of the Ministry for Planning and Resources Management in issuing a directive on 8 April 2009 extinguishing all native customary rights over the said land. The appointed arbitrator ruled in favour of the claimants and the superintendent of lands and surveys being dissatisfied with it has now filed an originating summons under s 42 of the Arbitration Act 2005 for the following questions of law to be determined:

a) whether the learned arbitrator erred in applying a wrong principle of law as enunciated in the cases of Usang ak Labit & Ors v. Rosebay Enterprise Sdn Bhd & 2 Ors (Sibu High Court Civil Suit No 21-1 of 2010), Muli ak Baya & Ors v Everbright Enterprise & 2 Ors (Sibu High Court Civil Suit No 21-6 of 2009) as well as Nor ak Nyawai & Ors v Borneo Pulp Plantation & Ors, ;

b) whether the proclamation of the Constitution of Pasir-Jangkar Protected Forest vide Gazette Notification No 1356 published on 16 October 1952 could be made as evidence and/or an admission of native customary rights of the defendants over the land in dispute;

c) whether the learned arbitrator was correct in holding that proclamation of the Constitution of Pasir-Jangkar Protected Forest vide Gazette Notification No 1356 published on 16 October 1952 recognised native customary rights of the defendants without taking into consideration the terms and/or conditions specified in the Second Schedule of the said proclamation;

d) in the event the answer to question (i)(b) and (c) are in the affirmative, alternatively, whether native customary rights can be created or acquired after the date of the proclamation of the Constitution of Pasir-Jangkar Protected Forest vide Gazette Notification No 1356 published on 16 October 1952; and

e) whether the learned arbitrator has misconducted himself and/or the proceedings by deciding evidence which were unavailable, in particular, by deciding that the defendants had acquired native customary rights over the land in dispute without the evidence of the other defendants who were claiming individual native customary rights over the land in dispute.

[2] Mc Willyn for the plaintiff, in his written submission has helpfully point me to the right direction in so far as my powers under s 42 goes by citing the decision of Mohamad Ariff Yusof J (as His Lordship then was) in Maimumah Deraman v Majlis Perbandaran Kemaman , where His Lordship emphasised that the questions of law must arise out of the award and not out of the arbitration proceedings. The Court must be satisfied, said His Lordship, which an error of law on the face of the award has occurred which warrants the intervention of the High Court. His Lordship went on to state as follows, which quotation is a good guide on how I should approach the application, which in all honesty, is my first.

Application of the Error of Law Principles