Recognition of traditional practices in establishing customary land rights despite legal challenges over jurisdiction and scope.

[1] There were three Land (Native Customary Rights) Directions (No 78) 2001 dated 1 April 2001, (No 2) 2007 dated 26 January 2007 and (No 14) 2008 dated 4 April 2008 respectively made by the Minister for Planning and Resource Management under s 5(3) and (4) of the Land Code (Cap 81) (the Directions).

[2] Pursuant to the Directions all Native Customary Rights (NCR) within the areas described in the said Directions were extinguished. Sixty (60) claimants had submitted their claims for NCR to the Superintendent which were allegedly acquired under Direction (No 78) 2001 whilst only one (1) claimant for NCR in respect of Directions (No 2) 2007 and (No 14) 2008 (collectively called the defendants).

[3] The defendants are of Kenyah Berawan race and are therefore natives of Sarawak. Sixty (60) defendants are claiming their NCR Lands over 41 parcels of State Land as described in the attached Appendix "A". One (1) defendant named in Exh "C" is claiming NCR over parcels of State Land described as part of Field Lot 2 (part of Lot 26 Block 14 Tutoh Land District) surveyed under Survey Job No 144/2006. The defendants were also the Claimants at the Arbitration hearing.

[4] The defendants claimed their respective areas as follows:-

Appendix "A"

Exhibit "C"

Plot A: 375.4 Sq Meters; Plot B: 3 acres and Plot C: 3 acres.

[5] The Superintendent had rejected the defendants' claims and being dissatisfied they requested the Superintendent to refer the matter to arbitration pursuant to s 212 of the Land Code .

[6] In respect of the 60 defendants, the "Brief Summary of Dispute referred to Arbitration" dated 21 July 2003 states as follows:

1. INTRODUCTION

Application has been made by HNL & Co Advocates & Solicitors of PO Box 1065, Miri, Sarawak for and on behalf of sixty-two (62) persons named in the Second column of Appendix "A" attached hereto to the Superintendent of Lands and Surveys, Miri Division, Miri ("The Superintendent") under s 212 of the Land Code (Cap 81) to refer to Arbitration the rejection by the Superintendent of their claims to Native Customary Rights over 41 parcels of State Land as described in the attached Appendix "A". However, out of 62 persons, the other 2 applications are outside the approved s 5(3) & (4) of the and, they have been advised accordingly as per Appendix "B" attached.

2. SUMMARY

Pursuant to s 212 of the Land Code , I, as Superintendent, hereby submit a Brief Summary of the Dispute now referred to arbitration under s 212(1) of the .

2.1 The 41 parcels of state land are situated at Mulu Airport, Mulu, Baram and having an aggregate area of 71.661 hectres, more or less. A plan showing these parcels of land is attached herewith and marked exh "A".

2.2. Pursuant to s 5(3) and (4) of the Land Code (Cap 81), the Minister for Planning and Resources Management, made the LAND (NATIVE CUSTOMARY RIGHTS) (No 78) 2001 DIRECTION ("the said Direction") on the 1st April, 2001. A copy of the said Direction together with the locality plan described therein is hereto attached and marked Exh "B".

2.3 The said Direction was published in the Sarawak Government Gazette on the 6th June, 2002 vide Gazette Notification No 1849. It was also posted on the Notice Boards of Land and Survey Office, Miri and District Office, Baram on 20th June, 2002 respectively.

2.4 Pursuant to the said Direction, all Native Customary Rights within the area described in the said Direction were extinguished on 24th April, 2001.

2.5 Within the area described in the said Direction were those parcels of State Land demarcated in Exh "A" with red ink.

2.6 Following the said Direction, the s