The extinguishment of native customary rights under the Sarawak Land Code is valid and does not infringe constitutional rights, provided procedures for compensation are observed.

[1] This is an appeal against the decision of the learned High Court judge made on 28 April 2008, whereby His Lordship gave judgment for the defendant, the State Government of Sarawak, (the respondent in this appeal) on their application for determination of points of law pursuant to O 14A of the Rules of the High 1980 (O 14A). The application arose from the plaintiffs (the appellants in this appeal) amended statement of claim in which they challenged, among others, the validity of the extinguishment by the defendant of their native customary rights over land along Batang Balui, in Belaga District, Kapit Division, Sarawak ("the said land").

[2] After hearing submission of counsel for both parties, we dismissed the plaintiffs' appeal with costs. We now give our reasons.

The Background

[3] This action is brought by the plaintiffs on behalf of themselves and the residents of the long houses which they represent. The facts as set out in the statement of claim and the affidavit evidence can be briefly stated as follows.

[4] The plaintiffs are members of the native Dayak communities, having native customary rights over the said land. On 17 June 1997, the defendant, acting through the Minister of Resource Planning, Sarawak ("the Minister"), issued a direction pursuant to s 5(3) and (4) of the Sarawak Land Code ("the Land Code") cited as the Land (Extinguishment of Native Customary Rights) (Bakun Flooded Area II) (No 26) Direction, 1997 ("the direction"). On the coming into force of the direction on 23 June 1997, all native customary rights that may be claimed or have subsisted over the land described in the schedule thereto, which includes the said land, shall be extinguished and the same shall revert to the Government of Sarawak. Paragraph 3 of the direction requires any person who desires to make any claim for compensation as a consequence of such extinguishment to submit his claim to the Superintendent, Land and Survey Department concerned.

[5] All claimants who had submitted their claims and furnished proof that they had native customary rights over the said land, including the plaintiffs herein (except the sixth plaintiff), were awarded compensation pursuant to s 5(3) of the Land Code.

[6] The plaintiffs averred that the extinguishment of their native customary rights over the said land pursuant to the direction was void for the various reasons as set out in their statement of claim. They claimed for a declaration that (i) ss 5(3) and (4) of the Land Code are void; and (ii) the extinguishment of their native customary rights pursuant to the direction is likewise void. They also prayed for an order that the defendant and their servants and agents vacate the said land. Alternatively, they claimed for a declaration that each of them is entitled to adequate compensation in respect of their respective rights over the said land.

[7] By summons in chambers dated 2 October 2007, the defendant applied to the High Court for the determination of points of law pursuant to O 14A, which are framed as follows:-

(a) Whether ss 5(3) and (4) of the Sarawak Land Code infringe or violate arts 5(1), 8, 13 and 153 of the Federal Constitution , and art 39 of the State Constitution of Sarawak , and therefore void.

(b) Whether having regard to the law, facts and circumstances as pleaded by the parties, the plaintiffs are entitled to a declaration that the Land (Extinguishment of Native Customary Rights) (Bakun Flooded Area II) (No 26) Direction 1997, (Sarawak Government Gazette No 1901) which came into force on 23 June 1997 is void.

(c) Whether the plaintiffs are entitled to an order that the Government and/or their servants vacate the land claimed by the plaintiffs herei