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2018 MarsdenLR 1006
COURT OF APPEAL PUTRAJAYA
DOUGLAS DING JANGAN & ORS – Appellant
Versus
GOVERNMENT OF SARAWAK & ORS – Respondent
[Civil Appeal No: Q-01-368-09-2014]
Native customary rights must be substantiated by clear evidence of continuous occupation and cultivation to be legally upheld.
Headnote:Statute Analysis: The court examined claims of native customary rights (NCR) under the relevant statutes regarding land usage and rights. Facts of the Case: An appeal was made against a High Court decision denying the plaintiffs' NCR claims, limited to certain lands.
Findings of Court:
The court found doubts in evidence, dismissing most claims and allowing a partial acknowledgment of rights over specific areas.
Issues: The court considered whether the judge erred regarding the plaintiffs' claims over cleared areas and whether the dismissal of other claims was justified.
Ratio Decidendi: The court emphasized the necessity for evidence establishing traditional rights and the implications of other claims interfering with the plaintiffs' rights.
Result: The appeal was dismissed while allowing the respondents' and interveners' cross-appeals, overturning the High Court's decision largely.
| Table of Content |
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| 1. appeal against the high court's dismissal of ncr claims. (Para 1 , 4 , 5) |
| 2. appeal dismissed largely based on inadequate evidence for native customary rights. (Para 3) |
| 3. details of land occupation and rights asserted by plaintiffs. (Para 8 , 9 , 10 , 11 , 12 , 18 , 23) |
| 4. defendants argued absence of rights under state land and inconsistencies in claims. (Para 17) |
| 5. court findings affirming dismissal of claims over virgin lands. (Para 24 , 26 , 44) |
| 6. legal principles regarding the proof of ncr claims and limitations. (Para 34 , 43 , 51) |
| 7. established that the appeal was bound by previous precedent affecting native rights. (Para 42) |
| 8. final ruling on cross-appeals and ncr claims. (Para 58) |
[1] This was an appeal by the appellants/plaintiffs against the decision of the High Court at Bintulu in dismissing the appellants' claim for native customary rights (NCR) over lands except for the ones labelled as Nos 4, 5, 9, 16, 25, 36, 37, 38 and 39 in exh D80 and land labelled as No 27 in exh D81. The respondents/defendants cross-appealed against that part of the decision of the High Court in allowing the appellants/plaintiffs' claim for those specific areas of land.
[2] There was also a cross-appeal by MU Kedoh Tajang, Siting Lawai and Avit Jawi acting on behalf of themselves and all the residents of Uma Kahei, Long Mekero, Belaga, Sarawak ("the interveners"). The interveners, who contended that they had acquired NCR over lands labelled as Nos 38 and 39 in exh D80, were made parties pursuant to an order of this Court after the trial was completed.
[3] We had unanimously dismissed the appellants/plaintiffs' appeal and had allowed the respondents/defendants' and the interveners' cross-appeals.
[4] We now provide our reasons and for ease of reference, parties will be referred to as they were in the High Court.
Background Facts
[5] On 8 December 1998, Pusaka KTS Forest Plantation Sdn Bhd (the 4th defendant) was issued a Licence for Planted Forest (LPF). This LPF overlapped with Forest Timber Licence No T/3190 issued to Perbadanan Perusahaan Kemajuan Kayu Sarawak on 13 March 1987 (exh D30). There were two (2) other Forest Timber Licences within the vicinity, namely T/4171 (exh D32) and T/4176 (exh D31) issued to Perbadanan Perusahaan Kemajuan Kayu Sarawak on 13 March 1987 and 25 July 1987 respectively.
[6] SOP Plantations (Borneo) Sdn Bhd (the 5th defendant) was issued with a provisional lease (PL) of Lot 10 Punan Land District (exh D35) of an approximate area of 5,765 hectares. The PL was issued on 17 April 1997 for agriculture purposes.
[7] The LPF to the 4th defendant and the PL to the 5th defendant were issued by the second and the 3rd defendant under the relevant provisions of the Forests Ordinance (Sarawak 126) and the Land Code (Sarawak Cap 81), respectively.
Proceedings In The High Court
[8] The plaintiffs, natives of Sarawak and Kenyah by race, brought a suit in the High Court on behalf of themselves as representatives of all residents of Uma Long Bangan, Sg Belaga, Sarawak. Their claim against the defendants was for individual and communal NCR lands together with the forests, streams and rivers thereon at Uma Long Bangan, Sg Belaga ("their NCR lands"). The plaintiffs' claim arose out of the LPF and the PL, which the plaintiffs contended were issued without their consent and knowledge, and had overlapped and encroached onto their NCR lands.
The Plaintiffs' Case
[9] The plaintiffs contended that since time immemorial, the plaintiffs' ancestors, their descendants and now the plaintiffs have been occupying and practising their NCR over their NCR lands. The particulars of customary practices are:
(i) Communal NCR lands, known as 'tana' daileh' in Kenyah dialect;
(ii) Individual NCR lands, including, but not limited to padi farms, rubber gardens, pepper gardens, orchards, oil palm gardens, cocoa gardens, coffee gardens, tapioca gardens, fruit trees, jatropha trees, enkabang trees and other trees and plants for the use of the communit
