Ian HC Chin J:

Introduction

This representative action was taken out on 26 January 1999 by Nor Ak Nyawai (Nor), Sekalai Ak Ling (Sekalai), Jerangku Ak Bakit (Jerangku) and Lani Ak Taneh (Lani) for themselves and on behalf of "all other occupiers, holders and claimants of native customary land at Sungai Sekabai, Sungai Tajem, Sungai Ipuh, Sebauh, Bintulu Division ... (of) Rumah Luang/Nor ...". They will be referred to collectively as the plaintiffs. The defendants are Borneo Pulp Plantation Sdn Bhd ("1st defendant") who had been issued titles to two parcels of land, Borneo Pulp and Paper Sdn Bhd ("2nd defendant") the sublessee of the land and the Bintulu Superintendent of Lands & Surveys ("3rd defendant"), the authority that issued the titles to the lands.

The plaintiffs claimed that they have acquired native customary rights, described in the Iban language as temuda, pulau and pemakai menoa, over certain part of the lands ("the disputed area") and that the 2nd defendant had trespassed and damaged the disputed area. Those Iban terms will be gone into in detail later. The 2nd defendant had engaged contractors to clear the land and planted trees to feed a paper mill.

The issues in this case calls for an examination of the rights of an Iban in relation to the land and its resources to which they have no documentary title. The answers must take into account Sarawak's history during the period:

(1) when it was under the reign of the Sultan of Brunei just before 1841;

(2) after it was ceded to James Brooke (the First Rajah of Sarawak) in 1841 right up to 1946;

(3) when it was under the British as a Crown Colony from 1946; and

(4) after Sarawak joined with other states to form Malaysia in 1963.

This journey through history is necessary because, and it is common ground - arising from the decision in Mabo v. State of Queensland[1992] 66 ALJR 408 which was followed in Adong Kuwau & Ors v. The Government of Johore[1997] 3 CLJ 885; [1997] 1 MLJ 418 and which decision was affirmed by the Court of Appeal ([1998] 2 CLJ 665) - the common law respects the pre-existing rights under native law or custom though such rights may be taken away by clear and unambiguous words in a legislation. I am of the view that is true also of the position in Sarawak.

Mr. Tan Thiam Teck, learned counsel for 1st and 2nd defendants, and Ms Susan Gau, learned State Legal Officer, do not appear to me to dispute it because learned counsel had referred to a paper of Professor Douglas Sanders - Indigenous And Tribal Peoples: The Right To Live On Their Own Land (presented at the 12th Commonwealth Law Conference)- where certain passages read:

A leading Australian constitutional law text summarizes the basic rule from Mabodecision as follows:

... the indigenous population had a pre-existing system of law, which along with the rights subsisting thereunder, would remain in force under the new sovereign except where specifically modified or extinguished by legislative or executive action.

The court in Canada held similar views in Calder v. Attorney-General of British Columbia [1973] SCR which is followed by Adong bin Kuwau, viz.:

... Hall J rejected as 'wholly wrong' the 'proposition that after conquest or discovery the native peoples have no rights at law except those subsequently granted or recognised by the conqueror or discoverer'. The preferable rule, supported by the authorities cited, is that mere change in sovereignty does not extinguish native title to land...but reference to the leading cases in each jurisdiction reveals that, whatever the juristic foundation assigned by those courts might be, native title is not extinguished unless there be a clear and plain intention to do so.

The disputes call for a consideration of whether the various legislation throughout those periods had the effect of extinguishing those rights since there is ample evidence, which I will refer to later, that such rights existed before the rule of the First Rajah. They also call for a