Court affirmed recognition of native customary rights over land, supporting claims based on communal historical practices and oral traditions, while highlighting insufficient proof for damage claims.

Introduction

[1] This is a representative action by four plaintiffs on behalf of themselves and fellow villagers of Kampung Sual in Simunjan District of Sarawak. The 1st defendant is a timber company that had been issued a logging licence in the vicinity of Kampung Sual. The 2nd and 3rd defendants are in the employment of the Sarawak Government and have jurisdiction over forests and lands in the State. Briefly stated, the claim of the plaintiffs is that the 1st defendant had encroached into a part of their Native Customary Land (NCL) and caused destruction to forested as well as planted areas. The area in dispute approximately is 168 acres and is shaded in pink in the map marked as "M" which is attached to the Statement of Claim. It was tendered in evidence in the course of the trial by its maker who is an unqualified surveyor.

Case For The Plaintiff

[2] All the plaintiffs are Ibans by race and therefore are natives of Sarawak. The defendants have not taken issue with the plaintiffs' status as natives. The plaintiffs' case is as follows. They are residents of Kampung Sual. Their case is that Kampung Sual does not merely include the land on which it is located. It also includes what is known in Iban Native Customary Law terminology as "pemakai menoa" which can be translated as the territorial domain of the village. The "pemakai menoa" is delineated by a boundary known as "garis menoa". In the instant case, the "pemakai menoa" of Kampung Sual which is asserted by the plaintiffs is quite large. In the map marked as "M", the "pemakai menoa" over which the plaintiffs' claim Native Customary Rights (NCR) is a large area which is probably over 3,000 hectares. It is the area between several villages. It is pleaded in the Statement of Claim that the boundary line of the village runs to Kampung Emplas in the south, to Kampung Temiang in the east and until Sungai Entanggor in the north. The surveyor of the plaintiffs, Nicholas Mujah testified that the area he covered during the survey of the 5 territorial domain of Kampung Sual is 3,816.87 hectares. The 1st defendant, on the other hand, had been granted a timber licence (T/8408) over an area covering 1,400 hectares. The area under the said timber licence is edged pink on the map found at page 1 of the 2nd, 3rd and 4th defendant's Supplementary Bundle of Document (D). This map is actually a comparison map. It is produced by the Forestry Department for the purpose of this trial. It is proper map with coordinates that had been superimposed on the map produced by the plaintiffs. The map not only shows the area under the Timber Licence but also the Forest Reserves in the north and alienated land in the east. The area covered by the Timber Licence is also as shown in the map attached to the timber licence (T/8408). On the map, the Timber Licence area is to the south-east of Kampung Sual. The complaint of the plaintiffs is that the 1st defendant encroached onto about 168 acres of the territorial domain of Kampung Sual. All the four plaintiffs testified on their own behalves and on behalf of other villagers of Kampung Sual. In addition, they called four more witnesses. They are Dr. Klaus-Peter Wilhen Gross (PW3, aerial photography expert), Nicholas Bawin ak Anggat (PW5, Iban Adat expert), Nicholas Mujah anak Ason (PW7, who drew the map of the "pemakai menoa") and Ajan ak Wein (PW8, Tuai Rumah of neigbouring village, Kampung Sungai Raya).

[3] The evidence of the four plaintiffs is substantially similar. I shall attempt to summarize their lengthy testimony as follows. PW1 is not an original inhabitant of K