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2019 MarsdenLR 822
FEDERAL COURT KUCHING
DIRECTOR OF FOREST SARAWAK & ORS – Appellant
Versus
NICHOLAS MUJAH ASON & ORS – Respondent
[Civil Appeal No: 01(f)-30-06-2017(Q)]
The court confirmed that state control over forest reserves exists but does not infringe upon established Native Customary Rights and found the defendants liable for trespass.
Headnote:The court addressed the plaintiffs' claim of Native Customary Rights over forest reserves, concluding that while the state retained control, the plaintiffs' rights were established under statutory provisions and prior decisions of court. The court determined that the defendants committed a tort of trespass by encroaching on the plaintiffs' admitted rights within the forest reserves. The plaintiffs could not claim other forms of customary rights not acknowledged by law. The appeal was partially allowed, affirming only the findings of trespass.
| Table of Content |
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| 1. interpretation of state control and assertion of customary rights. (Para 1 , 12 , 22) |
| 2. facts relating to the plaintiffs' claims of rights over the forest. (Para 2 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11) |
| 3. defining the encroachment and its impact on rights. (Para 3 , 15 , 18) |
| 4. court's findings from the high court and court of appeal. (Para 13 , 14 , 16 , 17) |
| 5. legal determinations regarding control and trespass. (Para 19 , 24 , 68) |
| 6. evaluation of customs and statutory rights. (Para 21 , 51) |
| 7. considerations of applicable laws and conditions. (Para 25 , 31 , 35) |
| 8. legal definition of trespass concerning forest rights. (Para 56 , 57 , 62) |
| 9. conclusion on the appeal and implications for the parties. (Para 76 , 77) |
[1] This judgment is prepared pursuant to s 78(1) of the Courts of Judicature Act 1964 , as Justice Zaharah Ibrahim CJM has since retired. My learned brother Ahmad Haji Maarop PCA, my learned sister Justice Alizatul Khair Osman Khairuddin FCJ and my learned sister Justice Nallini Pathmanathan FCJ had read this judgment in draft and all of them agreed that this judgment be our judgment.
Brief Facts Of The Case
[2] The plaintiffs are all natives by race, ie Ibans from three different villages within the town of Simunjan, Sarawak.
[3] Hock Tong Hin Sawmill Co Bhd ("the 1st defendant") is a licensed timber company that was granted a concession area for the extraction of timber under license no: T/5090 ("the said Concession Area").
[4] Roundtree Timber Sdn Bhd ("the 2nd defendant") is the contractor of the 1st defendant in carrying out and/or felling and extracting merchantable timber logs including the felling and extracting the logs within the specified concession area.
[5] The plaintiffs claim that at all material times, they are the rightful owners, claimants, of a Communal Forest Reserved land situated at/or along Sungai Sebangan, Simunjan, Sarawak.
[6] On or about January 2006, the plaintiffs discovered that the 1st and 2nd defendants and/or their employees or agents or servants had trespassed their lands by building a railway track to carry out logging activities over part of their said lands causing some serious damage to the environment, namely loss of timber and polluting the river system.
[7] Sometime in February 2006, a complaint was lodged with the District Officer Simunjan on the encroachment of a logging activity within the said lands but no action was taken. The 1st and 2nd defendants refused to negotiate with the plaintiffs on the ground that the plaintiffs have no right over the said land claimed by the plaintiffs.
[8] On 14 September 2006, the plaintiffs caused a physical blockage at the Bukit Bediri Forest Reserve to stop the felling and extracting of the timber therein.
[9] A police report was made by the plaintiffs on 9 November 2006 at Sebuyau Police Station, complaining of further encroachment by the 1st and 2nd defendants.
[10] The plaintiffs also claimed that the boundary of the said Concession Area had encroached onto their said lands and had disregarded the plaintiffs' rights and therefore bad in law and void.
[11] On 4 July 2007, this action was filed in the High Court ("the HC") sitting at Kuching, wherein the plaintiffs claimed for declaratory reliefs in respect of the plaintiffs' Native entitlement to the said area, including the constitutionality of the timber license. The plaintiffs also claimed for aggravated and exemplary damages to be paid for the alleged trespass to their land.
Findings Of High Court
[12] Having heard the evidence adduced before her, the learned High Court Judge ("the HCJ") had ruled in favour of the plaintiffs, and granted the plaintiffs the following terms, together with costs:
i. The plaintiffs have inherited Native Customary Rights ("NCR") over Bukit Bediri Forest Reserve and Stika Forest, the boundaries of which as delineated and shown in maps produced by the Forestry Department Sarawak and Land and Survey Department Sarawak appearing at pp 1 and 2 of exh D4.
ii. Th
