The court affirmed that abandonment of customary land rights occurs when claimants resettle and cease occupation, impacting claim viability and procedures.

[1] These five appeals arise from a claim made by the respondents representing the Kelabits, the Penans and the Lun Bawangs who are natives of Sarawak. The respondents are the six plaintiffs in the court below. As natives, they claim to have acquired and/or inherited customary rights over the areas of land from time immemorial. They sued the appellants on behalf of themselves and the three native groups named above.

[2] The appellant in Appeal No: 01-39-06-2015(Q), Ravenscourt Sdn Bhd, was the 1st defendant in the High court, while Billion Venture Sdn Bhd the appellant in Appeal No: 01-43-06-2016(Q), was the 2nd defendant. The 3rd defendant was Limba Jaya Timber Sdn Bhd, the appellant in Appeal No: 0128-04-2015(Q). The 4th defendant was Kubang Sri Jaya Sdn Bhd, the appellant in Appeal No: 01-38-04-2015(Q). The appellants in Appeal No: 01-29-042015(Q), the Director of Forests Sarawak and State Government of Sarawak were the 5th and 6th defendants respectively in the High court.

[3] These five appeals were heard together on a common question of law to be determined by this court upon leave being given to the appellants on 9 March 2015.

[4] For ease of reference, the parties herein will be referred to as they were in the High court.

The Plaintiffs' Claim

[5] This is a derivative action filed by the 1st and 2nd plaintiffs on behalf of the Kelabits, by the 3rd and 4th plaintiffs on behalf of the Penans and by the 5th and 6th plaintiffs on behalf of the Lun Bawangs of Long Napir and Kampung Bahagia, all of whom claimed to have originated from Abpa/Fa Meriit, Fa Rupu Abpa/Fa Adang, Ba Peresek, Ba Nyakit, Long Gita, Long Adang, Long Sulung, Long Raya, Long Tevenga, Long Sebayang, Long Keneng and Long Tegan in the Upper Limbang River and who claimed that as natives of Sarawak, they have acquired and/or inherited native customary rights (NCR) over certain areas of land since time immemorial. The areas of lands claimed by them collectively are shown in a map annexed to the statement of claim. The plaintiffs however did not specify the areas or the size of the NCR lands claimed by them.

[6] The 1st defendant is the holder of a timber licence No T/0294 which was issued by the 5th defendant on 28 January 1985. The 2nd defendant is the holder of a planted forest licence No LPF/0027 issued on 22 February 2002. The 3rd defendant is the holder of a planted forest licence No LPF/0038 issued on 6 December 2004 while the 4th defendant is the holder of a timber licence No T/9090 issued on 2 December 2002. The plaintiffs claimed that pursuant to the licences, the defendants entered, encroached and trespassed into their NCR lands to cut and harvest timbers and to maintain planted forests for merchantable timbers. They claimed that the areas covered by the licences overlap with their NCR lands, are subject to their NCR lands and that the defendants have not conducted any ground survey to identify the boundary of and exclude the NCR lands from the licenced areas.

[7] The plaintiffs contended that the grant and issuance of the licences by the 5th and 6th defendants under the Forests Ordinance 2015 was unconstitutional and wrongful insofar as they abridged and impaired the plaintiffs' rights to their NCR lands. The plaintiffs pleaded that their NCR rights have not been extinguished and that they have not been compensated in accordance to the provisions of the Land Code 1958 when their NCR lands were licenced or alienated to the defendants.

[8] The plaintiffs seek for various declaratory orders in respect of their rights to the NCR lands as well as for damages both general and aggravated and/or exemplary