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2022 MarsdenLR 1241
COURT OF APPEAL PUTRAJAYA
SUPERINTENDENT OF LANDS & SURVEYS SAMARAHAN DIVISION & ORS – Appellant
Versus
NIKODEMUS SINGAI & ORS – Respondent
[Civil Appeal No: Q-01-418-10-2014]
The amendment of s 6A of the Sarawak Land Code recognizes native territorial domain and alters how native customary land claims are assessed and compensated.
Headnote:(A) Sarawak Land Code (Cap 81) – Section 6A – Native customary rights – Federal Court allowed appeal regarding natives' claim to territorial domain – Amendment to s 6A provides recognition of pemakai menoa (territorial domain) – The amendment brought significant legal changes regarding land claims. (Paras 1, 9, 11)
(B)
Jurisdiction – The court clarified that the empirical basis for establishing native customary rights rests upon accepted community practices and testimonies supporting the existence of such rights. (Paras 6, 18)
Facts of the case:
The plaintiffs, belonging to the Iban ethnic group, claimed native customary rights over an area around Kampung Spaoh based on traditional practices, asserting rights to an area size of 8001 hectares, which included various land types under customary law. (Paras 2, 7)
Findings of Court:
The High Court recognized 300 hectares of temuda land based on historical activities, while the Federal Court confirmed the statutory basis for claiming up to 1000 hectares under the updated law. (Paras 7, 26)
Issues
: The court needed to determine the size and location of the territorial domain based on the recently amended law and the plaintiffs' claims for compensation. (Paras 12, 22)
Ratio Decidendi:
The court established that the introduction of s 6A offers a structured mechanism for asserting claims of native customary rights in Sarawak, differing from the prior ruling in TR Sandah, which has now been overruled. (Paras 9, 11)
Result:
The appeal is granted with directions for assessing compensation for the identified land areas.
JUDGMENT
Introduction
[1] The instant appeal came before the Federal Court recently. The main issue was whether natives could claim territorial domain. The Court of Appeal had earlier ruled against the natives. The Federal Court allowed the appeal and has remitted it to this panel of the Court of Appeal to decide on the location of the territorial domain and to determine whether the extent of the territorial domain is 500 hectares or 1000 hectares. This decision was made in view of the amendment to the Sarawak Land Code (Cap 81) that gave statutory recognition to the territorial domain of natives in the new s 6A. But first, we shall summarise the background facts of the claim. We shall also point out the changes in the law since the action was filed in 2007.
Background Facts
[2] For ease of reference and to avoid confusion as the case had been remitted from the Federal Court, we shall refer to the parties as plaintiffs and defendants. The three plaintiffs belong to the Iban ethnic group in Sarawak. They filed an action on behalf of themselves and their native community to claim native customary rights over land around Kampung Spaoh, Kampung Menat Ulu and Kampung Menat Illi in Gedong in the Simunjan District. They asserted native customary rights over a large area. In map "M" which was drawn by a community mapper, the area of interest was 8001 hectares. The claim included pemakai menoa (territorial domain that includes foraging area), pulau galau (forest that is reserved for community use) as well as temuda (land that was cultivated).
[3] The 4th, 5th and 6th defendants are the Superintendent of Lands and Surveys, Samarahan Division, the Director of Forests, Sarawak and the Government of Sarawak. The plaintiffs pleaded that the governmental defendants had impaired their native customary rights over the area of interest in Map "M" by granting a logging permit to the first defendant and provisional leases to the second and third defendants. The first, second and third defendants who were the beneficiaries of the logging permit and provisional leases granted by the government were struck out from the suit before the commencement of the trial. No appeal was filed against this decision by the plaintiffs.
[4] The 4th to 6th defendants disputed the claim of the plaintiffs which was based on native customary rights. They also pleaded that part of the area of interest fell within the Ensegei Forest Reserve which was constituted in 1964.
Decision Of High Court
[5] In respect of the claim for land based on the argument that virgin forest had been cleared and cultivated (the temuda claim) before 1 January 1958, the High Court noted that, based on expert evidence from the plaintiffs as well as the governmental defendants, a cultivation mosaic measuring about 300 hectares can be seen in the area of interest in the aerial photograph taken in 1947. It is located in identical regions in the parties interpretation maps which were based on the said aerial photographs. For this reason, the High Court recognised the said 300 hectares of land as temuda land.
[6] The High Court also found that the plaintiffs had proved pemakai menoa and pulau galau in the entire area of interest marked in Map "M" after accepting testimony from the plaintiffs' witnesses. The conclusion is found in the following paragraph of the High Court judgment as follows:
From the above testimony, this Court finds that the testimony showed that there are customary activities practised by the inhabitants of Kampung Spaoh, even at the time of their ancestors, in the locality of Sungai Ensengei. Thus at the time when the said forest reserve was constituted on 8 December 1961, the plaintiffs' native customary rights were already created and in existence.
[7] Thus, the High Court found that the claim based on territorial domain (pemakai menoa) under customary law had been proved over land measuring 8001 hectares. By then, the land in question had been alienated to the se
