Claims to customary rights over land designated as Native Communal Reserve cannot be sustained without challenge to the reservation's validity and must be resolved in designated native courts.

[1] There were two appeals before us, one by Sagau Batu Bala ("Sagau") and the other by Zaharah Mustapha Raja Sewa and Mustapha Raja Sewa Abdullah @ Roland Agan Kapong (jointly referred to as "Zaharah" for convenience). Both appeals arose from the decision of the learned Judicial Commissioner ("JC") of the Miri High Court who dismissed Sagau's claim against Zaharah in the original action and Zaharah's claim against Sagau in the counterclaim but gave them the liberty to pursue their respective claims in the Native Court.

[2] Sagau's claim against Zaharah was for trespass on his purported Native Customary Rights (NCR) land and for damages, whilst Zaharah's counterclaim against Sagau was for a declaration that they had NCR over the same land and that therefore they are not trespassing on the land. The dispute therefore involved competing claims of NCR between two natives. Having heard arguments, we reserved judgment to a date to be fixed. We have now reached a unanimous decision and this is our judgment.

[3] There were no agreed issues to be tried. Nor were there agreed facts, but from the pleadings and the submissions of the parties, the learned JC found the following facts to be undisputed:

(i) The parties are all Kelabits and are natives of Sarawak;

(ii) Sagau's ancestors were the original inhabitants of Bario Asal Lembaa, Bario;

(iii) Zaharah's late father Kapong Raja was from Kampung Pa Bengar which is outside Kampung Bario Asal Lembaa;

(iv) The Kelabits from Pa Bengar had settled in Arul Layun during the Malaysia-Indonesia confrontation of 1963;

(v) Mustapha Raja Sewa Abdullah @ Roland Agan Kapong ("Mustapha") is the Headman of Arul Layun;

(vi) Zaharah and Mustapha had converted to Islam;

(vii) The Bario Land Committee was established during the Malaysia- Indonesia confrontation;

(viii) By Gazette Notification dated 16th October, 2012 No 39 under the title "The Native Communal (Agriculture) Reserve (No 35) Order, 2012" which was deemed to come into force on 18 January 2011 the areas of land described in the Schedule had been declared Native Communal Reserve for the exclusive use by the Kelabit community of Sungai Ukat Bario, Miri for agricultural purposes ("the Native Communal Reserve").

[4] What is peculiar to both appeals is that Sagau and Zaharah were claiming NCR over the land that had already been gazetted as Native Communal Reserve under s 6 of the Sarawak Land Code (Cap 81) ("the Land Code"), which provides as follows:

"(1) The Minister may by order signified in the Gazette declare any area of the State land to be a Native Communal Reserve for the use of the community having a native system of personal law and may, by such order or by subsequent order, declare that the customary law of such community in relation to the acquisition, transfer and transmission of rights and privileges in or over land, and in any building or other structure erected therein, shall apply with such modifications as may be specified or provided for in any such order

(2) Save in so far as the contrary may be specified or provided for in any such order or by this section, rights in any land declared to be Native Communal Reserve under subsection (1) shall be regulated by the customary law of the community for whose use it was declared to be reserved.

(3) Notwithstanding subsection (2), but without prejudice to subsections (4) to (7) inclusive, any such land shall continue to be State land, and the native community for whose use it was reserved or any member thereof acquiring any rights therein shall hold the same as licensee from the Government, and if, by virtue of the provisions of this section (including the provisions of any order made under subsection (1)), any individual native customary rights become established, the issue document of ti