Native customary rights, including rights to foraging and land use, are recognized under common law and exist independently of statutory acknowledgment.

[1] This judgment is prepared and delivered pursuant to s 78(1) of the Courts of Judicature Act 1964 , as our learned brother, Justice Abdull Hamid Embong FCJ has since retired. My learned brother Ahmad Maarop FCJ had read this judgment in draft and agreed that this judgment be our judgment.

[2] My learned brother Justice Abu Samah Nordin FCJ had also read the judgment in draft and agreed with the conclusion arrived at and is writing a supporting judgment.

[3] My learned sister Justice Zainun Ali FCJ is dissenting and she is writing a dissenting judgment.

Background Facts

[4] There are three appeals before this court. They are:

(a) Civil Appeal No: 01-27-04-2015(Q) (Appeal No: 27);

(b) Civil Appeal No: 01-30-04-2015(Q) (Appeal No: 30); and

(c) Civil Appeal No: 02-42-06-2015(Q) (Appeal No: 42).

[5] In Appeal No: 27, the appellants are the Director of Forest, Sarawak and the State Government of Sarawak. They are appealing against the decision of the court of Appeal dated 21 June 2013, which affirmed the decision of the High court in Suit No: 21-2-2009 granting the respondents, native customary rights over the claimed area of land situated in Kanowit-Ngemah, Sarawak. The respondents and 22 others they represent are Ibans by race and are natives of Sarawak.

[6] In Appeal No: 30, the appellants are the Superintendent of Lands and Survey, Sibu, Sarawak and the State Government of Sarawak, while in Appeal No: 42, the appellant is Rosebay Enterprise Sdn Bhd. The appellants in these appeals are appealing against the decision of the court of Appeal dated 18 December 2013 affirming the decision of the High court in Suit No: 21-1-2010, inter alia, in granting the respondent and the others that he represented, native customary rights over the entire lease which the State Government of Sarawak had granted to Rosebay Enterprise Sdn Bhd. The respondent and the others are Ibans and natives of Sarawak.

[7] Leave to appeal was granted by this court to the appellants in the three appeals on 11 March 2015 on identical questions of law, namely:

(a) Whether the pre-existence of rights under native laws and customs which the common law respects include rights to land in the virgin/primary forests which the natives, like the respondents and their ancestors (who are Iban by race), had not felled or cultivated but were forests which they have reserved for food and forest produce? (Question 1)

(b) Whether the High court and the court of Appeal are entitled to uphold a claim for Native Customary Rights to land in Sarawak based on a native custom (namely) pemakai menoa and/or pulau where:

(i) there is no proof that such custom was practised amongst the native communities (particularly amongst the Ibans) for the creation of rights to land prior to the arrival of the first Rajah in 1841;

(ii) such a custom was never reflected or recognised as having been practised by the native communities in relation to the creation of rights to land, in any of the Orders made and legislations passed by or during the Brooke era or by the Legislature of Sarawak; and

(iii) such a custom was never part of or recognised in Tusun Tunqqu and the Adat Iban 1993, which declared, pursuant to the