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2017 MarsdenLR 3631
FEDERAL COURT PUTRAJAYA
STATE GOVERNMENT OF SARAWAK – Appellant
Versus
MASA ANAK NANGKAI & ORS AND OTHER APPEALS – Respondent
[Civil Appeals No: 01(f)-5-02-2016(Q) 01(f)-6-02-2016(Q) 01(f)-8-02-2016(Q) & Q-01(f)-9-02-2016(Q)]
The court confirmed that valid NCR exists pre-1 January 1958, invalidating agreements entered by non-natives, and affirms compensation must be paid for compulsory acquisition of NCR lands in compliance with the law.
Headnote:The court analyzed the compliance of the respondents' claims with the required legal framework, focusing on the Land Custody and Development Authority Ordinance and its implications on Native Customary Rights (NCR). In this matter, the court established that the respondents were indeed entitled to their claims of NCR over certain lands, highlighting the invalidity of agreements involving non-natives. Consequently, it was determined that compensation was owed to those deprived of their property rights. The court framed the key issues around ownership rights under the statute and ultimately ruled that existing agreements were valid under the law and that appropriate compensation mechanisms were to be enacted. Thus, essential legal provisions were upheld, and the final resolution mandated the validity of the Development Order and necessary compensation to affected NCR landowners.
| Table of Content |
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| 1. initial claim leading to the court's jurisdiction was outlined. (Para 1 , 2) |
| 2. overview of the stakeholders and initial claims in the high court regarding ncr lands. (Para 4) |
| 3. response to claims about ncr ownership and violation of rights. (Para 8 , 9 , 10) |
| 4. arguments made by appellants regarding the ownership and validity of land rights. (Para 11 , 12 , 22) |
| 5. court's findings on ncr lands and the implications of the statutory provisions on compensation. (Para 13 , 17 , 54) |
| 6. establishment of ncr principles through longstanding occupation and legal recognition. (Para 33 , 37 , 39) |
| 7. validity assessment of agreements and the necessity for compensation for wrongful land acquisition. (Para 43 , 55 , 60) |
| 8. constitutional implications of property rights and the necessity for compensation. (Para 51 , 56) |
| 9. final decisions regarding the validity of agreements and compensation requirement. (Para 63) |
[1] The plaintiffs, hereinafter referred to as the respondents, filed a claim at the High Court at Kuching against Lembaga Pembangunan Dan Lindungan Tanah (LCDA), Pelita Holdings Sdn Bhd (PHSB), Tetangga Akrab Pelita (Pantu) Sdn Bhd (TAPSB), and the State Government of Sarawak, respectively the 1st, 2nd, 3rd and 4th defendants (hereinafter interchangeably referred to as the 1st, 2nd, 3rd and 4th appellants or collectively as the appellants).
[2] The respondents won both at the High Court and the Court of Appeal, and hence the appeal before us by the appellants.
[3] The facts unravelled showed that within an area earmarked and gazetted for development, there were occupants (Consenting NCR Owners), who had agreed that their Native Customary Rights (NCR) lands be merged and consolidated for development. To put into effect that agreement, the Consenting NCR Owners then entered into a Principal Deed dated 3 September 2004 with the State Government of Sarawak (the 4th appellant) and PHSB (2nd appellant). For the development of the plots of land, the 2nd appellant, as trustee of the Consenting NCR Owners, entered into a Joint Venture Agreement (the JVA) dated 3 September 2004 with a joint venture company, ie the 3rd appellant incorporated by the 2nd appellant and Tetangga Akrab Sdn Bhd (TASB). TASB was not a party to this suit.
[4] The area for development, in short, was a State Government sanctioned development project, described as "The Sungai Tenggang NCR Land Development Area" (hereinafter referred to as the Development Area) declared vide the Land Custody and Development Authority Order 2006 dated 8 August 2006 ("the Development Order"). An oil palm plantation project was also undertaken, established and on-going in that Development Area.
[5] The Development Order was made under s 11(1) of the Land Custody and Development Authority Ordinance (No 4 of 1981) ("LCDA Ordinance"), and duly published in the Sarawak Gazette under SWK LN 79 dated 14 September 2006.
[6] It must be borne in mind that the respondents were neither parties to the Principal Deed nor the JVA.
[7] In a nutshell, in the Statement of Claim, the respondents claimed that they were the original title holders or NCR owners of the lands within the Development Area and had never surrendered, abandoned, lost or waived their NCR rights. There was also no prior or proper extinguishment of their rights according to law and no provision was made for any compensation to them. The respondents also alleged that the Principal Deed, the JVA and the activities on their NCR land were invalid.
[8] The respondents in their amended Statement of Claim prayed inter alia, for a declaration that they were the original title holders or were the NCR land owners of the Development Area, that their arts 5 and 3 rights under the Federal Constitution had been violated, and that the actions of the 1st, 2nd and 3rd appellants were ultra vires the Sarawak Land Code (in short the JVA with non-natives and the Principal Deed were void).
[9] In their defence, the appellants denied that the oil palm pl
