Native customary rights established under Gazette Notification No 760 affirmed; illegal logging and encroachment verified.

[1] This is an appeal by the appellants/the 3rd-5th defendants against the decision of the High Court in entering judgment for the respondents/plaintiffs for, inter alia, a declaration that the respondents/plaintiffs have native customary rights over the land in Bukit Bediri Forest Reserve and Stika Forest and that the construction of a rail line over the two Forests constituted an encroachment and trespass of the land within the two Forests. We heard the appeal on 10 February 2014 and had dismissed the same. We now give our reasons. For convenience, parties will be referred to as they were in the High Court.

Background Facts

[2] The plaintiffs are of Iban race and are from three different villages situated in a small rural town of Simunjan located in the First Division, Sarawak.

[3] The plaintiffs brought this action for themselves and on behalf of other villagers from four other villages for a declaration that they have native customary rights over an area located at Stika and Bukit Bediri, Simunjan.

[4] The 1st defendant, a timber company was issued with a licence to extract merchantable logs from the said area whereas the 2nd defendant is the contractor engaged by the 1st defendant to do the felling and extraction of the logs. The Director of Forests, Sarawak, the Superintendent of Lands & Surveys, Sarawak and the Government of the State of Sarawak were sued as the 3rd to the 5th defendants respectively.

[5] In their statement of claim, the plaintiffs pleaded that the logging activities of the 1st and the 2nd defendants had illegally encroached into their communal land, the Bukit Bediri and Stika Forest Reserves. These Forest Reserves were gazetted in 1959 by the State Government as Communal Forest vide Gazette Notification No 760.

[6] In particular, the plaintiffs stated that the rail line built by the 1st and/or the 2nd defendant over the said area had caused serious damage to its environment, leading to the loss of its timber, polluting its river system and thus causing serious damage to the plaintiffs' livelihood.

[7] The plaintiffs took action to complain to the District Officer of Simunjan, and to the Sarawak Forestry Corporation. Police reports were also lodged. The plaintiffs took steps to erect physical blockades at Bukit Bediri on 14 September 2006. These actions by the plaintiffs however failed to resolve the dispute. On 4 July 2007, this action was filed wherein the plaintiffs claimed for declaratory reliefs in respect of the plaintiffs' entitlement to the said area, including the constitutionality of the timber licence. The plaintiffs also claimed for aggravated and exemplary damages to be paid for the alleged trespass to their land.

[8] The 1st and 2nd defendants ("the timber companies") in their statement of defence pleaded that the timber licence was issued to the 1st defendant way back in 1966 and that since then, they have been working in the licensed area without interference or complaint by the plaintiffs until the time and events which led to the filing of this action. The timber companies thus contended that there was inordinate and inexcusable delay on the part of the plaintiffs in filing this action.

[9] Relying on Gazette Notification No 760, the timber companies also pleaded that only the Ibans (or Sea Dayaks) under Penghulu Berong were entitled to the rights and privileges over the Bukit Bediri Forest Reserve and even so, these rights and privileges are subject to the control of the Director of Forests.

[10] The 3rd to the 5th d