Abdul Wahab Patail JCA

(delivering judgment of the court):

The Director of Forest, Sarawak and the State Government of Sarawak (‘the appellants’) appealed to this court against the decision of the High Court delivered on 27 May 2011 in Suit No 21–2 of 2009 filed by the respondents in the High Court at Sibu.

The first appellant is the principal officer in charge of forestry in the State of Sarawak which is governed by the State Government of Sarawak, the second appellant.

The respondents are Iban who claim to have inherited rights from their ancestors who acquired native customary rights over lands situated in Kanowit-Ngemah State Land Forest in Kanowit, Sarawak (‘the licensed area’), as shown in the map marked ‘M’ attached to the statement of claim.

In the above-mentioned Suit No 21–2 of 2009, from which this appeal arises, the respondents, as the plaintiffs, had obtained certain declarations from the High Court, including a declaration that the respondents have native customary rights and/or usufructuary rights over the disputed area.

THE SUBJECT OF THE APPEAL

The appellants had tendered into evidence before the High Court a composite of aerial photographs taken in 1951 and superimposed upon a map of the area. It showed the land in the area claimed by the respondents under native customary rights measures 5639 hectares comprising 2802 hectares of cleared and cultivated land area and approximately 2712 hectares of land under primary forest. This is not disputed.

The learned state legal counsel of the State of Sarawak, Datuk JC Fong, for the appellants, conceded that the respondents had acquired native customary rights over the 2802 hectares of cleared land area. The appeal is concerned only with the adjoining 2712 hectares under primary forest claimed by the respondents to have been set aside in their pemakai menoa under the Iban native custom of pulau, a term for land maintained under Iban native custom under primary forest from which they derive food, medicines, wildlife and other forest produce.

The appellants had framed the issue in this appeal by predicating it in three ways as follows:

(a)whether the custom of ‘pemakai menoa’ and ‘pulau’ falls within:

(i)the definition of ‘law’ under art 160(2) of the Federal Constitution; or

(b)whether the term ‘native customary law’ as defined in the Land Code of Sarawak and the Native Courts Ordinance (Cap 43 1958 Edition of Laws Sarawak) which came into force on 1 September 1955 recognises the said customs of ‘pemakai menoa’ and ‘pulau’ in relation to the creation or acquisition of ‘rights over land’ in Sarawak;

alternatively or precisely;

(c)is native customary rights over land confined to ‘temuda’ land?

or, in the further alternative; and

(d)has the custom of ‘Pemakai Menoa’ been given effect to by the law of Sarawak?.

Put more directly in the submissions, the appellants do not dispute the existence of the native customs of ‘pemakai menoa’ and ‘pulau’. It was however contended for the appellants that:

(a)the law in Sarawak only recognises ‘temuda’; and

(b)‘pemakai menoa’ and ‘pulau’ did not appear in any of the orders of the Rajahs, the Land Ordinances and the Sarawak Land Code as native custom that could give rise to native customary rights to land.

PEMAKAI MENOA, TEMUDA AND PULAU

The terms ‘pemakai menoa’ (sometimes spelt as ‘pemakai menua’), ‘temuda’ and ‘pulau’ are terms in the Iban Language denoting use of territory demarcated under their custom.

Before the High Courts, the term ‘pemakai menoa’ appeared in Bisi ak Jinggot @ Hilarion Bisi ak Jenggot v Superintendent of Lands and Survey Kuching Division & Ors Bisi ak Jinggot (@) Hilarion Bisi ak Jenggut v Superintendent of Lands and Survey Kuching Division & Ors [2008] 1 LNS 245; Agi ak Bungkong & Ors v Ladang Sawit Bintulu Sdn Bhd & Ors Mohamad Rambli bin Kawi v Superintendent of Lands Kuching Division & Anor Luking Uding & Ors v Superintendent of Lands and Survey Kota Samarahan Division & Ors Nicholas Mujah Ason & Ors v Hock Tong Hin Sawmill Co Sd