Hamid Sultan JCA (delivering judgment of the court):

Three appeals relating to native customary rights (‘NCR’) in Sarawak came for hearing on 4 February 2013 and on the same day we allowed the appeals. My learned brother Abdul Wahab bin Patail JCA and sister Tengku Maimun bt Tuan Mat JCA have read the draft judgment and approved the same.

The respondents/plaintiffs’ action was to seek declarations to assert their NCR claims against the defendants. The learned trial judge found in favour of the plaintiffs’ claim. Each and every defendant has filed a separate appeal and is represented by three firms of solicitor’s and or advocates. For easy reference the parties will be referred to as the plaintiffs, the first, second and third defendant as per the suit.

The third defendant, the Government of the State of Sarawak, has filed Appeal No Q-01–254 of 2010 and the second defendant has filled Appeal No Q-02–1373 of 2010 and the first defendant has filed Appeal No Q-02–1372 of 2010. All parties agree for the purpose of disposing all the three appeals, it will be sufficient to deal with the third defendant’s appeal and the plaintiffs have filed one submission to cover all the three appeals substantially responding to the third defendant’s submission.

The learned state legal counsel Datuk JC Fong for the third defendant in this appeal says:

(a)the declaration that the respondents/plaintiffs have native customary rights over the claimed area ought to be set aside;

(b)the consequential declarations that the issuance of the provisional leases by the appellants infringed or impaired their NCR and violates the Federal Constitution should be set aside;

(c)the award of damages premised upon the respondents having lawfully created or acquired NCR over the claimed area and that there was no extinguishment of their purported NCR, be set aside;

(d)in lieu thereof, there should be an order that the claimed area was state land and that neither do the respondents have any, nor any legitimate expectation to be granted, proprietary interests over the claimed area, that the respondents were in unlawful occupation of state land under s 209(1) read with sub-s (2) of the Land Code; and

(e)alternatively, for the reasons mentioned in para 6.2 the court ought not to, grant the declarations sought by the respondents.

At the outset we must say that as from 1 January 1958 NCR may be created as set out in s 5 of the Land Code of Sarawak (‘LCS’) 1957. The said s 5 reads as follows:

5. (1)As from the 1st day of January, 1958, native customary rights may be created in accordance with the native customary law of the community or communities concerned by any of the methods specified in subsection (2), if a permit is obtained under section 10, upon Interior Area Land. Save as aforesaid, but without prejudice to the provisions hereinafter contained in respect of Native Communal Reserves and rights of way, no recognition shall be given to any native customary rights over any land in Sarawak created after the 1st day of January, 1958, and if the land is State land any person in occupation thereof shall be deemed to be in unlawful occupation of State land and section 209 shall apply thereto.

(2)The methods by which native customary rights may be acquired are:

Provided that:

(a)the felling of virgin jungle and the occupation of the land thereby cleared;

(b)the planting of land with fruit trees;

(c)the occupation or cultivation of land;

(d)the use of land for a burial ground or shrine; or

(e)the use of land of any class for right or way; or

(f)any other lawful method:

(i)Until a document of title has been issued in respect thereof, such land shall continue to be State land and any native lawfully in occupation thereof shall be deemed to hold by licence from the Government and shall not be required to pay any rent in respect thereof unless and until the document of tile is issued to him; and

(ii)The question whether any such right has been acquired or has been lost or extinguished shall, save in so