JUDGMENT

Syed Ahmad Helmy JCA:

(1) The plaintiffs claim against the defendants herein is for declaratory relief that the extinguishment of the plaintiffs native customary rights pursuant to the Land (Extinguishment of Native Customary Rights) (Pulpwood Mill Site at Ulu Batang Tatau) (No. 3) Direction 1997 made by the Minister of Resource Planning in Sarawak Government Gazette Notification No. 388B, on 13 February 1997, is unlawful and null and void.

(2) The challenge by the plaintiffs is grounded on their contention that the enabling sections of the Sarawak Land Code upon which the Direction was issued is invalid and unconstitutional as it infringes arts. 5(1), 8, 13(2) and 153 of the Federal Constitution or art. 39 of the Sarawak State Constitution.

(3) By agreement of both parties the trial of the suit proceeded on the basis of agreed issues, facts, bundle of documents, non calling of witnesses and based on written and oral submissions.

(4) At the conclusion of the trial the learned trial judge found in favour of the defendants and held that the Ministerial Direction is valid and not unconstitutional and that the challenge to the Ministerial Direction should be by way of Judicial Review under O. 53 of the Rules of the High Court. The learned trial judge based on the facts and documents agreed upon decided in favour of the defendants on all the four issues agreed upon, namely:

1. Whether or not the reference by the 16 Plaintiffs in item 6.4 of the Agreed Facts and Issues to arbitration is deemed to be an acceptance of the extinguishment of their native customary rights to their respective lots under the section 5(3) and (4) of the Land Code?

2. Whether section 5(3) of the Land Code requires the Director of Lands and Surveys to expressly stipulate the purpose for the extinguishment of the native customary rights over the State Land in question, and if so, whether the reference to "Pulpwood Mill Site" is sufficient to satisfy this requirement?.

3. Whether, having regard to the circumstances and the objectives of establishing the Pulpwood Mill, through a Joint Venture Company, where STIDC is a joint venture partner, the purpose is a "public purpose" in section 46(a) and (g) of the Land Code?

4. Whether the provisions in the Land Code as provided in section 5(3) and (4) and any Direction made thereunder violate the provisions of the Federal Constitution under Article 5, 8, 13(2) and 153 or Article 39 of the Sarawak State Constitution?

(5) The learned trial judge having ruled in favour of the defendants accordingly dismissed the plaintiffs claim with costs. Though there are eleven grounds advanced by the plaintiffs in their Memorandum of Appeal nevertheless it can be broadly divided into two categories namely the substantive and procedural challenge.

(i) The substantive challenge is that the learned trial judge erred in failing to consider the "impact" of the extinguishment of native customary rights under s. 5(3) of the Land Code of Sarawak on the "life support system" of the plaintiffs and their cultural and spiritual values. (See Grounds 1, 2, 3, 4, 5, 6 and 7 and/or that the extinguishment violates art. 5 of the Federal Constitution.)

(ii) The procedural challenge is that the learned trial judge erred in holding that plaintiffs should have proceeded under O. 53 RHC 1980, in seeking to challenge the Direction made by the Minister.

(6) On the substantive challenge since the subject matter relates to native customary rights it is only appropriate to lay out the essential characteristics of native customary rights. In Adong bin Kawau & Ors v. Kerajaan Negeri Johore (1997) 3 CLJ 885; (1997) 1 MLJ 418 a native land rights at p. 430 was described by the High Court as follows:

the aboriginal peoples rights over the land include the right to move freely about their land, without any form of disturbance or interference and also to live from the produce of the land itself, but not to the land itself in the modern sense tha