The Kuching High Court this morning granted a further interim injunction sought by 15 Iban communities of Sebangan against two private companies to stop all logging and related activities on lands claimed by villagers as Native Customary Rights (NCR) land after full inter parte hearing. The same court had granted an injunction in an ex parte hearing on Jan 18 this year.

azlan The injunction granted today restrains Quality Concrete Holdings Berhad, the logging licensee, and its appointed contractor, Loyal Billion Sdn Bhd, from continuing with their logging activities in the areas claimed by the Ibans. The injunction will be in place until the civil suit of the Ibans claiming NCR land is settled. The court has set a week commencing Aug 8 for the trial to begin.

Quality Concrete is substantially owned by Taib Mahmud’s sister, Roziah, and two other family members. The suit named among others the two private companies, a penghulu and the Sarawak government as defendants.

Contentious deed

The lawyer for the private companies and the penghulu had submitted to court a “deed of settlement and undertaking” prepared by another Kuching-based lawyer, Arthur Lee Cheng Chuan, whereby the Ibans were said to have sold their rights to the companies upon receiving RM250 per family ( bilik ).

The ‘deed’ had resulted in 60 villagers lodging police reports over misrepresentation and fraud. Kuching Commercial Crime police officers have visited the villagers since the reports were lodged.

The companies’ lawyer had also implied that the Ibans were engaged in a publicity campaign before the upcoming election by lodging police reports, which lead plaintiff Numpang Suntai had rejected outright and ridiculed.

Numpang had told Malaysiakini , “Let’s look at this logic. Let’s say you are a victim of cheating, misrepresentation and fraud, and you are supposed to have given up land rights inherited through generations for a measly RM250 per family.

“Does this mean you must not fight for your rights when there is an election around the corner? There is nothing for us to apologise for in defending our rights,” concluded Numpang.    

Decision highlights unacceptable defence

Judicial Commissioner Rhodzariah Bujang’s decision in granting the injunction highlights the compromise made by the defendants’ lawyer when submitting the ‘deed’ in their defence.

When referring to the defendants challenging the plaintiffs to prove their NCR claim while the same ‘deed’ acknowledges native customary rights exists over the licensed area, “… the point that is being crucially made here is that the 1st and 2nd defendants’ denial of the plaintiffs’ native customary rights over the timber licensed area is seriously compromised by their own evidence.”

On the submission by defence lawyer on the ‘deed’ being prepared by a lawyer and the claimants’ signatures on the ‘deed’ were witnessed by a Penghulu Merum ak Babu, the judicial commissioner ruled that “I could not on the strength of this submission accept that the said deed settles the dispute in this case because Penghulu Merum has been sued as the 3rd defendant and the plaintiffs are alleging that he had breached his duty towards them.”

On defendants’ lawyer Liew Tang Chieh’s argument that if the court granted the injunction, it would be granting an injunction against the Sarawak government which is against the law and from collecting royalties from the logs, Rhodzariah had “no qualms in rejecting” it.

“If the argument of such an ‘indirect injunction’ is to be upheld, practically no commercial or business related actions could be injuncted because the government agencies have the right to collect taxes, duties, levies or royalty from there actions.

“Such end result is simply absurd, not to mention unjust,” she said.

Loss and damages

On the final issue considered in the decision, the judicial commissioner considers the assertions of loss and damages by the plaintiffs are not figments of their own imagination or mere illusions.

“The rights of the natives which were accorded protection in these cases are not merely to literally live on but also to live off the land - not just to build their homes on and to cultivate it but also to derive sustenance from the fishes that swim in its rivers, the birds that nest in its trees and the plants that grew in the forest.

“It is therefore simply not right to look at the issue narrowly and say, as the 1st and 2nd defendants did, that the land is not taken away from the plaintiffs by the issuance of the timber licence to them or that the said deed was only to complensate the claimants for the merchantable timber on the land, and the land will always be there for the claimants to use after the logging is done,” Rhodzariah said.