It is a bittersweet victory. This was how several lawyers described the Sarawak government's successful appeal against a Kuching High Court decision in the Bintulu native customary rights (NCR) land last week.

"It is solving one small problem but creating another much bigger problem," said Kuching-based Iban lawyer Anthony Liman.

The 'small problem' concerns a disputed plot land of about 671.8ha which Ibans from a longhouse in Sekabai had claimed to be their NCR land.

Trial judge Ian Chin had earlier ruled that the Ibans were entitled to exercise NCR over the land, ordered the government to exclude the land from the leases issued to Borneo Pulp Plantation Sdn Bhd (BPPSB) and granted an injunction to stop the company or its agents from entering the land.

It is against this decision that the government and BPPSB as well as another related company Borneo Pulp and Paper Sdn Bhd, the sub-lessee of the land, had appealed.

The two companies are part of the timber-based conglomerate KTS Group, now based in Kuching.

Last Friday, the Court of Appeal ruled that the disputed land was not NCR because the natives did not present evidence of a credible nature to support their claim.

However, the court agreed with the trial judge's views on the law relating to NCR land, and this is the 'bigger problem' for the government as it will have an implication on similar cases.

Concept affirmed

In the 33-page judgment, Court of Appeal judge Hashim Yusoff said: "In respect of the other expositions of the law by the judge in relation to native customary rights we are inclined to endorse them."

Briefly , these are:

1) That the common law respects the pre-existence of rights under native laws or customs, although such rights may be taken away by clear and unambiguous words in legislation.

2) That native customary rights do not owe their existence to statutes. They exist long before any legislation and the legislation is only relevant to determine how much of those native customary rights have been extinguished.

3) That the Sarawak Land Code 'does not abrogate whatever native customary rights that exist before the passing of that legislation'. However, natives are no longer able to claim new territory with a permit under section 10 of that legislation from the Superintendent of Land & Survey.

4) That although the natives may not hold any titles to the land and may be termed licensees, such licence 'cannot be terminable at will. Theirs are native customary rights which can only be extinguished in accordance with the laws and this is after payment of compensation.'

In other words, Hashim - who sat together with Richard Malanjum and Tengku Baharudin Shah Tengku Mahmud - affirmed the NCR concept of land that Ibans describe as temuda (cultivated land), pulau (communal reserve) and pemakai menoa ( land understood to be within the territory of a particular group of Iban longhouse community).

The judge also noted that many courts in other jurisdictions have said the same thing on indigenous land rights.

Search for proof

In allowing the government's appeal on the ground there was a lack of credible evidence, the appellate court, however, made it clear that this particular case should not necessarily be a precedent for other potential claims "'where proof may be readily available".

While welcoming this, another NCR lawyer said providing proof could be a problem.

Ibans, mainly from Sri Aman and Rajang, had moved, either directed or sanctioned by the government or on their own initiative, to northern Sarawak (Bintulu, Miri, Baram and Limbang) regions in the 20th century till as late as towards the end of the 1950s, for various reasons.

Their new territories were clearly demarcated by the district officers who kept official records, according to the lawyer, who declined to be named.

He said he had seen some of the records in the district offices in Mukah and Balingian but was not sure whether such records were still available in other district offices to record the arrival of Ibans in their territories.

"If such records are still available it will make it easy to produce evidence to base claims of native customary rights on land, as required under existing laws," said the lawyer, who is also an Iban.

"I see this (providing the proof) as quite an obstacle and with so many elderly persons from longhouse communities who are no longer around this could make it even a bigger problem."

There are more than 100 NCR land dispute cases pending in the courts against logging and plantation companies throughout Sarawak.

On the same note, sources said the state Attorney-General's Chambers is to appeal against the Court of Appeal's concurrence with the trial judge's findings on the points of law relating to NCR land.