Works Minister Baru Bian has expressed his deep disappointment with the decision of the Federal Court to dismiss an application by Iban communities from two Sarawak villages to review a ruling that their native customs have no force of law in the state.
In a 4-1 majority decision by the five-member bench today, it was held that there was no basis for a new panel to review the Federal Court's earlier decision.
Chief Judge of Malaya Azahar Mohamed and Federal Court judges Alizatul Khair Osman Khairuddin, Idrus Harun and Mohd Zawawi Salleh decided the majority decision while Chief Judge of Sabah and Sarawak David Wong Dak Wah dissented.
"I fully respect the discretion given to the Court to make such a decision under the law," said Baru.
However, he added: “It means the issues which we hoped to clarify and determine, which is whether pemakai menoa and pulau galau have the force of law, remains unanswered.”
Native customary rights are based on inheritance by virtue of the Iban customs of pemakai menoa and pulau galau.
Pulau galau is the term given to land reserved by a village to forage, hunt or fish. This land is generally left untouched so that the forest can regenerate. Pemakai menoa, meanwhile, is the entirety of the area the village considers as its property. It includes the longhouse area as well as the pulau galau area.
"I am still of the view that the Nor Anak Nyawai case is still the law on this matter which answered the question in the affirmative," said Baru, referring to a 2001 case in which his clients Nor anak Nyawai and three others won significant victories against Tatau Land Sdn Bhd, the Bintulu superintendent of the Land and Survey Department, and the state government of Sarawak.
"This means that we as natives of Sarawak must continue to assert and claim our said rights over native customary rights lands until another Federal Court’s case decides clearly that Nor Anak Nyawai is overruled.”
Baru, who is Selangau MP and Ba'Kelalan state assemblyperson, highlighted the dissenting judgment of Wong, who is a Sabahan.
"His Lordship not only dissented against the majority’s decision on the legal nature of the Review but also disagreed on the Federal Court’s decision in the Keruntum case on the definition of a judge having a ‘Bornean experience’ when hearing appeals from the two Bornean States," he said.
Baru was referring to Keruntum Sdn Bhd vs The Director of Forests & Ors , in which the Federal Court held that a litigant could not enforce a recommendation that a case from Sabah or Sarawak should be heard by at least one judge with Bornean judicial experience.
This recommendation is found under paragraph 26 (4) of the Inter-Governmental Committee Report (IGC) 1962.
The current case, which was brought forward by Tuai Rumah Sandah Tabau and Siew Ak Libau, has a long history.
On May 27, 2011, the High Court sitting in Sibu held that Sandah and his community had native customary rights over the entire 5,639ha of land that was leased by the Sarawak government to Rosebay Enterprise Sdn Bhd.
In the case of Siew, the area of interest covers 11,822ha. There were initially approximately nine longhouses that sued Rosebay, but the High Court held that only Siew's longhouse had successfully established native customary rights.
The decision of the High Court in Sibu was later upheld by the Court of Appeal.
However, on Dec 21, 2016, the Federal Court in Putrajaya reversed the decisions of both the Court of Appeal and High Court, thus denying the principle of native customary rights to Sandah and Siew.