Federal Court rules native land cannot be restored after lease conversion


Source: The Malay Mail Online

KUCHING, Oct 13 — Native customary rights (NCR) land cannot be returned to the native owners once converted to Lease of State Land, the Federal Court ruled today.

“The effect of this conversion is that the disputed lands are no longer provisional leases but a lease proper and are entitled to the protection of Section 132 of the Sarawak Land Code, which title stands good against the whole world,” Chief Justice Tun Md Raus Shariff said his written judgment.

The judgment read out by Federal Court deputy registrar Edwin Paramjothy  Michael Muniandy here was on a case brought by headman Nyutan Jami, Ganga Guma and Langga Kama representing 183 villagers who sued the Land Custody and Development Board, Nirwana Muhibbah Sdn Bhd and state government.

The board and Nirwana are the registered co-proprietors of Lot 2 Block 6, Lot 166 Block 5 and Lot 7 Block 3, all of Melikin Land District, under the provisional leases issued by the state government that were later converted to Lease of State land.

This decision overrules the previous High Court and Court of Appeal rulings in favour of the native owners.

The other judges on the Federal Court panel are  Tan Sri Suriyadi Halim Omar, Tan Sri Zainon Ali, Datuk Balia Yusof Wahi and Tan Sri Jeffrey Tan.

Raus said Federal Court deemed that Section 132 of the Sarawak Land Code pertaining to indefeasibility of title remains applicable even if it could be shown that NCR land had been created over land in the manner prescribed under the same code.

“A claim for NCR does not defeat the indefeasibility of title, even though the interest stated in the issue document of title was issued after NCR land was asserted,” he said.

However, Raus said the NCR landowners are entitled to compensation and damages for infringement or loss of NCR rights as provided for under the Sarawak Land Code.

Lawyer See Chee How, who stood in for lawyer Baru Bian at the delivery of judgment, said the apex court’s decision will affect over 100 pending cases where NCR lands were converted to Lease of State Land and alienated to oil palm plantations.

“What we need here is for the state government to immediately amend the land code before more natives lost their lands to plantation companies,” he said after the apex court has delivered its judgment.

Headman Nyutan, when met by reporters, said it is the darkest day for the villagers of Kampung Lebor  having to lose their lands which they have inherited from their ancestors.

“Given (a) choice, we don’t want compensation. We want our land back,” he said, hoping that the government would find a solution to enable them to get back their land.