February 16, 2012 VIA: Joseph Tawie

The Court of Appeal in Kuching has held that judicial reviews were not a suitable method in dealing with native customary rights.

KUCHING: The Court of Appeal in Kuching has decided that native customary rights (NCR) land owners are entitled to file their claims in the civil court by way of Writ of Summons.

It also advised judges to be ‘slow’ to close the door on those claiming such rights, which are proprietary rights enshrined and protected under the Federal Constitution.

In a landmark decision, the court presided by justices Sulaiman Daud, Haji Mohamed Apandi Ali and Wira Mohtarudin Baki, yesterday unanimously dismissed the state government’s appeal against a decision favouring native landowners here.

The Court of Appeal was posed with the legal issue of whether it was proper for the natives to seek a declaration of their NCR over provisional leases and timber licences granted by the Superintendent of Land and Survey and the state government of Sarawak by way of an ordinary Writ of Summons or whether they should have apply for a judicial review.

The state had submitted that NCR claims must be filed by way of judicial review as these involved elements of public law and the challenging of public authorities exercising their power under the laws of Sarawak in issuing such provisional leases and timber licences.

‘No’ to judicial review

It was argued on behalf of the natives that NCR claims involved issues of law and of facts and therefore their claims against the state must be filed by ordinary writ, which allows oral evidences to be adduced at the proper trial.

“The decision by the learned Court of Appeal judges comes as a great relief to many NCR landowners as there had been an increase in interlocutory applications by timber and palm oil companies lately, to strike out NCR claims based solely on the grounds that their claims should have been filed by way of judicial review.

“This of course was intended to oust the natives’ claims from reaching the courts should judicial review be the proper mode of commencing their claims.

“A judicial review requires that such claims must be filed within 40 days of the date of issuing the lease or timber licence,” said Baru Bian, who appeared on behalf of the landowners.

“This would in most cases be impossible as the issuance of provisional leases and timber licences are normally done ‘behind the back’ of the natives, ” he said.

Bian added that the interlocutory applications by the companies and the State Attorney General have substantially delayed many trials to date.

“This latest decision by the Court of Appeal is a sign that the court is indeed pragmatic and just in dealing with NCR claims, understanding as they have demonstrated, the predicament in which many natives of Sarawak find themselves when faced with such intrusion of their NCR lands by lessees and timber companies,” said Bian who is the Ba’Kelalan assemblyman.

The court ordered costs of RM10,000-00 each against the three appellants. There are more than 200 NCR land cases waiting to be heard in the High Court.