The Federal Court today allowed an appeal by the state government and four timber companies that six natives from the Kelabit, Lun Bawang and Penan tribes were not entitled to damages for encroachment.
Justice Balia Yusof Wahi, who delivered the judgment of the five-man bench, said the defendants had lost the right over the land as they had been resettled.
“They have abandoned their NCR land and the suit was filed after the resettlement.”
He said the claimants were resettled in villages about 40 years ago and they no longer possessed the land where the companies had started logging activities some 20 years ago.
“It is also conceivable that the plaintiffs do not know the presence of the defendants (the timber companies).”
Chief Justice Arifin Zakaria led the bench and the other judges were Hasan Lah, Abu Samah Nordin and Azahar Mohamed.
The bench in ruling in favour of the companies and the state relied on another apex court ruling of Bisi Jinggut, which held that whatever NCR land that is created or acquired would have been lost once abandoned.
This appeal originated from a case filed by the natives, led by Peter Racha Urud, who had been resettled by the government to Long Napir and Kampung Bahagia, Limbang, from their previous settlements in Upper Limbang.
After their resettlement, the government issued a forest logging licence in 1985 to Ravenscourt Sdn Bhd, Billion Venture Sdn Bhd and Limba Jaya Timber Sdn Bhd in 2002.
The High Court found the claimants were no longer residing at the previous settlements and were not in possession of the land.
Based on native customary law, the High Court ruled they had abandoned their former NCR land.
There was also undisputed evidence that the claimants knew that logging activities had been taking place at their former settlements before they initiated their case at the High Court in Limbang.
The High Court then struck out the suit on grounds it was filed out of time.
However, the Court of Appeal disagreed and set aside the High Court decision.
Last December, the Federal Court also quashed a bid by the Dayaks of Sarawak to apply native customary rights (NCR) on virgin forests.
Justice Raus Sharif, who delivered the majority judgment, said there was no legislation in Sarawak that gave the force of law to the Dayaks to claim customary rights over virgin forests around their longhouses.
He said the Sarawak Land Code, Tusun Tunggu (Codified Customary Laws), Iban Adat 1993 and a number of Rajah Orders recognised only cultivated land called “temuda” as NCR land.
“Temuda” refers to land left fallow, on which there is secondary growth.
The judges ruled that the customs of pemakai menoa and pulau galau did not fall within the definition of law under Article 160 (2) of the Federal Constitution.
The bench held that only the custom of temuda was recognised by statute.
Justice Zainun Ali, in dissenting, said customs and practice were part of the law under the Federal Constitution.
The landowners sued a timber company and the state government for encroaching into what they said was their territorial domain, and hence their NCR.
The natives have filed a review of the case on grounds that the Chief Judge of Sabah and Sarawak should have been included to hear the appeal.