KUALA LUMPUR, Sept 8 (Bernama) — Two groups of indigenous people in Sarawak suing the Sarawak Government over the loss of their lands for the construction of the Bakun hydro-Electric Dam and a pulpwood mill, were unsuccessful in their appeal at the Federal Court here today.
A three-man panel led by Chief Justice Tun Zaki Azmi unanimously rejected their appeal for reinstatement of their civil suit and be remitted to the High Court for full trial with calling of witnesses and evidence.
Their civil suits were summarily thrown out by the High Court on question of law under Order 14A of the Rules of the High Court.
Today’s decision was delivered by the Federal Court panel at the NCVC court room 3 at Jalan Duta, here.
However, in a majority decision of the panel — Zaki and Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum — declined to answer a question of law which challenged the constitutionality of the abolishment of Native Customary Rights (NCR) on lands occupied by the two groups for generations on grounds that the issue was not properly argued before the panel.
The member of the panel Federal Court judge Tan Sri Md Raus Sharif answered the question of law in the negative, that the extinguishment of NCR on lands occupied by natives was constitutional.
The question was whether Section 5 (3) and (4) of the Sarawak Land Code (relating to acquisition of native land) was ultra vires Article 5 of the Federal Constitution (right to life), read together with Article 13 (right to property) of the Federal Constitution.
The natives argued that the state’s acquisition of their NCR land as provided for under the Sarawak Land Code violated their fundamental rights under the Federal Constitution.
This was the last judgment of Zaki who retires on Sept 12. The Chief Justice admitted that this was the most difficult judgment he had to deal with during his three-year tenure as chief justice.
Outside the court, lawyer Baru Bian representing the natives told media that since the issue on the constitutionality of the abolishment of the NCR was unanswered, that similar issue could be brought up again for determination of the apex court in another court case.
The two groups, from the Dayak communities of the Kayan, Kenyah and Ukit; and the Iban, were challenging the directive issued by the Sarawak Minister for Resource Planning to extinguish the NCR on lands occupied by them and their ancestors for generations.
The first group — Bato Bagi (passed away in July this year), Bit Buneng, Siring Angah, Adem Anyie, Jating Ibau and Ngajang Midin — represents five longhouses along the Batang Balui river in Belaga District, Kapit, which were affected by the construction of the Bakun Hydro-Electric Dam Project.
This group had refused to move to the Asap Resettlement Scheme, and continues to stay upriver in Batang Balui.
The second group, Jalang ak Paran and Kampong anak Amih, are residents of Rumah Munggu, a longhouse in Tatau, Bintulu, Sarawak. Their land in Ulu Batang Tatau was acquired to build a pulpwood mill.
This group, comprising their families, continues to live on the land. Until today, no pulpwood mill has been constructed on the proposed site and the land has reverted to jungle.
In his judgment, Zaki said it would be a waste of money and time to send the case back for trial because many of the natives who were with Bato Bagi have accepted compensation from the State Government.
Zaki said if the appellants were unhappy with the compensation offered to them, they should have asked for it to be arbitrated but failed to do so.
He said if the case was resent for full trial, the findings of the High Court would be purely academic because more than 10 years had lapsed since their NCR over the land was extinguished.
Malanjum, in his judgment, said in Bato Bagi’s case, there was no question of returning the disputed land to the appellants because the land was now under water upon completion of the Bakun Dam.
He said for Jalang’s case, a substantial number of former residents of the land in question had accepted the compensation which was later increased by the arbitrator.
“Hence, on the facts and circumstances of these two cases, it serves no purpose to answer the question posed,” he said. — BERNAMA