Landmark win for Penans in federal court
A senior Sarawak native customary rights (NCR) lawyer has hailed a decision by the apex court of Malaysia on an NCR matter as a much needed victory.KUCHING: The fight for recognition of native customary rights (NCR) on land received a shot in the arm following the federal court’s decision on Balare Jabu and others against timber company Merawa Sdn Bhd .
Hailing the decision, NCR lawyer Baru Bian said it was “another victory” in their legal battle for the claims and defence of NCR cases in Sarawak.
“This time a decision coming out from the apex court of Malaysia in my opinion, is very crucial and timely.
“A few cases pending at the Court of Appeal are waiting for this ruling,” said Bian, who is the Ba’Kelalan State assemblyman.
Commenting on the court’s decision handed last Tuesday, he said: “The Penans of Sarawak who initiated this legal action in the High Court at Miri complaining that the state government of Sarawak through the Director of Forests Sarawak issued to the Merawa Sdn Bhd a timber licence covering an area which was part of the Penans’ NCR lands and their hunting and fishing ground.
“The government and Merewar were successful in the first instance in their application in the High Court at Miri in striking out the Penans’ writ and statement of claim on ground that the Penans were caught by the provision of s. 2(a) Public Authorities Protection Act 1948.
“They submitted that the Penans’ writ and statement of claim was time barred since the Director of Forests of the state, a public officer, acted in accordance with written law when he issued the license under the Forest Ordinance and was protected by s. 2(a) Public Authorities Protection Act 1948.
“The Penans although conceding that they were caught by limitation since they did not file their writ and statement of claim within three years, contended that the High Court judge had erred as the Penans had also sought declaratory orders that the issuance of the licence was subject to native customary rights and the appelants in issuing the license, were in breach of their fiduciary duty,” he said.
Bian said that the Penans’ won their appeal at the Court of Appeal in a decision handed down on March 17, 2011.
The licencee, Merawa Sdn Bhd together with the state government appealed to the Federal Court, but their the appeal was dismissed on Oct 2, 2012.
The order was read by the Chief Judge of Sabah and Sarawak Richard Melanjun.
Bian said the Federal Court agreed with the Court of Appeal and further opined that since the timber license expired only in March 2012, the injury suffered or complained off by the Penans was still running and therefore the issue of the Penans filing their claims outside the provision of s. 2(a) Public Authorities Protection Act 1948 did not arise.
The court further ordered costs against the state government and Merawar in the sum of RM10,000
In the circumstances, the said case is now reverted to the High Court for a proper trial to determine the extent of the Penans’ NCR over the area as claimed in their writ and statement of claim.
Besides Melanjun, the other members of the Federal Court hearing the case were Arifin Zakaria, and Abdul Hamid Embong.