The Bakun natives brought up 5-6 issues to the Federal Court for review-but only 1 was granted this morning ie the challenge to the Provisional Lease which has been used rampantly in the last decade to grab natives’ lands. This is a round 1 victory in a longer battle to reclaim natives’ lands in Sarawak. Report from Free malaysia Today & SAM:
PUTRAJAYA: The Federal Court today set a momentous precedent when it granted leave to lawyers to challenge the Sarawak state government’s aquisition of Native Customary Rights (NCR) land.
Human rights lawyers Sulaiman Abdullah and Baru Bian argued that native customary rights were akin to ‘the right of life’ under Article 5 of the Federal Constitution and that methods employed by the Sarawak state government to acquire NCR land were unconstitutional.
They named the Sarawak state government as the respondents.
Chief Justice Zaki Azmi and Justices Zulkifli Ahmad Makinudin and Raus Sharif presided over the hearing.
Bian said that the leave granted was a historic precedent. “The power of the state government to extinguish NCR over land in Sarawak is challenged,” he said.
Bian said that Sarawak Land Code Section 5(3) and 5(4) allowed the state government to usurp NCR land after paying compensation.
Bian, who claimed he was currently handling over 100 NCR cases, said that the state government was guilty of taking indigenous land without informing Sarawakian natives first.
The state government was also accused of paying these natives a pittance for their ancestral land, before selling it off to private companies.
JC Fong, the Sarawak government’s legal counsel, argued that Native Customary Rights over land could be “extinguished” so long as compensation to affected natives were paid.
Bintulu resident, Jaili Sulaiman said that his father-in-law’s 122-hectare land in Tatau was seized by the Sarawak government, only to be given to a paper-making company.
Jaili said the government had offered to compensate him for RM4,000 a hectare. He turned it down, calling it an unreasonable offer.
“The government took our land and sold it to a company called Borneo Pulp and Paper,” said Jalili, adding that gangsters were hired by the government to chase out residents staying in the area.
“When we make a police report, they pretend not to hear. But when the gangsters make a report, there’s an investigation in 24 hours!” added Jaili.
Another Sarawakian native, Bato Bagi, 74, told FMT that his own village was affected by the construction of the Bakun hydroelectric dam.
In return, the Sarawak government offered his family three acres of land and a place at the Sungai Asap resettlement housing scheme.
Bato flatly refused but was forced to move upstream to other NCR areas after his village was flooded by the dam.
He was also angry with Sarawak legal counsel JC Fong for claiming that Bato and his kin had been resettled by the state government.
“I never went to the resettlement,” said an angry Bato after the hearing. “He (JC Fong) doesn’t know what he’s saying. He only hears what other people say. When did we go to Sungai Asap?”
The case will resume on April 28, 9am at the Putrajaya Federal Court.
Release from SAM:’
SAM Media Release: NATIVES WIN RIGHT TO APPEAL IN THE FEDERAL COURT
2 cases involving several indigenous communities affected by the Bakun Dam (Bato Bagi & Others V State Government of Sarawak) and a proposed pulp mill factory in Tatau (Jalang Ak Paran v State Government of Sarawak & Another) won the right to appeal at the Federal Court. The cases involving 5 longhouses in Upper Balui and 1 longhouse in Tatau were heard at the Federal Court today before a panel of 3 judges.
The Bakun dam case was filed in 2000 while the Tatau proposed pulp mill factory was filed in 1999. Both suits were filed against the State Government of Sarawak.
In both cases the natives challenged the Government’s acquisition of their customary land and sought declarations among others, that the provisions of law acquiring native customary land and rights under the Sarawak Land Code were inconsistent with fundamental rights under the Federal Constitution i.e. right to life under Article 5. In the Bakun Dam case, the indigenous communities were seeking compensation for lands lost as a result of the acquisition.
The communities were represented by senior counsel Hj Sulaiman Abdullah and NCR lawyer Baru Bian. The State Government of Sarawak was represented by Dato’ JC Fong, from the Sarawak Attorney General Chambers. Present also were lawyers from SAM.
At the Federal Court, both parties agreed that since the case of Bato Bagi & Others and Jalang Ak Paran & Another had similar arguments, the Court would hear them together.
The natives wanted the Federal Court to answer the following questions:
1. Whether NCR is akin to Article 5 rights i.e Right to Life (Federal Constitution);
2. If they are, then, can they be extinguished (taken away) and if so, what should be the procedural and substantive characteristics of the law extingushing such a right to life.
3. What are the terms of the fiduciary obligation of the State to the natives and how this should be reflected in the law allowing extinguishment.
4. Given that these are NCR rights and there is a fiduciary relationship between the State and the natives, what is the procedure and nature of compensation.
5. Taking into account all the above, whether Sections 5 (3) and (4) of the Sarawak Land Code are valid and constitutional
Upon hearing both parties, the judges took 40 minutes to deliberate. They agreed with the natives’ lawyers and allowed them the right to appeal in full at the Federal Court. However, they limited the issue to be argued to one question:
Whether Sections 5(3) and (4) of the Sarawak Land Code are inconsistent with the provisions on fundamental rights within the Federal Constitution.
The cases will be heard on 28.04.2011 in Putrajaya. The communities were present in court and were jubilant with the decision despite it being just an application for leave to appeal. Sahabat Alam Malaysia (SAM) is pleased with this decision and and hopes that the court will vindicate the communities with a favourable decision.