JUDGE RULES NCR IS ‘RIGHT TO LIFE’

By: JOE FERNANDEZ

THE Kota Kinabalu High Court upheld yesterday that ‘native customary rights’ (NCR) equates to ‘right to life’ under Article 5 of the Federal Constitution. The court also ruled in a landmark decision that a Magistrate was wrong in saying that native customary rights cannot be established in a Forest Reserve.

Justice David Wong Dak Wah then went on to squash the convictions of six natives who were found guilty by the lower court of trespassing into the Kuala Tomani Forest Reserve. The guilty verdict was meted out to the six natives by the Magistrate’s Court in Tenom on Nov 12 last year. Counsel Ram Singh represented the six appellants.

The six appellants were named in Judge Wong’s 13-page written judgment as Andawan bin Ansapi, Barani bin Ambisi, Ansanam @ Azman bin Yapau, Johndy bin Kawar, Stanley bin Boyor and Sarim bin Arus.

The Judge identified the two determinative issues before the court as: Is the Magistrate correct in law to conclude that native customary rights cannot be claimed in a Forest Reserve?; and If the Magistrate is wrong, what is the consequence of her finding in respect of the appeal by the six natives?

“The Magistrate did not address her mind on whether the appellants could have authority to be on the land by virtue of their native customary rights,” said Judge Wong. “The Learned Magistrate also failed to determine whether the appellants did in fact possess native customary rights on the land.”

The Judge noted that the appellants, in their defence, had contended that they have native customary rights to be on the Kuala Tomani Forest Reserve.

They also produced historical evidence to support their claim, he added. “However, the Magistrate held that the native cannot claim customary rights pertaining to land gazetted as forest reserve and went on to reiterate that this is obvious and clear.”

The Judge agreed that the Magistrate arrived at her decision after taking into consideration that the six natives did not have “express authority to enter the land -given by and under the provisions of the Forest Enactment”. Nevertheless, the Judge continued, both the prosecution and the Magistrate should have taken note of the appellants’ claim of native customary rights when it was flagged before them.

“The legal status of native customary rights in this country, in my view, is well established,” said Judge Wong.

He cited the well-known case of Nor Anak Nyawai & Others v Borneo Pulp Plantation Sdn Bhd & Others [2001] CLJ 769 which held that “customary law is a practice by habit of the people and not the dictate of the written law”.

Judge Wong noted that the Learned Judge in the case further stated that “if the present generation can prove that they are practicing, which historians described as having been practiced 200 years ago, then that is sufficient proof that such native customary rights had been practiced 200 years ago”.

The Judge also cited the Federal Court decision in the case of Superintendent of Lands & Surveys Miri Division and the Government of Sarawak vs Madeli bin Salleh (2007) 7 CLJ 509. Judge Ariffin Zakaria held that “the proposition of law as enunciated in these two cases–Madeli and Nor–reflected the common law position with regard to native titles throughout the Commonwealth.”

The consensus in numerous other cases cited from the Commonwealth, said Judge Wong, held that “the Crown may acquire a radical title or ultimate title to the land but the Crown did not thereby acquire absolute beneficial ownership of the land”; “the Crown’s right or interest is subject to any native rights over such land”; and “a mere change in sovereignty is not to be presumed as meant to disturb the rights of private owners”.

The Judge pointed out what native customary rights entail in a court of law.

“The natives are the original inhabitants of the country and treat claims for NCR by looking at it only from the point of ownership of the lands by the natives is not entirely correct,” said Judge Wong. “These claims should be looked at with the concept that the natives are part of the land as are the trees, mountains, hills, animals, fishes and rivers.”

Judge Wong’s said the basis for the court’s stand is simple. He noted that “prior to the arrival of white settlement, there was no system of land ownership as we have now”. “They (natives) survived by foraging the land. The fruits on the wild trees, the fish in the river, the wild boar and other animals on the land are their food for survival,” said Judge Wong. “It is not insignificant in this country that they are known as bumiputra.”

It is this concept (bumiputra), said the Judge that must be kept at the forefronts of “our minds when dealing with native claims to lands”.

Magistrate Intan Nurul Farena fined the six natives RM 1,000 each on Nov 12 last year after finding them guilty on two charges i.e. trespassing on the Kuala Tomani Forest Reserve without permission at 4 pm on Oct 30, 2009 and cultivating in the Forest Reserve without permission from the authorities.