THE Dayaks in Sarawak suffered yet another setback in the courts to hold on to their land created by native customary rights.

The Federal Court in Kuching today upheld the appeal of the state-linked land development agency –Land Consolidation and Development Authority (LCDA); two oil palm plantations companies – TH Pelita Sadong Sdn Bhd and TH Pelita Gedong Sdn Bhd; the Sarawak government and RHB Islamic Bank Bhd, against the 2014 decision of the high court, which had ordered NCR land belonging to residents of Kg Lebor in Gedong to be excised from the provisional leases the state government had given to the plantation companies.

The five-man bench, led by Chief Justice of Malaya Mohd Raus Shariff, also set aside the high court order to the Land and Survey Department for rectification of the title registry and the payment of damages.

The court, in unanimously upholding LCDA and the state government’s argument that section 132 of the Sarawak Land Code protected the indefeasibility of the lease title even if it is shown that native customary rights had been created over the land they were alienated, ordered the land owners be compensated for the loss of their land and the quantum to be decided by the Court of Inquiry.

The court ordered the state government and the superintendent of the Lands and Survey Department, Samarahan division, to pay the compensation.

The other judges were justices Suriyadi Halim Omar, Zainun Ali, Balia Yusof Wahi and Jeffrey Tan.

Raus said the trial judge and judges of the Court of Appeal had failed to appreciate the fact that the disputed three parcels of land were later converted to leased state land.

“The effect of this conversion is that the disputed lands are no longer provisional leases but a lease proper and are entitled to the protection of section 132 of the Sarawak Land Code,” Raus stated in the ruling, which was delivered by deputy registrar of the Federal Court, Edwin Paramjothy Michael Muniandy.

“Section 132 of the Sarawak Land Code pertaining to indefeasibility of titles remains applicable even if it could be shown that NCR had been created.”

The court said a claim for NCR does not defeat the indefeasibility of title, even though the title was issued after NCR was asserted.

“We want our land. We don’t care about the compensation,” was the reaction of Tuai Rumah (longhouse chief) Nyutan Jami.

Nyutan and two other landowners, Gangak Guma and Langa Kama, filed the suit in 1997 after the plantation companies entered the three parcels of land and began clearing works for oil palm.

The provisional leases were issued in 1996.

Nyutan, who is also suing on behalf of 183 other landowners, said the intrusion had destroyed the crops on their temuda.

“We want the land because these are lands which we had inherited over several generations.

“These are ancestral lands. Now we do not have any land to pass to the next generations,” Nyutan said in tears.

“Today is really, really a black Friday,” the Dayaks’ legal counsel, See Chee How said, in reference to the date, Friday the 13th.

“The court decision has now set a new precedent,” See said.

“It has given the state government a new way to extinguish NCR land.

“Just issue the PL (provisional lease) on any land they want. If the native landowners challenge the issuance of the leases and are successful in it, they will only get compensated.

“They would not get back their land,” said See, who is also the PKR assemblyman for Batu Lintang. – October 13, 2017.