Two historic cases concening land rights in the Baram Dam area were lost last week, but the judge’s comments provide hope for the future. (For background on the case, see the article below.)
As council for the plaintiffs, Baru Bian, put in a statement about the cases,
“I was very hopeful to have a historic judgment but that did not materialized. Nevertheless, notwithstanding the said decision there is still a bright light at the end of the tunnel especially in the obiter or the observation made by the Chief Judge of Sabah and Sarawak Richard Malanjum who said that section 5 of the Land Code, Sarawak, appears to give a very wide power to the relevant Minister to extinguish all customary land rights just by a stroke of a pen. He also commented that compensation for the loss of native customary rights should not be merely a monetary form but should include other factors as well. Of a concern to us who are natives is this; that any extinguishment of NCR land in Sarawak must be consistent with international requirements; for example those that are stated under the United Nation Declaration of Rights of Indigenous Peoples (UNDRIP) which requires a “free, prior, informed, consent” approach before their NCR is extinguished.”
Baru Bian Statement on Bato Bagi case.
Sahabat Alam Malaysia (friends of the Earth Malaysia) & the Consumers’ Association of Penang said in a statement that:
“SAM and CAP feel that it is important to have a limitation on the purposes for which native customary rights may be extinguished. Of primary importance is that the proposed purpose should be beneficial to the natives. Equally important is also the need that before any land is taken for such purpose, natives must be consulted and properly informed of the consequences of such development and sufficiently and reasonably compensated for the loss to their communities and future generations.”
For more information on dams in Borneo, please visit: http://borneoproject.org/our-work/ongoing-campaigns/stop-the-dams
*********
Posted on 9 September 2011 – 05:25am
Tan Yi Liang
newsdesk@thesundaily.com
KUALA LUMPUR (Sept 9, 2011): The Federal Court yesterday dismissed an appeal by six native customary land (NCL) owners against the Sarawak state government in relation to the loss of their land as a result of the Bakun dam project.
A three-member panel comprising Chief Justice Tun Zaki Azmi, Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum and Court of Appeal President Tan Sri Md Raus Sharif unanimously ruled that the Sarawak Land Code did not violate the Federal Constitution.
The six NCL owners — Bato Bagi, Bit Buneng, Siring Angah, Adem Anyie, Jating Ibau and Ngajang Midin — represent the residents of five longhouses along the Batang Balui river in Belaga District, Kapit which were affected by the construction of the Bakun Hydro-Electric Dam Project. Bato Bagi died two months ago.
The court also dismissed an appeal by two longhouse residents in Tatau, Bintulu — Jalang Paran and Kampong Anak Amih — who had sued the Sarawak government and Borneo Pulp And Paper Sdn Bhd for taking over village land in Ulu Batang Tatau for a pulp mill.
The suit, among other claims, posed the question on whether Section 5(3) and 5(4) of the Sarawak Land Code relating to the extinguishment of native customary rights are ultra vires vis a vis Article 5 and Article 13 of the Federal Constitution.
The issue was whether provisions of the code relating to compensation contravened Article 5 which states that no person shall be deprived of life or personal liberty except in accordance with the law, and Article 13 which relates to right to property and “adequate compensation”.
The dismissal of the appeal by the NCL owners marks the end of a long legal battle that began in the 1990s with a June 23, 1997 claim by the six in relation to land along Batang Balui and its tributaries.
The plaintiffs lost their claim in the High Court in Sarawak on April 26, 2008, a decision upheld by the Court of Appeal last year. The Federal Court on April 1 this year granted the appellants leave for their appeal to be heard.
They were represented by Sulaiman Abdullah and Sarawak Parti Keadilan Rakyat chief Baru Bian, and the respondents by Sarawak State Legal Counsel Datuk J.C. Foong.