"Mangkang Menua,Mangkang Dunya,Ngetan Ke Bansa!!"

February 26, 2011

More and more Victories to the Natives!!

The High Court decision has wide implications

By Joseph Tawie

KUCHING: The Kuching High Court is again made another land mark decision when it rules out on 20 February 2011 that any joint venture agreement between a non-native and native in oil palm plantation is in contravention of Section 8 of the Land Code.

The decision of the court has wide implications on joint venture agreement between non-natives and natives in the oil palm plantations.

There are more than 20 JV companies with natives may be affected by this ruling.

The Pantu natives have sued LCDA, Pelita Holdings Sdn Bhd, Tetangga Arkab and the state government of Sarawak as first, second, third, and fourth defendants respectively on behalf of themselves and 90 others.

The plaintiffs who are ethnic Ibans, natives of Sarawak, claim to be entitled to native customary rights over land in an area described as ‘the disputed are land’ in the Pantu Land district.

High Court Judge Linton Albert who delivered the judgment said that their joint venture agreement was in contravention of Section 8 of the Land Code because neither Tetangga Arkab Sdn nor TETANGGA was subsequently declared a native because it is a principle of antiquity that things invalid from the beginning cannot be valid by a subsequent act.

He said: “Section 8 (a) of the Land Code provides that ‘a person who is not a native of Sarawak may not acquire any rights or privileges whatever over native customary right.

“The parasitic role of Pelita Holding Sdn Bhd, which had nothing to begin with has relegated the landowners into absolute obscurity under the Principal Deed and as the landowners are total strangers to the joint venture agreement, the defendants cannot be heard to say that Tetangga Arkab and TETAGGA had nor acquired rights and privileges in the native customary rights land that they have undertaken to develop into an oil palm plantation.

“How else defendant witnesses whose sole interest was to do business, be attracted unless TASB and TETANGGA had rights and privileges over native customary rights land which the latter would in turn into an oil palm plantation under the joint venture agreement,” he said.

Earlier the judge said that irrespective of the cleverly devised legal mechanism and legalistic language which constituted the Principal Deed and the joint venture agreement, they are mere fig leaves too scanty to conceal their violations of Articles 5 and 13 of the Constitution because the sum total of the rights of the landowners, to put it crudely, and for want of a better word, is zero.

The natives, he said, have been deprived of their native customary rights land which is a source of their livelihood and lost the rights to their property which are violations of Articles 5 and 13 of the constitution.

“This is patently demonstrated by following aspects of the Principal Deed which is briefly set out for emphasis and at the risk of repetition. They are these. Firstly Pelita Holding Sdn Bhd was to receive and collect the benefits of the development of the native customary rights land into an oil palm plantation, not the owners;

“Secondly, the commercial development of the native customary rights land into an oil palm plantation was to be carried out by a joint venture company formed by Pelita Holding and Tetangga Arkab Sdn Bhd, a company exclusively chosen by Pelita Holding under a joint venture agreement in respect of which the land owners are not even a party to.

“Thirdly, the native customary rights lands are immediately amalgamated and title is to be issued in the name of the joint venture company and the landowners would have no beneficial, legal, equitable or caveable interest in the land to be issued with title,” he said.

Albert said: “And one can go on and on to illustrate how the terms of the Principal Deed have stripped the landowners of their rights in every conceivable way and reduced those rights into nothingness.

“The fact that the landowners were not parties to the agreement between Pelita Holding and the company chosen by Pelita Holding, Tetangga Arkab under which it was agreed for the commercial development of the natives rights land by TETANGGA meant that the landowners’ rights in and over the oil palm plantation was also definitely zero.

“The joint venture agreement was also in contravention of Section 8 of the Land Code,”

The judge said that the illegality was so patently clear as to afford no justification for disregarding it.

“A wrong no matter how artfully disguised as the Principal Deed and the joint venture agreement are, cannot overwhelm the fact that thyey are in violation of Articles 5 and 13 of the constitution and Section 8 (a) of the Land Code.

“It matters not that the landowners have been paid some dubious money of RM120.00 per hectare a miserly sum considering the fact that oil palm planted on their land had been harvested for more than three years. Or that the landowners, particularly the government certified Tuai Rumah, led the Penghulu continue to bury their heads in the sand and remain impervious to the truth, steadfastly clinging to their delusion that oil palm plantation would be manna from heaven even though many acres of their native customary rights land had been planted with rubber trees which they had gainfully tapped for latex before they were cleared without compensation to make way for the oil palm plantation,” he said.

The 4th defendant’s plea (State government) that the plaintiffs’ claims to native customary rights were not in accordance with Section 5 (2) of the Land Code or in accordance with any law applicable to the creation of such rights was a non-starter because it was the defendants’ case that the oil palm plantation was created over 7,000 hectares under the Sungai Tenggang NCR Development and the plan tiffs’ claims were confined to land within that area.

The Principal Deed of which the 4th defendant was a party also stated that to be so. The 4th defendant’s contention that all the natives in the area had consented to the development of the native customary rights land flies in the face of the incontrovertible evidence adduced by the plaintiffs to the effect that they had not agreed to the destruction of their native customary rights land by TETANGGA.

Finally apart from the fact that it was not pleaded, the 4th defendant’s reliance on the Land Code and Development Authority (SG. Tenggang NCR Development Area) Order 2006 issued under the LCDA Ordinance was ill-founded because the Principal Deed and the joint venture agreement had been established to be invalid from their inception and cannot, therefore, be validated by the subsequent act.

“This is but one example of the overzealousness of the state functionaries which led to the total disregard for the legal aspects of implementation of oil palm plantation.

“The various justifications relied on by the defendants for the initial implementation of the development of the NCR land have been demolished and the whole substratum upon which they depend for their continued role in the oil palm plantation does not exist by reason of illegality.

“There is no legal basis for LCDA, Pelita Holding and TETANGGA to remain on the native customary rights land which hs been acquired by the plaintiffs from which they must inevitably leave,” he said.

In the circumstances and for the reasons aforesaid the Court declared and ordered the plaintiffs are entitled to their claim to land under native customary rights in the Sg. Tenggang NCR Development area at Pantu.

It also declared the destruction of the plaintiffs’ respective native customary rights land by the first (LCDA) second (Pelita Holding Sdn Bhd) and third (Tetangga Arkab Pelita) defendants was unlawful and damages to be assessed by the Deputy Registrar to be paid by the first, second and third defendants with interest at 4% per annum from the date hereof until settlement.

It ordered that the first, second and third defendants forthwith give vacant possession of the plaintiffs’ native customary rights land.

Fourthly, the first, second and third defendants and their servants, agents, assignees and successors are restrained from entering, occupying, clearing, harvesting or in any way howsoever carrying out works in rhea plantiffs’ native customary rights land; and costs to the plantiffs to be paid by the first, second and third defendants to be taxed unless agreed.

The plaintiffs were represented by Dominique Ng and assisted by Datuk Seri Daniel Tajem.

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