In a pivotal judgement, Malaysia’s Federal Court has ruled that the Native Customary Rights (NCR) of the indigenous Dayak people apply only to a limited area of farmland and not to the forest areas around their traditional longhouses.

The ruling will have major repercussions for all current and future native title cases in the country.

The Dayaks say they have customary rights over the “territorial domain” around their longhouses, including primary forest within that domain, which is usually owned by the community.

Counsel for the respondents in the case, Baru Bian, who is also a state assemblyman, told those anxiously awaiting the judgement: “With a sad and heavy heart I wish to inform everybody that we lost TR Sandah’s case. One judge dissenting.

“Our last hope is applying for a review of this decision at the Federal Court, but before a different panel of judges.”

The ruling yesterday (Tuesday) was a majority decision by three judges, who allowed an appeal in a case filed by headman Tuai Rumah Sandah and seven other landowners in Ulu Machan, Kanowit, in Sarawak on the island of Borneo.

The president of the Court of Appeal, Mohd Raus Sharif, said in a written judgment that there was no legislation in Sarawak that gives the force of law to Dayak claims that they have NCR over virgin forests around their longhouses.

The judges ruled that the customs of pemakai menoa¹ (territorial domain) and pulau galau² (communal forest reserve) do not fall within the definition of law under Article 160(2) of the federal constitution.

The judges said that only the custom of temuda (farmland left fallow, on which there are secondary growths) was recognised by statute. The Federal Court is thus in agreement with the state government that NCR are limited to temuda land.

In 2011, in the Kuching High Court in Sarawak, Tuai Rumah Sandah and the seven other landowners sued the Kanowit timber company and the state government for encroaching into what they said was their NCR land, including their pemakai menoa. The state government has issued a timber licence to the company.

The company argued that NCR should be restricted to the temuda covering an area of 2,712 hectares, which had been cleared before 1958.

However, the High Court judge, Justice Yew, ruled in favour of TR Sandah and the other landowners, declaring that they were the rightful owners of the NCR land in question, including the pemakai menoa, and that the company had unlawfully encroached into Dayak land.

The High Court ruled that the timber company and its agents had trespassed on the Dayaks’ NCR land and should be restrained from further trespassing, clearing, using, or occupying that land.

In 2013, the Court of Appeal upheld the High Court’s decision, and the state government then filed the latest appeal, which was heard more than a year ago, in September 2015.

Baru Bian (pictured left) says that yesterday’s decision “completely finishes off” ten other cases that were won by Dayak landowners at the Court of Appeal and twenty other cases pending at the same court and affects more than one hundred cases pending in the High Court.

“To me, the decision of a dissenting judge (Zainun) is what I see to be correct to the natives in Sarawak. She understood on our custom and agreed with us. If you read the dissenting judgement, her judgement is very clear and that is the correct judgement as far as we are concerned.”

Baru said one of the contradictory issues in yesterday’s judgement was that the judges agreed with all the authorities from other Commonwealth countries that the customs of indigenous people were not subject to statute or laws of those countries because they came under common law.

“Yet in the judgement of the majority, they said there’s no law of Sarawak that recognised it and, therefore, it had no force of law. That is contradictory.”

The Federal Court decision also has far-reaching implications for the indigenous communities in the Malaysian state of Sabah on Borneo and the Orang Asli in peninsular Malaysia who regard their roaming areas (kawasan rayau) as part of the customary territories.

Baru said he hoped that there would be judges from Sarawak or Sabah in a new panel “who really understood the custom”.

He added in a statement: “Now is the time for the Dayaks to ask themselves why the state wants to deprive them of their land by appealing in this case when we won in the High Court and Court of Appeal.

“Now the state will claim that huge tracts of land are state land. Who stands to gain from this judgement?”

The two judges who ruled in line with Justice Raus were the Federal Court judges Ahmad Maarop and Abu Samah Nordin. The Federal Court judge Zainun Ali dissented.

1) The pemakai menoa is the territorial domain held by a longhouse and includes farms, gardens, old longhouse sites, fruit groves, water, and forest within a defined boundary.

2) Pulau galau refers to the area of primary forest outside the cultivated area, but within the pemakai menoa of the longhouse. It is normally owned by the community.

Headline photo: Dayaks conduct a miring ceremony during the appeal hearing in September 2015.

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