Natives must be told, rules court
Published on: Sunday, January 11, 2015
 7.jpg "Natives must be told, rules court")
SANDAKAN: The High Court here has declared null and void the alienation of a parcel of land measuring 500 acres at Kg Ansuan, Telupid, by the of Lands and Surveys Department for failing to give sufficient notice of the said application to natives claiming native customary rights under Section 13 of the Sabah Land Ordinance. Judicial Commissioner Datuk Douglas Cristo Primus in delivering the landmark decision on Thursday also declared that the Lands and Surveys Department Director and the Sabah State Government have a fiduciary duty to the natives of Sabah in safeguarding their native customary land. Having considered the evidence adduced at the trial, Primus declared that the native defendants have proved native customary rights in the land claimed by them.
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As to the sources of native customary rights, Primus referred to, amongst others, Article 9 of the British North Borneo Treaties, 1881, which provides that in the administration of justice to the people of Borneo or to any inhabitants thereof, careful regard shall always be had to the customs and laws of the class or tribe to which the parties belong especially with respect to holding, possession, transfer and disposition of lands and succession.An activist on land rights for indigenous people, Galus Ahtoi, said it was an important judgment and breakthrough on native land rights in Sabah delivered by the High Court, affirming the recognition and respect to native land rights in land alienation process provided under the law. "In this judgment, the High Court has nullified a land alienation process as well as the land title issued by the Department because the due process provided in the Sabah Land Ordinance under Section 13 was not complied with," Galus disclosed."During the trial, the High Court found that no sufficient notice tantamount to no notice was given to the natives, who may have claims for native customary rights in the land applied by Sudi Kembang Sdn Bhd," said Galus, who was an observer during the trial which took 12 days.
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"In the past, massive acreage of customary lands were lost due to a stroke of the pen because insufficient notice or no notice of land application were brought to the attention of the natives whose ancestral and customary lands were affected by such applications."Most, if not all, of the incidents of encroachment and disputes to customary lands arose only when the successful land applicant as registered owner entered the land to carry out site clearing after a land title had already been issued by the Lands and Surveys Department.
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"To the natives of Sabah, this decision is a milestone because the High Court has given the true intent, purpose and effect to the requirement of such a mandatory notice under Section 13 of the Sabah Land Ordinance."I have no doubt that the non-compliance with the notice requirement under section 13, if not rectified and improved, will make many natives of Sabah in the rural areas to become landless people and squatters in their own ancestral land."Therefore, with this judgment of the Sandakan High Court, the Department should improve and give full effect and practical mechanism to Section 13 notice in order to safeguard the property rights of the natives," Galus said. Under Section 13 of the Sabah Land Ordinance, it is specifically provided that upon receipt of any application for unalienated country land, it shall be the duty of the Collector to publish a notice calling upon any claimant to native customary rights in such land who is not yet in possession of a registered documentary title to make or send in a statement of his claim within a date to be specified in the notice. If no claim is made the land shall be dealt with as if no such rights existed. In 1995, the Lands and Surveys Department approved and alienated to Sudi Kembang Sdn Bhd, the plaintiff in this suit, 500 acres at Kg Ansuan in Telupid and a land title in Country Lease for 99 years was issued to the company in 2001. Sometime in 2004 when the company started site clearing and developing an oil palm plantation in the land, the company found that a portion of the land measuring about 15 acres was being occupied and cultivated by the late Yahsu Linggis, who was the father of the two defendants' Marsius Yahsu and Alfeus Yahsu, planting oil palm in about 10 acres of the land. In 2011, Sudi Kembang Sdn Bhd filed the writ action against the defendants at the High Court seeking an injunction to evict them from the land and claiming damages. By then, the defendants' father, Yahsu had passed away due to an accident. The defendants counter-claimed against the company and the relevant authorities as third parties including the Lands and Surveys Sabah Director and Sabah State Government relying on their native customary rights in the land inherited by them from their late father Yahsu. Marsius and Alfeus claimed that the land in question had been their ancestral land held under custom from generation to generation for at least four generations known to them since the colonial administration. In his judgment, Primus declared that the defendants have proved their native customary rights in the land and further ordered that damages sustained by the defendants to be assessed by the court registrar. "My lawyer Datuk Kong Hong Ming told me immediately after the judgment that my late father can rest in peace now. Only then, I realised that the court has allowed our claim of ownership in the ancestral land. "My brothers and I had buried our late father in the land in September 2009 according to his dying wish," said Marsius who had to stop schooling at age 12 to help his late father in his farm so that his two younger brothers could go to school. "Tomorrow, I will accompany my youngest brother Alfeus to the Telupid police station to inform the police and the prosecution not to proceed any further with the criminal charge and trial against my brother now that the High Court has declared our rights in the land", said Marsius, who expressed his appreciation to his lawyer Kong who has acted for them providing pro bono legal service for more than three years. It was learnt that in 2011, Alfeus who was 20, was charged with theft as a result of a police report lodged against him by the company. Stay up-to-date by following Daily Express’s Telegram channel.
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