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Malaysian court upholds Native Customary Rights
The federal court of Malaysia upheld the concept of native customary rights (NCR) in a case initiated by a local resident Madehi Salleh, reported the Malaysian newspaper Malaysiakini on 5 May. The court ruled to apply the concept of NCR to communal forest and territorial domain as well as cultivated land.
The ruling came as a victory for Salleh, who claimed NCR rights over former Shell concession land in Miri. Salleh originally filed his case in the Sarawak state courts, but lost after an appeal by the Sarawak government. Salleh then took his case to the federal court, where he won after the application by the state government of Sarawak was dismissed.
“The court recognised the pre-existence of NCR before the coming into force of any statue or legislation, in particular the Rajah Order of 1921,” writes Tony Thien, author of the Malaysianiki article. “It said the reservation of the land under the Rajah’s Order for Sarawak Oilfields Ltd (SOL) did not have the effect of extinguishing NCR to the land. There was no provision whatsoever in the Rajah’s Order that extinguished Madeli’s NCR to his tract of land, the judges said, noting that all it did was to reserve the land for SOL. Furthermore, the Federal Court said native rights to occupy untitled land in accordance with customary laws subsisted in an area reserved for operation of SOL. Individual rights of natives were the same as communal rights, it added.”
Lawyers dealing in NCR cases see major implications for the some 200 land cases filed to date against the state government and companies engaged in plantation and logging activities. Thien reports that “millions of hectares of land have been leased out over the past 20 years to many companies and state agencies.” This ruling suggests NCR claimants have gained considerable legal standing and may more readily pressure logging and plantation companies into negotiations.
Posted By Marina France at 5:10pm on May 06, 2009
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