In his Judgment, made available yesterday, Justice Dato' Abdul Aziz bin Abdul Rahim held that the ministerial direction gazetted as the Land (Extinguishment of Native Customary Rights) (Kawasan Kebanjiran Bakun II) (No. 26) Direction 1997, which came into force on 23.6.1997, is valid and effective.
In the action filed in the Kuching High Court, the natives have challenged the extinguishment of their NCR over land which would soon be flooded to create a reservoir for the Bakun Hydro-electric Project.
The Government had agreed to compensate them, but the natives had decided to challenge the extinguishment of their NCR on constitutional grounds in, that they had cultural attachment to what they considered to be their "ancestral" land and their livelihood depends on their continued occupation of their native customary land.
The Government took the stand that their land is required for a public purpose, namely, the implementation of a national project as hydro power generated at Bakun would be transmitted to Semenanjung Malaysia.
Justice Dato' Abdul Aziz held that though the common law respects the pre-existence of rights under native laws and customs over land, such rights may be taken away by clear and unambiguous words in a legislation.
He held that in the context of Sarawak, Section 5(3) of the Land Code is clear· enough to permit the extinguishment of NCR with provision for compensation.
He held that Section 5(3) did not infringe Article 13(1) of the Federal Constitution which provides that no person shall be deprived of property save in accordance with the law and that law must' provide for adequate compensation.
He held that both these requirements were satisfied by the provisions of Section 5(3) and (4). On the issue raised by the Plaintiff that the process of extinguishment of NCR by the Minister lacked "procedural fairness", in that the natives were not consulted prior to the extinguishment of their NCR, Justice Dato' Abdul Aziz held that the decision to extinguish the NCR by the Minister is "an exercise of administrative discretion depending on the exigency and expediency of the State."
He held that:"In my view land development and planning for land use in the State is the prerogative of the State. The State needs to act with speed and expediency when planning for the development of the State for the good of the public.
This speed and expediency would be lost if the State is required to accord a right to be heard to every native who claims to have rights to use State land over which NCR is said to subsist before gazetting a Direction under the impugned provisions to extinguish such rights over land required for development.
This will impede the State in carrying out its planning for land development and land use in State particularly, and the development of the State generally since land is one of the most important factors in development planning."
Based on these grounds, the Court held that under Section 5(3) and (4) of the Land Code, the State Government is not obliged to accord the natives the right to be heard before issuing the direction on the extinguishment of the NCR, and that the law under which the Government extinguished the NCR is valid and constitutional.
The natives were represented by Raja Aziz Addruse, a senior member of the Malayan Bar and Mr. Paul Raja of Sarawak. Datuk J.C. Fong, State Counsel (former State Attorney General) together with Mr. Joseph Chioh, appeared for the state government.
Additional Information. The area where the NCR was extinguished is to be flooded to form the reservoir for the Bakun Hydro-electric Project. Civil works on the 216m tall Dam have been completed and the impounding of the river to create the reservoir is likely to start very soon.
The outcome of the decision means that the NCR issues surrounding the Bakun Hydro-electric Project have been substantively resolved.
The Plaintiffs in the case are Bato Bagi, Bit Buneng, Siring Angah, Dato Lian, Awan Aing and Ngajang Midin. The sole Defendant is the Government of Sarawak.