KUCHING: The Federal Court here yesterday dismissed an application by a group of Kayans from Long Teran Kanan in Tinjar for leave (or permission) to appeal against the decision of the Court of Appeal (CA) which held that they (Kayans) had no native customary rights (NCR) over two Provisional Leases issued to IOI Pelita Plantation Sdn Bhd for the development of an oil palm plantation.

The FC comprising CA president Tan Sri Raus Md Sharif, Chief Judge of Sabah and Sarawak Tan Sri Richard Malumjun and federal judges Tan Sri Ahmad Ma’arof, Datin Paduka Zaleha Zahari and Datuk Zainun Ali unanimously disallowed the appeal by the NCR claimants.

The Kayans, led by Lah Anyie, named IOI Pelita, the state government of Sarawak and Land Custody and Development Authority (LCDA) as respondents.

They asserted that they had been given the land, within the Bok Tisam Protected Forests (BTPF) in 1964 by the Berawans who allowed them to live in the area with the permission of the then district officer.

In 1997, certain areas were excised from BTPF. Two Provisional Leases (Lot 3 and Lot 8 Dulit Land District) were issued by the government to IOI Pelita, a joint venture company between LCDA and IOI Plantation Berhad.

The Kayans then claimed that the Provisional Leases were unlawfully issued over land which was given to them by the Berawans from Kampung Long Jegan.

They then filed court action against the respondents to declare the Leases null and void and an unspecified amount of damages for trespassing on their NCR land from IOI Pelita.

State Legal Counsel Datuk JC Fong submitted that for the Kayans to succeed in their court action, there must be evidence to show the Berawans had rights to land inside the BTPF, which, according to the customs of the Berawans, could be given to another community, that is the Kayans.

He said the CA found there was no evidence that the Berawans had rights in the BTPF or over land in the Provisional Leases which they could give away to the Kayans.

He added that the official records showed that the Berawans of Kampung Long Jegan never had rights over the areas claimed by the Kayans.

Tan Sri Raus, who headed the panel of appeal judges, agreed, ruling that there was no evidence the Berawans had rights in the BTPF that they could give to the Kayans in 1964. The Berawans only had rights in a different area, namely, the Leminting Protected Forests. Accordingly, Raus held that there was no basis for the Kayans to appeal.

The Federal Court, in dismissing the application, also ordered the Kayans to pay RM5,000 costs to each of the respondents – the State Government, IOI Pelita and LCDA.

Counsels Mekanda Singh Sandhu and Harrision Ngau appeared for the Kayans while state legal counsel Lonie Pinda assisted Datuk Fong in defending the state government. Counsels HC Sim, KY Lin and Lim Lip Tze appeared for other respondents.