Saturday 18 June 2011

S'wak gov't strikes back at NCR land owners

The Sarawak state government is striking back at the native customary rights (NCR) land owners after it lost a court battle in the Pantu land case.

james masingLand Development Minister James Masing (right) said today he will table the Land Custody and Development Authority (Amendment) Bill 2011, which seeks to plug the loopholes in the LCDA Ordinance.

He confirmed that the amendments to the LCDA Ordinance arise out of the Pantu land case in which High Court judge justice Linton Albert made a damning judgment against the state government, state-owned LCDA and Pelita Holdings Sdn Bhd over the principle deed signed with a group of NCR landowners claiming native customary rights to the land.

“We can't have a decision that affects the investors' confidence. We need to protect those who have invested huge sums of money in the oil palm plantations,” he said.

He said landowners who have signed the development agreements cannot later on withdraw from the NCR land development, once the amendments come into force.

“They have to stick to the agreement,” Masing, who is also the Parti Rakyat Sarawak (PRS) president, insisted.

NCR land law expert See Chee How said the tabling of the Bill showed that the government does not believe in the court's decisions.

See, who is also the PKR Batu Lintang state assemblyperson, said the Bill should not have retrospective effect.

“Yes, your suspicion is right that the tabling of the Bill has something to do with the Pantu land case,” he said when contacted.

The Bill, to be tabled at the next week's meeting of the Sarawak state legislative assembly, seeks to spell out more clearly the functions, role and responsibilities of LCDA in regard to the development of land declared as a development area.

The Bill, under clause 3, seeks to define a company formed by LCDA and whose controlling shares are held by LCDA as “native” for the purposes of the Sarawak Land Code.

The state government and LCDA lost in the Pantu land case because the court ruled that the joint company formed by LCDA was not a native under the Sarawak Land Code.

This is what Masing meant as plugging the legal loopholes in the LCDA Ordinance.

NONEBut the far-reaching consequences of the Bill is on the introduction of Clause 7 which seeks to amend Section 12 of the Principle Ordinance to empower LCDA or any person authorised by LCDA, to enter upon and remain on land within a development area, where development agreements have been signed.

In undertaking development of the land in a development area, LCDA acts as the agent of the government. Thus, the provisions of Section 29 of the Government Proceedings Act, 1956, should apply to LCDA.

The section prohibits the court to grant any injunction or order of possession against a government, or its public officer or agent.

Any disputes or differences concerning any development agreement will be referred to mediation, and if it fails, to arbitration.

Such requirements will be deemed to have been incorporated into any development agreement signed before or after the date of coming into force of the proposed amendments.

The Bill states that the new proposals are intended to facilitate the resolution of disputes between the parties to the development agreements, including the owners of NCR land, in an amicable manner.

In the Pantu Land case, the court attacked a joint-venture agreement (JVA) between Pelita Holdings Sdn Bhd (PHSB) and a plantation company, Tetangga Arkab Sdn Bhd (TASB) and Tetangga Arkab Pelita (Pantu) Sdn Bhd (Tetangga).

Tetangga is the joint venture company formed by PHSB and TASB that undertook the development of an oil palm plantation project involving the NCR land in Pantu district.

The principle deed and the JVA were signed on Sept 3, 2004 for the development of 7,000ha of NCR land.

Twelve NCR landowners have sued the Land Custody and Development Authority (LCDA), PHSB, Tetangga and the state government as first, second, third and four defendants respectively.

PHSB is a wholly subsidiary of LCDA, a state government land agency.

The plaintiffs are Masa Nangkai, Christopher Ambu, Engkana Talap, Sinju Senabong, Uban Bundan, Albert Waler Skinner Tulis, Jacob Emang, Len Jubang, Liap Giling, Ivanhoe Anthony Belon, Morice Renggi and Gima Belon.

They were suing on behalf of themselves and 90 other occupiers, holders and claimants of NCR land situated at or around Kampung Tekuyong, Kampung Dadak Aping, Kampung Aping, Kampung Lubok Abok, Kampung Sungai Tenggang, Kampung Limau and Kampung Pantu.

The plaintiffs claimed various declaratory reliefs relating to their native customary rights over land in the disputed area land which was established to be within the oil palm plantation project and for restraining orders against LCDA, PHSB and Tetangga and for them to give vacant possession of the plaintiffs' native customary rights land and damages.

'Fig leaves too scanty to conceal violations'

In his judgment, Justice Albert said the principle deed and the JVA had deprived the plaintiffs of their native customary rights land which was a source of their livelihood and lost the rights to their property which were violations of Articles 5 and 13 of the constitution.

“Irrespective of the cleverly-devised legal mechanism and legalistic language which constituted the principal deed and the joint-venture agreement, they are mere fig leaves too scanty to
conceal their violations of Articles 5 and 13 of the constitution because the sum total of the rights of the landowners, to put it crudely, and for want of a better word, is zero,” Albert had said.

He said this was patently demonstrated by the following aspects of the principal deed which was briefly set out for emphasis and at the risk of repetition.

“Firstly, PHSB was to receive and collect the benefits of the development of the native customary rights land into an oil palm plantation, not the landowners;

ncr land sarawak and palm oil plantation“Secondly, the commercial development of the native customary rights land into an oil palm plantation was to be carried out by a joint venture company formed by PHSB and TASB, a
company exclusively chosen by PHSB under a joint-venture agreement in respect of which the landowners are not even a party to.

“Thirdly, the native customary rights lands are immediately amalgamated and title is to be issued in the name of the 'joint venture' company and the landowners would have no beneficial legal equitable or caveatable interest in the land to be issued with title.

“And one can go on and on to illustrate how the terms of the principal deed have stripped the landowners of their rights in every conceivable way and reduced those rights into nothingness.

“The fact that the landowners were not parties to the agreement between PHSB and TASB, under which it was agreed for the commercial development of the native customary rights land by Tetangga, meant that the landowners' rights in and over the oil palm plantation was also definitively zero.

The judge said the JVA was also in contravention of Section 8 of the Land Code because neither TASB nor Tetangga had been declared a native at the time of the JVA and it did not matter that Tetangga was subsequently declared a native because it is a principle of antiquity that things invalid from the beginning cannot be made valid by a subsequent act.

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