Report of the National Inquiry into the Land Rights of Indigenous Peoples 73 rights to those under native title of the Australian Aboriginals … enforceable as common law rights.’218 Extinguishment of this title could only occur as a result of ‘clear and unambiguous words’ of the legislature.219 5.21 Despite increasingly comprehensive regulatory legislation, the court found that the Government had not indicated a clear intention to eliminate customary rights. Ian Chin J found that the ‘native customary rights of an Iban to do things associated with the terms temuda, pulau and pemakai menoa have not been abolished’ but survived through the Brooke orders and ordinances of the colonial period up to the present.220 5.22 On appeal, in Superintendent of Lands & Surveys, Bintulu v Nor Anak Nyawai & Ors and another (‘Nor Nyawai II’), the Court of Appeal affirmed the High Court’s conclusions on the law saying: “In respect of the other expositions of the law by the learned judge in relation to native customary rights, we are inclined to endorse them. And briefly, they are as follows: (a) that the common law respects the pre-existence of rights under native laws or customs though such rights may be taken away by clear and unambiguous words in a legislation; (b) that native customary rights do not owe their existence to statutes. They exist long before any legislation and the legislation is only relevant to determine how much of those native customary rights have been extinguished; (c) that the Sarawak Land Code ‘does not abrogate whatever native customary rights that exist before the passing of that legislation’. However, natives are no longer able to claim new territory without a permit from the Superintendent of Lands and Surveys’ under s 10 of that legislation; and (d) that although the natives may not hold any title to the land and may be termed licensees, such license ‘cannot be terminable at will. Theirs are native customary rights which can only be extinguished in accordance with the laws and this is after payment of compensation.”221 5.23 The Court of Appeal affirmed the fact that the Iban customary practice of pemakai menoa existed as an established custom relating to land. It however, overturned the High Court’s ruling that they had a right to the disputed area on the grounds that there was insufficient evidence to show occupation of the area.222 The trial judge’s finding of occupation of the disputed land was based on evidence adduced that the area in question was the pemakai menoa of the plaintiffs, which included the temuda, tanah umai, tembawai and the pulau-galau. 5.24 The Court of Appeal’s focus, however, was on the existence of temuda in the disputed area, thereby shifting the emphasis to cultivation of the land and modifying the basis upon which the High Court’s decision was made. The Court of Appeal accepted the finding that Iban customs of pemakai menoa, temuda and pulau formed part of the laws and customs of the plaintiffs; however, as regards the application of concept of pemakai menoa it focused only on evidence of past cultivation or temuda. 218 Nor Nyawai I [2001] 6 MLJ 241, 251. 219 Nor Nyawai I [2001] 6 MLJ 241, 245. 220 Nor Nyawai I [2001] 6 MLJ 241, 267. 221 Nor Nyawai II [2006] 1 MLJ 256, 269-70. 222 Nor Nyawai II [2006] 1 MLJ 256. chapter 5_a4.indd 73 7/5/13 6:47 PM