Report of the National Inquiry into the Land Rights of Indigenous Peoples 75 appear in the statute book”.228 Justice Wong said that this was consistent with the intention of the Federal Constitution which defines law to include “custom and usage having the force of law in the federation or any part there of”. 5.30 In Mohd Rambli bin Kawi v Superintendent of lands, Kuching,229 Wong J considered whether Malays had customary rights to their kampong lands and the lands on which they foraged, including the swamp land on which they depended for their livelihood. Narratives of respected members of the community and oral evidence were adduced to show that according to Malay customs, a pioneer who occupied an area for farming, planting and generally for “cari makan” in (foraging and general use of the land for livelihood) would have a claim over the land and that land could be inherited by the descendants. Such land may also be inherited or acquired through “serah”, that is to be surrendered to another Malay or native person. “Serah” had developed to an extent that it involved documentation in the form of Surat Perjanjian Menyerah Tanah, and this was upheld on grounds that there was nothing in the their customs that prohibited it. 5.31 The legality of certain development schemes involving native customary lands was the subject of a judgment handed down by Justice Yew Jen Kie, High Court Judge Sibu on 30 April 2012, in the case of Kadam ak Embuyang & 4 Ors v. Pelita Holdings Sdn Bhd & 4 Ors230 involving five Iban plaintiffs, representing 163 other claimants of NCR land situated at Sg. Kelimut, Kanowit, Sarawak. Their NCR lands were recognized by the State Government of Sarawak and were to be developed jointly by the State Government through its development agency the Land Custody Development Authority (LCDA), under a joint venture development scheme called the “New Concept” or “Konsep Baru”. Based on the said “Konsep Baru”, participants would have equitable shareholding in the Joint Venture (JV) Company with LCDA or PELITA holding 40% (10% for LCDA and 30% in trust for the native landowners) and the investor holding 60%. The plaintiff landowners would be deemed to have paid their shares of 30% through the surrender of their NCR lands for the scheme. The official launching was on the 19th of August 1996 by the Chief Minister. On the 14th of January 2002, a Principal Deed was signed between the plaintiffs and Pelita Holdings Sdn Bhd which described the terms and conditions of the Konsep Baru and the operation of the JV company. 5.32 The plaintiffs claimed that Pelita Holdings Sdn Bhd and/or the Superintendent of Lands & Surveys, or the State Government of Sarawak, and/or their servants or agents had represented, and guaranteed to the plaintiffs that in consideration of the plaintiffs assigning absolutely to Pelita Holdings Sdn Bhd, as trustee, their respective interests, rights, shares and estate in the said NCR Lands at Sg Kelimut, the plaintiffs would benefit or profit through the development of the said NCR Lands into an Oil Palm Plantation, and the said profits or benefits would be given after four years of planting oil palm on the said NCR Lands. 5.33 It was held that the “Konsep Baru” to develop NCR lands, was null and void or illegal visà-vis section 8 of the Sarawak Land Code. The said NCR lands were therefore handed back to the natives. An injunction was given against the defendants and their servants ordered to vacate the said NCR Lands. A similar decision was handed down in the case of Masa 228 [2010] 4 MLJ 204,215 229 [2010] 8 MLJ 441 230 Sibu HC Summons No 21-7-2009 chapter 5_a4.indd 75 7/5/13 6:47 PM