Report of the National Inquiry into the Land Rights of Indigenous Peoples 71 revocation of the reservation of 115 acres of land in the Reserve and the vesting of that portion of land in another was null and void. Furthermore, they sought the issuance of a title for the whole of the land in the Reserve to Penampang Grazing Cooperative Society Limited, who represented the natives in Penampang and Telipok. Having regard to the historical events leading to the publication of the gazette notification, the plaintiffs had customary tenure over Kampong Kayu Madang Native Reserve. 5.13 Following Naung Felix’s case the court declared that persons having native customary tenure as defined under the SLO should be accorded the same status as one who was in possession of a title deed. It was not within the State’s right to disregard the plaintiffs’ rights and interests or to degazette any part of the area that was gazetted as a native reserve. Since the plaintiffs had proven their customary tenure over the lands, it was wrong for the defendant, the State of Sabah, to ignore the proprietary rights and interests of the natives in the Kampung Kayu Madang Native Reserve which still subsisted. 5.14 With regard to procedure, the case of Darinsok Pangiran Apan & Ors v Hap Seng Consolidated Berhad210 made it clear that the High Court does not have original jurisdiction to hear cases on native customary rights. A claimant would have to seek the Court’s assistance through appellate jurisdiction from a decision of the Director, which is appealed from the decision of the ACLR. This procedure has the potential to cause “bottlenecks” and have been a cause of complaints and distress as seen in Rambilin’s case. NATIVE CUSTOMARY LAND RIGHTS IN SARAWAK 5.15 The concept of customary land rights was tested in the case of Nor Nyawai v Borneo Pulp Plantations & Ors. The plaintiffs who were residents of Rumah Luang and Rumah Nor, two longhouses located along the Sekabai River in Bintulu, Sarawak, claimed that the defendant timber companies had trespassed and damaged their ancestral land. The Bintulu Superintendent of Lands and Survey, the third defendant, had issued a provisional lease to the first defendant, Borneo Pulp Plantations Sdn Bhd, covering the disputed land. The first defendant then subleased the land to the second defendant, Borneo Pulp & Paper Sdn Bhd, the contractor company responsible for clearing the land for a tree plantation. 5.16 The plaintiffs did not hold documentary title to the land. Their claim rested on their exclusive use and occupation of the land under a customary system of territorial control. More particularly, they claimed that under Iban custom, they had acquired native customary rights to lands that they regarded as pemakai menoa, (land to eat from) part of which had been encroached upon by the defendants. The plaintiffs argued that under Iban custom, their pemakai menoa covered territorial rights within the garis menoa (boundaries) which included their tanah umai (gardens), temuda (secondary jungle), tembawai (old longhouse sites) and pendam (burial grounds) and pulau (reserved forest for use of the community). They argued that their customary rights to their lands were protected under the common law and constituted statutory rights recognised by the Land Code 1958 and its predecessors. 5.17 The High Court acknowledged the existence of the Iban custom and held that the disputed area fell within the boundaries of the longhouse, occupied and accessed by the plaintiffs’ 210 [2009] 7 MLJ 214. This decision was in line with other High Court decisions including Burhan bin Ating & Ors v Directors of Lands & Surveys & 2 Ors [1992] 2 CLJ 1203 which held that High Court had no original jurisdiction over NCR and State Government of Sabah v Francis Lim & 5 Ors (K24-62-93 Unreported judgment) 30 December 1993, which held that claims for NCR must be decided by the ACLR in the first instance. chapter 5_a4.indd 71 7/5/13 6:47 PM