Two court updates

Published: 21 May 2015

Kampung Kuala Senta case, Perak

Brief background of case: The Semai of Kampung Senta lay claim to 2,206 hectares of customary land by way of native title under common law. In 2013, a private company started encroaching on their land close to their residential houses, prompting them to lodge police and other reports to stop the encroachment. However in 2013, they were served with eviction notices from the company. The company, Bionest Corporation Sdn Bhd, claim that they are the rightful owner of 113.7 hectares of the land in dispute, and have the title deeds to show for it, and is now suing them for trespass. The Semai are counter-suing to set aside the eviction order and for a declaration that the land is theirs by way of native title under common law.

The hearing was supposed to start today, 21 May 2015, in the Ipoh High Court. Bah Tony Williams-Hunt is the lawyer on record, with Aaron Matthews, Darmain Segaran and Dr. Yogeswaran also for the Semai plaintiffs.

According to Bah Tony, the Perak State Legal Adviser asked for a postponement saying that she needed more time to reply to the Expert Report submitted by Colin. The court granted her this. The court has fixed 19 June for further case management and 6 August for hearing. The State Legal Adviser is looking for a history expert to respond to Colin's report. If there is none, she will opt to cross-examine Colin on the hearing day.

In the meantime, the opportunity was taken to submit a Supplementary Appendix to the Expert Report. Basically this supplementary appendix contained photos of various sites in the village, including the areas under dispute, some old graves and other places that are aimed at helping the parties familiarise themselves with the content and context of the Kuala Senta Customary Territory.


Pos Belatim case, Kelantan

Brief background of the case: The Temiar living in the 7 villages of Pos Belatim in the Gua Musang district of Kelantan filed a Judicial Review in 2011 against the Kelantan State Government and its Land Administrator. They were responsible for alienating the Temiars' customary territories to the state-owned Ladang Rakyat Development Corporation, who in turn leased it out to a plantation company for 99 years to plant oil palm. The judicial review was thrown out by the high court judge. The Temiars appealed the decision and the Court of Appeal ruled in November 2014 that the judge erred in his decision and ordered the case to be re-heard at the Kota Baru High Court before a new judge. This was done on 14 April 2015, with the judge holding back his decision.

The case went on this morning (Thursday, 21 May 2015) at the Kota Baru High Court. Dr. Yogeswaran appeared for the Temiar applicants before Judge Zainal Azman. (Lim Heng Seng, the lead lawyer, was indisposed as he was hospitalized over the weekend for a serious viral infection. He is assisted by Tan Hooi Ping.)

According to Dr. Yogeswaran, the state's preliminary objections have been dismissed and were held to be of no substance. Justicew Zainal held that the Orang Asli's application was not frivolous. He also observed that there was 'something' there for the Court to determine in respect of the effect of the ladang rakyat agreement on the applicants' common law rights based on their claims of pre-Merdeka occupation of the lands in question.

The Court of Appeal's earlier order for discovery of documents also apparently influenced the learned judge in wanting to hear the application on its merits. The Court then ordered that it will proceed to hear the judicial review application.

The court also fixed the following dates: 21 June 2015 - case management for state to respond to expert report. 14-15 September 2015 - Hearing and cross examination of deponents. 13 October 2015 - Submissions.

COAC | 21 May 2015