Appeal Court reverses NCR verdict on turtle egg collection
Published on: Friday, December 14, 2012
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Kota Kinabalu: The Court of Appeal on Thursday allowed the State Government's appeals against the High Court's decision to grant customary rights to two traditional turtle egg collectors to collect the eggs at Pulau Sipadan.
The appellate court also dismissed the claim for Native Customary Right over the whole Sipadan island by one Haji Abdillah Haji Abdul Hamid.
Justices Datuk Ramly Haji Ali, Dato' Anantham Kasinather and Dato' Abdul Aziz Abdul Rahim unanimously allowed the State Govern-ment's four appeals after hearing submissions from all parties.
The appellate court held that on the question of Native Customary Rights (NCR), they were not satisfied that both individuals (Ab Rauf Mahajud, 70, and Haji Abdillah) have established NCR.
"NCR was in any event extinguished by legislation," they ruled.
They also held that the collection of turtle eggs in the island is illegal by law and that the question of compensation does not arise.
The court further said that the possession of turtle eggs did not arise by way of NCR under Section 15 of the Sabah Land Ordinance and also not a property of Ab Rauf and Abdillah.
The State Government and the Board of Trustees of the Sabah Parks were appealing against Ab Rauf Mahajud in the first appeal.
In the second appeal, the Semporna Assistant Collector of Land Revenue (ACLR) and State Government was appealing against Haji Abdillah Haji Abdul Hamid, while the third appeal was by Ab Rauf against the State Government and the Board of Trustees of the Sabah Parks - all appeals on the issue of liability.
The fourth appeal was by the State Government and the Board of Trustees of the Sabah Parks against Ab Rauf, and the fifth appeal by Semporna ACLR and State Government against Abdillah, both appeals on the consequent issue of quantum.
State Attorney General Datuk Roderic Fernandez defended the State Government, Ab Rauf was represented by counsel Yunof Maringking while Abdillah was represented by counsel Alex Decena and Shireen Sikayun.
The High Court, which heard both Ab Rauf and Abdillah's suits together on the issue of liability, had on Dec. 15, 2009 allowed the application by traditional turtle eggs collector Ab Rauf and 70 family members to collect the turtle eggs around Sipadan.
The High Court also granted a similar claim by businessman Haji Abdillah on Native Customary Rights over 2.5 acres of ancestral land on the island to collect turtle eggs and ordered the Deputy Registrar to assess damages on both suits.
The High Court Deputy Registrar, who heard the assessment of damages of both suits, had on April 20, 2011 awarded damages of RM4,376,008.75 to Rauf's suit in respect of the right to collect turtle eggs and awarded damages of RM5,524,711.04 to Abdillah and also awarded damages of RM26,500,000 to Abdillah in respect of the loss of the tourist resort, which Abdillah would otherwise have developed on the 2.5 acres of native customary right land on the island.
The appellate court in Thursday's proceedings, also dismissed Ab Rauf's appeal against the part of the High Court decision which had dismissed his claim for native customary right over the whole Sipadan island.
Earlier, Roderic, among others in his submission, said that the collection of turtle eggs is totally prohibited on Sipadan island or anywhere in Sabah since July 31, 1998 and that the right to collect turtle eggs on Sipadan island is not a native customary right within the definition of Section 15 and 65 of the Land Ordinance.
The island had been reserved for public purposes particularly of a bird sanctuary since 1933 and no one can claim it even via NCR and both Ab Rauf and Abdillah had not established the NCR factually, said Roderic.
Sipadan on Sept 24, 1997 was declared a protected area under the Protected Areas Order 1997 and under the control and management of the National Security Division, which remains so until today, he said.
When Malaysia went to the International Court of Justice (ICJ) to challenge Indonesia's claim to the island, it was not Malaysia's argument on the continuity of occupation on the island as the ICJ judges found it on different principles, he said.
Meanwhile, Decena submitted among others that having established NCR under common law, Abdillah does have propriety rights over Sipadan island under the Land Ordinance even though the island had been reserved as a Bird Sanctuary and that despite the ban under the Wildlife Conservation Enactment 1997 on collecting turtle eggs in Sipadan and elsewhere in Sabah, the enactment does not extinguish Abdillah's NCR to collect eggs on the island, established under common law.
Even if the enactment does extinguish Abdillah's NCR to collect and sell eggs from the island, he is entitled to compensation for loss of the right, said Decena.
Ab Rauf in his application on Dec 8, 2006 to seek an injunction against the State Government and Board of Trustees of Sabah Parks (defendants) from continuing to possess the island, said he is an heir of Maharaja Ligaddung Samang, who had the right to collect turtle eggs on the island which was recognised by the then British Government in letters dated Jan 25, 1916 and July 5, 1957, respectively.
He said the Federal Government had also recognised his grandfather's right to collect turtle eggs on the Island and the State Government had also sought his grandfather's cooperation to challenge Indonesia's claim to the Island in the International Court of Justice (ICJ), which ruled in favour of Malaysia.
He further said that the Tawau Syariah Court granted him an order on Nov 23, 1998 to inherit the right to collect turtle eggs for 40 nights a year.
The Sabah Government took over the island in 1997 and, without consent, licensed 12 tourism companies to run business there, thus his families were prohibited from collecting turtle eggs, said Ab Rauf.
Ab Rauf also wanted the court to rule whether the defendants are liable to pay compensation to his family for the loss of their right of use and occupancy of the Island under customary tenure resulting from the application of the Wildlife Conservation Enactment 1997 and or the licensing of 12 companies to do tourism business on the Island.
Meanwhile, Abdillah's ancestors had built, lived and maintained a house on the island and planted coconut trees and tapioca over 2.5 acres on the island and Abdillah, who inherited that NCR continued to collect and sell turtle eggs from the island and maintained the house and the 2.5 acres.
