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Ramy Bulan[*]
On 17 June 2005 the Sarawak Tribune carried the caption ‘Land Unsurveyed or Without Title Belongs to the Government’.[1] The Sarawak State[2] Second Minister of Resource Planning and Management said ‘the State Government will only recognise a right or claim to government land if it was created in line with the relevant written laws of the State Government, including the Royal Orders brought into effect before January 1 1958’. The report drew a public outcry and caused alarm among the Indigenous community in Sarawak. The reported statement was made in response to an assemblyman who pointed out that ‘to the people [natives] in the villages, all land occupied by them belongs to them but to the Government all such land are state land’. He asked: ‘How do we reconcile this statement so that both parties will understand each other in terms of the legal implications?’
The Minister was referring to restricted Native Customary Rights (‘NCRs’) as regulated by the Land Code 1957 (Sarawak) (‘Sarawak Land Code’) rather than the broader native conception of native customary tenure under native law and customs. Under the Sarawak Land Code NCRs are only recognised if they are created through methods specified under section 5 and subject to the cut off date of 1 January 1958.[3] However, a permit can also be obtained from the Minister for the further creation of rights;[4] rights may also be available under the reserve system mandated by section 6 of the Sarawak Land Code.[5] In contrast, under native law and custom each native community has an exclusive right to occupation, use and exploitation in a general territory and a member has a customary right by virtue of his or her membership of that community with an entitlement that is subject to the customary laws of that particular community. A person who clears virgin jungle has exclusive rights to cultivate and re-cultivate cleared land; that right is passed to his heirs and descendants. Cultivated land may be left fallow as secondary growth[6] to restore itself to its original fertility. Once it reverts to forest fallow, it is available to the community for fishing, hunting or gathering of forest produce; nevertheless, the pioneer household retains the pre-emptive right over the land for re-cultivation.
The above discourse demonstrates the common view that there is a collision between the Indigenous notion of land ownership, which is essentially communal ownership based on occupation, and the State’s view, which is often based on registration of title. There is a tendency on the part of the State towards only recognising rights that exist under positive law. This paper examines the co-existence of these sources and suggests that they need not be seen as inherently in conflict with one another.
In 1997 the Malaysian High Court established the application of a native title doctrine in Adong bin Kuwau v Kerajaan Negeri Johor.[7] Adong was the first case in which an Indigenous community, the Orang Asli, had successfully challenged the State’s deprivation of their lands. It was significant because it established that Orang Asli had a common law right to their ancestral lands. The Court also acknowledged their statutory rights under the provisions of the Aboriginal Peoples Act 1954 (Malaysia) (‘Aboriginal Peoples Act’) and a constitutional right under the Federal Constitution. The Court held that those rights were ‘complementary’ rights and should be looked at ‘conjunctively‘. Adong was followed by Nor Anak Nyawai & Ors v Borneo Pulp Plantations & Ors,[8] a case dealing with the NCRs of native Iban whose lands were affected by a tree plantation in Sarawak. In Sagong Tasi & Ors v Kerajaan Negeri Selangor[9] the Court considered the NCRs of Orang Asli to lands that were affected by the construction of a highway to Kuala Lumpur International Airport. These cases dealt with different statutory regimes governing the Indigenous peoples of Malaysia: the natives in Sarawak under the Sarawak Land Code in Nor Nyawai; the Orang Asli under the Aboriginal Peoples Act in Adong and Sagong Tasi. Each of these cases dealt with the interaction of common law, statutory provisions, the customary practices of the Indigenous communities involved, and the recognition of those rights under the Federal Constitution.
It is suggested that the term ‘complementary’ describes not only the specific right and its source, but is in fact indicative of an expansive ‘technique’ that bridges not only statutory and common law rights, but encompasses the Indigenous concept of land ownership. In the result, these rights do not take their meaning wholly from the philosophies that underlie the ‘western’ canon of law, which in Malaysia often has an Austinian, positivist bent. The existence of native title rights may be recognised and facilitated by the common law and regulated by statutes; their source, however, is fundamentally customary law, which goes beyond the statutory provisions to take into account native peoples’ historical presence, occupation and connection to the land, and the rights which arise out of traditional laws and customs (adat). These are sui generis rights that are protected under the Federal Constitution.
The definition of law under Article 160 of the Federal Constitution includes ‘customs and usages having the force of law’. This makes customary law an integral part of the legal system in Malaysia. Customs are established through long usage, so that by common consent they have become the accepted norm or the law of the place to the exclusion of ordinary law.[10] A custom would be upheld if it is of great antiquity, and is immemorial. This means that in the absence of sufficient evidence rebutting its existence, custom will be found to exist if ‘there is proof of the existence of the custom as far back as living witnesses can remember’.[11] It has been suggested that what ascribes legal consequences to a custom is the law of tradition. If, according to tradition, a pattern or custom has become a tradition which the tribe clearly wishes to maintain, and tribal elders would use whatever coercive powers they may possess to do so, one may ascribe the force of customary law to such custom. 12
Customary law encompasses regular patterns of social behaviour accepted by a given society as binding upon itself for the purpose of generating harmonious inter-personal relations and to facilitate conflict resolution and the maintenance of a cohesive society.[13] Norms related to what is perceived as correct social behaviour, prescribed rules for ceremonies including marriage and religious rites, agricultural systems, and the means for settling disputes are all part of customary law.[14] In some jurisdictions this system of law is also referred to as ‘traditional law’ or ‘tribal law’. In Malaysia, the term ‘customary law’ is used interchangeably with adat or ‘native law and custom’. The customary laws that have evolved within the legal system form part of the laws that govern and protect native rights in Malaysia. This can only be properly understood within the context of Malaysia’s history and demography.
The Federation of Malaysia is made up of 13 states, 11 of which are in the Malay Peninsula. Two states, Sabah and Sarawak, are part of the island of Borneo.[15] Sarawak is the largest state with an area almost equal to the area of all the states in the Peninsula. Under the Ninth Schedule of the Federal Constitution, the executive and legislative powers of the Federation are divided between the central and state governments. The states exercise exclusive powers over Islamic law; Malay and native customs; land, forestry, and agriculture; local government; and, the machinery of the state governments. Sabah and Sarawak are especially concerned with the preservation of native law and customs, particularly in relation to the safeguarding of the special interests of Indigenous peoples.[16]
About 65 percent of Malaysia’s multiethnic, multicultural, multi-religious population of nearly 24 million is comprised of the Indigenous population, of which Malays form the majority. In the immigrant population the Chinese comprise 26 percent and Indians 7.7 percent. In Peninsula Malaysia the Indigenous Orang Asli (literally, ‘original peoples’) or Aboriginal people form about 0.5 percent of the population, numbering a little more than 100,000 individuals.[17] In Sarawak the predominant ethnic group in the 2000 census were the Iban, who accounted for 30.1 percent of the State’s population; this was followed by the Chinese at 26.7 percent and the Malays at 23 percent. Minority Indigenous groups comprise another 5 percent of the State’s population. In Sabah, the predominant ethnic group are the Indigenous Kadazan Dusun and the Bajau, who make up about 35.7 percent of the population; Malays comprise about 15.3 percent. The Indigenous groups in Sabah and Sarawak, officially called ‘natives’, traditionally occupy the interior areas of these states where their communities continue to be governed by customary laws. Befitting the multicultural ethnicity of the nation, the Malaysian legal system is a pluralist system integrating common law, syariah law and customary law.
Before the arrival of the British, Malaysian law comprised Malay adat and the customary laws of Indigenous and foreign communities. These included Aboriginal or Orang Asli customary laws, Chinese and Hindu customary laws, and native customary laws of the non-Malay Indigenous communities of Sabah and Sarawak. These customary traditions constituted ‘personal laws’ of the communities. This meant that they were recognised as being applicable to members of any racial, religious or other community because they were members of the community. The system ‘of personal laws’ was initially allowed as an exception to the general principle that English law was the law of general application.[18] Principles of English common law and equity applied, subject to such qualifications as the religions, manners and customs of the local inhabitants permitted.[19] This express recognition of customary laws applied to various communities. Of these customary laws, the Aboriginal and native customary laws and, to some extent, Malay customary laws have continued to be of significance in matters of family law and customary land tenure.[20]
The Malays, Aborigines and Natives are the Indigenous peoples of Malaysia. The application of customary laws as a ‘system of personal laws’ means that the question of Indigenous or native identity is crucial to determining entitlement to rights based on customary laws, native laws, and custom.
Article 160 (2) of the Federal Constitution defines a Malay as:
(a) one who professes the religion of Islam, habitually speaks the Malay language and conforms to Malay customs; and
(b) was, before Merdeka (Independence ) Day, born in the Federation or in Singapore or born of parents one of whom was born in the Federation or in Singapore, or was on Merdeka day domiciled in the Federation or in Singapore;[21] or
(c) is the issue of such a person.
Practically, for the purpose of the Constitution, a person may not strictly be of Malay ethnic origin. An Indian might be a Malay if he professes the Muslim religion, habitually speaks Malay, and conforms to Malay customs. Conversely, a Malay by birth who does not profess the Muslim religion does not satisfy the conditions in Article 160(2). The requirement of connection to the Federation and Singapore means that an Indonesian who satisfies the first limb would not satisfy the test unless he or she was born in the Federation or Singapore before independence or was domiciled there on Independence Day.[22]
While each state has its own definition of a Malay, all state definitions emphasise the Malayan origins of the person, the habitual speaking of the Malay language, and the profession of the Muslim religion. For the former Federated Malay States (Negeri Sembilan, Pahang, Perak and Selangor) a Malay must belong to ‘any Malayan race’ and speak ‘Malay or any Malayan language’.[23] The Kedah[24] and Perlis[25] Enactments include Arabs as Malays as long as they are Muslim and speak Malay. Each Enactment provides that if there is any doubt as to whether a person is a Malay (or Siamese, in the case of Kedah and Perils)[26] the question is to be referred to the relevant State Ruler in Council, whose decision on the matter is final. It appears that the definition of a Malay only applies to a natural person and not to an artificial person or a company because only a natural person can be ‘subjects of a Ruler’.[27] The definition of Malay is crucial in determining a person’s entitlement to customary lands, Malay reserved lands and other Malay privileges. Since Malay reserved lands are registered titles and are protected and regulated by a different statutory regime, it merits a discussion on its own and is therefore not considered in this paper.[28]
The term ‘Aboriginal’ comes from the Latin aborigine, meaning from the beginning. It is an equivalent nomenclature to ‘Indigenous’. ‘Aboriginal’ is commonly used in many parts of the world to refer to ‘first nations’ or ‘first peoples’, for example, in the settler states of the USA, Canada, and Australia.[29] In Malaysia, Article 160 of the Constitution states that an ‘aborigine’ means ‘an aborigine of the Malay Peninsula’ or a people commonly known as Orang Asli. ‘Orang Asli’ is a collective term used by anthropologists and administrators for 18 ethnic sub-groups who each have their own language and culture. These include the Temuan, Jakun, Semai, Semelai, Cewong and the M’Betsi.[30] Section 3 of the Aboriginal Peoples Act defines an Orang Asli as:
(a) any person whose male parent is or was, a member of an aboriginal ethnic group, who speaks an aboriginal language and habitually follows an aboriginal way of life and aboriginal customs and beliefs, and includes a descendent through the males of such groups;
(b) any person of any race adopted when an infant by aborigines who has been brought up as an aborigine, habitually speaks an aboriginal language, habitually follows an aboriginal way of life and aboriginal customs and beliefs and is a member of an aboriginal community; or
(c) the child of any union between an aboriginal female and male of another race provided that the child habitually speaks an aboriginal language, habitually follows an aboriginal way of life and aboriginal customs and beliefs and remains a member of an aboriginal community.
In Sagong Tasi[31] a serious challenge was made to the status of the plaintiffs as Orang Asli as defined by the statute. The contention of the defendants was that although the plaintiffs were members of the Temuan group, they did not continue to practice Temuan culture and therefore no longer met the definition of Aboriginal people. The Court looked at the requirements of section 3 of the Aboriginal Peoples Act and noted that the community continued to be governed by a traditional council, the Lembaga Adat, under which marriages are conducted, communal activities are organised, social conduct is supervised and disputes resolved. The Court concluded that it was manifestly evident that the Temuan people of Kampung Bukit Tampoi live in an organised society with a system of adjudicating disputes; that they are governed by their own laws and customs; and, that they still adhere to a specific political system in accordance with their culture. Temuan cultural practices relating to land tenure, burial practices, religion, place names, inheritance and language were held to still constitute an integral part of the Orang Asli existence unaffected by modernisation. It was held not to undermine traditional governance that the Temuan no longer forage for a living in the tradition of their hunter-gatherer ancestors; that they cultivate cash crops alongside traditional crops that they speak other languages apart from Temuan; and, that some members of the community have embraced other religions or have married out of the community. Nor did it deny the existence of traditional systems of governance or that the Temuan have a Jawatan Kuasa Keselamatan dan Kemajuan dan Kampong (JKKK) (Village Committee for Security and Development), which is a local village committee and part of the Federal Government’s local administration.
Although the Malays and the Orang Asli could well be called ‘natives’, the drafters of the Federal Constitution chose to use ‘native’ to refer to the heterogeneous Indigenous people of the states of Sarawak and Sabah. Article 161A clause 6 states:
In this article, native means
a) in relation to Sarawak, a person who is a citizen and either belongs to one of the races specified in clause (7) as indigenous to the state or is of mixed blood deriving exclusively from those races; and
b) in relation to Sabah a person which is a citizen, is the child or grand child of a person of a race indigenous to Sabah, and was born (whether on or after Malaysia Day or not) either in Sabah or to a father domiciled in Sabah at the time of the birth.
Clause 7 states:
The races to be treated for the purposes of the definition of ‘natives’ in clause (6) as indigenous to Sarawak are the Bukitans, Bisayahs, Dusuns, Sea Dayaks, Land Dayaks, Kadayans, Kalabit, Kayans, Kenyags (Including Sabups and Sipengs), Kajangs (including Sekapans,. Kejamans, Lahanans, Punans, Tanjongs dan Kanowits), Lugats, Lisums, Malays, Melanos, Muruts, Penans, Sians, Tagals, Tabuns and Ukits.[32]
It must be noted that Malays in Sabah and Sarawak fall within the classification of ‘natives’. The above list reflects an original enumeration in the schedule of the Sarawak Interpretation Ordinance which is not exhaustive since there are some groups that are, perhaps inadvertently, omitted.[33] In a move to reflect the present day self-conception of the Iban, Bidayuh and Lun Bawang communities an amendment was made to the Sarawak Interpretation Ordinance in 2002 to substitute the terms Sea Dayak for ‘Iban,’ ‘Land Dayak’ with ‘Bidayuh’ and ‘Murut’ with ‘Lun Bawang’. That amendment is yet to be reflected in the Federal Constitution.
There is another possible interpretation of ‘native’ in section 20 of the Native Courts Ordinance 1992. A person who is not a native by birth may be deemed a native through an application to the Native Court for a declaration of native status.[34] To determine whether such a person might be subject to a particular native system of personal law, a court may take into account a person’s conduct; the public opinion of the community of which the person has become so identified; the testimony of responsible members of the community; and, the opinion of assessors in a Native Court hearing or the opinion of the Tua Kampung (headman) who assists the District Native Court. This provision makes it possible for a person who is an issue of a mixed marriage, where one parent is a non-native, to claim native status. Be that as it may, a person who is not a Muslim cannot be declared to have become identified with, or be subject to, the personal law of a native Islamic community.
In Law Tanggie v Untung ak Gantang[35] the plaintiff, who was born of a Chinese father and Iban mother, was able to claim native status. Law bought a piece of native customary land. It was registered in the name of his uncle, the defendant (who was an Iban) until he attained native status. On the same day Law applied for declaration as a native by statutory declaration. When he did finally attain native status he brought an action for return of the land. The High Court took the statutory declaration and the decision of the Native Court as conclusive. To determine his native status, the Court found that while Law’s father was Chinese, he had assimilated into the community. Law’s father had taken on a native name; he was accepted as a member of the Iban community and lived as an Iban; he paid door tax as an Iban and was buried in an Iban cemetery; and, his children had carried on as Iban. As such, the Court found a resulting trust in favour of Law Tanggie.
In Sabah, there is no enumeration of the native groups in the Constitution, although there are at least 38 known groups. Under section 2(1) of the Interpretation (Definition of Native) Ordinance[36] ‘native’ refers to persons Indigenous to the colony and ordinarily resident, one of whose parents was an Indigenous person from Brunei, Sarawak, the Straits Settlements, the Federated Malay states, Indonesia, or the Sulu islands. An amendment to the Interpretation (Definition of Native) Ordinance in 1958 provide that a declaration of native status be based on proof of good character; it also requires that the applicant has lived and been a member of the native community for at least three to five years; the applicant’s stay must also not be limited by the Immigration Ordinance. A native community is defined as any group or body of persons the majority of who are natives, and who live under the jurisdiction of the local authority[37] or under the jurisdiction of a native chief or headman.[38]
A number of cases have been decided by the Sabah Native Court on the question of native status. In Liew Siew Yin v District Officer, Jesselton[39] the applicant was of Chinese and Dusun parentage. The applicant’s father failed to justify a claim of having lived as a member of the community because he was not resident in the community; he had married according to Chinese custom; his children bore Chinese names; and, he had never paid door tax in the village. By contrast, in Ong Seng Kee v District Officer, Inanam[40] an application for native status by a Sino-Kadazan was allowed because he lived in a predominantly native area and sometimes participated in communal festivities. The fact that he lived in a Chinese-style house, and that some of his children attended Chinese schools, did not disqualify him.
Another significant case is Datuk Syed bin Kecik v Government of Malaysia & Anor.[41] The applicant, a Malay from Peninsula Malaysia, applied to the Native Court for a declaration as anak negeri or native of Sabah. He applied to be admitted and was duly declared as a native by the Native Court on the basis that: he was ordinarily resident in Sabah; he had lived as a member of the native community for a continuous period of five years immediately preceding his claim; he was of good character; and, he was not limited by the Immigration Act. On appeal for determination by the Federal Court, Suffian LP held that he was ‘rightly a member of, resident in and connected with the state of Sabah and “belongs” to Sabah. Who could belong to Sabah more than a native of Sabah?‘[42]
The above cases illustrate the intricacies involved in proof of identity and membership of an Indigenous group in Malaysia. Proof of membership is necessary to establish entitlement to native rights.
Historically and politically, land laws in Malaysia developed differently in Peninsula Malaysia, Sabah and Sarawak. The recognition of Malay customary land tenure in Peninsula Malaysia is preserved under section 4(2) of the National Land Code 1965, the respective provisions of the National Land Code (Penang and Malacca Titles) Act 1963 and the Customary Tenure Enactment (FMS). With the exception of Penang, Melaka, Sabah and Sarawak, the other nine states in Peninsula Malaysia have laws providing for reserved lands in favour of Malays under Malay Reservation enactments. In Sabah, the Land Ordinance (Cap 69) makes provision for NCRs to land whilst in Sarawak the equivalent statute is the Sarawak Land Code.[43] For the Orang Asli of Peninsula Malaysia, the Aboriginal Peoples Act contains provisions for the creation of Aboriginal reserves. Some Aboriginal communities, however, live in areas that are not designated as Aboriginal reserves but rather as ‘Aboriginal areas’ or ‘Aboriginal inhabited areas’.
This paper considers native title as a general term that encompasses Aboriginal customary title to land, native customary rights and customary land. It is used here in the dual sense, both as an entitling condition as well as a right to land. As an entitling condition, only a native or Aboriginal person may claim rights that flow from that entitlement. As to the nature of the right, it is a right that is fundamentally embedded in native laws and customs. Both title and rights flow from long established occupation of land. The rights under customary laws have always existed and been the subject of litigation, particularly in Sarawak and Sabah. When the customary title of the Orang Asli came up for decision in Peninsula Malaysia, the recognition of their customary title drew upon the native title jurisprudence of other common law jurisdictions.[44] In Adong Mokhtar Sidin JCA (as he then was) said:
My view is that, and I get support from the decision of Calder’s case and Mabo’s case, the aboriginal peoples’ right over the land include the right to move freely about their land, without any form of disturbance or interference and also to live from the produce of the land itself, but not to the land itself in the modern sense…since they have been in continuous and unbroken occupation and /or enjoyment of the rights of the land from time immemorial. I believe this [customary right of the aborigines in Peninsula Malaysia] is a common law right which the natives have and which the Canadian and Australian courts have described as native titles and particularly the judgment of Judson J in the Calder case…I would agree with this ratio and rule that in Malaysia the aborigines’ common law rights include, inter alia, the right to live on their land as their forefathers had lived and this would mean that even the future generations of the aboriginal people would be entitle to the right of their forefathers.[45]
The Court in Nor Anak Nyawai regarded NCRs in Sabah and Sarawak as synonymous with native title. This is clear from Chin J’s judgment:
if necessary, another apt description of native customary right would be that used to describe native title in Mabo No 2‘ …which is that ‘it has its origin and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory.’ It is therefore not dependent for its existence on any legislation, executive or judicial declaration…though they can be extinguished by those acts.[46]
Drawing from Adong, the High Court also said:
it is common ground arising from the decision in Mabo v State of Queenland (1992) 66 ALJR 408 which was followed in Adong bin Kuwau & Ors v Kerajaan Negeri Johor [1997] I MLJ 418 and which decision was affirmed by the Court of Appeal in Kerajaan Negeri Johor & Anor v Adong bin Kuwau & Ors v [1998] 2 MLJ 158 the common law respects the pre-existing rights under native law and custom though such rights may be taken away by clear and unambiguous words in legislation.
This was reiterated in Amit bin Salleh & Ors v The Superindent, Land & Survey Department, Bintulu & Ors[47] where Abdul Azizi bin Abdul Rahman J said:
Though the common law rights and the statutory rights over land in Adong bin Kuwau are rights belonging to the aboriginal people of the Peninsula Malaysia, these rights in my view are similar to the native customary rights over native communal reserve of the natives of Sarawak.[48]
The courts in Adong, Nor Anak Nyawai and Amit bin Salleh were clearly referring to the concepts of the recognition of native title under the common law of Australia as first established in Mabo & Ors v Queensland (No2).[49] The High Court of Australia established native title as having its source in, and deriving its content from, laws and customs of the Indigenous peoples. It was not that native title was created by the courts to be recognised from then on; rather, it had always existed. It was also held that native title was a communal right which could be proved by an identifiable community who could show that they had a connection to the land through their laws and customs. Based in native law and customs, it was neither dependent on the recognition of a sovereign nor on any law or statute for recognition.
Those rights were translated into statutory rights when the judgment of Brennan J in Mabo (No 2) became the basis for a statutory framework under section 223 of the Native Title Act 1993 (Cth) (‘NTA’). The preamble to the NTA states that ‘the common law of Australia recognises a form of native title that reflects the entitlement of the Indigenous inhabitants of Australia, in accordance with their laws and customs, to their traditional lands’. It states that native title has its origins in, and is given content by, traditional customs. The statutory definition under section 223(1) of the NTA concerns rights and interests possessed under traditional laws and customs, including the identification of customs and their connection to lands and waters.
The NTA aimed to ‘recognise and protect native title’; ‘to establish a mechanism for determining claims for native title’; and, ‘to establish ways in which future dealings affecting native title may proceed’.[50] This laid the foundation for the to be ‘the starting point’ for a narrower interpretation of native title within the legislative framework. While the NTA incorporated common law concepts, it clearly introduced another dimension to native title in Australia since ‘it is to the terms of the NTA that primary regard must be had, and not the decision in Mabo (No 2)’.[51] As articulated by Kirby J in the course of argument in Western Australia v Ward,[52] ‘the starting point now is surely the Federal Act of Parliament’; his Honour later in the same course of argument stated that ‘you have to give content to an Act and not forage around amongst the predecessor provisions of the common law’.[53] Despite its inclusion in the NTA, the common law concept of native title espoused in Mabo (No 2) continues to be referred to by Malaysian courts and courts of other jurisdictions in common law decisions.[54] Later decisions of the High Court of Australia, including Commonwealth v Yarmirr,[55] Ward[56] and Yorta Yorta Aboriginal Community v Victoria[57] have been decided in such a way that they are of limited relevance in the Malaysian context.
In Mabo (No 2) no distinction was drawn between land and other rights. Instead, native title was defined in a way that encompassed the laws and customs of native title holders. Judicial credence to the bundle of rights conception of native title was given by Kirby J in Fejo v Northern Territory,[58] his Honour referring to ‘the bundle of interests we now call native title’.[59] In Western Australia v Ward[60] the majority of the Full Court of the Federal Court regarded native title not as an interest in land but a ‘bundle of rights’. This meant that there could be ‘partial extinguishment’ of native title where the rights claimed are inconsistent, thereby reducing the ‘bundle of rights’ constituting native title.[61] This approach was approved by the High Court on appeal in Ward.[62] The development of the law in Australia since Mabo (No 2) and the enactment of the NTA apparently rejects the co-existence of native title rights with freehold title; the preferred approach stresses the ‘inherent vulnerability’ of native title as a source of rights deriving their content from a body of law outside the common law while simultaneously asserting the superiority of the titles that exist under non-Indigenous law.
In Ward the High Court emphasised traditional law and custom, rather than possession, as defining the content of native title. The majority explained that the right to exclusive possession, use and enjoyment flowed not from the fact of occupation or from recognition of native title, but from the right to speak for country that is conferred by Indigenous law and custom.[63] In other words, the majority rejected the view of native title as based in possessory title and proof of occupation.[64]
Justice Toohey in Mabo (No 2) accepted that native title is a right to land itself; the right being derived from occupation. This is plainly not the accepted Australian position. The High Court in Ward concluded that native title could only be regarded as a bundle of rights which might include the Western concept of possession as the use and enjoyment of land to the exclusion of all others, but when the title was not exclusive only specific rights could be recognised. The requirement of ‘continuity’ in post-Mabo (No 2) authorities on the NTA supports the idea that recognition of native title is in response to continuous occupation. However, the High Court in Ward also pointed out that continuous occupation in itself is insufficient to establish a case. This is because the definition of native title in section 223 needs to be satisfied before a determination can be made.
In this respect, the approach in Australia differs from the Canadian position which regards the right in land as being based in occupation and possession. On this view activities on the land are parasitic on the right in land. In contrast, the bundle of rights approach requires the identification of each right claimed, and the establishment of that right through proof of continuity according to law.[65] Claimants must particularise the rights that flow from traditional law and customs. In Yorta Yorta the majority of the High Court held that traditional laws and customs must have normative content so as to be capable of giving rights and interests.[66] Among the disadvantages of the bundle of rights approach, as Strelein has pointed out, is that it assumes that at the time of determination all rights likely to be asserted and activities carried out are able to be identified. A preconceived idea of a bundle of rights narrows the extent to which native title can differ and results in no native title at all if an ‘assertion of native title does not fit the mould of the bundle of rights we know as native title’.[67]
In the Canadian case of Calder v AG (British Columbia)[68] both Judson J and Hall J agreed, in opposing judgments, that even without the Royal Proclamation of 1763 the legal concept of Indian title or Aboriginal rights exists in Canadian law. In the words of Judson J, ‘the fact is that when the settlers came, the Indians were there, organised in societies, and occupying the land as their forefathers had done for centuries. This is what Indian title means’.[69]
Calder was affirmed in Delgamuukw v British Columbia.[70] Chief Justice Lamer emphasised that the content of native title is ‘exclusive use and enjoyment’ and that the source of native title is the ‘physical fact of occupation’ of land by Indigenous people. His Honour applied the common law principle that occupation is proof of possession at law. As to the content of native title, the Supreme Court specified that Aboriginal title is ‘an interest in land’ and is ‘a right to the land itself’.[71] It was said to be ‘more than the right to enjoyment and occupancy’ and ‘more than the right to engage in specific activities which may themselves be Aboriginal rights’.[72] This statement was made to refute the argument by the Government that Aboriginal title is no more than a bundle of rights to engage in activities, or the right to exclusive use and occupation of land. Chief Justice Lamer went on to explain that because Aboriginal title is a right in the land itself it cannot be limited to use only for activities that are traditionally Aboriginal activities:
aboriginal title differs from other aboriginal rights in another way. To date, the Court has defined aboriginal rights in terms of activities. As I said in Van der Peet (at para 46):
‘…in order to be an aboriginal right and activity must be an element of practice, customer tradition integral to the distinctive culture of the aboriginal group claiming the right.’
Aboriginal title, however, is a right to the land itself. Subject to the limits I have laid down above, that land may be used for a variety of activities, none of which need be individually protected as aboriginal rights under s 35(1). Those activities are parasitic on the underlying title.[73]
It must be noted that Aboriginal rights under section 35 (1) of the Constitution are not the same as native title; rather, they are rights that are usually proven in isolation from title because their constitutional protection provides a defence to criminal prosecution, for example, in the context of unlawful hunting and fishing. ‘Aboriginal title’, said Lamer CJ, ‘encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those Aboriginal practices, customs and traditions which are integral to distinctive Aboriginal cultures’.[74] His Honour laid emphasis on the source of native title in the physical fact of occupier of the land.
The approach taken by the Malaysian courts is closer to that of the Canadian authorities than the Australian. The Supreme Court of Canada in Delgamuukw spoke directly to the issue of occupation, saying that ‘[p]hysical occupation may be established in a variety of ways, ranging from the construction of dwellings through cultivation and enclosure of fields to regular use of definite tracts of land for hunting, fishing or otherwise exploiting its resources’.[75] Citing Delgamuukw, Mohd Noor Ahmad J in Sagong Tasi said that ‘in keeping with the world wide recognition now being given to Aboriginal rights, I conclude that the proprietary interest of the Orang Asli in their customary and ancestral lands is an interest in and to the land’.[76] Although the Court rejected the notion that Aboriginal rights are no more than a bundle of rights, declaring them to be rights to the land itself, it did not address what the bundle of rights approach actually involves. The Court required evidence to support the maintenance of a traditional connection with land according to customs; once this was proven the Orang Asli had a right to engage in activities on the land.
In Sagong Tasi the Court employed the language of ‘customary communal title’ to refer to Aboriginal rights to land. There was no challenge on the facts to the occupation of lands that were customary and ancestral lands belonging to the Temuan. The question was whether the plaintiffs held the land under a customary communal title and whether, upon deprivation of the land, they had to be compensated under the Aboriginal Peoples Act or the Land Acquisition Act 1960 (Malaysia) (‘Land Acquisition Act’). The latter involves the payment of compensation for land that is the subject of ‘customary title’ on an equal basis with other alienated lands.
In defining the nature of the right the Court in Sagong Tasi referred to Adong and Amodu Tijani v The Secretary, Southern Nigeria[77] in which Viscount Haldane LC stated:
As a rule, in the various systems of native jurisprudence throughout the Empire, there is no such full division between property and possession as English lawyers are familiar with. A very usual form of native title is that of a usufructuary right, which is a mere qualification of or burden on the radical title or final title of the Sovereign where that exists. In such cases the title of the Sovereign is a pure legal estate, to which beneficial rights may or may not be attached. But this estate is qualified by a right of beneficial user which may not assume definite forms analogous to estates, or may, where it has assumed these, have derived them from the intrusion of the mere analogy of English jurisprudence. Their Lordships have elsewhere explained principles of this kind in connection with the Indian title to reserve lands in Canada. See 14 App. Cas.46 and [1920] 1 AC 401… Such a community may have the possessory title to the common enjoyment of a usufructuary title to the common enjoyment of a usufruct, with customs under which its individual members are admitted to enjoyment, and even to a right of transmitting the individual enjoyment as members by assignment inter vivos or by succession. To ascertain how far this latter development of right has progressed involves the study of the history of the particular community and its usage in each case. Abstract principles fashioned a priori are of but little assistance, and are as often as not misleading.[78]
In the appeal against Sagong Tasi, Kerajaan Negeri Selangor v Sagong bin Tasi,[79] Gopal Sri Ram JCA concluded that the fact that radical title to land is vested in the sovereign or the State is not an ipse dixit answer to a claim of customary title.[80] There can be cases where radical title is burdened by native or customary title. The precise nature of such a customary title depends on the practices and the usages of each community. His Honour also held that the individual practices and usages in regard to the acquisition of customary title is a matter of fact and evidence related to the history of each particular community. As regards a co-existence of common law rights and the rights governed by the Aboriginal Peoples Act, ‘the reading of the Act makes it plain that it does not exclude the rights vested in the respondents at common law’.[81] The Malaysian Federal Court has therefore established that the Malaysian common law recognises Aboriginal customary title.
In Sarawak and Sabah, the language of recognition used in relation to the natives of Borneo is ‘customary title’ or NCRs. I will only deal with the Sarawak situation in this paper. Prior to the arrival of James Brooke in 1839 and the cession of part of Sarawak to him as Governor, and later Rajah, there was in existence among the natives a system of land tenure based on adat or native customary laws. The assumption of sovereignty by Brooke and other colonists was circumscribed by their implicit recognition of customary rights.[82]
Under that system NCRs consisted of rights to cultivate land; rights to wild fruits or produce of the jungle; hunting and fishing rights; burial rights; and, rights of inheritance. The clearing and cultivation of virgin land confers permanent heritable rights to the one who cleared the land.[83] As a guide to land administrators Secretarial Circular No. 12/1939 was issued, stating:
(i) The right to cultivate cleared land vests in the community with priority to the heirs of the original clearer of big jungle. This right must be exercised in accordance with a cycle compatible with the preservation of the maximum fertility of the land (and no longer) by methods of cultivation within the reach of the community. The cycle is in their eyes, not a matter for rule of thumb but for expert native opinion.
(ii) The existence of permanent cultivation of a reasonable density is evidence of customary ownership as opposed to customary right of user.
(iii) Individual ownership is limited by the customary right of the community to a say in the matter of disposal to anyone outside the community.[84]
The need to regulate the administration of land led to the promulgation of numerous orders and enactments, culminating in the Sarawak Land Code which specifies certain methods that are recognised as a way of ‘acquiring’ NCRs. The Sarawak Land Code provides for specific methods of acquiring NCRs on the land under section 5. This involves the felling of trees in a virgin area; the planting of trees; and, the occupation and use of land as burial grounds and for shrines. The key point is that the underlying basis for the recognition of NCRs is occupation of land and its use according to the customary practices of the community or communities concerned. It has been held that occupation need not necessarily be actual occupation. In Madeli bin Salleh v Superintendent of Lands and Surveys[85] it was held that while the applicant did not live on the land in question his continual visitation meant he had control over it.
Each of the above definitions is underpinned by rights flowing from ‘first possession’, which is a fundamental principle and source of rights under property law.[86] Both title and rights arise from long established occupation of the land as well as the social organization and the distinctive cultures of native people on the land.[87] The terms that are used to describe these rights, such as ‘heritage’,[88] ‘traditional’,[89] ‘pre-existing’,[90] and ‘customary’[91] each underscore the fact it is a unique right which cannot be sufficiently understood when examined solely with reference to statutory provisions. It is, in fact, a sui generis right.
Sui generis is a latin term meaning ‘forming a kind by itself; unique, literally of its own particular kind’. It connotes uniqueness and a class of its own. The term was first used to refer to Aboriginal rights in the Canadian courts in Guerin v R.[92] Since Guerin the appellation has been extended to rights such as hunting, fishing and land rights, and to issues like the relationship between Aboriginal people and the state.
Judicial recognition of Aboriginal rights as sui generis may be traced back to the Privy Council decision in Mohegan Indians v Connecticut in 1772-73.[93] The Mohegan case confirmed that in certain circumstances native nations were not subject to colonial jurisdictions established for settlers but to their own traditional customs and institutions.
This became the pivotal concept in the landmark decision of Johnson v McIntosh,[94] where Marshall CJ was required to resolve conflicting claims of settlers in the European settlement: one claiming title from a crown grant, the other from Aboriginal title. Chief Justice Marshall adopted the compromise known as native title or Aboriginal title at common law, devising a concept that sustained the property rights sanctioned by the Government while in part maintaining the rights of Aboriginal people in a ‘new and different rule, better adapted to the actual state of things’.[95] He held that an Indian title was valid in accordance with Indian law held ‘by a title dependent on their laws’.[96] This decision has been repeatedly affirmed in the Supreme Court of the United States[97] and formed the basis of law and policy in that country.[98] The golden threads that ran through these cases are also evident in the decisions of other common law jurisdictions.
A hundred years after Johnson, in Amodu Tijani,[99] Viscount Haldane warned against ‘a tendency, operating at times unconsciously, to render [native] title conceptually in terms which are appropriate only to systems which have grown up under English law’. He added that ‘this tendency had to be held in check closely’. Viscount Haldane appreciated the uniqueness of Aboriginal land rights based in custom. He said that:
the proper method of ascertaining rights possessed by indigenous people necessitated a study of the particular community’s customs and laws…and…Aboriginal title is best understood through considering indigenous patterns of land usage rather than importing the preconceived notions of property rights under the common law.[100]
This view was supported by Lord Denning in Adeyinka Oyekan v Musendika Adele.[101] His Lordship said that the guiding principle is that inhabitants’ rights to property are to be fully respected ‘even though those interests are of a kind unknown to English law’.[102] This was a departure from the notion that land ownership existed only where it adhered to common law concepts at the expense of Indigenous principles of ownership.
In Canada the law of Aboriginal title directly descended from the decision of Marshall CJ in Johnson. In Calder[103] Hall J held that Aboriginal rights were legally enforceable and were not dependent upon their similarity to common law. He found that the Nishga’a had a ‘concept of ownership indigenous to their culture and capable of articulation under the common law’.[104] A decade later that decision was followed in Guerin[105] when the Supreme Court ‘settled upon an appropriate interpretive tool to reconcile Indigenous and non-Indigenous legal perspectives’.[106] Since the nature and existence of Indian title arose from pre-existing Indigenous organisations and laws, the Court decided that Aboriginal rights should not be categorised according to common law rights of property. In Guerin Dickson J devised a more appropriate terminology, calling the rights sui generis, the first time it was so called in the courts. This was only the beginning of the judiciary’s extension of the sui generis concept in Canadian Aboriginal rights jurisprudence. It eliminated almost 100 years of judicial uncertainty about how to conceptualise Aboriginal rights and reconciled potentially conflicting judicial assumptions about the existence and nature of Aboriginal title.[107]
More than a decade after Guerin, in Delgamuukw[108] the sui generis nature of native title was said to be ‘the unifying principle underlying the various dimensions of that title’. The characteristics of native title cannot be completely explained by reference either to common law rules of real property or to the rules of property found in Aboriginal legal systems since ‘[t]heir unique nature has made them difficult, if not impossible, to describe in traditional property law terminology’.[109] Such rights must therefore be understood by reference to both common law and Aboriginal perspectives.[110] In this way the Court formulated a body of law that was sui generis, derived from experience rather than sovereign decree.[111]
This of course followed the path-breaking case of Mabo (No 2),[112] handed down by the High Court of Australia in 1992.[113] The broad effect of the lengthy judgments is summarised by Mason CJ and McHugh J, who stated ‘that the common law of this country recognises a form of native title which…reflects the entitlement of the Indigenous inhabitants, in accordance with their laws and customs, to their traditional lands.’[114] Referring to Viscount Haldane’s decision in Amodu Tijani Brennan J pointed out that there was no reason not to extend common law recognition to native title even though they were different from common law tenures. Justices Deane and Gaudron declared that the ‘preferable approach’ was to recognise the inappropriateness of forcing the native title to conform to traditional common law concepts and to accept it as sui generis or unique.[115]
Calder, Mabo (No 2) and the preceding common law cases clearly influenced the recognition of the pre-existing customary right of the Orang Asli in Peninsula Malaysia in Adong. This set a precedent for the same declaration in other cases both in Peninsula Malaysia and in Sarawak. The various descriptors used for native title counsel courts to look beyond the common law. In particular, ‘pre-existing’ refers to a time prior to the existence of the common law; ‘customary’ implies a set of practices accepted over a long and common usage; ‘beneficial’ involves the rules of equity; and sui generis communicates the uniqueness of the right. This suggests the general inadequacy of the common law categories.[116]
When the Malaysian High Court first recognised a form of native title in Adong, Mokhtar Sidin J (as he then was) held that
[I]n order to determine the extent of the aboriginal peoples rights under the law, their rights under common law and statute has to be looked at conjunctively, for both these rights are complementary, and the Act does not extinguish the rights enjoyed by the aboriginal people under common law.[117]
To ‘complement’ means ‘that which completes or makes perfect’ while ‘conjunctively’ means ‘in combination’ or ‘jointly’.[118] This approach takes account of the fact that existing statutory provisions alone do not capture the full essence of those interests and cannot adequately address or articulate the intrinsic nature of the rights involved. A ‘complementary’ right draws from both common law and statute law to fully embody the origins, purpose and character of those rights. What evolves is a proprietary right that is protected under the Federal Constitution.
The challenge before the courts is how to sort the contents of that ‘box’[119] of complementary rights and fill it with substantive procedures and protections of Aboriginal or native rights. How might a ‘bridge’ be constructed to acknowledge the unique historical presence and occupation of Aboriginal and native lands, and to give substance to native rights under the Federal Constitution? How might the courts discover the native perspectives and what kind of evidence is sufficient to prove those rights? These issues are best explicated in the context of decided cases.
In Adong the Court of Appeal held that Orang Asli have a customary title based in common law; a statutory right under the Aboriginal Peoples Act; and, a constitutional right under the Federal Constitution. The Orang Asli had been deprived of heritage lands; their freedom of habitation or movement under Article 9(2) of the Constitution had been curtailed; and, their ability to use the produce of the forest as a means of survival had been substantially diminished. Taken as a whole the Court of Appeal said the deprivation amounted to deprivation of livelihood. Unfortunately, this argument was not fully developed.
In Sagong Tasi the Court held that Orang Asli had ‘customary title to land of a permanent nature’ and a ‘customary community title’. These rights existed despite the specific provisions of the Aboriginal Peoples Act. Sections 6 and 7 provided for Aboriginal reserved lands for collection of jungle produce or hunting grounds; section 10 provided for Aboriginal inhabited lands (not reserved lands); sections 11 and 12 provide only for compensation for fruit trees and rubber trees upon any lands that are alienated or acquired by the state. The Court extended the customary title to include not only an interest in but also on the land itself. The facts of Sagong Tasi may be distinguished from Adong. The latter was concerned with the deprivation of vast areas of traditional and ancestral lands on which the claimants foraged for their livelihood. Sagong Tasi was concerned with ancestral lands which the Orang Asli used for settlement. In the words of Mohd Noor Ahmad J (as he then was):
[I]n the case before me the acquisition is in respect of a small portion of their traditional and customary or ancestral land where they resided, that is to say, their settlement. I follow the Adong case, and in addition, by reason of the fact of settlement I am of the opinion that based on my finding of facts in this case, in particular on their culture relating to land and their customs on inheritance, not only do they have the right over the land but also an interest in the land.[120]
The Court also held that Aboriginal people’s rights have long been recognised as including interests in land and not merely usufructuary rights. Turning to the issue of compensation, and citing Adong, it was held that Orang Asli had proprietary rights which fell within the ambit of Article 13(2) of the Federal Constitution, which prohibits the compulsory acquisition of land without adequate compensation. Having found a proprietary interest, the Court ruled that the compensation offered to the plaintiffs was inadequate and thus unlawful. Adequate compensation ought to be determined pursuant to the Land Acquisition Act.
There seems to be little justification for treating differently cases based on rights to forage for traditional foods and those based on rights of settlement, particularly where the important determinants are occupation and the continuance of traditional connections with the land. The different treatments appear to have been motivated by policy and pragmatism because all the surrounding lands had already been alienated and developed.
The case of Nor Anak Nyawai deserves consideration for its development of the ‘complementary’ native title doctrine. The plaintiffs were the residents of two longhouses located along the Sekabai river in Bintulu, Sarawak. A provisional lease to the disputed lands was issued to the first defendant, Borneo Pulp Plantations Sdn Bhd, who sublet the land to the second defendant, Borneo Pulp & Paper Sdn Bhd, as contractors to clear the land for a tree plantation. The Bintulu Superintendent of Lands and Survey who issued the titles was the third defendant. The plaintiffs claimed that the defendants had trespassed and damaged their ancestral land and asked for an injunction to prevent the defendants from entering the disputed area and for damages. This claim rested on the exclusive use and occupation of the land under a customary system of territorial control. The plaintiffs claimed that under Iban custom they had acquired NCRs to lands which they regarded as pemakai menoa (land to eat from), part of which had been encroached upon.
The term pemakai menoa refers to an area of land held by a distinct longhouse or village community exercised within a garis menoa (territorial boundaries between villages marked by rivers, hills or clumps of trees and other natural features). Under Iban custom each longhouse has a territory over which a community exercises control. The pemakai menoa includes: tana umai (cultivated lands, farms and gardens); temuda (formerly cultivated lands at various stages of young wild growth); tembawai (old longhouse sites); and, pulau galau which is a forest reserve, or land that is left uncultivated. It includes areas of forest, whether wholly or partially surrounded by temuda for communal use; areas used for the supply of natural resources such as rattan and other jungle produce; areas used for water catchments, hunting and fishing; and, for land reserved to honour a distinguished (deceased) person. A pulau may be owned by a single village or shared between two or more village communities.
It is necessary to say something about NCRs in Sarawak and the statutory provisions on how they are acquired. The statutory law on the matter is found in section 5(1) of the Sarawak Land Code which provides that as from 1 January 1958, NCRs may be created in accordance with the native customary law of the community or communities concerned, by the methods specified in section 5(2). Six methods are specified for the ‘creation’ of rights under section 5(2):
It is important to note that section 5(2)(ii) states ‘the question whether any such right has been acquired or has been lost or extinguished...is determined by the law in force immediately prior to the 1st day of January 1958’. Since the ‘prior’ law in force was the Land Classification (Amendment) Ordinance 1955, it means that for the purpose of proving the existence of NCRs under the statute, the practical cut off date is 16 April 1955 as stipulated under that Ordinance. A strict interpretation of these provisions would make it difficult for most native families to claim NCRs, particularly if they are new settlers in an area.
Existence of native customary lands also needs to be seen in the context of a specified classification of land under the Sarawak Land Code. These are:
Most lands in Sarawak fall under Interior Area Lands, which function as the residual category of lands after excision of the other five classes. As soon as NCRs are established over a tract of interior area land, it becomes NCL.
In Nor Anak Nyawai the plaintiffs argued that they held NCRs under common law, as well as a statutory right recognised by the Sarawak Land Code. It was argued that this conferred a right to NCL The main issues centred around the native identity of the claimants and whether the Iban customs of creating pemakai menoa, temuda and pulau galau were the same as that which was practised by their ancestors. The next issue was whether those customs were recognised by law and, if so, whether they conferred rights over land. The Court had to consider whether those customs were still in existence, or whether there had been ‘clear and plain’ extinguishment of those ‘pre-existing rights’ by the orders of the Brooke Rajahs or by subsequent legislation. Also at issue was whether oral evidence of customary practices could be accepted as evidence.
The question of entitlement turned on the definition of a native as listed in the schedule of the Interpretation Ordinance. There were no serious disputes as to the identity of the plaintiffs as Ibans. The fact that they spoke Iban was prima facie evidence of their Iban identity. As such, the burden shifted to the defendants to prove otherwise.[121] The High Court recognised their pre-existing rights to lands based on customary practices as evidenced by their occupation of the lands in question. The recognition of the Iban customary practice of pemakai menoa was significant because it recognised a practice not specifically enumerated in the five limbs of section 5 of the Sarawak Land Code. This pushed the frontier of NCRs beyond the restrictive provisions of the statute. Despite increasingly comprehensive regulatory legislation, Chin J found that customary rights associated with the terms temuda, pulau and pemakai menoa have not been abolished by the Sarawak Land Code or any other statute; rather, they survived through the Brooke orders[122] and Ordinances of the Colonial period up to the present.[123] The Ibans were acknowledged to be ‘rightfully in possession of…rights’.[124] As to the nature of the rights, the Court was clearly uncomfortable with characterising the interest as that of ‘mere licencees’:
While it is correct that the plaintiffs do not hold any title to the land and may be termed licensees but their licence…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…The description of native customary rights as ‘licenses’ is ill fitting.
Justice Chin went on to quote AJN Richards:
[N]either will ‘licence’ or ‘permission’ do to describe land rights…Use of these terms would imply no rights at all. Occupation of land without document or registration has been acquiesced for so long, that title would appear to have been obtained by prescription to a large part of the bundle of rights.[125]
There was, however, no further elaboration on the nature of that right. Nevertheless, the Court declared that the plaintiffs had a right to exercise NCRs in the disputed area and the defendants were enjoined from entering the disputed area.
On appeal, the defendants contended, inter alia, that for the disputed areas to be subject to NCRs, they must be recognised by statute. The method for establishing NCRs was only through temuda and not simply by roaming or foraging. It was argued that the terms pulau and pemakai menoa did not appear in any of the statutes which gave recognition to NCRs and therefore that there could not be any proprietary rights in respect of the pulau. On 9 July 2005[126] the Court of Appeal granted the defendant’s appeal in Superintendent of Lands and Surveys, Bintulu v Nor Anak Nyawai and Ors[127] on the grounds that there was insufficient proof of occupation in the disputed area. It was acknowledged, however, that they had satisfied the test for NCRs in the adjacent area. It appears that the Court of Appeal required proof of actual ‘cultivated areas’ or temuda since no reference was made to other aspects of the traditional methods of occupation.
Notably, the Court of Appeal did not disturb the High Court’s finding that the Iban concept of pemakai menoa exists. It affirmed the High Court’s major legal conclusions that the common law respects the pre-existence of rights under native laws or customs and such rights may only be taken away by clear and unambiguous statutory language. NCRs do not owe their existence to statutes. It also affirmed that the Sarawak Land Code ‘does not abrogate whatever native customary rights that exist before the passing of that legislation’; however, they are no longer able to claim new territory without a permit under section 10 of that legislation. The Court of Appeal endorsed the view that although called licences, they ‘cannot be terminable at will’. NCRs can only be extinguished in accordance with laws after the payment of compensation.[128]
The key issue in the appeal was the requirement of ‘continuous occupation’. Was there sufficient evidence to support a finding that the defendants ‘occupied’ the disputed land? The Court of Appeal dismissed the trial judge’s finding and held that there was no evidence of settlement, burial grounds or pulau in the area. However, instead of analysing the meaning of occupation or ‘continuous occupation’ in the context of the Iban customary practice in Sarawak, the Court transposed the Orang Asli context onto the case at hand and applied a test of occupation that is ill-fitting. The High Court’s decision in Sagong Tasi was quoted with approval to limit the interpretation given to occupation to one of static ‘settlement areas’. Quoting Sagong Tasi the Court said:
However, this conclusion is limited only to the area that forms their settlement, but not to the jungles at large where they used to roam to forage for their livelihood in accordance with their tradition. As to the area of the settlement and its size, it is a question of fact in each case. In this case as the land is clearly in their settlement, I hold that the plaintiffs’ proprietary interest in it is an interest in and to the land.[129]
The Court of Appeal stated, ‘we are inclined to agree with the learned trial judge in Sagong Tasi…that the claim should not be extended to areas where ‘they used to roam to forage for their livelihood in accordance with their tradition’.[130] By equating occupation only with settlement and cultivation, and contrasting that with land upon which native peoples ‘roam’ or ‘forage’, the Court contradicted its own endorsement of the concept of pemakai menoa, which is wider than a ‘settlement’ in the Sagong Tasi sense. The Court’s reluctance to admit the wider interpretation is borne out by the statement that ‘otherwise, it may mean that vast areas of land could be under native customary rights simply through assertions by some natives that they and their ancestors had roamed and foraged the areas in search of food’.[131]
Limiting occupation to actual settlement and separating it from the surrounding lands on which rests a native community’s traditional culture and livelihood strikes at the very basis of claims based on customary practice. The Court of Appeal’s approach is restrictive when compared to the definitions of occupation in some other authorities in Sarawak, such as Madeli bin Salleh v Superintendent of Lands and Surveys, Miri Division[132] and the earlier Privy Council case of Newcastle City Council v Royal Newcastle Hospital.[133] The Court leaned towards the restricted meaning of NCRs as outlined under section 5 of the Sarawak Land Code.
It is argued that protection of native rights cannot be based only on the Sarawak Land Code as the ultimate source of recognition. The challenge is for the judiciary to infuse equality and justice into the law and for lawyers to educate the judiciary by discovering how the people who practice those rights perceive them.
Native or Aboriginal peoples use oral traditions to chronicle important information which is stored and shared through a literacy that treasures memory and the spoken word. This may be in the form of personal reflections, stories, ballads and songs, all of which are passed down through generations and often treasured as knowledge belonging to the community. Kristin Howden describes traditional knowledge as:
[A] living system of information management which has its roots in ancient tradition. It relates to culture and artistic expression and to the physical survival and environmental management. It controls individual behaviour, as it does community conduct. In short, it is a concept that essentially defies description in Western terms, but which lies at the heart of indigenous society.[134]
Traditional knowledge relates to the social and the physical aspects of Indigenous existence. It ranges from social relationships to ceremonial practices and their significance; it involves plant and animal habitats and behaviours, and relationships to land within their own peculiar cultural practices. Both Nor Anak Nyawai and Sagong Tasi have established that ‘stories matter’ and in principle, oral histories, narratives and expert evidence from native persons may be admitted as evidence of customary practices on land. Justice Mohd Noor in Sagong Tasi categorically endorsed the acceptance of oral history as evidence:
The first principle relates to the difficulties inherent in demonstrating continuity between current aboriginal activities and the pre-contact practices, customs and traditions of aboriginal societies. Since many aboriginal societies did not keep written records at the time of the contact or sovereignty, it would be exceedingly difficult for him to produce conclusive evidence from pre-contact times about practices, customs and traditions of their community. The second principle is to adapt the laws of evidence so that the aboriginal perspective on their practices, customs and traditions and on their relationship with the land, are given due weight by the courts. In practical terms, this requires the courts to come to terms with the oral histories of aboriginal societies which, for many aboriginal nations, are the only record of the past.[135]
His Honour ruled that oral histories relating to Aboriginal practices, customs and traditions, and the continuous occupation of, and relationship with the land should be admitted, subject to sections 32(d) and (e) of the Evidence Act 1950 (Malaysia) (‘Evidence Act’). Section 32(1)(d) allows written or verbal statements of relevant facts made by a person who is dead, when the statement gives the opinion of any person as to the existence of any public right, custom or matter which has arisen. Section 32(1)(e) allows statements mentioned in paragraph (a) when the statements relate to the existence of any relationship by blood, marriage, or adoption. Further, sections 48 and 49 of the Evidence Act allow the opinions of a living person as to general rights or customs, tenets or usages. Thus, evidence of ’organised society’, personal and place names, traditional activities on the land and Aboriginal languages were admitted. In allowing the oral evidence under these provisions, Mohd Noor J said statements on oral histories must be:
(i) of public or general nature or of public or general interest;
(ii) made by a competent person, that is, one who ‘would have been likely to be aware’ of the existence of the rights, customs or matter; and
(iii) made before the controversy as to the right customs or matter has arisen.
Admissibility of statements would depend on the status of the maker of the statement. Nonetheless, this development augurs well for native rights, particularly when contemptuous attitudes towards unwritten histories of Indigenous peoples are pervasive and have found expression in the jurisprudence and courtroom practices of other nations.[136]
In Nor Anak Nyawai the trial Court admitted the oral testimony of a witness to prove occupation. This was criticised by the Court of Appeal as being the uncorroborated views of ‘self-serving’ individuals. Ironically, the same Court proceeded to accept the oral testimony of another witness who claimed that there was no temuda in the disputed area. The difference might only have been the weight given to the latter, being the statement of a headman. Indeed, acceptance of oral evidence and the recognition that ‘stories matter’ allows a judicial decision maker to grant oral histories independent weight and place them on equal footing with the types of historical evidence that the courts are familiar with. As most Indigenous societies do not keep records, to do otherwise would be to ‘impose an impossible burden of proof’ on Aboriginal peoples, rendering ‘nugatory’ any rights they have.[137]
This brings us to another pertinent issue: when customs are codified, should the customary codes be the only source of customs that are admissible as evidence? This was among the contentions of the defendants in Nor Anak Nyawai. The Attorney General, James Fong, contended that the learned trial judge failed to consider that in the various orders issued by the Rajah or with his sanction, there was no mention of pemakai menoa or pulau, and thus the Court should have held that such practices were not part of the customary law of Sarawak during and after the Colonial period. It was also contended that the Court ought to have considered whether the Rajah’s orders had modified the customs and practices. In this regard, Chin J’s dictum in Nor Anak Nyawai is clear. His Honour said that since custom or adat is ‘a practice by the habit of the people and not by the dictate of the written law’, it may be enforceable as a pre-existing system of law and as a common law right without the aid of legislation.
It is necessary to briefly consider customary codes. Since the early 1950s, the native laws and customs of the native groups in Sarawak and Sabah have been written in administrative and customary codes. These are reproductions in written form of customs that are practised in various communities. The codes are drawn up in consultation with the elders of the community. The draft goes through the Attorney General’s chambers before being passed by the State Legislative Assembly. The codes regulate matters such as community living, religion, betrothal and marriage, and inheritance, but they do not govern all matters relating to customary tenure and customary practices on land.[138] They are therefore stipulations of general principles and customs and do not represent the sum total of the customary laws or ‘customs or body of customs to which the laws [of Sarawak] give effect’.[139] The customary laws of Sabah have been codified in a number of codes called the Woolley’s Code,[140] while the customary laws of Sarawak have been codified in a number of Adat Orders that are in various stages of codification.[141]
The practice of pemakai menoa is not described in the customary codes although it is the form of customary tenure observed by the different communities. Its recognition in Nor Anak Nyawai testifies to the continuing existence of customary practices outside the written administrative orders and customary law codes. The appreciation of this fact may well be the reason for the incorporation of section 6 in the Native Customs (Declaration) Ordinance 1996 which vests in the Council the powers to research and amend customary laws with the approval of the Majlis Mesyuarat Kerajaan Negeri (State Supreme Council). If, after consultation with the chiefs and headmen of the native community concerned, the Council considers that any custom contained in any code should no longer be practiced or is obsolete, that provision may be amended accordingly.[142] Section 7, however, provides that ’it shall be conclusive as to the customs of the native race in respect of which it is compiled’ and further, that ‘its correctness shall not be questioned in any court whatsoever’. These provisions illustrate the tensions between recognition of the vitality and fluidity of practices under customary laws and the crystallization that inevitably overtakes it when the customs are codified.
The reality is that custom remains a basis for land claims in the interior areas where all native lands are located. The act of reducing them to writing and then investing them with the approval of the sovereign had transformed customs into some form of positive law with its attendant advantages and disadvantages.[143] However, to take an approach that insists on the written law or the codes as the final and exhaustive sources of applicable laws at a time of transition and rapid change, such as that experienced by Malaysia, is to subject customary laws to a premature crystallisation. It would vex the people who live under it, whose interest and welfare should be the overriding consideration. Clearly, taking rights from a purely ‘western’ construct without taking into account the Indigenous perspective concerning the nature of the rights involved, as well as the methods of proving the existence of those rights, can result in their diminution. This is a compelling reason for giving equal respect to both perspectives. In Malaysia, where ‘customs and usages having the force of law’ are acknowledged under the Federal Constitution, there is no reason why rights that flow from them should not be given the same recognition and protection as other constitutional rights.
It is clear from the above discussions that the Malaysian courts have recognised the customary title of the Orang Asli and the customary land rights of native populations not only as a common law right, but also as a statutory right protected by the Federal Constitution. It is not merely a personal usufructuary right but an interest that amounts to a full beneficial ownership. Despite the use of the term ‘license’ in both contexts, the rights have economic value and fall under Article 13 of the Federal Constitution, which states:
1) No person shall be deprived of property save in accordance with law.
2) No law shall provide for the compulsory acquisition or use of property without adequate compensation.
‘Property’ in Article 13 is not used in a special sense. It means ‘what people can own and buy and sell, give security for debts, use, wear out, improve, give away, destroy, settle on trust, leave by will or succeed to on intestacy’.[144] It refers to something having a value which, when compulsorily acquired or used, can be assessed in economic terms.[145] For an interpretation of ‘property’ the Court in Adong relied on the Indian case of Rabindra Kumar v Forest Officer.[146] That case dealt with the meaning of ‘property’ under Article 19(1) of the Indian Constitution, which is similar to Article 13 of the Federal Constitution. The term `property’ is explained thus:
[I]n the strict legal sense, the word property signifies valuable rights or interests protected by law and this is the primary appropriate and broader signification of the term. In modern legal system, property includes practically all valuable rights...it can be enjoyed as property and recognized as equitable interests as well as legal interests and extending to every species of valuable rights or interests in either real or personal property or easements, franchises and incorporeal hereditaments. The term comprises also all rights which are incidental to the use, enjoyment and disposition of intangible things, the bare possession, with colour or right of anything of value, the right to be protected in one’s possession of a thing or in one’s privilege belonging to him as a member for the Commonwealth including the right to contest judicially any invasion of that which one possesses or owns. The property may reasonably be construed to include obligation rights and other intangible and physical things and thus the word ‘property’ means not only the thing but also the rights in the physical and corporeal thing which are created and sanctioned by law.[147]
In Selangor Pilot Association v Government of Malaysia[148] Mokhtar Sidin JCA relied on Rabindra Kumar in giving a wide interpretation to proprietary rights. It was held that Aboriginal rights under common law and statutory law are proprietary rights protected by Article 13 of the Federal Constitution. The view of the High Court was fully endorsed by the Court of Appeal.
The question of customary title as a proprietary right was again dealt with in Sagong Tasi. Justice Mohd Noor Ahmad referred to the decision of Brennan J in Mabo (No 2), where his Honour said:
Whether or not land is owned by the individual members of a community, a community which asserts and asserts effectively that none of its members has any right to occupy and use the land has an interest in the land that must be proprietary in nature: there is no other proprietor. It would be wrong, in my opinion, to point to the inalienability of land by the community and, by importing definitions of ‘property’ which require an alienability under the municipal laws of our society, to deny that the indigenous people owned their land. The ownership of land within a territory in the exclusive occupation of a people must be vested in the people: land is susceptible of ownership, and there are no other owners.[149]
Justice Brennan went on to explain that although Aboriginal title was a communal title, individuals within the community could, by its laws and customs, possess proprietary individual rights over their respective parcels of land. His Honour said:
Indeed it is not possible to admit traditional usufructuary rights without admitting a traditional proprietary community title. There may be difficulties of proof of boundaries or of membership of the community or of the representatives of the community which was in exclusive possession, but those difficulties afford no reason for denying the existence of a proprietary community title capable of recognition by the common law. That being so, there is no impediment to the recognition of individual non proprietary rights that are derived from the community’s laws and customs ,and are dependent on the community title. A fortiori, there can be no impediment to the recognition of individual proprietary rights.[150]
Justice Mohd Nor Ahmad said that ‘in keeping with worldwide recognition now being given to Aboriginal rights’ the right of Orang Asli to land is a proprietary right ‘in their customary and ancestral lands’. Having established that the right is a proprietary right, the next important issue is its protection under the Constitution.
Under Article 13(1) of the Federal Constitution, deprivation of land is only possible ‘in accordance with the law’. Article 13(2) provides that no law shall provide for ‘compulsory acquisition’ without adequate compensation. It is important to note briefly the impact of these two clauses. The term ‘deprivation’ includes any loss of property as a result of statutory law, or by an executive act. This might, but does not necessarily, involve the acquisition of property. Viscount Dilhorne, delivering the majority opinion in Selangor Pilot Association, said:
A person may be deprived of his property by another acquiring it or using it but those are not the only ways by which he can be deprived. As a matter of drafting, it would be wrong to use the word ‘deprived’ in art 13(1) if it meant and only meant acquisition or use when those words are used in art 13(2).[151]
Article 13(1) renders unconstitutional a statute or executive act which deprives a person of property and which is contrary to natural justice or due process of law. Article 13(2) renders unconstitutional a statute which provides for compulsory acquisition or use of property but which does not also make adequate compensation. This is a check on the legislature, not the executive.[152] In other words, clause (1) gives a right to natural justice or due process in the case of deprivation, but clause (2) gives a right to adequate compensation in the case of compulsory acquisition or use. Deprivation may involve acquisition or use, in which case both rights come into play.[153]
A right to compensation must be implied into any deprivation, and any deprivation of land under any legislation must be read subject to the Federal Constitution. In Adong the issue was dealt with thus:
The Federal Constitution art 13 supersedes both statutory law and common law and mandates that all acquisition of proprietary rights shall be compensated and that any law made for the compulsory acquisition or use of property without compensation shall be rendered void in accordance with art 4 of the Federal Constitution. I assume that the alienation of the Linggui Valley lands in four titles was done under the National Land Code 1965 but the National Land Code does not provide for the compensation of land acquired. However the National Land Code must be read as being subservient to art 13 of the Federal Constitution and where there is no provision for compensation under statutory law, art 13(2) should be read into that statute.[154]
The Court of Appeal affirmed that decision, saying that ‘where state action has the effect of unfairly depriving a citizen of his livelihood, adequate compensation is one method of remedying the harm occasioned by such action pursuant to art 13 of the Federal Constitution’.[155]
I suggest that deprivation might encompass elements of dispossession, withdrawal, extinguishment or termination of property. Compulsory acquisition, on the other hand, should be interpreted broadly to include effective acquisition even when there is no actual transfer of title, but there is more than mere deprivation.[156] Where the conditions of Article 13 are not satisfied, any deprivation or compulsory acquisition will be unconstitutional. Harding puts it in this way:
[T]he statute must make provision for the assessment and payment of adequate compensation, in that it must either fix the compensation, or provide principles for the assessment of the compensation, at a figure which bears a reasonable relation to the current market value of the property. Thus the claimant will have no argument based on the Constitution merely on the grounds that the compensation awarded is less than the market value of the property; he will be able to base his argument on art 13(2) only if the statute makes no or inadequate provision for adequate compensation.
The issue of unconstitutionality was raised in Sagong Tasi, where the defendants purported to summarily evict the plaintiffs and to compensate them only for what is provided for by section 11 of the Aboriginal Peoples Act; that is, only for the rubber trees planted on the land. Since the Orang Asli interest is not only an interest in ‘things on the land’ but to the land itself, the compensation granted under sections 11 and 12 of the Aboriginal Peoples Act is inadequate and therefore unconstitutional under Article 13(2). Similarly, under the Land Acquisition Act the Court held that Orang Asli land ‘occupied under customary right’ must also be adequately compensated where rights have been removed.
The full potential and impact of ‘complementary’, sui generis rights depends on how far the judiciary is willing to be creative in moulding remedies or in finding new grounds for their decisions in principles of justice, equality and human rights. The development of human rights in relation to native title varies from one jurisdiction to another but an underlying rationale may perhaps be gleaned Brennan J’s statement in Mabo (No 2). His Honour referred to the existence of universal human rights and said that:
[a] common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demand reconsideration. It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule which, because of the supposed position on the scale of social organisation of the indigenous inhabitants of a settled colony, denies them a right to occupy their traditional lands.[157]
Significantly, in Mabo v Queensland (No 1)[158] it was held that traditional interests in land were entitled to the same degree of protection as interests of other communities. The singling out of the Torres Strait Islanders through the confiscation of rights and interests, coupled with the denial of compensation and the absence of procedures to assess their claims denied their basic human rights to own and inherit property. That case was of course decided in relation to non-compliance with section 10 of the Racial Discrimination Act 1975 (Cth) (‘RDA’), which gives the holders of traditional native title the same immunity as provided for other people in the community.[159]
There is no equivalent legislation to the RDA in Malaysia. However, Article 153 of the Federal Constitution provides that it is the responsibility of the Yang di Pertuan Negara (the King) and the Yang di Pertuan Negeri (the State Governor) to safeguard the position of the Malays and natives in Sabah and Sarawak, respectively. There is also provision for the preferential treatment of the natives of Sabah and Sarawak with regards to land alienation of land in Article 161A(5). Orang Asli are not included in Article 153 but Article 8(5) provides that ‘this article shall not invalidate or prohibit any provision for the protection, well being, or advancement of the Aboriginal peoples of the Malay Peninsula (including the reservation of land)’. These provisions reflect the implicit intention of the Federal Constitution that the Government should act for the benefit of Orang Asli. The provisions also empower the Government to discriminate positively and to legislate for their protection.
In the context of these provisions, Gopal Sri Ram JCA in Kerajaan[160] took a new approach in dealing with native and Aboriginal rights. His Honour described the Aboriginal Peoples Act as ‘fundamentally a human rights statute’ because the aim of the legislation is to protect the interests of the first peoples in Peninsula Malaysia. It ‘acquires a quasi constitutional status giving it pre-eminence over ordinary legislation. It must therefore receive a broad and liberal interpretation’.[161] Justice Gopal Sri Ram referred to Canadian authorities establishing these propositions, among them Insurance Corporation of British Columbia v Heerspink, in which Lamer CJ held:
When the subject matter of the law is said to be the comprehensive statement of ‘human rights’ of the people living in that jurisdiction, then there is no doubt in my mind that the people of that jurisdiction have through their legislature clearly indicated that they consider that law, and the values it endeavours to buttress and protect, are, save their constitutional laws, more important than all others.[162]
Justice Gopal Sri Ram also referred to Canadian National Railway Co v Canada (Canadian Human Rights Commission),[163] where Dickson CJ said:
Human rights legislation is intended to give rise, amongst other things, to individual rights of vital importance, rights capable of enforcement, in the final analysis, in a court of law. I recognise that in the construction of such legislation the words of the Act must be given their plain meaning, but it is equally important that the rights enunciated be given their full recognition and effect. We should not search for ways and means to minimise those rights and to enfeeble their proper impact.[164]
In Dickason v University of Alberta[165] L’Heureux-Dube J stated:
In order to further the goal of achieving as fair and tolerant a society as possible, this Court has long recognised that human rights legislation should be interpreted both broadly and purposively. Once in place, laws which seek to protect individuals from discrimination acquire a quasi-constitutional status, which gives them pre-eminence over ordinary legislation.[166]
The above principles are in accordance with well-established principles of constitutional interpretation in Malaysia. In Ong Ah Chuan v PP[16] 7 the Federal Court said:
The way to interpret a Constitution on the Westminster model is to treat it not as if it were an Act of Parliament but as ‘sui generis’ calling for principles of interpretation of its own, suitable to its character… without necessary acceptance of all the presumptions that are relevant to legislation of private law.[168]
Two points must be borne in mind. According to Raja Azlan Shah LP, ‘first, judicial precedent plays lesser part than is normal in matters of statutory interpretation; and secondly, a constitution, being a living piece of legislation, its provision must be construed broadly and not in a pedantic [manner]’.[169] It requires ‘less rigidity than other Acts’.[170] This, however, ‘does not mean that a court is at liberty to stretch or pervert the language of the constitution in the interest of any legal or constitutional theory or even for the purpose of supplying omissions or correcting supposed errors’.[171] In applying constitutional law ‘the court must look behind the label to the substance’.[172] These principles are all the more important when fundamental rights are involved, since ‘the power and duty of the courts is to enforce those rights and to annul any attempt to subvert any of these guarantees by legislative or administrative action or otherwise’.[173]
With these principles in mind, Gopal Sri Ram JCA in Kerajaan held that the Aboriginal Peoples Act requires a liberal construction in favour of enhancing, rather than curtailing Aboriginal rights. His Honour called for an interpretation of the Aboriginal Peoples Act that fulfils the purpose of the statute:
In my judgement, what s 6 does it to prohibit the alienation or dealing by the state of land in aboriginal area to a non-aborigine. It merely reflects the permanent nature of the title vested in the plaintiffs.
And all that s 8 does is to enable the government to create merely occupational rights not being higher than a tenancy at will…
The crucial question that is overlooked…is: what title vests in the aborigines if the alienation permitted by s 6 never takes place?...If in the absence of specific alienation to him, an aborigine is to receive no interest in the land that he and generations of his forefathers have lived and worked upon, then the 1954 Act was a wasted piece of legislative action. Remember that the purpose of the 1954 Act was to provide socio-economic upliftment to the aborigines. Land being a very valuable socio-economic commodity, it was the undoubted intention of the legislature not to deprive those in the class to whom the plaintiffs belong of the customary title existing at common law.…I would add for good measure there is also nothing in the Code, which is the principal statute that regulates titles and dealings in land and interests in land which strikes at the recognition of lands held under customary title.[174]
When legislation is given a quasi-constitutional status it allows the courts to control governments’ exercises of power in relation to those rights. This is a most important safeguard for the ordinary citizen. Former Chief Justice Azlan Shah CJ has noted that ‘the courts are the only defence of liberty of the subjects against department aggression’ particularly ‘in these days when government departments and public authorities have such great powers and influence’. In light of these considerations, Gopal Sri Ram JCA in Kerajaan rightly favoured a liberal construction of the legislation providing for Orang Asli, such that their rights were enhanced rather than curtailed.
The challenge for native title as a ‘complementary’ sui generis right lies in the ability of the common law to accommodate native laws and customs and their co-existence with statutes.[175] The courts should not be guided solely by ‘western principles of law, and their overly specific and individualized perspectives’.[176] Rather, the incorporation of Indigenous perspectives is the morally and politically defensible conception of native rights.
Recognition of customary laws and Indigenous interests based on traditional laws is forging a new approach to law that does not necessarily bend to the strict Austinian positivism that monopolises the general concept of English, and Malaysian law. Rather, there is a recognition that a pre-existing customary law or adat regime may co-exist with common law and statutory law; also, that its validity does not necessarily depend on any legislative or executive recognition. The adat derives its power and authority not from a supreme lawmaker, sitting in a position of authority, but rather from the people themselves.
This approach is at the cutting edge of an emerging human rights jurisprudence being developed in Malaysia. This development must be in tandem with international developments on the rights of other Indigenous peoples. A compelling metaphor suggested for the new judicial analysis is the construction of a bridge between the Indigenous system recognised by the common law, and the recognised statutory system. This bridge starts on both sides and works towards the middle.[177] In the Malaysian context, the evolving rights are protected under a ‘constitutional’ canopy that holds the bridge together. The protection of native rights that are enshrined in the Federal Constitution must also protect the cultural institutions and customary laws that form the basis of those rights.
Treating native title as a complementary right allows courts to recognize the confluence of Indigenous and English common law, and to protect those rights which flow from pre-existing Indigenous legal regimes in a mutually beneficial, interactive, and practical co-existence. This intermingling can achieve a just and equitable solution for individual litigants and native peoples as societies. This is consonant with the rationale of native title, based as it is on equality and full respect of, and for existing rights. It also acknowledges the importance of Indigenous peoples’ conceptions of law and rights, and ensures that they are active participants in generating the norms that govern ‘our living legal tradition’.[178]
* Ramy Bulan is an Associate Professor and Deputy Dean (Development and Research/Postgraduate) at the Faculty of Law, University of Malaya, Kuala Lumpur. A draft of this paper was presented under the title ‘Native Title in Malaysia: A Convergence of Common Law, Statutory and Indigenous Law’ at the 3rd ASLI Conference 2006: The Development of Law in Asia: Convergence Versus Divergence? East China University of Politics and Law, Shanghai, 25-26 May 2006. Some of the materials for this article is derived from chapters 2 and 7 of Ramy Bulan, Native Title in Sarawak, Malaysia: Kelabit Land Rights in Transition (Phd Thesis, Australian National University, 2005). I would like to thank the reviewer of the paper for the very constructive comments on the original draft of this paper. I have made every effort to incorporate those suggestions into the final paper.
[1] On 9 February 2006 the paper suspended production following the Jyllands-Posten Muhammad cartoons controversy.
[2] Sarawak is the largest of the 13 states in Malaysia.
[3] Section 5 of the Land Code 1957 (Sarawak) (‘Sarawak Land Code’) provides that Native Customary Rights (‘NCRs’) over land may be created through the felling of virgin jungle and the occupation of the land thereby cleared; planting of land with fruits; occupation of cultivated land; use of land for a burial ground or shrine; use of land for rights of way; and, by any lawful method. The last limb was deleted by the Land Code (Amendment) Ordinance 2000.
[4] Under ss 10(3) and (4), further creation of NCRs or occupation of Interior Area Land is subject to issuance of a permit to be obtained from the Superintendent of Lands. Any native who, without a prior permit in writing from a Superintendent, occupies any Interior Area Land or fells or attempts to fell virgin jungle upon such land or attempts to create customary rights upon such land shall be guilty of an offence. Under a directive given in 1964 no such permits were given to individual persons.
[5] A communal reserve may be created under s 6 subs (1) and (2). This will be regulated by the customary law of the community for whose use the land was declared as a reserve.
[6] Different groups call it by different names. The Iban called this temuda, the Kelabit and Lun bawang call it amug, the Kayan and Kenyah call it tana’ daleh.
[7] [1997] 1 MLJ 418 (‘Adong’).
[8] [2001] 2 CLJ 769 (‘Nor Anak Nyawai’).
[9] [2002] 2 CLJ 543 (’Sagong Tasi’).
[10] See Sir Benson Maxwell’s decision in Sahrip v Mitchell & Anor (1877) Leic Reports 466, 468.
[11] Nor Anak Nyawai [2001] 2 CLJ 769, 787.
[12] Joseph Minattur, ‘The Nature of Malay Customary Law’ in David Buxbaum (ed), Family Law And Customary Law in Asia: A Contemporary Legal Perspective (1968) 17, 17-39.
[13] See Lakshman Marasinghe, ‘Customary Law as an Aspect of Legal Pluralism: With Particular Reference to British Colonial Africa’ (1998) 25 Journal of Malaysian and Comparative Law 7.
[14] See Jayl Langub, ‘The Ritual Aspects of Customary Law in Sarawak with Particular Reference to the Iban’ (1998) 25 Journal of Malaysian and Comparative Law 45.
[15] Sarawak is the largest of the 13 states that make up the Federation of Malaysia. Eleven states are in the Malay Peninsula, namely Johor, Kedah, Kelantan, Melaka, Negeri Sembilan, Pahang, Perak, Perlis, Selangor, and Terengganu while two states, Sabah and Sarawak are part of the island of Borneo. Two federal territories, Kuala Lumpur and Putrajaya, are in the Peninsula while the third, Labuan is in north-west Borneo. The area of Sarawak is almost equal to the area of all the states in the Peninsula.
[16] Report of the Inter-Governmental Committee on the participation of Sabah and Sarawak in Malaysia (1962).
[17] See Colin Nicholas, The Orang Asli and the Contest for Resources: Indigenous Politics, Development and Identity in Peninsula Malaysia (2000) 1-7.
[18] The general principle in the implementation of English law in the Straits Settlements, the Malay States, and the Borneo States had been that English law was the ‘law of general application’. See M B Hooker (ed) Laws of Southeast Asia, European laws in Southeast Asia (1988) 420.
[19] See, eg, Application of Laws Ordinance 1928 and Application of Laws Ordinance 1949, Application of Laws Ordinance 1938 (Sabah), and the Civil Law Act 1956. See also, Khoo Hooi Leong v Khoo Chong Yeok [1930] AC 346, 355.
[20] Much of the Malay customary law relating to family law has been merged into Syariah law and is administered by the Syariah courts. Malay customary laws apply mainly in Negeri Sembilan with regard to election of traditional rulers.
[21] The reference to Singapore was introduced in 1963 when Singapore joined Malaysia. It has not been removed in spite of Singapore’s secession from Malaysia in 1965. Prior to independence in 1963 the only legal definition of a Malay appeared in clause 124(3)(b) of the Constitution of the Federation of Malaya 1948, which defined a Malay as a person who habitually spoke Malay, professed the Muslim religion, and conformed to Malay customs.
[22] See Tun Mohamed Suffian bin Hashim, An Introduction to the Constitution of Malaysia (1976) 283-88.
[23] FMS (Cap) 142. See also, Kelantan Enactment (No.18 of 1930) and Trengganu Enactment (No 17 of 1960).
[24] Kedah Enactment (No 1 of 136).
[25] Perlis Enactment (No.7 of 1353).
[26] In both states, a Siamese agriculturalist who is a permanent resident is given the right to own Malay reserved land.
[27] Kesultanan Pahang v Sathask Realty Sdn Bhd [1998] 2 MLJ 513.
[28] There are a number of state laws in respect of Malay reserved lands in Peninsula Malaysia. See, eg, FMS Malay Reservation Enactments (Cap 142); Kelantan Malay Reservations Enactment (No.18 of 1930); Kedah Malay Reservations Enactment (No 63); Perlis Malay Reservations Enactment (No 7 of 1353); Johor Malay Reservations Enactment (No 1 of 1936); Trengganu Malay Reservations Enactment (No 17 of 1360).
[29] Heather McRae et al, Indigenous Legal Issues, Commentary and Materials (1997) vi.
[30] The 18 sub-ethnic groups generally classified for official purposes under Semai, Negrito, Senoi and Proto-Malays. Each group has its own language and culture.
[32] For a discussion of the appropriateness, omissions and incorrect insertions of certain groups see Ramy Bulan, ‘Native Status and The Law’ in Wu Min Aun (ed), Public Law In Contemporary Malaysia (1999) 248.
[33] There are a number of omissions and incorrect insertions in Article 161A. For instance, the Punan, Selakau are known groups that are not included, and Dusun are not generally found in Sarawak but in Sabah. This has been discussed at length in Bulan, above n 32.
[34] The states of Sabah and Sarawak have established Native Court systems with specific jurisdictions to try breaches of native law and customs. The respective courts also have jurisdiction to decide whether a person is a native or is deemed to be a native.
[36] No.12 of 1952 (Cap 64).
[37] Established under the provisions of the Rural Administration Ordinance 1951.
[38] Appointed under the provisions of the Native Court Ordinance 1993 or the Native Court (Labuan) Ordinance.
[39] Native Court Appeal No.2 of 1959.
[40] Native Court Appeal No.28 of 1959.
[42] Ibid.
[43] By virtue of the division of legislative powers under the Ninth schedule and a safeguard entrenched in Art 95D of the Constitution, the National Land Code 1965 does not apply to Sabah and Sarawak. Under art 95E, both States are represented in the council but neither are entitled to vote before the council, nor required to follow the policy formulated by the National Land Council. This protection, however, is not absolute. It will cease if parliament provides that protection under art 95E(2) should cease with the concurrence of the Yang di-Pertua Negeri (Governor).
[44] This includes the Privy Council, the United States Supreme Court, the Supreme Court of Canada, the High Court of Australia and the High Court of New Zealand.
[45] [1997] 1 MLJ 418, 430.
[47] [2005] 7 MLJ 10 (‘Amit bin Salleh’).
[48] [2005] 7 MLJ 10, 22. Land laws are governed by different statutory regimes in the three regions. In Peninsula Malaysia the National Land Code 1965 applies. In Sabah it is the Land Ordinance and in Sarawak the Land Code 1958.
[49] (2002) 175 CLR 1 (‘Mabo (No 2)’).
[50] Native Title Act 1993 (Cth) s 3 (‘NTA’).
[51] Western Australia v Ward (2002) 213 CLR 1, 16 (Gleeson CJ, Gaudron, Gummow and Hayne JJ) (‘Ward’).
[53] Quoted by Noel Pearson in ‘Land is Susceptible of Ownership’ (Paper presented at the High Court Centenary Conference, Canberra 9-11, October 2003) http://www.capeyorkpartnerships.com/team/noelpearson/NPlandSUSCEPTIBLE2003.doc> at 22 April 2007.
[54] Justice Brennan in Mabo (No 2) emphasised that the source of native title was the traditional connection to or occupation of the land, and that occupancy and or connection was to be in accordance with a system of laws and customs. Native title could be extinguished by the valid exercise of governmental powers provided a clear and plain intention to do so was manifest. Therefore, where a community is in exclusive occupation its title would arise from that occupation; the laws and customs would apply internally to determine the nature of the rights and interests of members of the community.
[55] (2001) 208 CLR 1 (‘Yarmirr’).
[57] [2002] HCA 58; (2002) 214 CLR 422 (‘Yorta Yorta’).
[58] [1998] HCA 58; (1998) 195 CLR 96.
[59] [1998] HCA 58; (1998) 195 CLR 96, 152.
[60] [2000] FCA 191; (2000) 99 FCR 316.
[61] Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316, 345 (Beaumont and Von Doussa JJ).
[62] (2002) 213 CLR 1, 76 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
[63] Ward (2002) 213 CLR 1, 94-95.
[64] Pearson, above n 53.
[65] Lisa Strelein, ‘Conceptualising Native Title’ [2001] SydLawRw 4; (2001) 23 Sydney Law Review 95, 103.
[66] Yorta Yorta [2002] HCA 58; (2000) 214 CLR 422.
[67] Strelein, above n 65, 103-4.
[68] (1973) 34 DLR (3d) 145 (SC (Can)) (‘Calder’).
[69] (1973) 34 DLR (3d) 145, 152.
[70] (1997) 153 DLR (4th) 153 (‘Delgamuukw’).
[71] Ibid [140].
[72] Ibid [111].
[73] Ibid [140].
[74] Ibid [166].
[75] Ibid [149].
[76] Sagong Tasi [2000] 2 MLJ 591, 615.
[77] [1921] 2 AC 399 (’Amodu Tijani’).
[78] [1921] 2 AC 399, 403.
[79] [2005] 6 MLJ 289 (’Kerajaan’).
[80] Ibid [12].
[81] Ibid [13].
[82] A F Porter, Land Administration in Sarawak: An Account of the Development of Land Administration in Sarawak from the Rule of Rajah James Brooke to The Present Time (1841-1967) (1967).
[83] See, eg, J D Freeman, Report on the Iban of Sarawak (1955); W R Geddes, The Land Dayaks of Sarawak (1954).
[84] Emphasis added.
[85] [2005] 5 MLJ 305. The Court followed Newcastle City Council v Royal Newcastle Hospital [1959] 1 All ER 734.
[86] Kent McNeil, Common Law Aboriginal Title (1989). See also, Mabo (No 2) (1992) 175 CLR 1, 206-14 (Toohey J); Calder [1973] SCR 313; Delgamuukw (1997) 153 DLR (4th) 153.
[87] Delgamuukw (1997) 153 DLR (4th) 153. Chief Justice Lamer linked the relationship which Aboriginal peoples have with the land as an element that underlies their Aboriginal rights. In considering whether a claim to an Aboriginal right has been made out, courts must look at both the relationship of an Aboriginal claimant to the land and at the practices, customs and traditions arising from the claimant’s distinctive culture and society.
[88] Nor Anak Nyawai [2001] 2 CLJ 769.
[89] Ibid.
[90] Ibid.
[91] Sagong Tasi [2002] 2 MLJ 591.
[92] (1984) 13 DLR (4th) 321 (SCC) (‘Guerin’).
[93] Mohegan Indians v Connecticut (1705-1773) in J H Smith, Appeals to the Privy Council from the American Plantations (1950) (‘Mohegan’). See the commentary on this case by M Walters, ‘Mohegan Indians v Connecticut (1705 –1773) and the Legal Status of Customary Laws and Government in British North America’ (1995) 33 Osgoode Hall Law Journal 783.
[94] [1823] USSC 22; 21 US 543 (1823) (‘Johnson’).
[95] Richard H Bartlett, ‘Mabo: Another Triumph of the Common Law’ [1993] SydLawRw 14; (1993) 15(2) Sydney Law Review 178, 181-82.
[96] Johnson [1823] USSC 22; 21 US 543 (1823). Chief Justice Marshall based his decision on ‘discovery’ and thus held that while the rights of the original inhabitants were, in no instance, entirely disregarded they were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as well as a just claim to retain possession of it, and to use it according to their own discretion. That ‘discovery’ gave exclusive title to those who made it.
[97] Cherokee Nation v Georgia [1831] USSC 6; 5 Pet 1 (1831); Worcester v Georgia 30 US 17 (1832); Mitchell v United States 34 US [1835] USSC 9; (9 Pet) 711 (1835); United States v Cook [1873] USSC 182; 86 US 591 (1873); and United States v Sante Fe Pacific Railroad Co [1942] USSC 12; 314 US 339, 345 (1941).
[98] Bartlett, above n 95, 182-83.
[100] [1921] 2 AC 399, 404.
[102] [1957] 2 All ER 785, 788.
[103] (1973) 34 DLR (3d) 145.
[104] Ibid 152-53, 190.
[105] (1984) 13 DLR (4th) 321.
[106] John Borrows, ‘The Sui Generis Nature of Aboriginal Rights’ (1997-98) 36 Alberta Law Review 19.
[107] Ibid. Borrows points out that the term sui generis was not initiated in Guerin although that was the first time it was elaborated upon by the courts. Academic articles had already called these rights sui generis.
[108] (1997) 153 DLR (4th) 153.
[109] Delgamuukw (1997) 153 DLR (4th) 153 [23] (McFarlane J).
[110] Ibid [112] (Lamer CJ).
[111] Jeremy Webber, ‘Relations of Force and Relations of Justice: The Emergence of Normative Community Between Colonists and Aboriginal Peoples’ (1995) 33(4) Osgoode Hall Law Journal 623.
[113] It was only in 1970 that the first action to assert native title was taken in Millirpum v Nabalco Pty Ltd (1971) 17 FLR 141. The action failed when Blackburn J decided that the ‘doctrine of communal native title does not form and never has formed, part of the law of any part of Australia’. This decision been widely criticised.
[114] (1992) 175 CLR 1, 15. The common law rights affirmed by Mabo (No 2) were translated into statutory rights through the NTA, introducing another dimension to native title rights in Australia. The definition of ‘native title’ in s 223 of the NTA follows the language of Brennan J in Mabo (No 2).
[115] (1992) 175 CLR 1, 89 citing Guerin [1984] 2 SCR 335.
[116] See John Borrows, Recovering Canada: The Resurgence of Indigenous Law (2002) 7.
[117] [1997] 1 MLJ 418, 424.
[118] Macquarie Dictionary (2nd ed).
[119] The ‘full box/empty box’ terminology comes from the discussion of s 35(1) of the Canadian Constitution Act 1982 which affirms ‘existing aboriginal rights’. The Justice Department likened s 35 to a box of rights, though said that the box itself was empty. First nation leaders riposted that the box was in fact full.
[120] [2001] 2 MLJ 591, 611.
[121] The defendants’ contention that that the plaintiffs had not adduced evidence that none of their ancestors had married outside the scheduled race would put an impossible burden on any claimant. Justice Chin noted the difficulty that it would place on issues of mixed marriages. The problem of native status and the law has been discussed in Bulan above n 32. See also, Ramy Bulan, ‘Indigenous Identity and the Law: Who is a Native’ (1998) 25 Journal of Malaysian Comparative Law 127.
[122] Sarawak came into being with the transfer of areas of the Brunei Sultanate, from the Sultan to James Brooke, a British trader dating from 1841. These were transfers not just of territory, but also of the rights to govern as a personal sovereign. For over a century, from 1841-1946 three generations of the Brooke family (the White Rajahs) ruled Sarawak. Legislation entitled ‘Orders’ were enacted in Sarawak in 1860s, marking the end of the informal and personal administration of justice by James Brooke. Later when a legislative assembly was established under the British colonial government ordinances were passed.
[123] [2001] 2 CLJ 769, 797. Citing Robert Pringle, The Ibans of Sarawak Under Brooke Rule 1841-1941, Ian Chin J alluded to another ‘obvious though unmentioned’ reason for not attempting to prohibit entirely native customary rights, namely, political expedience. Rajah Brooke had to contend with rebellion after rebellion of the various native groups and he was able to convince one group to go on war expedition on his behalf against the other. An abolishment of those rights would have united the natives against him and ‘his head would have been the trophy that would be sought after, it being the custom at that time to take the head of an enemy. To put it another way, the Rajah cannot afford to abolish those rights...’
[124] [2001] 2 CLJ 769, 828.
[125] [2001] 6 MLJ 241, 284.
[126] ‘Borneo Pulp wins Appeal Case on NCR Land’, The Sarawak Tribune (Sarawak), 9 July 2005, 3.
[128] [2006] 1 MLJ 256, 284.
[129] Ibid 269.
[130] Ibid.
[131] Ibid.
[133] [1959] 1 All ER 734, 736.
[134] Kristin Howden, ‘Indigenous Traditional Knowledge and Native Title’ [2001] UNSWLawJl 12; (2001) 24 University of New South Wales Law Journal 60, 60.
[135] [2001] 2 MLJ 591, 622.
[136] John Borrows, Recovering Canada, The Resurgence of Indigenous Law (2002) 86.
[137] Ibid.
[138] An officer with the Majlis Adat Isti Adat (Council For Preservation of Customs and Traditions) in the Chief Minister’s Department felt that this was a deliberate move given the complexities and non-uniformity attending the customary practices of each group: Personal Communication, Kuching, Sarawak, June 2002.
[139] Sarawak Land Code s 2.
[140] Administrative codes are written collections of native laws for the purpose of administration and for ascertaining the local laws. The first administrative codes that dealt with native customary laws in Sabah were called Wooley’s Code, named after their complier, GC Wooley, Esq, of the North Borneo Service. They were published by the North Borneo printers, and later reprinted in 1953 and 1962 as the native Affairs Bulletin No 1-7. These codes formed the basis of the customary laws in Sabah.
[141] The various native groups in Sarawak had traditionally administered a system of adat to regulate matters such as community living, religion, marriage and inheritance. In the early years of the Brooke administration in Sarawak, some of these unwritten laws were modified and codified under the native Customary Laws Ordinance 1955 (Cap 51). A number of native law texts were dealt with as administrative codes. These included the Sea Dayak (Iban) Code of Fines (Belaga Sub-District) Order 1952; the Tusun Tunggu, codified first in the Third Division, and later extended to the Fourth and Fifth Divisions; the Orang Ulu Customary Code of Fines (Belaga Sub-District Order); and, the Orang Ulu Customary Code of Fines (Fourth Division Order). Two compilations of adat by AJN Richards, namely the Dayak (Iban) Adat Law 1963 and the Dayak (Bidayuh) Adat law 1964, published under an administrative order, were invaluable for dealing with cases concerning adapt in the Iban and Bidayuh communities respectively. These were replaced by the Adat Iban Order 1993 and the Adat Bidayuh Order 1994. The adat of the various groups are now at different stages of codification. The general contents are standardised subject to variations to accommodate the peculiarities of each community. Each is divided into eight chapters, and modelled after the Iban Adat Order 1993.
[142] It is suggested that the converse should also be done.
[143] RH Hickling, Malaysian Law, An Introduction to The Concept of Law in Malaysia (2001) 72.
[144] L A Sheridan, ‘The Mysterious Case of the Disappearing Business: Government of Malaysia & Anor v Selangor Pilot Association’ (1977) 4(1) Journal of Malaysian and Comparative Law 2, 3.
[145] Andrew Harding, ‘Property Rights under the Malaysian Constitution’, in F A Trindade and H P Lee (eds), The Constitution of Malaysia, Further Perspectives and Developments, Essays in Honour of Tun Mohamed Suffian (1986) 59, 66.
[146] AIR (1955) Manipur 49 (‘Rabindra Kumar’).
[147] AIR (1955) Manipur 49, 53-54.
[148] [1975] 2 MLJ 66, 69 (Suffian LP) (‘Selangor Pilot Association’). The construction placed on the Indian article by the Indian Supreme Court on the unamended art 31 was adopted by Suffian LP.
[149] (1992) 175 CLR 1, 53.
[150] Ibid.
[151] Selangor Pilot Association [1977] 1 MLJ 133, 135.
[152] Harding, above n 145, 72.
[153] Ibid, 73.
[154] [1998] 2 MLJ 418, 434.
[155] Ibid, 158, 164.
[156] Ibid.
[157] (1992) 175 CLR 1, 42.
[159] (1988) 166 CLR 186, 219 (Brennan, Toohey and Gaudron JJ).
[161] Ibid.
[162] [1982] 12 SCR 145
[164] Ibid 1134.
[166] Ibid 1154.
[168] Ibid 71.
[169] Dato Menteri Othman bin Baginda & Anor v Dato Ombi Syed Alwi bin Syed Idrus [1981] 1 MLJ 29, 32.
[170] Minister of Home Affairs v Fisher [1979] UKPC 21; [1979] 3 All ER 21, 26 (Lord Wilberforce).
[171] Merdeka University Bhd v Government of Malaysia [1981] 2 MLJ 356, 366 (Abdoolcader J).
[172] Teh Cheng Poh v PP [1979] 1 MLJ 50, 53 (Lord Diplock).
[173] Ahmed Ibrahim, ‘Interpreting the Constitution: Some General Principles’ in F A Trindade and H P Lee (eds), The Constitution of Malaysia, Further Perspectives and Developments, Essays in Honour of Tun Mohamed Suffian (1986) 18. See also, Report of the Federation of Malaya Constitutional Commission 1957, [161].
[175] Borrows, above n 106, 36. Borrows says ‘[t]he sui generis concept finds its basis in “traditional laws and customs” found in the “pre-existing societies of Aboriginal peoples” and in their interaction with the common law (Van der Peet (SCC) 198 (para 40). This means that under the sui generis reformulations the legal territory being “set apart” and “reserved” to protect Aboriginal interests is a place where Aboriginal people have a continuing, extinguished legal interest. In this system, conventional common law analogies have force only to the degree that they can be reconciled with the “tradition, custom, practice or law” of the Aboriginal group claiming the right.’
[176] Ibid 37.
[177] James Y Henderson, et al, Aboriginal Tenure in the Constitution of Canada (2000) 8.
[178] Ibid.
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