From: "Colin (COAC)" <coac@streamyx.com>
Date: Monday, September 19, 2005 8:24 pm
Subject: [orangasli] ORANG ASLI LAND RIGHTS UPHELD IN COURT OF APPEAL


NATIVE LAND: COURT OF APPEAL UPHOLDS
LANDMARK RULING


Malaysiakini.com

Arfa'eza A Aziz
Sep 19, 05 2:23pm

The Court of Appeal today upheld a landmark judgment that recognised Orang Asli native land titles under common law.

The court dismissed the appeal by the federal government, the Selangor government, the Malaysian Highway Authority (MHA) and United Engineers Malaysian Berhad (UEM) who argued that native customary and ancestral rights are not equivalent to propriety rights under common law.

The court ruled that the Shah Alam High Court was correct in concluding that the four appellants compensate the respondents - Sagong Tasi and six others from the Temuan tribe - under the Land Acquisition Act 1960 for the loss of their 38-acre customary land in Bukit Tampoi.

The court also held that the High Court was right to have ordered UEM and MHA to pay damages for trespassing on the ancestral land to build a highway to the Kuala Lumpur International Airport.

Much to the joy of some 350 Orang Asli who waited anxiously for the decision at the Palace of Justice in Putrajaya, the court ordered UEM and MHA to also pay exemplary and special damages for the harsh treatment meted out to the Orang Asli when being evicted from their land.

The court also ruled that the seven Temuan tribes be compensated for both the gazetted and non-gazetted land that was taken from them compared to the previous judgment which allowed compensation for only gazetted areas as 'aboriginal reserves'.

The unanimous decision by Court of Appeal Judges Gopal Sri Ram, Ariffin Zakaria and Nik Hashim Nik Abdul Rahman (now Federal Court judges) was greeted with a thunderous applause by the Orang Asli who had to wait outside due to space constraints.

Wake-up call

A spokesperson for the seven Temuan tribes, Tukas Anak Siam, said the decision was a victory not only for them and the 26 families they represented but also for the entire 150,000 Orang Asli whose land rights were continuously ignored by government agencies and private companies.

"The judgment allows us to preserve our heritage because land is very important to us as our lives depend on it.  We cannot even die properly without it.  I feel that the government should be more sensitive to our plight," he said when met outside the court.

Centre for Orang Asli coordinator Dr Colin Nicholas described the ruling as a wake-up call for the government.

"It shows that they have failed to protect the rights of the Orang Asli as required under the law and the Federal Constitution," he said.

He added that the judgment could well serve as a beacon for aborigines in other countries as well, noting that today's ruling "was much stronger than that of Australia's".

On April 12, 2002, High Court Judge Mohd Noor Ahmad ordered both the federal and state governments, MHA and UEM to pay damages to Sagong Tasi and six others for the loss of their land.

In his judgment, the judge recognised the existence of Orang Asli native (in this case the Temuan) land titles in common law and ordered the compensation to be assessed according to the Land Acquisition Act 1960.

He also ordered MHA and UEM to pay damages for trespassing.

Prior to the judgment, the government had considered the Orang Asli as mere tenants and revocation of their ancestral land was not protected under the Land Acquisition Act, unlike cases involving private land.

A 'sad case'

In the 59-page judgment, Gopal described the matter as 'a sad case' due to the treatment meted upon the Temuan tribes by the defendants.

"Here you have a case where the very authority - the state that is  enjoined by the law to protect the aborigines turned upon them and permitted them to be treated in a most shoddy, cruel and oppressive manner.  It is my earnest hope that an episode such as this will never be repeated," he said.

He also rejected the government's <http://www.malaysiakini.com/news/36947> argument that the aborigines have "nothing in a manner of a title to or interest in the land" as the land they have been occupying for the past 200 years has not been alienated.

"With respect, the submission is devoid of any merit.  If, in the absence of a 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 (Aborigines People's) 1954 Act was a wasted piece of legislative action.

"Remember that the purpose of the 1954 Act was to provide socio-economic commodity [...] it was the undoubted intention of the legislature not to deprive those in the class to whom the (Temuan tribes) belong of the customary title existing at common law," he said.

Gopal also reasoned that the state and federal governments must be taken to task for failing to gazette certain portions of the Temuan tribes' land, adding that the high court judge ought to have included the non-gazetted area for purposes of compensation.

"In my judgment, it was open to the judge to have the finding that the failure or neglect of the government to gazette the area also amounted to a breach of fiduciary duty (to protect the welfare of the aborigines including their land rights).

"Here you have a case where the government had knowledge or means of knowledge that some of the plaintiffs had settled on non-gazetted area.  It was aware that so long as that area remains non-gazetted, the plaintiff's right in the land was in serious jeopardy," he said.

Taking advantage

While being in breach, he added that the government cannot argue now that no compensation was paid because of the 'non-gazettation' which was their fault in the first place.

"I am yet to see a clearer case of a party taking advantage of its own wrong," he stressed.

He also rejected MHA and UEM's arguments that they had not trespassed into the Temuan tribes land because they received permission from the federal and state governments to enter and start construction.

"The land they entered upon was not theirs.  They had no title to it.  If they were seeking to rely on any permission granted to them by (the governments) then that was equally worthless because they are not the absolute owners of the land," said the judge.

He said that exemplary damages was appropriate due to the highhanded tactics used to evict the Temuan people.

"In summary what was done to forcibly demolish their homes and meeting halls and unceremoniously asked to go and fend for themselves in unkind weather [...] I am satisfied that this is a proper case to award exemplary damages," he added.