VICTORY FOR ORANG ASLI
IN LAND RIGHTS’ CASE
Judge says we have to go forward and be a leader in indigenous rights as well
In a landmark decision the High Court ruled that the Orang Asli of Malaysia have a proprietary interest in customary and traditional lands occupied by them and that they have the right to use and derive profit from the land. This is an extension of the principle previously recognised by Malaysian courts in the Adong case in 1977 where it was ruled that their rights were usufructuary rights over the land.
In a further landmark ruling, the court held that any acquisition of Orang Asli land could only be undertaken under the Land Acquisition Act and that compensation must be paid according to the rates prescribed under the Act. In this respect, the court ruled that Orang Asli land enjoyed constitutional protection under Article 13(1) relating to property, and therefore, it implies, that the rates of compensation provided under Section 11 and 12 of the Aboriginal Peoples Act, which provides only for loss of crops and dwellings, would be unconstitutional.
In another significant ruling, the Court held that the government owed a fiduciary duty towards the Orang Asli and this was breached when the acquiring the land without adequate notice and by compensating them under the Aboriginal Peoples Act. Accordingly, the Court ruled that the eviction was unlawful and that the present occupiers of the land – viz. United Engineers Malaysia Berhad and the Malaysian Highway Authority (LLM) – had committed trespass and need to pay damages for trespass.
In all, the judge ruled in favour of the Orang Asli Plaintiffs in 7 out of the 8 declarations sought (the 8th declaration not granted was that the said lands are classifiable as “Malay reservation land” within the wide meaning of that term in Article 89(6) of the Federal Constitution and as such the same protections would apply to Orang Asli customary land).
The judge also ordered costs to the paid to the Orang Asli plaintiffs. Assessment of compensation and damages was relegated to the Court Registrar.
After reading his written decision (a copy of which is not available yet), the judge added the following remarks (not recorded verbatim):
“We have now something before us that is an issue that we have lagged behind in [judicially]. Either we use blinkers or we be consistent with international practice today. We go to the Antarctica, to the UN; we build the highest towers in the world, and we project ourselves as being world leaders. We cannot be praised for progressing with the time if our laws are not accepted by the other nations of the world. Otherwise we show that we are not progressing. In the case of indigenous rights, we use blinkers. We cannot go back to the time of the courts in the 20th century, like in the time of Colonial Australia.”
Brief background to the case:
In this case, seven Temuan Orang Asli sued the Federal and State Governments, United Engineers (M) Bhd and the Malaysian Highway Authority for the loss of their land and dwellings when their land in Kampung Bukit Tampoi, Dengkil, Selangor was acquired in 1996 to build the KL-Nilai Highway for KLIA. The case was heard over 32 days from 5 December 2001 to 29 March 2002, with written submission being made in July 2001 and February 2002.
The Orang Asli plaintiffs sought a declaration that they are the owners of the land by custom, the holders of native titles to the land and holders of usufructuary rights (rights to use and derive profits) to the land. They claimed that their customary and proprietary rights over the land which they and their forefathers and foremothers have occupied and cultivated for many years was not extinguished by any law.
They also claimed compensation for breach of their legal rights under the law and Federal Constitution, special damages and costs.
The case was heard before the High Court Judge, Datuk Wira Mohd Noor Ahmad. He has since been promoted to the Court of Appeal.