PROTECTION OF NATIVE RIGHTS

1. Evolving Land Rights of Indigenous Peoples in Malaysia R, Bulan, The Forest Factor in Sustainable Dev'pm 151211

2. 'Forestry is not about trees, it is about people. And it is about trees only insofar as trees can serve the needs of people‘. Jack Westoby R, Bulan, The Forest Factor in Sustainable Dev'pm 151211

3. Evolving Land Rights? Evolve – a process by which through a series of steps something attains its distinctive character Growing common jurisprudence on indigenous land rights Resurgence of customary laws - basis of pre-existing rights R, Bulan, The Forest Factor in Sustainable Dev'pm 151211

4. Legacy of Conquest & Colonisation Prof Seigfried Wessner: “ The process of colonisation has left so called indigenous peoples defeated, relegated to minor spaces, reservations, breadcrumbs of land conceded by the dominant society. [They] were separated from their sacred land, the land of their ancestors, and their burial grounds … with which they share a deeply spiritual bond. Deprived of traditional environments, they were not only politically, but economically, culturally, and religiuosly dispossessed.” R, Bulan, The Forest Factor in Sustainable Dev'pm 151211

5. Definition of Law under Art 160 of the Federal Constitution Art 160 - Law includes: Written law (Acts, Ordinances, Enactments) Principles of common law and equity and Customs or usage having the force of law. R, Bulan, The Forest Factor in Sustainable Dev'pm 151211

6. Laws on Lands and Forests Sabah – Forestry Enactment, Land Ordinance Sarawak - Forestry Ordinance, Land Code Peninsular Malaysia - Forestry Act, National Land Code, Aboriginal Peoples Act R, Bulan, The Forest Factor in Sustainable Dev'pm 151211

7. Forestry Laws Generally Rights to use and collect forest resources for own use Creation of forest reserves / protected forest subject to prescribed procedures allowing for customary claims to be brought Extinguishment of customary rights unless they are “rights and privileges that are conceded” R, Bulan, The Forest Factor in Sustainable Dev'pm 151211

8. Land Rights in Peninsular Malaysia National Land Code - S 4 (2) – Customary Tenure No express reference to Orang Asli ( See RR Sethu – no application to OA) Gopal Sri Ram in Sagong Tasi C/A (2005) – “ nothing in the Code that strikes at the recognition of land held under customary title” R, Bulan, The Forest Factor in Sustainable Dev'pm 151211

9. Aboriginal Peoples Act 1954 (Act 134) An Act to provide for the protection, well being and advancement of Orang Asli. Lands classified as : Aboriginal Reserve (APA 2 & 7) Notification in the Gazette - but may be degazetted Aboriginal Area (APA ss 2 & 6) Aboriginal Inhabited Area (APA s2) R, Bulan, The Forest Factor in Sustainable Dev'pm 151211

10. Nature of Interest Under APA Lands in Aboriginal Reserve and Aboriginal Areas may be granted rights of occupancy to to families or individuals free of rent S 8 - It would not confer “any better right than that of a tenant at will” R, Bulan, The Forest Factor in Sustainable Dev'pm 151211

11. Recognition of Customary Title Through Case law Earliest rationale for recognition of indigenous land rights Equality – addressing past historical injustices Pragmatic reconciliation R, Bulan, The Forest Factor in Sustainable Dev'pm 151211

12. Equality and Pragmatic Reconciliation Amodu Tijani v Secretary, Southern Nigeria (1921) Privy Council Per Lord Haldane - to give “full respect for existing rights” Recognition of a special and unique perspective to land based on native practices, customs and traditions R, Bulan, The Forest Factor in Sustainable Dev'pm 151211

13. Native Title Through the Courts in Malaysia Koperasi Kijang Mas v Kerajaan Negeri Perak 2. Adong bin Kuwau v Kerajaan Negeri Johor Nor anak Nyawai & Ors v Borneo Pulp Plantations Sdn Bhd v Superintendent of Lands and 4. Sagong Tasi & Ors v Kerajaan Negeri Selangor & Ors 5. Superintendent of Land & Survey v Madeli bin Salleh (2007) (Federal Court) 6. Bato’ Bagi and Jalang ak Paran v Kerajaan Negeri Sarawak (2010) R, Bulan, The Forest Factor in Sustainable Dev'pm 151211

14. Adong bin Kuwau v Kerajaan Negeri Johor Claimed rights to lands on which they foraged under Aboriginal Peoples Act Common law Federal Constitution R, Bulan, The Forest Factor in Sustainable Dev'pm 151211

15. Adong bin Kuwau v Kerajaan Negeri Johor Held: That they had a statutory right under APA 1954 s11. Compensation shd be paid for the trees, loss of livelihood but not for the land; That they had a common law native title: Continuous and unbroken occupation and /enjoyment of rights to land since time immemorial Right to live as their forefathers had done- and the right extends to future generations Right to move freely on the land without interference R, Bulan, The Forest Factor in Sustainable Dev'pm 151211

16. Adong bin Kuwau v Kerajaan Negeri Johor Held: Under the Federal Constitution: The Orang Asli (common law and statutory) interests in the land are proprietary interests and had to be compensated under Art 13(2) of the Federal Constitution. R, Bulan, The Forest Factor in Sustainable Dev'pm 151211

17. Adong bin Kuwau Held: Their rights are “complementary rights” which needs to be dealt with “conjunctively” R, Bulan, The Forest Factor in Sustainable Dev'pm 151211

18. Sagong Tasi v Kerajaan Negri Selangor[2002] 2 MLJ 591 Claims at common law: The land was customary and ancestral land occupied by them and their forefathers for generations. They have customary and proprietary rights in and over the land. The lands belonged to Temuans based on a continuous occupation for generations. R, Bulan, The Forest Factor in Sustainable Dev'pm 151211

19. Kerajaan Negeri Selangor v Sagong Tasi [2005] 6 MLJ 289 Court of Appeal (Affirmed HC): Held: The Temuan had a propreitary and full beneficial interest in and to the land , BUT only to areas of settlement and not to the areas used as foraging lands. R, Bulan, The Forest Factor in Sustainable Dev'pm 151211

20. Sagong Tasi v Kerajaan Negri Selangor[2002] 2 MLJ 591 Proof of NCR Preliminary: That oral histories of the aboriginal societies relating to their practices and customs and traditions and relationship with land should be admitted within the confines of the Evidence Act 1950. R, Bulan, The Forest Factor in Sustainable Dev'pm 151211

21. Recognition of Propreitary Rights under Native Law and Customs: A Pre-existing Right Nor Nyawai v Borneo Pulp Plantation [2001] . Adat “ as practised by the habit of the people and not the dictates of written law” (Madeli bin Salleh v Superintendent of Lands & Surveys [2005] FC - Pre-existing laws- not “created‘ by legislation R, Bulan, The Forest Factor in Sustainable Dev'pm 151211

22. Proof and Evidence of Customary Rights: Onus on claimants to prove  Maps, aerial photographs Boundary maps Oral History –Stories, Narratives on the land Evidence of customs and practice on the land Anthropological, ethnographic, linguistic Study- evidence of an organised society Genealogical charts and Evidence Artifacts/ proof of monuments/ batu sinuped Native names, local names of places, rivers R, Bulan, The Forest Factor in Sustainable Dev'pm 151211

23. Significance of Adong & Sagong(Principles affirmed in Madeli bi Salleh FC) 1. The radical title of the state is subject to any pre-existing rightts held by OA. Common law recognises & protects pre-existing rights Proof may be by occupation, oral histories, customary practices relating to land is admissible. OA have proprietary and full beneficial interest in their ancestral lands Customary rights are inalienable and may be held communally (collective rightt) and individually Customary rights may be extinguished by clear and plain intention R, Bulan, The Forest Factor in Sustainable Dev'pm 151211

24. APA as a quasi constitutional statute Per Gopal Sri Ram: Liberal interpretation given to Act 134 Being legislated for the purpose of protecting and uplifting the First Peoples of Peninsula Malaysia, makes it fundamentally a human rights statute. R, Bulan, The Forest Factor in Sustainable Dev'pm 151211

25. Property – wide interpretation Art 13 (1)– Right to property- No person shall be deprived of property save in accordance with law, No law shall provide for compulsory acquisition or use of property without adequate compensation With wide interpretation given to “property”. - OA occupation of land with no documentary title is recognised in Adong and Sagong Tasi - granted compenstaion R, Bulan, The Forest Factor in Sustainable Dev'pm 151211

26. Collective Rights of Orang Asli Ascribed to groups of people – claimed by collective entity Underpinning the maintenance of a horizontal structure of the community – and a workable system of culture and way of life. Thus – the maintenance of a ’ kawasan saka” is important to OA R, Bulan, The Forest Factor in Sustainable Dev'pm 151211

27. Land Policy For Orang Asli Basis – 6 acres per head of household – includes ¼ acre for housing Strict application might mean surrender of cultivated lands – leading to greater loss of land Ouster clause – no further claim against government R, Bulan, The Forest Factor in Sustainable Dev'pm 151211

28. Conclusion Customary Laws – a source of law under the Constitution A morally defensible concept of native rights must take into account the statutory, the common law and the indigenous perspectives under custom, and be interpreted within the spirit and intendment of the Federal Constitution R, Bulan, The Forest Factor in Sustainable Dev'pm 151211

29. Thank you very much for your attention! R, Bulan, The Forest Factor in Sustainable Dev'pm 151211