Native Customary Rights vs Legislation – Who Will Win?

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Native Customary Rights vs Legislation – Who Will Win?

November 11, 2019 Land Dispute 0

The contention on land ownership, specifically between the orang asli (aboriginal people) and the State is not a new subject.

In this article, we will briefly explore the case of Kong Chee Wai & Satu Lagi v Pengarah Tanah Dan Galian Perak & Yang Lain dan Satu Lagi Kes to better understand the law on this issue i.e. whether the rights and claims of the orang asli are upheld by the courts of Malaysia.

Brief Facts of the Case

A dispute arose between the orang asli of the Semai tribe and Bionest Corporation Sdn Bhd (‘BCSB’) as to the ownership of a certain plot of land in Kampung Kuala Senta, Bidor, Perak. The orang asli claims the land to be an aboriginal customary land which carries proprietary interest, whilst BCSB claims that the land has been given to them by the Perak Land Office and the Perak State Government on the condition that the land is used to grow spirulinas.

Both parties filed their respective suit against the other party. BCSB filed their suit in 2014 seeking an order that the land is to be vacated by the orang asli, while the orang asli filed a claim against BCSB, the Perak Land office for their aboriginal customary land.

After hearing the matter, the Court decided in favour of the orang asli’s claim. In coming to the above conclusion, the Court (amongst others) had to determine certain issues:

1. Whether the customary rights of the orang asli conferred under common law can be considered a substantive law?

The short answer is yes, and the long answer is this: the court had relied upon multiple cases that have decided upon this matter previously to state that a common law can be considered a substantive law i.e. it is not merely a guide or a precedent whereupon a court can rely upon to decide a matter but a law that must be adhered to unless it is taken away by a written legislation/ law.

How did the court arrive at the answer above?

In short, the court held that it is the intention of the crown (during the colonial era) that the rights of property of the inhabitants are to be fully respected. This means that even though the crown retains the ultimate title to all land, it is the orang asli who retains the beneficial interest over the land i.e. how it is utilized. Such right can only be taken away by enacting laws that give the crown the power to compulsorily acquire the land for a public purpose but compensation must be awarded if such land is to be acquired by the crown. This was recognized in East Malaysia in James Brooke’s era and was also affirmed by the Court of Appeal and subsequently in Federal Court in the local case of Kerajaan Negeri Selangor & Others v Sagong Tasi & Others.

Therefore, until a clear and unambiguous law is enacted to take away the rights of the orang asli, their rights, customs and laws to the land are considered an existing law that is recognized by the Federal Constitution.

2. In the event a written law is created, could the rights granted under common law still supersede the rights granted under a written law?

The short answer is no. As mentioned above, the rights granted under the common law will cease to exist the moment a written law is enacted in the place of the common law. However, a quick observation of Kong Chee Wai and other cases mentioned in the article will tell you that even if such laws are created:

  • The crown (or in Malaysia, the State) still owes a fiduciary duty towards the orang asli to ensure that their rights are protected. This is because a state is governed by the parliament that is elected by the people. The people entrusted their welfare to the parliament and thus the parliament has to ensure that their interest is protected and that the power is not abused or misused for the State’s benefit;
  • The laws can only create to supervise a transaction of the land from one hand to another, such as from one state to another state or from one state to a developer. The usufructuary right of the orang asli, i.e. their right to use and enjoy their aboriginal customary land remains the same and cannot be impaired, altered or cease to exist merely because the ultimate title of the land is passed on to another entity; and
  • In the event that the land is acquired, proper compensation must be awarded to the orang asli.

In this case, even though the court was in favour of the orang asli claim, the court also held that the land that was claimed by the orang asli had to first be measured by a qualified land surveyor to determine the actual size of the aboriginal customary land and that part of the land that the orang asli had rented out to other people cannot be considered as their aboriginal customary land any longer as they have relinquished their rights to a third party. (there was an appeal that reversed this part of the decision)


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