Judge says we have to go forward and be a leader in indigenous rights as well

By Center for Orang Asli Concerns (COAC)

Justice at last: Temuans and their lawyers express delight outside court after judgment was passed "Therefore, to be keeping with the worldwide recognition now being given to aboriginal rights, I conclude that the proprietary interest of the Orang Asli in the customary and ancestral lands is an interest in and to the land. “My view is that, although I am inclined to wear blinkers in considering the issues involved in this case by confining only to our existing laws and social conditions, I am compelled not to be blinkered by the decisions of the court of other jurisdictions which deserve as much respect, in particular on the rights of the aboriginal people which are of universal interest, especially when there is no clear and plain indication to the contrary in our laws.” In a landmark decision on 12 April 2002, the Shah Alam 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 1997 where it was ruled that their rights were usufructuary rights (rights to use and derive profits) 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 land was acquired without adequate notice and compensation made 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 seven out of the eight declarations sought. (Tthe 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. Brief Background 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 2001, with written submission being made in July 2001 and a further submission in 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. The lawyers for the Orang Asli were from the Human Rights Committe of the Bar Council and handled the case pro bono (i.e. without fee). The team was led by Datuk Dr. Cyrus Das and ably assisted by Jerald Gomez, Rashid Ismail, Sharmila Sekaran and Leena Ghosh. Now tell us what you think. E-mail us.