1. The relevant laws include the Aboriginal Peoples Act 1954, and Article 89(4) of the Federal Constitution
Other laws occasionally of relevance include Article 5(5)(c) of the Federal Constitution, the Malay Reservations Enactment 1913, the Land Acquisition Act 1960, and the National Forestry Act 1984.
2. The Crown’s right or interest in a piece of land is subject to any native rights over such land
This was held by the Federal Court in Superintendent of Land & Surveys Miri Division & Anor v Madeli bin Salleh (suing as Administrator of the Estate of the Deceased, Salleh bin Kilong) [2008] 2 MLJ 677 (“Madeli bin Salleh”) to be the common law position throughout the Commonwealth:
“With respect, we are of the view that the proposition of law as enunciated in these two cases reflected the common law position with regard to native titles throughout the Commonwealth. And it was held by Brennan�J, Mason CJ and McHugh J, concurring, in Mabo (No 2) that by the common law, the Crown may acquire a radical title or ultimate title to the land but the Crown did not thereby acquire absolute beneficial ownership of the land. The Crown’s right or interest is subject to any native rights over such land.”[1] (emphasis mine)
This legal proposition was followed by the Court of Appeal in Ketua Pengarah Jabatan Hal Ehwal Ehwal Orang Asli & Anor v Mohamad bin Nohing (Batin Kampung Bukit Rok) & Ors and another appeal [2015] 6 MLJ 527.[2]
3. Common law only recognises the claim of customary lands to areas which form the natives’ settlement and not the area where they used to roam and forage in the jungle
In Superintendent of Lands & Surveys, Bintulu v Nor Anak Nyawai & Ors and another appeal [2006] 1 MLJ 256 (“Nor Anak Nyawai”), the Court of Appeal affirmed the decision of the High Court in Sagong bin Tasi & Ors v Kerajaan Negeri Selangor & Ors [2002] 2 MLJ 591 in relation to this legal proposition:
“… we are inclined to agree with the view of the learned trial judge in Sagong bin Tasi & Ors that the claim should not be extended to areas where ‘they used to roam to forage for their livelihood in accordance with their tradition’. Such view is logical as otherwise it may mean that vast areas of land could be under native customary rights simply through assertions by some natives that they and their ancestors had roamed or foraged the areas in search for food.”[3] (emphasis mine)
4. The common feature which forms the basis of claim for native customary rights is the continuous occupation of land
In Nor Anak Nyawai, the Court of Appeal also held as follows:
“From the above two cases [i.e. Kerajaan Negeri Johor & Anor v Adong bin Kuwau & Ors [1998] 2 MLJ 158 and Sagong bin Tasi & Ors v Kerajaan Negeri Selangor & Ors [2002] 2 MLJ 591], we note that the common feature which forms the basis of claim for native customary rights is the continuous occupation of land.”[4]
5. There can be occupation without physical presence on a piece of land provided there exists sufficient measure of control to prevent strangers from interfering
The Court of Appeal in Ketua Pengarah Jabatan Hal Ehwal Ehwal Orang Asli & Anor v Mohamad bin Nohing (Batin Kampung Bukit Rok) & Ors and another appeal [2015] 6 MLJ 527 held that:
“In the light of the principles enunciated in the abovementioned authorities, we agree with the state appellants that the native customary rights are established by the aborigines’ occupation of the subject land. Whilst actual physical presence on the land is not necessary, there can be occupation without physical presence on the land provided there exists sufficient measure of control to prevent strangers from interfering. In this case, there is no evidence produced by the respondents to show that there exists sufficient let alone any measure of control to prevent strangers from interfering on the land.”[5] (emphasis mine)
6. Native customary land rights of the aboriginal peoples can only be extinguished by clear, unambiguous and plain legislation or by an executive act expressly authorised by such legislation
In Madeli bin Salleh, the Federal Court affirmed the Court of Appeal’s approach :
“The Court of Appeal relying on Sugar Refining Co v Melbourne Harbour Trust Commissioners [1927] AC 343 adopted the rule of statutory interpretation that ‘a statute should not be held to take away rights of property without compensation unless the intention to do so is expressed in clear and unambiguous terms.’ In this regard we agree with the Court of Appeal that there is no provision in the 1921 Order seeking to extinguish the respondent’s right over the said land.”[6]
On this legal proposition, the Court of Appeal in Ketua Pengarah Jabatan Hal Ehwal Ehwal Orang Asli & Anor v Mohamad bin Nohing (Batin Kampung Bukit Rok) & Ors and another appeal [2015] 6 MLJ 527 (“Mohamad bin Nohing”) followed Madeli bin Salleh.[7]
Mohamad bin Nohing summarised Madeli bin Salleh’s position as follows:
“Federal Court held that native customary land rights of the aboriginal peoples can only be extinguished by clear, unambiguous and plain legislation or by an executive act expressly authorised by such legislation. To adopt the words of the Federal Court, such a ‘drastic measure’ must be justified in clear and unambiguous terms and not by mere implication.”[8]
[1] Superintendent of Land & Surveys Miri Division & Anor v Madeli bin Salleh (suing as Administrator of the Estate of the Deceased, Salleh bin Kilong) [2008] 2 MLJ 677, at paragraph 19
[2] Ketua Pengarah Jabatan Hal Ehwal Ehwal Orang Asli & Anor v Mohamad bin Nohing (Batin Kampung Bukit Rok) & Ors and another appeal [2015] 6 MLJ 527, at paragraph 47
[3] Superintendent of Lands & Surveys, Bintulu v Nor Anak Nyawai & Ors and Anor Appeal [2006] 1 MLJ 256, at paragraph 28
[4] Superintendent of Lands & Surveys, Bintulu v Nor Anak Nyawai & Ors and Anor Appeal [2006] 1 MLJ 256, at paragraph 28
[5] Ketua Pengarah Jabatan Hal Ehwal Ehwal Orang Asli & Anor v Mohamad bin Nohing (Batin Kampung Bukit Rok) & Ors and another appeal [2015] 6 MLJ 527, at paragraph 41
[6] Superintendent of Land & Surveys Miri Division & Anor v Madeli bin Salleh (suing as Administrator of the Estate of the Deceased, Salleh bin Kilong) [2008] 2 MLJ 677, at paragraph 31
[7] Ketua Pengarah Jabatan Hal Ehwal Ehwal Orang Asli & Anor v Mohamad bin Nohing (Batin Kampung Bukit Rok) & Ors and another appeal [2015] 6 MLJ 527, at paragraphs 49 to 50
[8] Ketua Pengarah Jabatan Hal Ehwal Ehwal Orang Asli & Anor v Mohamad bin Nohing (Batin Kampung Bukit Rok) & Ors and another appeal [2015] 6 MLJ 527, at paragraph 50
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