Malaysia: High Court grants the Orang Seletar rights to their customary lands AND waters

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    In a novel ruling on the customary rights of the Orang Asli, the Johor Baru High Court ruled that the Orang Seletar of Kampung Sungai Temon and Kampung Bakar Batu not only have customary rights to their traditional lands but also to the waters and seas they traditionally used.

    Applying common law principles of the Commonwealth courts, Justice Teo Say Eng ruled that the customary rights of the Orang Seletar should not be limited to their settlements and land used by forefathers according to customary practices (such as foraging lands).

    In the case of the Orang Seletar plaintiffs (who are a coastal-dwelling and sea-dependent people) it only makes sense if it includes also the customary waters and streams used by forefathers.

    Detailed family trees were produced, some going up to 7 generations.

    Proofs required and the evidence adduced

    The court agreed that for the Orang Seletar to succeed in their claim, they needed to prove that they are Orang Asli, that they have prior and continuous occupation, and that they maintain traditional customary practices.

    The court ruled that the Plaintiffs have established that they are Orang Asli of the Orang Seletar subgroup and that they have also proven their claim over lands and waters on the balance of probabilities.

    The court accepted that the Orang Seletar plaintiffs have prior and present occupation since time immemorial, or at least from the time of the establishment of Johor sultanate. This evidence was provided by way of oral history through the three Orang Seletar plaintiffs (Eddy Salim, Salim Palon and Mat Inder).

    The Orang Seletar’s historical occupation was also supported by the plaintiff’s expert witness, Dr Colin Nicholas and also that of the 5th Defendant (JAKOA)’s expert witness, Jumaat Misman. Both expert witnesses also established that the Orang Seletar Plaintiffs have a strong connection with the claimed lands and waters.

    The Court was also satisfied that the present occupation of the Orang Seletar Plaintiffs in Kampung Bakar Batu and Kampung Sungai Temon has also been established by way of superimposed Google maps, which are indicative in nature and which help to identify the entire area.

    The Orang Seletar were able to show continuity in occupation and dependence on the land and waters.

    Credibility of witnesses

    The credibility of the 3 Orang Seletar Plaintiffs and their expert witness was strongly challenged during the trial by the Defendant’s lawyers.

    However Justice Teo accepted the oral evidence of the 3 Orang Seletar Plaintiffs of their history as he found them to be competent witnesses.

    The Court also accepted SP4 (Colin Nicholas) as a credible expert witness in view of his credentials and numerous articles and researches published, his presentation in court, and that his testimony has been accepted in other courts. Although he is a partisan witness, the court found his testimony to be still reliable as it is based upon the published works of other authors.

    Based on the above, the Court ruled that Plaintiffs are Orang Asli-Seletar and that they have proven their claim over lands and waters on the balance of probabilities. As such, they have acquired customary rights over lands and non-exclusive rights over the waters. The actual area involved however is subject to a proper survey to be carried out.

    Cultural practices and connection with the land and waters still continue to this day.

    Fiduciary duty

    The Court also held that Defendants D2 & D3 (Director of Land and Mines, Johor & the State Government of Johor) hold fiduciary duty to protect the welfare and land rights of the Orang Seletar Plaintiffs, and they have a duty not to act in a manner inconsistent with the Plaintiffs’ rights.

    The Court found that Defendants D2 & D3 have committed a breach of fiduciary duty when they failed to gazette the Plaintiffs’ customary lands and unlawfully alienated the lands to other parties.

    The Court also held that Defendants D5 & D6 (Director-General of the Department of Orang Asli Development, JAKOA & the Federal Government of Malaysia) also hold fiduciary duty to protect welfare and land rights of the Plaintiffs and they have a duty not to act in a manner inconsistent with the Plaintiffs’ rights.

    However, since land matters are state matters, the Court held that the Federal Government cannot be held liable, but they do have a fiduciary duty to ensure that the State gazettes the Plaintiffs’ customary lands.

    JAKOA’s responsibility as such extends beyond mere welfare provisions and includes ensuring land rights for the Orang Asli. They have committed a breach by failing to ensure this in the case of the Orang Seletar of Danga Bay.

    In light of the breach of fiduciary duty by all the 4 parties above, the Court awarded the Plaintiffs costs of RM30,000.00 each for Defendants D2&D3 and D5&D6 i.e. a total of Rm60,000.00.

    The Court ruled that both the State and Federal Governments owe a duty to ensure that the Orang Seletar’s lands are protected and secured.

    Co-existing rights

    The Court ruled that customary rights can coexist with the National Land Code (NLC) but do not override it. The judge determined that Defendants D7 to D13 (private corporations and individuals with issued land titles in the claimed area) have acquired registered titles under the National Land Code. They are lawful titled owners under the NLC so their titles are indefeasible over customary lands and waters.

    The Court also ruled that the Constitutional rights under Article 13 of Federal Constitution (‘Rights to property’) equally applies to the titled land owners. However, as the Orang Seletar’s rights over lands also fall under Article 13, they are entitled to compensation.

    Justice Teo ruled that compensation should be made via the state government since they are in breach for alienating the land to third parties. Defendants D7-D13 should not be penalized as they are bona fide purchasers.

    It follows then, that the issue of trespass does not apply since Defendants D7-D13 are the lawful owners of their respective properties. As such, no order as to costs against the private land owners was made.

    Land alienated from the customary territories are to be compensated for.

    Rulings & Prayers granted

    The Court granted Orang Seletar Plaintiffs’ prayers for a declaration that they are owners by custom and holders of native customary rights/title with respect to the lands at Kampung Orang Asli Sungai Temon and Kampung Orang Asli Bakar Batu as demarcated and identified through superimposed Google Maps.

    The Court ordered that a proper survey be carried out by D2 (the Director of Land & Mines, Johor) together with representatives of the Plaintiffs to ascertain the boundaries, after excluding land registered in third parties’ names. All state lands to be gazetted as Orang Asli Reserves under Aboriginal Peoples Act.

    The Court also ruled that the State’s action in registration of the Plaintiffs’ customary lands to other parties is tantamount to an acquisition of customary lands. As such, the Plaintiffs are to be compensated by D2 for the acquisition of the customary lands as per the Land Acquisition Act 1960.

    Finally, the Court ruled that the customary rights and interests of the Plaintiffs are also rights to have free access to the said waters within the customary waters for all or any of the following purposes:

    (1) to travel through or within the customary waters;

    (2) to forage, collect, fish and hunt for the purpose of satisfying their personal, domestic, commercial and/or non commercial communal needs including but not limited to, for the purpose of observing their traditional, cultural, ritual and spiritual laws and customs;

    (3) to visit, protect and maintain places which are of cultural and spiritual importance; and

    (4) to safeguard their cultural and spiritual knowledge.

    But this right is subject to state laws.

    The Orang Seletar plaintiffs giving authority to the lawyers to appeal certain parts of the judgement.

    Appeal

    The Orang Asli Plaintiffs have indicated, through their lawyers, that they intend to appeal parts of the judgement.

    In particular, they are concerned that the ruling that allows the unilateral alienation of land by the state to others is being allowed to extinguish the native customary rights or title of the Orang Seletar, albeit remedied by a cash compensation.

    The feared reality is that much of the customary lands claimed have already been alienated to others, leaving very little, if any, state land to be gazetted as an Orang Asli Reserve.

    The Plaintiff’s preference is for the return of those alienated lands, rather than mere cash compensation for them.

    In this regard, the Court granted the Plaintiffs’ oral application for preservation of status quo for 14 days from the date of judgment pending the filing of a formal application to the court.

    Chung Yi Fan, then of the Bar Council’s Committee for Orang Asli Rights (COAR) briefing the legal team at the onset of the case in 2012.

    The Orang Seletar legal team came from the Bar Council’s Committee for Orang Asli Rights (COAR) led by Steven Thiru and ably assisted by Aaron Mathews, K. Mohan, Dr Yogeswaran, Jessica Ram Binwani & Theiva Lingam, and 1 other who wishes to remain anynomous.

    Important note: The above report is based on handwritten notes made during the delivery of the judgement. They are not verbatim statements, nor have they been checked for accuracy with the court recording (which is in the process of being transcribed).

    Source: COAC | 1 March 2017

    [Photos by Colin Nicholas, Koong Hui Yein & Herry Kok.]

    Legal teams on both sides at the close of the case on 28 February 2017.
    Site visit by Justice Teo and the legal teams in 2014.