III Native Title, Aboriginal Title, Orang Asli Customary Title, Native Customary Rights and Customary Land: What is the Connection?
Historically and politically, land laws in Malaysia developed differently in Peninsula Malaysia, Sabah and Sarawak. The recognition of Malay customary land tenure in Peninsula Malaysia is preserved under section 4(2) of the National Land Code 1965, the respective provisions of the National Land Code (Penang and Malacca Titles) Act 1963 and the Customary Tenure Enactment (FMS). With the exception of Penang, Melaka, Sabah and Sarawak, the other nine states in Peninsula Malaysia have laws providing for reserved lands in favour of Malays under Malay Reservation enactments. In Sabah, the Land Ordinance (Cap 69) makes provision for NCRs to land whilst in Sarawak the equivalent statute is the Sarawak Land Code.43 For the Orang Asli of Peninsula Malaysia, the Aboriginal Peoples Act contains provisions for the creation of Aboriginal reserves. Some Aboriginal communities, however, live in areas that are not designated as Aboriginal reserves but rather as ‘Aboriginal areas’ or ‘Aboriginal inhabited areas’.
A Native title
This paper considers native title as a general term that encompasses Aboriginal customary title to land, native customary rights and customary land. It is used here in the dual sense, both as an entitling condition as well as a right to land. As an entitling condition, only a native or Aboriginal person may claim rights that flow from that entitlement. As to the nature of the right, it is a right that is fundamentally embedded in native laws and customs. Both title and rights flow from long established occupation of land. The rights under customary laws have always existed and been the subject of litigation, particularly in Sarawak and Sabah. When the customary title of the Orang Asli came up for decision in Peninsula Malaysia, the recognition of their customary title drew upon the native title jurisprudence of other common law jurisdictions.44 In Adong Mokhtar Sidin JCA (as he then was) said:
My view is that, and I get support from the decision of Calder’s case and Mabo’s case, the aboriginal peoples’ right over the land include the right to move freely about their land, without any form of disturbance or interference and also to live from the produce of the land itself, but not to the land itself in the modern sense…since they have been in continuous and unbroken occupation and /or enjoyment of the rights of the land from time immemorial. I believe this [customary right of the aborigines in Peninsula Malaysia] is a common law right which the natives have and which the Canadian and Australian courts have described as native titles and particularly the judgment of Judson J in the Calder case…I would agree with this ratio and rule that in Malaysia the aborigines’ common law rights include, inter alia, the right to live on their land as their forefathers had lived and this would mean that even the future generations of the aboriginal people would be entitle to the right of their forefathers.45
The Court in Nor Anak Nyawai regarded NCRs in Sabah and Sarawak as synonymous with native title. This is clear from Chin J’s judgment:
if necessary, another apt description of native customary right would be that used to describe native title in Mabo No 2‘ …which is that ‘it has its origin and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory.’ It is therefore not dependent for its existence on any legislation, executive or judicial declaration…though they can be extinguished by those acts.46
Drawing from Adong, the High Court also said:
it is common ground arising from the decision in Mabo v State of Queenland (1992) 66 ALJR 408 which was followed in Adong bin Kuwau & Ors v Kerajaan Negeri Johor  I MLJ 418 and which decision was affirmed by the Court of Appeal in Kerajaan Negeri Johor & Anor v Adong bin Kuwau & Ors v  2 MLJ 158 the common law respects the pre-existing rights under native law and custom though such rights may be taken away by clear and unambiguous words in legislation.
This was reiterated in Amit bin Salleh & Ors v The Superindent, Land & Survey Department, Bintulu & Ors47 where Abdul Azizi bin Abdul Rahman J said:
Though the common law rights and the statutory rights over land in Adong bin Kuwau are rights belonging to the aboriginal people of the Peninsula Malaysia, these rights in my view are similar to the native customary rights over native communal reserve of the natives of Sarawak.48
The courts in Adong, Nor Anak Nyawai and Amit bin Salleh were clearly referring to the concepts of the recognition of native title under the common law of Australia as first established in Mabo & Ors v Queensland (No2).49 The High Court of Australia established native title as having its source in, and deriving its content from, laws and customs of the Indigenous peoples. It was not that native title was created by the courts to be recognised from then on; rather, it had always existed. It was also held that native title was a communal right which could be proved by an identifiable community who could show that they had a connection to the land through their laws and customs. Based in native law and customs, it was neither dependent on the recognition of a sovereign nor on any law or statute for recognition.
Those rights were translated into statutory rights when the judgment of Brennan J in Mabo (No 2) became the basis for a statutory framework under section 223 of the Native Title Act 1993 (Cth) (‘NTA’). The preamble to the NTA states that ‘the common law of Australia recognises a form of native title that reflects the entitlement of the Indigenous inhabitants of Australia, in accordance with their laws and customs, to their traditional lands’. It states that native title has its origins in, and is given content by, traditional customs. The statutory definition under section 223(1) of the NTA concerns rights and interests possessed under traditional laws and customs, including the identification of customs and their connection to lands and waters.
The NTA aimed to ‘recognise and protect native title’; ‘to establish a mechanism for determining claims for native title’; and, ‘to establish ways in which future dealings affecting native title may proceed’.50 This laid the foundation for the to be ‘the starting point’ for a narrower interpretation of native title within the legislative framework. While the NTA incorporated common law concepts, it clearly introduced another dimension to native title in Australia since ‘it is to the terms of the NTA that primary regard must be had, and not the decision in Mabo (No 2)’.51 As articulated by Kirby J in the course of argument in Western Australia v Ward,52 ‘the starting point now is surely the Federal Act of Parliament’; his Honour later in the same course of argument stated that ‘you have to give content to an Act and not forage around amongst the predecessor provisions of the common law’.53 Despite its inclusion in the NTA, the common law concept of native title espoused in Mabo (No 2) continues to be referred to by Malaysian courts and courts of other jurisdictions in common law decisions.54 Later decisions of the High Court of Australia, including Commonwealth v Yarmirr,55 Ward56 and Yorta Yorta Aboriginal Community v Victoria57 have been decided in such a way that they are of limited relevance in the Malaysian context.
In Mabo (No 2) no distinction was drawn between land and other rights. Instead, native title was defined in a way that encompassed the laws and customs of native title holders. Judicial credence to the bundle of rights conception of native title was given by Kirby J in Fejo v Northern Territory,58 his Honour referring to ‘the bundle of interests we now call native title’.59 In Western Australia v Ward60 the majority of the Full Court of the Federal Court regarded native title not as an interest in land but a ‘bundle of rights’. This meant that there could be ‘partial extinguishment’ of native title where the rights claimed are inconsistent, thereby reducing the ‘bundle of rights’ constituting native title.61 This approach was approved by the High Court on appeal in Ward.62 The development of the law in Australia since Mabo (No 2) and the enactment of the NTA apparently rejects the co-existence of native title rights with freehold title; the preferred approach stresses the ‘inherent vulnerability’ of native title as a source of rights deriving their content from a body of law outside the common law while simultaneously asserting the superiority of the titles that exist under non-Indigenous law.
In Ward the High Court emphasised traditional law and custom, rather than possession, as defining the content of native title. The majority explained that the right to exclusive possession, use and enjoyment flowed not from the fact of occupation or from recognition of native title, but from the right to speak for country that is conferred by Indigenous law and custom.63 In other words, the majority rejected the view of native title as based in possessory title and proof of occupation.64
Justice Toohey in Mabo (No 2) accepted that native title is a right to land itself; the right being derived from occupation. This is plainly not the accepted Australian position. The High Court in Ward concluded that native title could only be regarded as a bundle of rights which might include the Western concept of possession as the use and enjoyment of land to the exclusion of all others, but when the title was not exclusive only specific rights could be recognised. The requirement of ‘continuity’ in post-Mabo (No 2) authorities on the NTA supports the idea that recognition of native title is in response to continuous occupation. However, the High Court in Ward also pointed out that continuous occupation in itself is insufficient to establish a case. This is because the definition of native title in section 223 needs to be satisfied before a determination can be made.
In this respect, the approach in Australia differs from the Canadian position which regards the right in land as being based in occupation and possession. On this view activities on the land are parasitic on the right in land. In contrast, the bundle of rights approach requires the identification of each right claimed, and the establishment of that right through proof of continuity according to law.65 Claimants must particularise the rights that flow from traditional law and customs. In Yorta Yorta the majority of the High Court held that traditional laws and customs must have normative content so as to be capable of giving rights and interests.66 Among the disadvantages of the bundle of rights approach, as Strelein has pointed out, is that it assumes that at the time of determination all rights likely to be asserted and activities carried out are able to be identified. A preconceived idea of a bundle of rights narrows the extent to which native title can differ and results in no native title at all if an ‘assertion of native title does not fit the mould of the bundle of rights we know as native title’.67
B Aboriginal title
In the Canadian case of Calder v AG (British Columbia)68 both Judson J and Hall J agreed, in opposing judgments, that even without the Royal Proclamation of 1763 the legal concept of Indian title or Aboriginal rights exists in Canadian law. In the words of Judson J, ‘the fact is that when the settlers came, the Indians were there, organised in societies, and occupying the land as their forefathers had done for centuries. This is what Indian title means’.69
Calder was affirmed in Delgamuukw v British Columbia.70 Chief Justice Lamer emphasised that the content of native title is ‘exclusive use and enjoyment’ and that the source of native title is the ‘physical fact of occupation’ of land by Indigenous people. His Honour applied the common law principle that occupation is proof of possession at law. As to the content of native title, the Supreme Court specified that Aboriginal title is ‘an interest in land’ and is ‘a right to the land itself’.71 It was said to be ‘more than the right to enjoyment and occupancy’ and ‘more than the right to engage in specific activities which may themselves be Aboriginal rights’.72 This statement was made to refute the argument by the Government that Aboriginal title is no more than a bundle of rights to engage in activities, or the right to exclusive use and occupation of land. Chief Justice Lamer went on to explain that because Aboriginal title is a right in the land itself it cannot be limited to use only for activities that are traditionally Aboriginal activities:
aboriginal title differs from other aboriginal rights in another way. To date, the Court has defined aboriginal rights in terms of activities. As I said in Van der Peet (at para 46):
‘…in order to be an aboriginal right and activity must be an element of practice, customer tradition integral to the distinctive culture of the aboriginal group claiming the right.’
Aboriginal title, however, is a right to the land itself. Subject to the limits I have laid down above, that land may be used for a variety of activities, none of which need be individually protected as aboriginal rights under s 35(1). Those activities are parasitic on the underlying title.73
It must be noted that Aboriginal rights under section 35 (1) of the Constitution are not the same as native title; rather, they are rights that are usually proven in isolation from title because their constitutional protection provides a defence to criminal prosecution, for example, in the context of unlawful hunting and fishing. ‘Aboriginal title’, said Lamer CJ, ‘encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those Aboriginal practices, customs and traditions which are integral to distinctive Aboriginal cultures’.74 His Honour laid emphasis on the source of native title in the physical fact of occupier of the land.
The approach taken by the Malaysian courts is closer to that of the Canadian authorities than the Australian. The Supreme Court of Canada in Delgamuukw spoke directly to the issue of occupation, saying that ‘[p]hysical occupation may be established in a variety of ways, ranging from the construction of dwellings through cultivation and enclosure of fields to regular use of definite tracts of land for hunting, fishing or otherwise exploiting its resources’.75 Citing Delgamuukw, Mohd Noor Ahmad J in Sagong Tasi said that ‘in keeping with the world wide recognition now being given to Aboriginal rights, I conclude that the proprietary interest of the Orang Asli in their customary and ancestral lands is an interest in and to the land’.76 Although the Court rejected the notion that Aboriginal rights are no more than a bundle of rights, declaring them to be rights to the land itself, it did not address what the bundle of rights approach actually involves. The Court required evidence to support the maintenance of a traditional connection with land according to customs; once this was proven the Orang Asli had a right to engage in activities on the land.
C Customary title
In Sagong Tasi the Court employed the language of ‘customary communal title’ to refer to Aboriginal rights to land. There was no challenge on the facts to the occupation of lands that were customary and ancestral lands belonging to the Temuan. The question was whether the plaintiffs held the land under a customary communal title and whether, upon deprivation of the land, they had to be compensated under the Aboriginal Peoples Act or the Land Acquisition Act 1960 (Malaysia) (‘Land Acquisition Act’). The latter involves the payment of compensation for land that is the subject of ‘customary title’ on an equal basis with other alienated lands.
In defining the nature of the right the Court in Sagong Tasi referred to Adong and Amodu Tijani v The Secretary, Southern Nigeria77 in which Viscount Haldane LC stated:
As a rule, in the various systems of native jurisprudence throughout the Empire, there is no such full division between property and possession as English lawyers are familiar with. A very usual form of native title is that of a usufructuary right, which is a mere qualification of or burden on the radical title or final title of the Sovereign where that exists. In such cases the title of the Sovereign is a pure legal estate, to which beneficial rights may or may not be attached. But this estate is qualified by a right of beneficial user which may not assume definite forms analogous to estates, or may, where it has assumed these, have derived them from the intrusion of the mere analogy of English jurisprudence. Their Lordships have elsewhere explained principles of this kind in connection with the Indian title to reserve lands in Canada. See 14 App. Cas.46 and  1 AC 401… Such a community may have the possessory title to the common enjoyment of a usufructuary title to the common enjoyment of a usufruct, with customs under which its individual members are admitted to enjoyment, and even to a right of transmitting the individual enjoyment as members by assignment inter vivos or by succession. To ascertain how far this latter development of right has progressed involves the study of the history of the particular community and its usage in each case. Abstract principles fashioned a priori are of but little assistance, and are as often as not misleading.78
In the appeal against Sagong Tasi, Kerajaan Negeri Selangor v Sagong bin Tasi,79 Gopal Sri Ram JCA concluded that the fact that radical title to land is vested in the sovereign or the State is not an ipse dixit answer to a claim of customary title.80 There can be cases where radical title is burdened by native or customary title. The precise nature of such a customary title depends on the practices and the usages of each community. His Honour also held that the individual practices and usages in regard to the acquisition of customary title is a matter of fact and evidence related to the history of each particular community. As regards a co-existence of common law rights and the rights governed by the Aboriginal Peoples Act, ‘the reading of the Act makes it plain that it does not exclude the rights vested in the respondents at common law’.81 The Malaysian Federal Court has therefore established that the Malaysian common law recognises Aboriginal customary title.
In Sarawak and Sabah, the language of recognition used in relation to the natives of Borneo is ‘customary title’ or NCRs. I will only deal with the Sarawak situation in this paper. Prior to the arrival of James Brooke in 1839 and the cession of part of Sarawak to him as Governor, and later Rajah, there was in existence among the natives a system of land tenure based on adat or native customary laws. The assumption of sovereignty by Brooke and other colonists was circumscribed by their implicit recognition of customary rights.82
Under that system NCRs consisted of rights to cultivate land; rights to wild fruits or produce of the jungle; hunting and fishing rights; burial rights; and, rights of inheritance. The clearing and cultivation of virgin land confers permanent heritable rights to the one who cleared the land.83 As a guide to land administrators Secretarial Circular No. 12/1939 was issued, stating:
(i) The right to cultivate cleared land vests in the community with priority to the heirs of the original clearer of big jungle. This right must be exercised in accordance with a cycle compatible with the preservation of the maximum fertility of the land (and no longer) by methods of cultivation within the reach of the community. The cycle is in their eyes, not a matter for rule of thumb but for expert native opinion.
(ii) The existence of permanent cultivation of a reasonable density is evidence of customary ownership as opposed to customary right of user.
(iii) Individual ownership is limited by the customary right of the community to a say in the matter of disposal to anyone outside the community.84
The need to regulate the administration of land led to the promulgation of numerous orders and enactments, culminating in the Sarawak Land Code which specifies certain methods that are recognised as a way of ‘acquiring’ NCRs. The Sarawak Land Code provides for specific methods of acquiring NCRs on the land under section 5. This involves the felling of trees in a virgin area; the planting of trees; and, the occupation and use of land as burial grounds and for shrines. The key point is that the underlying basis for the recognition of NCRs is occupation of land and its use according to the customary practices of the community or communities concerned. It has been held that occupation need not necessarily be actual occupation. In Madeli bin Salleh v Superintendent of Lands and Surveys85 it was held that while the applicant did not live on the land in question his continual visitation meant he had control over it.
Each of the above definitions is underpinned by rights flowing from ‘first possession’, which is a fundamental principle and source of rights under property law.86 Both title and rights arise from long established occupation of the land as well as the social organization and the distinctive cultures of native people on the land.87 The terms that are used to describe these rights, such as ‘heritage’,88 ‘traditional’,89 ‘pre-existing’,90 and ‘customary’91 each underscore the fact it is a unique right which cannot be sufficiently understood when examined solely with reference to statutory provisions. It is, in fact, a sui generis right.