V ‘Complementary’ and Sui Generis Rights: Sorting the Contents of the Box
When the Malaysian High Court first recognised a form of native title in Adong, Mokhtar Sidin J (as he then was) held that
[I]n order to determine the extent of the aboriginal peoples rights under the law, their rights under common law and statute has to be looked at conjunctively, for both these rights are complementary, and the Act does not extinguish the rights enjoyed by the aboriginal people under common law.117
To ‘complement’ means ‘that which completes or makes perfect’ while ‘conjunctively’ means ‘in combination’ or ‘jointly’.118 This approach takes account of the fact that existing statutory provisions alone do not capture the full essence of those interests and cannot adequately address or articulate the intrinsic nature of the rights involved. A ‘complementary’ right draws from both common law and statute law to fully embody the origins, purpose and character of those rights. What evolves is a proprietary right that is protected under the Federal Constitution.
The challenge before the courts is how to sort the contents of that ‘box’119 of complementary rights and fill it with substantive procedures and protections of Aboriginal or native rights. How might a ‘bridge’ be constructed to acknowledge the unique historical presence and occupation of Aboriginal and native lands, and to give substance to native rights under the Federal Constitution? How might the courts discover the native perspectives and what kind of evidence is sufficient to prove those rights? These issues are best explicated in the context of decided cases.
In Adong the Court of Appeal held that Orang Asli have a customary title based in common law; a statutory right under the Aboriginal Peoples Act; and, a constitutional right under the Federal Constitution. The Orang Asli had been deprived of heritage lands; their freedom of habitation or movement under Article 9(2) of the Constitution had been curtailed; and, their ability to use the produce of the forest as a means of survival had been substantially diminished. Taken as a whole the Court of Appeal said the deprivation amounted to deprivation of livelihood. Unfortunately, this argument was not fully developed.
In Sagong Tasi the Court held that Orang Asli had ‘customary title to land of a permanent nature’ and a ‘customary community title’. These rights existed despite the specific provisions of the Aboriginal Peoples Act. Sections 6 and 7 provided for Aboriginal reserved lands for collection of jungle produce or hunting grounds; section 10 provided for Aboriginal inhabited lands (not reserved lands); sections 11 and 12 provide only for compensation for fruit trees and rubber trees upon any lands that are alienated or acquired by the state. The Court extended the customary title to include not only an interest in but also on the land itself. The facts of Sagong Tasi may be distinguished from Adong. The latter was concerned with the deprivation of vast areas of traditional and ancestral lands on which the claimants foraged for their livelihood. Sagong Tasi was concerned with ancestral lands which the Orang Asli used for settlement. In the words of Mohd Noor Ahmad J (as he then was):
[I]n the case before me the acquisition is in respect of a small portion of their traditional and customary or ancestral land where they resided, that is to say, their settlement. I follow the Adong case, and in addition, by reason of the fact of settlement I am of the opinion that based on my finding of facts in this case, in particular on their culture relating to land and their customs on inheritance, not only do they have the right over the land but also an interest in the land.120
The Court also held that Aboriginal people’s rights have long been recognised as including interests in land and not merely usufructuary rights. Turning to the issue of compensation, and citing Adong, it was held that Orang Asli had proprietary rights which fell within the ambit of Article 13(2) of the Federal Constitution, which prohibits the compulsory acquisition of land without adequate compensation. Having found a proprietary interest, the Court ruled that the compensation offered to the plaintiffs was inadequate and thus unlawful. Adequate compensation ought to be determined pursuant to the Land Acquisition Act.
There seems to be little justification for treating differently cases based on rights to forage for traditional foods and those based on rights of settlement, particularly where the important determinants are occupation and the continuance of traditional connections with the land. The different treatments appear to have been motivated by policy and pragmatism because all the surrounding lands had already been alienated and developed.
The case of Nor Anak Nyawai deserves consideration for its development of the ‘complementary’ native title doctrine. The plaintiffs were the residents of two longhouses located along the Sekabai river in Bintulu, Sarawak. A provisional lease to the disputed lands was issued to the first defendant, Borneo Pulp Plantations Sdn Bhd, who sublet the land to the second defendant, Borneo Pulp & Paper Sdn Bhd, as contractors to clear the land for a tree plantation. The Bintulu Superintendent of Lands and Survey who issued the titles was the third defendant. The plaintiffs claimed that the defendants had trespassed and damaged their ancestral land and asked for an injunction to prevent the defendants from entering the disputed area and for damages. This claim rested on the exclusive use and occupation of the land under a customary system of territorial control. The plaintiffs claimed that under Iban custom they had acquired NCRs to lands which they regarded as pemakai menoa (land to eat from), part of which had been encroached upon.
The term pemakai menoa refers to an area of land held by a distinct longhouse or village community exercised within a garis menoa (territorial boundaries between villages marked by rivers, hills or clumps of trees and other natural features). Under Iban custom each longhouse has a territory over which a community exercises control. The pemakai menoa includes: tana umai (cultivated lands, farms and gardens); temuda (formerly cultivated lands at various stages of young wild growth); tembawai (old longhouse sites); and, pulau galau which is a forest reserve, or land that is left uncultivated. It includes areas of forest, whether wholly or partially surrounded by temuda for communal use; areas used for the supply of natural resources such as rattan and other jungle produce; areas used for water catchments, hunting and fishing; and, for land reserved to honour a distinguished (deceased) person. A pulau may be owned by a single village or shared between two or more village communities.
It is necessary to say something about NCRs in Sarawak and the statutory provisions on how they are acquired. The statutory law on the matter is found in section 5(1) of the Sarawak Land Code which provides that as from 1 January 1958, NCRs may be created in accordance with the native customary law of the community or communities concerned, by the methods specified in section 5(2). Six methods are specified for the ‘creation’ of rights under section 5(2):
the felling of virgin jungle and the occupation of the land thereby cleared;
planting of land with fruits;
occupation of cultivated land;
use of land for a burial ground or shrine;
use of land for rights of way; and
by any lawful method (repealed in 2000).
It is important to note that section 5(2)(ii) states ‘the question whether any such right has been acquired or has been lost or extinguished...is determined by the law in force immediately prior to the 1st day of January 1958’. Since the ‘prior’ law in force was the Land Classification (Amendment) Ordinance 1955, it means that for the purpose of proving the existence of NCRs under the statute, the practical cut off date is 16 April 1955 as stipulated under that Ordinance. A strict interpretation of these provisions would make it difficult for most native families to claim NCRs, particularly if they are new settlers in an area.
Existence of native customary lands also needs to be seen in the context of a specified classification of land under the Sarawak Land Code. These are:
Mixed Zone Land (may be held by any citizen without restriction);
Native Area Land (held by natives only under a registered document of title);
Native Communal Reserve (declared by Order of the Governor in Council for use by any native community, regulated by the customary law of the community);
Reserved Land (for public purposes);
Interior Area Lands (land that does not fall under Mixed Zone or Native Area Land or Reserved Land for which title cannot be registered); and
Native Customary Land (‘NCL’) (land in which customary rights, whether communal or otherwise, have been created).
Most lands in Sarawak fall under Interior Area Lands, which function as the residual category of lands after excision of the other five classes. As soon as NCRs are established over a tract of interior area land, it becomes NCL.
In Nor Anak Nyawai the plaintiffs argued that they held NCRs under common law, as well as a statutory right recognised by the Sarawak Land Code. It was argued that this conferred a right to NCL The main issues centred around the native identity of the claimants and whether the Iban customs of creating pemakai menoa, temuda and pulau galau were the same as that which was practised by their ancestors. The next issue was whether those customs were recognised by law and, if so, whether they conferred rights over land. The Court had to consider whether those customs were still in existence, or whether there had been ‘clear and plain’ extinguishment of those ‘pre-existing rights’ by the orders of the Brooke Rajahs or by subsequent legislation. Also at issue was whether oral evidence of customary practices could be accepted as evidence.
The question of entitlement turned on the definition of a native as listed in the schedule of the Interpretation Ordinance. There were no serious disputes as to the identity of the plaintiffs as Ibans. The fact that they spoke Iban was prima facie evidence of their Iban identity. As such, the burden shifted to the defendants to prove otherwise.121 The High Court recognised their pre-existing rights to lands based on customary practices as evidenced by their occupation of the lands in question. The recognition of the Iban customary practice of pemakai menoa was significant because it recognised a practice not specifically enumerated in the five limbs of section 5 of the Sarawak Land Code. This pushed the frontier of NCRs beyond the restrictive provisions of the statute. Despite increasingly comprehensive regulatory legislation, Chin J found that customary rights associated with the terms temuda, pulau and pemakai menoa have not been abolished by the Sarawak Land Code or any other statute; rather, they survived through the Brooke orders122 and Ordinances of the Colonial period up to the present.123 The Ibans were acknowledged to be ‘rightfully in possession of…rights’.124 As to the nature of the rights, the Court was clearly uncomfortable with characterising the interest as that of ‘mere licencees’:
While it is correct that the plaintiffs do not hold any title to the land and may be termed licensees but their licence…cannot be terminable at will. Theirs are native customary rights which can only be extinguished in accordance with the laws and this is after payment of compensation…The description of native customary rights as ‘licenses’ is ill fitting.
Justice Chin went on to quote AJN Richards:
[N]either will ‘licence’ or ‘permission’ do to describe land rights…Use of these terms would imply no rights at all. Occupation of land without document or registration has been acquiesced for so long, that title would appear to have been obtained by prescription to a large part of the bundle of rights.125
There was, however, no further elaboration on the nature of that right. Nevertheless, the Court declared that the plaintiffs had a right to exercise NCRs in the disputed area and the defendants were enjoined from entering the disputed area.
On appeal, the defendants contended, inter alia, that for the disputed areas to be subject to NCRs, they must be recognised by statute. The method for establishing NCRs was only through temuda and not simply by roaming or foraging. It was argued that the terms pulau and pemakai menoa did not appear in any of the statutes which gave recognition to NCRs and therefore that there could not be any proprietary rights in respect of the pulau. On 9 July 2005126 the Court of Appeal granted the defendant’s appeal in Superintendent of Lands and Surveys, Bintulu v Nor Anak Nyawai and Ors127 on the grounds that there was insufficient proof of occupation in the disputed area. It was acknowledged, however, that they had satisfied the test for NCRs in the adjacent area. It appears that the Court of Appeal required proof of actual ‘cultivated areas’ or temuda since no reference was made to other aspects of the traditional methods of occupation.
Notably, the Court of Appeal did not disturb the High Court’s finding that the Iban concept of pemakai menoa exists. It affirmed the High Court’s major legal conclusions that the common law respects the pre-existence of rights under native laws or customs and such rights may only be taken away by clear and unambiguous statutory language. NCRs do not owe their existence to statutes. It also affirmed that the Sarawak Land Code ‘does not abrogate whatever native customary rights that exist before the passing of that legislation’; however, they are no longer able to claim new territory without a permit under section 10 of that legislation. The Court of Appeal endorsed the view that although called licences, they ‘cannot be terminable at will’. NCRs can only be extinguished in accordance with laws after the payment of compensation.128
The key issue in the appeal was the requirement of ‘continuous occupation’. Was there sufficient evidence to support a finding that the defendants ‘occupied’ the disputed land? The Court of Appeal dismissed the trial judge’s finding and held that there was no evidence of settlement, burial grounds or pulau in the area. However, instead of analysing the meaning of occupation or ‘continuous occupation’ in the context of the Iban customary practice in Sarawak, the Court transposed the Orang Asli context onto the case at hand and applied a test of occupation that is ill-fitting. The High Court’s decision in Sagong Tasi was quoted with approval to limit the interpretation given to occupation to one of static ‘settlement areas’. Quoting Sagong Tasi the Court said:
However, this conclusion is limited only to the area that forms their settlement, but not to the jungles at large where they used to roam to forage for their livelihood in accordance with their tradition. As to the area of the settlement and its size, it is a question of fact in each case. In this case as the land is clearly in their settlement, I hold that the plaintiffs’ proprietary interest in it is an interest in and to the land.129
The Court of Appeal stated, ‘we are inclined to agree with the learned trial judge in Sagong Tasi…that the claim should not be extended to areas where ‘they used to roam to forage for their livelihood in accordance with their tradition’.130 By equating occupation only with settlement and cultivation, and contrasting that with land upon which native peoples ‘roam’ or ‘forage’, the Court contradicted its own endorsement of the concept of pemakai menoa, which is wider than a ‘settlement’ in the Sagong Tasi sense. The Court’s reluctance to admit the wider interpretation is borne out by the statement that ‘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 and foraged the areas in search of food’.131
Limiting occupation to actual settlement and separating it from the surrounding lands on which rests a native community’s traditional culture and livelihood strikes at the very basis of claims based on customary practice. The Court of Appeal’s approach is restrictive when compared to the definitions of occupation in some other authorities in Sarawak, such as Madeli bin Salleh v Superintendent of Lands and Surveys, Miri Division132 and the earlier Privy Council case of Newcastle City Council v Royal Newcastle Hospital.133 The Court leaned towards the restricted meaning of NCRs as outlined under section 5 of the Sarawak Land Code.
It is argued that protection of native rights cannot be based only on the Sarawak Land Code as the ultimate source of recognition. The challenge is for the judiciary to infuse equality and justice into the law and for lawyers to educate the judiciary by discovering how the people who practice those rights perceive them.