Native Title in Malaysia: a ‘Complementary’ Sui Generis Proprietary Right under the Federal Constitution

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VI Proof of Native Title and Evidentiary Issues: Understanding Indigenous Peoples’ Perspectives through Traditional Knowledge

Native or Aboriginal peoples use oral traditions to chronicle important information which is stored and shared through a literacy that treasures memory and the spoken word. This may be in the form of personal reflections, stories, ballads and songs, all of which are passed down through generations and often treasured as knowledge belonging to the community. Kristin Howden describes traditional knowledge as:

[A] living system of information management which has its roots in ancient tradition. It relates to culture and artistic expression and to the physical survival and environmental management. It controls individual behaviour, as it does community conduct. In short, it is a concept that essentially defies description in Western terms, but which lies at the heart of indigenous society.134

Traditional knowledge relates to the social and the physical aspects of Indigenous existence. It ranges from social relationships to ceremonial practices and their significance; it involves plant and animal habitats and behaviours, and relationships to land within their own peculiar cultural practices. Both Nor Anak Nyawai and Sagong Tasi have established that ‘stories matter’ and in principle, oral histories, narratives and expert evidence from native persons may be admitted as evidence of customary practices on land. Justice Mohd Noor in Sagong Tasi categorically endorsed the acceptance of oral history as evidence:

The first principle relates to the difficulties inherent in demonstrating continuity between current aboriginal activities and the pre-contact practices, customs and traditions of aboriginal societies. Since many aboriginal societies did not keep written records at the time of the contact or sovereignty, it would be exceedingly difficult for him to produce conclusive evidence from pre-contact times about practices, customs and traditions of their community. The second principle is to adapt the laws of evidence so that the aboriginal perspective on their practices, customs and traditions and on their relationship with the land, are given due weight by the courts. In practical terms, this requires the courts to come to terms with the oral histories of aboriginal societies which, for many aboriginal nations, are the only record of the past.135

His Honour ruled that oral histories relating to Aboriginal practices, customs and traditions, and the continuous occupation of, and relationship with the land should be admitted, subject to sections 32(d) and (e) of the Evidence Act 1950 (Malaysia) (‘Evidence Act’). Section 32(1)(d) allows written or verbal statements of relevant facts made by a person who is dead, when the statement gives the opinion of any person as to the existence of any public right, custom or matter which has arisen. Section 32(1)(e) allows statements mentioned in paragraph (a) when the statements relate to the existence of any relationship by blood, marriage, or adoption. Further, sections 48 and 49 of the Evidence Act allow the opinions of a living person as to general rights or customs, tenets or usages. Thus, evidence of ’organised society’, personal and place names, traditional activities on the land and Aboriginal languages were admitted. In allowing the oral evidence under these provisions, Mohd Noor J said statements on oral histories must be:

(i) of public or general nature or of public or general interest;

(ii) made by a competent person, that is, one who ‘would have been likely to be aware’ of the existence of the rights, customs or matter; and

(iii) made before the controversy as to the right customs or matter has arisen.

Admissibility of statements would depend on the status of the maker of the statement. Nonetheless, this development augurs well for native rights, particularly when contemptuous attitudes towards unwritten histories of Indigenous peoples are pervasive and have found expression in the jurisprudence and courtroom practices of other nations.136

In Nor Anak Nyawai the trial Court admitted the oral testimony of a witness to prove occupation. This was criticised by the Court of Appeal as being the uncorroborated views of ‘self-serving’ individuals. Ironically, the same Court proceeded to accept the oral testimony of another witness who claimed that there was no temuda in the disputed area. The difference might only have been the weight given to the latter, being the statement of a headman. Indeed, acceptance of oral evidence and the recognition that ‘stories matter’ allows a judicial decision maker to grant oral histories independent weight and place them on equal footing with the types of historical evidence that the courts are familiar with. As most Indigenous societies do not keep records, to do otherwise would be to ‘impose an impossible burden of proof’ on Aboriginal peoples, rendering ‘nugatory’ any rights they have.137

This brings us to another pertinent issue: when customs are codified, should the customary codes be the only source of customs that are admissible as evidence? This was among the contentions of the defendants in Nor Anak Nyawai. The Attorney General, James Fong, contended that the learned trial judge failed to consider that in the various orders issued by the Rajah or with his sanction, there was no mention of pemakai menoa or pulau, and thus the Court should have held that such practices were not part of the customary law of Sarawak during and after the Colonial period. It was also contended that the Court ought to have considered whether the Rajah’s orders had modified the customs and practices. In this regard, Chin J’s dictum in Nor Anak Nyawai is clear. His Honour said that since custom or adat is ‘a practice by the habit of the people and not by the dictate of the written law’, it may be enforceable as a pre-existing system of law and as a common law right without the aid of legislation.

It is necessary to briefly consider customary codes. Since the early 1950s, the native laws and customs of the native groups in Sarawak and Sabah have been written in administrative and customary codes. These are reproductions in written form of customs that are practised in various communities. The codes are drawn up in consultation with the elders of the community. The draft goes through the Attorney General’s chambers before being passed by the State Legislative Assembly. The codes regulate matters such as community living, religion, betrothal and marriage, and inheritance, but they do not govern all matters relating to customary tenure and customary practices on land.138 They are therefore stipulations of general principles and customs and do not represent the sum total of the customary laws or ‘customs or body of customs to which the laws [of Sarawak] give effect’.139 The customary laws of Sabah have been codified in a number of codes called the Woolley’s Code,140 while the customary laws of Sarawak have been codified in a number of Adat Orders that are in various stages of codification.141

The practice of pemakai menoa is not described in the customary codes although it is the form of customary tenure observed by the different communities. Its recognition in Nor Anak Nyawai testifies to the continuing existence of customary practices outside the written administrative orders and customary law codes. The appreciation of this fact may well be the reason for the incorporation of section 6 in the Native Customs (Declaration) Ordinance 1996 which vests in the Council the powers to research and amend customary laws with the approval of the Majlis Mesyuarat Kerajaan Negeri (State Supreme Council). If, after consultation with the chiefs and headmen of the native community concerned, the Council considers that any custom contained in any code should no longer be practiced or is obsolete, that provision may be amended accordingly. 142 Section 7, however, provides that ’it shall be conclusive as to the customs of the native race in respect of which it is compiled’ and further, that ‘its correctness shall not be questioned in any court whatsoever’. These provisions illustrate the tensions between recognition of the vitality and fluidity of practices under customary laws and the crystallization that inevitably overtakes it when the customs are codified.

The reality is that custom remains a basis for land claims in the interior areas where all native lands are located. The act of reducing them to writing and then investing them with the approval of the sovereign had transformed customs into some form of positive law with its attendant advantages and disadvantages.143 However, to take an approach that insists on the written law or the codes as the final and exhaustive sources of applicable laws at a time of transition and rapid change, such as that experienced by Malaysia, is to subject customary laws to a premature crystallisation. It would vex the people who live under it, whose interest and welfare should be the overriding consideration. Clearly, taking rights from a purely ‘western’ construct without taking into account the Indigenous perspective concerning the nature of the rights involved, as well as the methods of proving the existence of those rights, can result in their diminution. This is a compelling reason for giving equal respect to both perspectives. In Malaysia, where ‘customs and usages having the force of law’ are acknowledged under the Federal Constitution, there is no reason why rights that flow from them should not be given the same recognition and protection as other constitutional rights.

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