The challenge for native title as a ‘complementary’ sui generis right lies in the ability of the common law to accommodate native laws and customs and their co-existence with statutes.175 The courts should not be guided solely by ‘western principles of law, and their overly specific and individualized perspectives’.176 Rather, the incorporation of Indigenous perspectives is the morally and politically defensible conception of native rights.
Recognition of customary laws and Indigenous interests based on traditional laws is forging a new approach to law that does not necessarily bend to the strict Austinian positivism that monopolises the general concept of English, and Malaysian law. Rather, there is a recognition that a pre-existing customary law or adat regime may co-exist with common law and statutory law; also, that its validity does not necessarily depend on any legislative or executive recognition. The adat derives its power and authority not from a supreme lawmaker, sitting in a position of authority, but rather from the people themselves.
This approach is at the cutting edge of an emerging human rights jurisprudence being developed in Malaysia. This development must be in tandem with international developments on the rights of other Indigenous peoples. A compelling metaphor suggested for the new judicial analysis is the construction of a bridge between the Indigenous system recognised by the common law, and the recognised statutory system. This bridge starts on both sides and works towards the middle.177 In the Malaysian context, the evolving rights are protected under a ‘constitutional’ canopy that holds the bridge together. The protection of native rights that are enshrined in the Federal Constitution must also protect the cultural institutions and customary laws that form the basis of those rights.
Treating native title as a complementary right allows courts to recognize the confluence of Indigenous and English common law, and to protect those rights which flow from pre-existing Indigenous legal regimes in a mutually beneficial, interactive, and practical co-existence. This intermingling can achieve a just and equitable solution for individual litigants and native peoples as societies. This is consonant with the rationale of native title, based as it is on equality and full respect of, and for existing rights. It also acknowledges the importance of Indigenous peoples’ conceptions of law and rights, and ensures that they are active participants in generating the norms that govern ‘our living legal tradition’.178
* Ramy Bulan is an Associate Professor and Deputy Dean (Development and Research/Postgraduate) at the Faculty of Law, University of Malaya, Kuala Lumpur. A draft of this paper was presented under the title ‘Native Title in Malaysia: A Convergence of Common Law, Statutory and Indigenous Law’ at the 3rd ASLI Conference 2006: The Development of Law in Asia: Convergence Versus Divergence? East China University of Politics and Law, Shanghai, 25-26 May 2006. Some of the materials for this article is derived from chapters 2 and 7 of Ramy Bulan, Native Title in Sarawak, Malaysia: Kelabit Land Rights in Transition (Phd Thesis, Australian National University, 2005). I would like to thank the reviewer of the paper for the very constructive comments on the original draft of this paper. I have made every effort to incorporate those suggestions into the final paper.
1 On 9 February 2006 the paper suspended production following the Jyllands-Posten Muhammad cartoons controversy.
2 Sarawak is the largest of the 13 states in Malaysia.
3 Section 5 of the Land Code 1957 (Sarawak) (‘Sarawak Land Code’) provides that Native Customary Rights (‘NCRs’) over land may be created through 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. The last limb was deleted by the Land Code (Amendment) Ordinance 2000.
4 Under ss 10(3) and (4), further creation of NCRs or occupation of Interior Area Land is subject to issuance of a permit to be obtained from the Superintendent of Lands. Any native who, without a prior permit in writing from a Superintendent, occupies any Interior Area Land or fells or attempts to fell virgin jungle upon such land or attempts to create customary rights upon such land shall be guilty of an offence. Under a directive given in 1964 no such permits were given to individual persons.
5 A communal reserve may be created under s 6 subs (1) and (2). This will be regulated by the customary law of the community for whose use the land was declared as a reserve.
6 Different groups call it by different names. The Iban called this temuda, the Kelabit and Lun bawang call it amug, the Kayan and Kenyah call it tana’ daleh.
7  1 MLJ 418 (‘Adong’).
8  2 CLJ 769 (‘Nor Anak Nyawai’).
9  2 CLJ 543 (’Sagong Tasi’).
10 See Sir Benson Maxwell’s decision in Sahrip v Mitchell & Anor (1877) Leic Reports 466, 468.
11 Nor Anak Nyawai  2 CLJ 769, 787.
12 Joseph Minattur, ‘The Nature of Malay Customary Law’ in David Buxbaum (ed), Family Law And Customary Law in Asia: A Contemporary Legal Perspective (1968) 17, 17-39.
13 See Lakshman Marasinghe, ‘Customary Law as an Aspect of Legal Pluralism: With Particular Reference to British Colonial Africa’ (1998) 25 Journal of Malaysian and Comparative Law 7.
14 See Jayl Langub, ‘The Ritual Aspects of Customary Law in Sarawak with Particular Reference to the Iban’ (1998) 25 Journal of Malaysian and Comparative Law 45.
15 Sarawak is the largest of the 13 states that make up the Federation of Malaysia. Eleven states are in the Malay Peninsula, namely Johor, Kedah, Kelantan, Melaka, Negeri Sembilan, Pahang, Perak, Perlis, Selangor, and Terengganu while two states, Sabah and Sarawak are part of the island of Borneo. Two federal territories, Kuala Lumpur and Putrajaya, are in the Peninsula while the third, Labuan is in north-west Borneo. The area of Sarawak is almost equal to the area of all the states in the Peninsula.
16 Report of the Inter-Governmental Committee on the participation of Sabah and Sarawak in Malaysia (1962).
17 See Colin Nicholas, The Orang Asli and the Contest for Resources: Indigenous Politics, Development and Identity in Peninsula Malaysia (2000) 1-7.
18 The general principle in the implementation of English law in the Straits Settlements, the Malay States, and the Borneo States had been that English law was the ‘law of general application’. See M B Hooker (ed) Laws of Southeast Asia, European laws in Southeast Asia (1988) 420.
19 See, eg, Application of Laws Ordinance 1928 and Application of Laws Ordinance 1949, Application of Laws Ordinance 1938 (Sabah), and the Civil Law Act 1956. See also, Khoo Hooi Leong v Khoo Chong Yeok  AC 346, 355.
20 Much of the Malay customary law relating to family law has been merged into Syariah law and is administered by the Syariah courts. Malay customary laws apply mainly in Negeri Sembilan with regard to election of traditional rulers.
21 The reference to Singapore was introduced in 1963 when Singapore joined Malaysia. It has not been removed in spite of Singapore’s secession from Malaysia in 1965. Prior to independence in 1963 the only legal definition of a Malay appeared in clause 124(3)(b) of the Constitution of the Federation of Malaya 1948, which defined a Malay as a person who habitually spoke Malay, professed the Muslim religion, and conformed to Malay customs.
22 See Tun Mohamed Suffian bin Hashim, An Introduction to the Constitution of Malaysia (1976) 283-88.
23 FMS (Cap) 142. See also, Kelantan Enactment (No.18 of 1930) and Trengganu Enactment (No 17 of 1960).
24 Kedah Enactment (No 1 of 136).
25 Perlis Enactment (No.7 of 1353).
26 In both states, a Siamese agriculturalist who is a permanent resident is given the right to own Malay reserved land.
27 Kesultanan Pahang v Sathask Realty Sdn Bhd  2 MLJ 513.
28 There are a number of state laws in respect of Malay reserved lands in Peninsula Malaysia. See, eg, FMS Malay Reservation Enactments (Cap 142); Kelantan Malay Reservations Enactment (No.18 of 1930); Kedah Malay Reservations Enactment (No 63); Perlis Malay Reservations Enactment (No 7 of 1353); Johor Malay Reservations Enactment (No 1 of 1936); Trengganu Malay Reservations Enactment (No 17 of 1360).
29 Heather McRae et al, Indigenous Legal Issues, Commentary and Materials (1997) vi.
30 The 18 sub-ethnic groups generally classified for official purposes under Semai, Negrito, Senoi and Proto-Malays. Each group has its own language and culture.
31  2 MLJ 591.
32 For a discussion of the appropriateness, omissions and incorrect insertions of certain groups see Ramy Bulan, ‘Native Status and The Law’ in Wu Min Aun (ed), Public Law In Contemporary Malaysia (1999) 248.
33 There are a number of omissions and incorrect insertions in Article 161A. For instance, the Punan, Selakau are known groups that are not included, and Dusun are not generally found in Sarawak but in Sabah. This has been discussed at length in Bulan, above n 32.
34 The states of Sabah and Sarawak have established Native Court systems with specific jurisdictions to try breaches of native law and customs. The respective courts also have jurisdiction to decide whether a person is a native or is deemed to be a native.
35  2 MLJ 537.
36 No.12 of 1952 (Cap 64).
37 Established under the provisions of the Rural Administration Ordinance 1951.
38 Appointed under the provisions of the Native Court Ordinance 1993 or the Native Court (Labuan) Ordinance.
39 Native Court Appeal No.2 of 1959.
40 Native Court Appeal No.28 of 1959.
41  2 MLJ 101.
43 By virtue of the division of legislative powers under the Ninth schedule and a safeguard entrenched in Art 95D of the Constitution, the National Land Code 1965 does not apply to Sabah and Sarawak. Under art 95E, both States are represented in the council but neither are entitled to vote before the council, nor required to follow the policy formulated by the National Land Council. This protection, however, is not absolute. It will cease if parliament provides that protection under art 95E(2) should cease with the concurrence of the Yang di-Pertua Negeri (Governor).
44 This includes the Privy Council, the United States Supreme Court, the Supreme Court of Canada, the High Court of Australia and the High Court of New Zealand.
45  1 MLJ 418, 430.
46  2 CLJ 769.
47  7 MLJ 10 (‘Amit bin Salleh’).
48  7 MLJ 10, 22. Land laws are governed by different statutory regimes in the three regions. In Peninsula Malaysia the National Land Code 1965 applies. In Sabah it is the Land Ordinance and in Sarawak the Land Code 1958.
49 (2002) 175 CLR 1 (‘Mabo (No 2)’).
50 Native Title Act 1993 (Cth) s 3 (‘NTA’).
51 Western Australia v Ward (2002) 213 CLR 1, 16 (Gleeson CJ, Gaudron, Gummow and Hayne JJ) (‘Ward’).
52 (2002) 213 CLR 1.
53 Quoted by Noel Pearson in ‘Land is Susceptible of Ownership’ (Paper presented at the High Court Centenary Conference, Canberra 9-11, October 2003) http://www.capeyorkpartnerships.com/team/noelpearson/NPlandSUSCEPTIBLE2003.doc> at 22 April 2007.
54 Justice Brennan in Mabo (No 2) emphasised that the source of native title was the traditional connection to or occupation of the land, and that occupancy and or connection was to be in accordance with a system of laws and customs. Native title could be extinguished by the valid exercise of governmental powers provided a clear and plain intention to do so was manifest. Therefore, where a community is in exclusive occupation its title would arise from that occupation; the laws and customs would apply internally to determine the nature of the rights and interests of members of the community.
55 (2001) 208 CLR 1 (‘Yarmirr’).
56 (2002) 213 CLR 1.
57 (2002) 214 CLR 422 (‘Yorta Yorta’).
58 (1998) 195 CLR 96.
59 (1998) 195 CLR 96, 152.
60 (2000) 99 FCR 316.
61 Western Australia v Ward (2000) 99 FCR 316, 345 (Beaumont and Von Doussa JJ).
62 (2002) 213 CLR 1, 76 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
63 Ward (2002) 213 CLR 1, 94-95.
64 Pearson, above n 53.
65 Lisa Strelein, ‘Conceptualising Native Title’ (2001) 23 Sydney Law Review 95, 103.
66 Yorta Yorta (2000) 214 CLR 422.
67 Strelein, above n 65, 103-4.
68 (1973) 34 DLR (3d) 145 (SC (Can)) (‘Calder’).
69 (1973) 34 DLR (3d) 145, 152.
70 (1997) 153 DLR (4th) 153 (‘Delgamuukw’).
71 Ibid .
72 Ibid .
73 Ibid .
74 Ibid .
75 Ibid .
76 Sagong Tasi  2 MLJ 591, 615.
77  2 AC 399 (’Amodu Tijani’).
78  2 AC 399, 403.
79  6 MLJ 289 (’Kerajaan’).
80 Ibid .
81 Ibid .
82 A F Porter, Land Administration in Sarawak: An Account of the Development of Land Administration in Sarawak from the Rule of Rajah James Brooke to The Present Time (1841-1967) (1967).
83 See, eg, J D Freeman, Report on the Iban of Sarawak (1955); W R Geddes, The Land Dayaks of Sarawak (1954).
84 Emphasis added.
85  5 MLJ 305. The Court followed Newcastle City Council v Royal Newcastle Hospital  1 All ER 734.
86 Kent McNeil, Common Law Aboriginal Title (1989). See also, Mabo (No 2) (1992) 175 CLR 1, 206-14 (Toohey J); Calder  SCR 313; Delgamuukw (1997) 153 DLR (4th) 153.
87 Delgamuukw (1997) 153 DLR (4th) 153. Chief Justice Lamer linked the relationship which Aboriginal peoples have with the land as an element that underlies their Aboriginal rights. In considering whether a claim to an Aboriginal right has been made out, courts must look at both the relationship of an Aboriginal claimant to the land and at the practices, customs and traditions arising from the claimant’s distinctive culture and society.
88 Nor Anak Nyawai  2 CLJ 769.
91 Sagong Tasi  2 MLJ 591.
92 (1984) 13 DLR (4th) 321 (SCC) (‘Guerin’).
93 Mohegan Indians v Connecticut (1705-1773) in J H Smith, Appeals to the Privy Council from the American Plantations (1950) (‘Mohegan’). See the commentary on this case by M Walters, ‘Mohegan Indians v Connecticut (1705 –1773) and the Legal Status of Customary Laws and Government in British North America’ (1995) 33 Osgoode Hall Law Journal 783.
94 21 US 543 (1823) (‘Johnson’).
95 Richard H Bartlett, ‘Mabo: Another Triumph of the Common Law’ (1993) 15(2) Sydney Law Review 178, 181-82.
96 Johnson 21 US 543 (1823). Chief Justice Marshall based his decision on ‘discovery’ and thus held that while the rights of the original inhabitants were, in no instance, entirely disregarded they were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as well as a just claim to retain possession of it, and to use it according to their own discretion. That ‘discovery’ gave exclusive title to those who made it.
97 Cherokee Nation v Georgia 5 Pet 1 (1831); Worcester v Georgia 30 US 17 (1832); Mitchell v United States 34 US (9 Pet) 711 (1835); United States v Cook 86 US 591 (1873); and United States v Sante Fe Pacific Railroad Co 314 US 339, 345 (1941).
98 Bartlett, above n 95, 182-83.
99  2 AC 399.
100  2 AC 399, 404.
101  2 All ER 785.
102  2 All ER 785, 788.
103 (1973) 34 DLR (3d) 145.
104 Ibid 152-53, 190.
105 (1984) 13 DLR (4th) 321.
106 John Borrows, ‘The Sui Generis Nature of Aboriginal Rights’ (1997-98) 36 Alberta Law Review 19.
107 Ibid. Borrows points out that the term sui generis was not initiated in Guerin although that was the first time it was elaborated upon by the courts. Academic articles had already called these rights sui generis.
108 (1997) 153 DLR (4th) 153.
109 Delgamuukw (1997) 153 DLR (4th) 153  (McFarlane J).
110 Ibid  (Lamer CJ).
111 Jeremy Webber, ‘Relations of Force and Relations of Justice: The Emergence of Normative Community Between Colonists and Aboriginal Peoples’ (1995) 33(4) Osgoode Hall Law Journal 623.
112 (1992) 175 CLR 1.
113 It was only in 1970 that the first action to assert native title was taken in Millirpum v Nabalco Pty Ltd (1971) 17 FLR 141. The action failed when Blackburn J decided that the ‘doctrine of communal native title does not form and never has formed, part of the law of any part of Australia’. This decision been widely criticised.
114 (1992) 175 CLR 1, 15. The common law rights affirmed by Mabo (No 2) were translated into statutory rights through the NTA, introducing another dimension to native title rights in Australia. The definition of ‘native title’ in s 223 of the NTA follows the language of Brennan J in Mabo (No 2).
115 (1992) 175 CLR 1, 89 citing Guerin  2 SCR 335.
116 See John Borrows, Recovering Canada: The Resurgence of Indigenous Law (2002) 7.
117  1 MLJ 418, 424.
118 Macquarie Dictionary (2nd ed).
119 The ‘full box/empty box’ terminology comes from the discussion of s 35(1) of the Canadian Constitution Act 1982 which affirms ‘existing aboriginal rights’. The Justice Department likened s 35 to a box of rights, though said that the box itself was empty. First nation leaders riposted that the box was in fact full.
120  2 MLJ 591, 611.
121 The defendants’ contention that that the plaintiffs had not adduced evidence that none of their ancestors had married outside the scheduled race would put an impossible burden on any claimant. Justice Chin noted the difficulty that it would place on issues of mixed marriages. The problem of native status and the law has been discussed in Bulan above n 32. See also, Ramy Bulan, ‘Indigenous Identity and the Law: Who is a Native’ (1998) 25 Journal of Malaysian Comparative Law 127.
122 Sarawak came into being with the transfer of areas of the Brunei Sultanate, from the Sultan to James Brooke, a British trader dating from 1841. These were transfers not just of territory, but also of the rights to govern as a personal sovereign. For over a century, from 1841-1946 three generations of the Brooke family (the White Rajahs) ruled Sarawak. Legislation entitled ‘Orders’ were enacted in Sarawak in 1860s, marking the end of the informal and personal administration of justice by James Brooke. Later when a legislative assembly was established under the British colonial government ordinances were passed.
123  2 CLJ 769, 797. Citing Robert Pringle, The Ibans of Sarawak Under Brooke Rule 1841-1941, Ian Chin J alluded to another ‘obvious though unmentioned’ reason for not attempting to prohibit entirely native customary rights, namely, political expedience. Rajah Brooke had to contend with rebellion after rebellion of the various native groups and he was able to convince one group to go on war expedition on his behalf against the other. An abolishment of those rights would have united the natives against him and ‘his head would have been the trophy that would be sought after, it being the custom at that time to take the head of an enemy. To put it another way, the Rajah cannot afford to abolish those rights...’
124  2 CLJ 769, 828.
125  6 MLJ 241, 284.
126 ‘Borneo Pulp wins Appeal Case on NCR Land’, The Sarawak Tribune (Sarawak), 9 July 2005, 3.
127  1 MLJ 256
128  1 MLJ 256, 284.
129 Ibid 269.
132  5 MLJ 305.
133  1 All ER 734, 736.
134 Kristin Howden, ‘Indigenous Traditional Knowledge and Native Title’ (2001) 24 University of New South Wales Law Journal 60, 60.
135  2 MLJ 591, 622.
136 John Borrows, Recovering Canada, The Resurgence of Indigenous Law (2002) 86.
138 An officer with the Majlis Adat Isti Adat (Council For Preservation of Customs and Traditions) in the Chief Minister’s Department felt that this was a deliberate move given the complexities and non-uniformity attending the customary practices of each group: Personal Communication, Kuching, Sarawak, June 2002.
139 Sarawak Land Code s 2.
140 Administrative codes are written collections of native laws for the purpose of administration and for ascertaining the local laws. The first administrative codes that dealt with native customary laws in Sabah were called Wooley’s Code, named after their complier, GC Wooley, Esq, of the North Borneo Service. They were published by the North Borneo printers, and later reprinted in 1953 and 1962 as the native Affairs Bulletin No 1-7. These codes formed the basis of the customary laws in Sabah.
141 The various native groups in Sarawak had traditionally administered a system of adat to regulate matters such as community living, religion, marriage and inheritance. In the early years of the Brooke administration in Sarawak, some of these unwritten laws were modified and codified under the native Customary Laws Ordinance 1955 (Cap 51). A number of native law texts were dealt with as administrative codes. These included the Sea Dayak (Iban) Code of Fines (Belaga Sub-District) Order 1952; the Tusun Tunggu, codified first in the Third Division, and later extended to the Fourth and Fifth Divisions; the Orang Ulu Customary Code of Fines (Belaga Sub-District Order); and, the Orang Ulu Customary Code of Fines (Fourth Division Order). Two compilations of adat by AJN Richards, namely the Dayak (Iban) Adat Law 1963 and the Dayak (Bidayuh) Adat law 1964, published under an administrative order, were invaluable for dealing with cases concerning adapt in the Iban and Bidayuh communities respectively. These were replaced by the Adat Iban Order 1993 and the Adat Bidayuh Order 1994. The adat of the various groups are now at different stages of codification. The general contents are standardised subject to variations to accommodate the peculiarities of each community. Each is divided into eight chapters, and modelled after the Iban Adat Order 1993.
142 It is suggested that the converse should also be done.
143 RH Hickling, Malaysian Law, An Introduction to The Concept of Law in Malaysia (2001) 72.
144 L A Sheridan, ‘The Mysterious Case of the Disappearing Business: Government of Malaysia & Anor v Selangor Pilot Association’ (1977) 4(1) Journal of Malaysian and Comparative Law 2, 3.
145 Andrew Harding, ‘Property Rights under the Malaysian Constitution’, in F A Trindade and H P Lee (eds), The Constitution of Malaysia, Further Perspectives and Developments, Essays in Honour of Tun Mohamed Suffian (1986) 59, 66.
146 AIR (1955) Manipur 49 (‘Rabindra Kumar’).
147 AIR (1955) Manipur 49, 53-54.
148  2 MLJ 66, 69 (Suffian LP) (‘Selangor Pilot Association’). The construction placed on the Indian article by the Indian Supreme Court on the unamended art 31 was adopted by Suffian LP.
149 (1992) 175 CLR 1, 53.
151 Selangor Pilot Association  1 MLJ 133, 135.
152 Harding, above n 145, 72.
153 Ibid, 73.
154  2 MLJ 418, 434.
155 Ibid, 158, 164.
157 (1992) 175 CLR 1, 42.
158 (1988) 166 CLR 186.
159 (1988) 166 CLR 186, 219 (Brennan, Toohey and Gaudron JJ).
160  6 MLJ 289.
162  12 SCR 145
163  1 SCR 1114.
164 Ibid 1134.
165  2 SCR 1103.
166 Ibid 1154.
167  1 MLJ 64.
168 Ibid 71.
169 Dato Menteri Othman bin Baginda & Anor v Dato Ombi Syed Alwi bin Syed Idrus  1 MLJ 29, 32.
170 Minister of Home Affairs v Fisher  3 All ER 21, 26 (Lord Wilberforce).
171 Merdeka University Bhd v Government of Malaysia  2 MLJ 356, 366 (Abdoolcader J).
172 Teh Cheng Poh v PP  1 MLJ 50, 53 (Lord Diplock).
173 Ahmed Ibrahim, ‘Interpreting the Constitution: Some General Principles’ in F A Trindade and H P Lee (eds), The Constitution of Malaysia, Further Perspectives and Developments, Essays in Honour of Tun Mohamed Suffian (1986) 18. See also, Report of the Federation of Malaya Constitutional Commission 1957, .
174  6 MLJ 289.
175 Borrows, above n 106, 36. Borrows says ‘[t]he sui generis concept finds its basis in “traditional laws and customs” found in the “pre-existing societies of Aboriginal peoples” and in their interaction with the common law (Van der Peet (SCC) 198 (para 40). This means that under the sui generis reformulations the legal territory being “set apart” and “reserved” to protect Aboriginal interests is a place where Aboriginal people have a continuing, extinguished legal interest. In this system, conventional common law analogies have force only to the degree that they can be reconciled with the “tradition, custom, practice or law” of the Aboriginal group claiming the right.’
176 Ibid 37.
177 James Y Henderson, et al, Aboriginal Tenure in the Constitution of Canada (2000) 8.