V. Anbalagan
The Malaysian Insider | 28 November 2014
The Court of Appeal today has affirmedthat Orang Asli in the peninsula have rights under the common law over their ancestral land.
A three-man bench ruled unanimously today to set aside the findings of a high court which dismissed the rights of 82 Orang Asli over their ancestral land, spanning 7,000 acres between Maran and Kuantan.
Judge Datuk Dr Prasad Abraham, who delivered the judgment, said the bench was of the opinion that two previous court of appeal rulings were correct in stating the legal principles on the rights of the Orang Asli.
Prasad, however, said the present case of Yebet Saman and 81 others from the Semaq Beri tribe will be reheard before a new judge as evidence on the status of the land was unclear.
Yebet Saman, the first plaintif, at right.
He said Yebet Saman and the rest of the tribe members would have to prove that they were aborigines; that they had continuously occupied the land; and had maintained the traditional connection with the property in order to be accorded customary rights.
“The high court has to take oral evidence from the plaintiffs to establish this facts,” said Abraham who sat with Datuk Abdul Aziz Abdul Rahim and Datuk Mah Weng Kwai.
In the first case, an Orang Asli, Adong Kuwau brought an action against the Johor government for encroaching on ancestral land and the Court of Appeal for the first time established the concept of native title in Malaysian law.
The Federal Court in 1998 upheld Adong’s right to the land although he did not possess any land title. However, no written grounds was made available by the apex court.
In the second, Sagong Tasi and 26 other families from the Temuan tribe mounted a legal challenge in 2002 after their ancestral land in Kampung Tampoi in Sepang, Selangor, was marked out to build the Nilai-KLIA expressway.
In 2005, the appellate court affirmed a high court ruling that the families had native titles to the land based on common law and the Federal Constitution.
Lawyer Yogeswaran Subramaniam, who appeared for the Orang Asli, told reporters that the appellate court ruling was a victory for the community as the judiciary had once again recognised their rights to their ancestral land.
“We had to battle it out of court because the executive and the legislature are not recognising their rights.”
Yogeswaran said the court agreed with their submission and added that the common law superseded what was provided in the Aborigines People’s Act 1954.
“The court has also looked into legal rights of natives in other Commonwealth countries like Australia, New Zealand and Canada in arriving at its decision.”
Yebet and the rest took their appeal to Putrajaya after what high court judge Datuk Marina Yahya did was found to be against the principles established by the court of appeal.
The judge ruled that the Pahang government had power over land maters and did not recognise the rights sought by the Orang Asli.
The Semaq Beri tribe is seeking a declaration that 7,000 acres be declared as customary land.
The tribe filed their suit in 2012 against Putrajaya, the Pahang government, director-general of Orang Asli Development Department, a developer and a sub-contractor.
They said they had occupied the customary land since time immemorial, but like many other Orang Asli groups, they were temporarily relocated by the government during the Emergency (1948 to 1960) for security reasons.
But, they had continuously returned to their customary land to tend their orchards, forage for jungle products and visit sacred sites during this period.
In 1970 a number of them returned permanently to Kampung Mengkapur.
Despite acknowledging the tribe’s presence, occupation and use of the customary land, the Pahang government failed to gazette the areas as Orange Asli settlements.
In 2010, the 82 Orang Asli found a notice detailing logging activities over part of the forests on their land and about 1,000 acres had been alienated for oil palm plantation.
Yebet, 64, who was present, said the struggle to exert their right over the land would continue even if they had to wait.
“I believe justice will be served so that we can exercise our right over the land. We have to be patient.”
From left: Yebet, her dauughter Fatimah, with Iyak Ibu @ Peramah and Mia Yusri.
The pro bono legal team, from left: Lead counsel Steven Thiru, Lee Lyn-Ni, RS Pani, Darmain Segaran, Dr. Yogeswaran.