Divers Paths to Justice - English - Forest Peoples Programme

Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast AsiaReasonableness of the practice is an important foundation. What isreasonable is often measured against the behaviour and practices of thosewithin the area in which it operates. For instance, the Malay system ofcustomary land tenure which provided for the payment of a tithe wasapproved as being ‘good and reasonable custom’. It was upheld by theCourt of Judicature in Sahrip v Mitchell & Anor. 20 The claimants had a rightto the land in question simply because the custom or local law gave it tothem.Given these guidelines, under English law, customs are a question of factwhich must be proven. This raises the question; how should customs beproven and the rights based on native laws and customs therebyestablished?Proof of native laws and customs: “stories matter”The question of proof and the treatment of oral histories of indigenouspeoples by the courts is endemic to native customary land rights andaboriginal rights litigation generally. Customs may be proven or establishedby reference to writers on indigenous law, public records, village oraltraditions and the opinion of persons likely to know of the existence of suchtraditions. Even in using the works of writers, there have been voicescautioning against text books and old authorities which tend to viewindigenous law through the prism of legal conceptions that are foreign to it.Courts may also be confronted with conflicting views on what customarylaw is exactly. In the case of Angu v Attah, 21 Sir Arthur Channel said analleged rule of customary law must be ‘proved in the first instance bycalling witnesses acquainted with the native custom until the particularcustoms have, by frequent proofs in the courts, become so notorious that the20 (1877) Leic Reports 466. The introduction of English law through the Charter ofJustice did not supersede that custom any more than it superseded customs inEngland.21 Angu v Attah (1916) PC Gold Coast 1874–1928, 4347