Divers Paths to Justice - English - Forest Peoples Programme

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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 The introduction of English law through the Charter ofJustice did not supersede that custom any more than it superseded customs inEngland.21 Angu v Attah (1916) PC Gold Coast 1874–1928, 4347
Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast Asiacourts will take judicial notice of them’. 22The courts in Malaysia have generally allowed oral evidence to be adducedto prove customary practices. Proof of customs through oral traditions wasallowed in both Sagong bin Tasi and Ors v Kerajaan Negeri Selangor andOrs (‘Sagong I’), 23 and Nor anak Nyawai v Borneo Pulp Plantation, 24 twoof the leading Malaysian cases on common law recognition of customaryrights to land. In Sagong I, Mohd Noor Ahmad J ruled that oral histories ofthe Orang Asli relating to their practices, customs, traditions and theirrelationship with the land be admitted as evidence subject to the terms ofthe Evidence Act 1950, s 32(d) and (e). With respect of native customs, s 48and 49 of the Evidence Act 1950 allow for the opinions of a living person asto general rights or customs, tenets or usages. Mohd Nor J stated that thestatements on oral histories must be of public and general interest; must bemade by a competent person who ‘would have been likely to be aware’ ofthe existence of the right or the correct customs; and must be made beforethe controversy as to the right or the customs. 25In the case of Nor Nyawai, oral narratives and oral histories of the Iban andexpert evidence were adduced and admitted to prove customary practices ofthe Iban community. The customs that are admitted as proof of title andevidence have specific contents and implications for native customary rightsand interests in customary lands. Similar sentiments were expressed byHaidar Bin Mohd J (as he was then called) in Hamit bin Mattussin & Ors vSuperintendent of Lands & Surveys & Anor. 26 One of the first methods ofproof, he said, “consists of testimony of a witness who deposes, from hisown personal knowledge, to the actual existence of custom or usage”. Thatevidence “may be based on observation of many instances, and may22 Anguh v Attah (1916) PC Gold Coast 1874 -1928, 43 at 44.423 Sagong I [2002] 2 MLJ 591, 622-2424 Nor Nyawai I [2001] 6 MLJ 241, 25125 Sagong I [2002] 2 MLJ 591, 62326 [1991] 2 CLJ 152448
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