Divers Paths to Justice - English - Forest Peoples Programme

Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast AsiaOn July 9 2005, the Court of Appeal granted the appellants’ appeal againstthe grant of compensation to the plaintiffs 43 on the grounds of insufficientproof of occupation in the disputed area. It was acknowledged, however,that they had satisfied the test for NCR in the adjacent area. It appears thatthe proof required was that of actual ‘cultivated areas’ or temuda withoutreference to other aspects of the traditional methods of occupation. Notably,the Court of Appeal 44 did not refute the High Court’s finding that the Ibanconcept of pemakai menoa did exist.This case is a clear illustration of how the body of indigenous traditionalknowledge that relates to the social and physical aspects of indigenousexistence, and to ceremonial practices that govern their relationship with theland within their own peculiar cultural practices, may not necessarily becontained in written codes. Often, as was the case in Nor Nyawai, theevidence took the form of oral narratives and stories of occupation. In manyinstances, the evidence of indigenous occupation and connection with theland would be evidenced in their narratives, the indigenous taxonomy ofrivers and sites on the land, stories, songs and ballads. Their songs andstories speak of peoples’ proprietary rights, responsibilities on the land andtell of regimes that govern relationships to the land. 45 These provide anindigenous perspective that must be given weight, even in litigation. Thisbrings us to the evidentiary standards required to prove customs in whichrights are anchored. Clearly, “stories matter.”In the celebrated Canadian Supreme Court case of Delgamuukw v British43 Superintendent of Lands and Surveys, Bintulu v Nor Anak Nyawai and Ors.‘Borneo Pulp wins Appeal Case on NCR Land’, The Sarawak Tribune, Saturday, 9July 2005, 3.44[2006] 1 MLJ 25645 Borrows J (2001) writes on the importance of oral history as a valuable source ofinformation about a peoples’ past. Despite its value, there are particular challengeswith regard to admissibility and interpretation. He highlights the need for the courtsto be sensitive to the factual, social and psychological context within which alitigation arises. A judicial inquiry in context is necessary so that oral history isplaced on equal footing with other types of evidence.54