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 AsiaColumbia 46 , one of the most important pronouncements was that aboriginaltitle was recognised by both common law and constitutional law. The otherwas that “stories matter.” This phrase refers to the court’s precedentestablishingdecision that aboriginal oral histories must be given significantweight. In Delgamuukw, a new trial was warranted because the trial judgeerred in his interpretation of oral histories and failed to appreciate theevidentiary difficulties inherent in adjudicating aboriginal claims. Therecognition of aboriginal histories is of practical significance since suchhistories are the primary means by which native nations can prove theirclaims. Referring to his earlier decision in Van de Peet (p.68), Chief JusticeLamer wrote,A court should approach the rules of evidence, and interpret the evidencethat exists, with a consciousness of the special nature of aboriginal claims,and of the evidentiary difficulties in proving a right which originates intimes when there were no written records.Lamer CJ went on to say,“In other words, although the doctrine of aboriginal rights is acommon law doctrine, aboriginal rights are truly sui generisand demand a unique approach to the treatment of evidencewhich accords due weight to the perspective of indigenouspeoples. However, that accommodation must be done in amanner which does not strain the Canadian legal andConstitutional structure.” 47To insist on written records as a means of proof is to “impose an impossibleburden of proof on [native] peoples, and render nugatory any rights theyhave” because “most [native] peoples did not keep written records. 48The same sentiment was also expressed by the Malaysian court in Sagong46 [1997] 3 SCR 101047 (1997) 3 SCR 101048 ibid. quoting from R v Simon [1985] 2 SCR 387 at 408.55
Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast AsiaTasi. 49 In that particular case, the oral histories of the Orang Asli relating totheir practices, customs, traditions and their relationship with the land, wereadmitted, resulting in recognition of customary rights of the Orang Asli. Ata deeper level, recognising the evidentiary difficulties is a “profound effortto reconcile how different peoples with different cultural traditions see theworld”. It is also a recognition that native rights “demand a unique approachto the treatment of evidence which accords due weight to the perspective ofaboriginal peoples”. 50To see through the “indigenous law” prism: an approach to customarylaw on its own termsIn the recognition of customary rights, it must be made clear that whilecommon law recognises native customary rights to land, it is not a creationof common law. The Federal Court itself upheld that the common law ofMalaysia recognises native customary title in Superintendent of Lands &Surveys & Government of Malaysia v Madeli bin Salleh. 51 It is a right that issourced in native law and customs and is recognised by the constitution.Failure to recognise this subtle but very important distinction can lead todire consequences for native land rights.To revisit the decision in Adong v Kuwau, Mokhtar Sidin, as he then was,said, “I believe this is a common law right which the natives have”. Later,Abdul Azizi bin Abdul Rahman J in Amit bin Salleh, drawing a parallelbetween communal rights in NCR in Sarawak and those of Orang Asli inAdong bin Kuwau, called it “common law right”. To the extent that this is aright that is derived through pragmatism and judicial decisions, it is acommon law right. However, there is a danger of misinterpretation of thesubstance if the courts interpret the customary rights through the prism ofcommon law concepts. A classic case is that of Keteng bin Haji Li v TuaKampong Suhaili 52 , in which Digby J categorised the right to land under49 [2022] 2 MLJ 591.607.50 Lamer CJ in Delgamuukw (1997) # SCR 1010, at 1069.51 [2008] 2 MLJ 21252 [1951] SCR 956
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