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 Asianative law and custom as the right of a mere licensee. He held that as anoccupier, the native holder is at best, “a mere licensee and he has no legalinterest which he can either charge or transfer.” This term, which is derivedfrom the English doctrine of tenure and seen through the lenses of commonlaw, is ill fitting and denies the existence of a valid native perspective ofland ownership based on native law and customs. Ian Chin J in Nor Nyawaitook this concept but maintained that this licence was “not terminable atwill.”In handing down decisions on the content of indigenous land rights inCrown colonies, the Privy Council repeatedly emphasised the importance ofcustoms and reiterated that courts should examine such customs free fromthe limited notions of English common law property rights. The dangers oflooking at indigenous law purely through a common-law prism are obvious.The two systems of law developed in different situations, in differentcultural contexts and in response to different conditions. While native title isrecognised under the common law, its origins are in native customs andtraditions. 53 It is not a creature of the common law and the interestsassociated with native title are not limited by common law conceptions ofproperty. Thus, Lord Haldane cautioned against interpreting native title byreference to English land law principles in the Privy Council case of AmoduTijani v Secretary, Southern Nigeria, saying,“There is a tendency, operating at times unconsciously, torender [native] title conceptually in terms which areappropriate only to systems which have grown up underEnglish law. But this tendency has to be held in check closely.As a rule, in the various systems of native jurisprudencethroughout the Empire, there is no such full division betweenproperty and possession as English lawyers are familiar with.A very usual form of native title is that of a usufructuary right,which is a mere qualification of or burden on the radical orfinal title of the Sovereign where that exists. In such cases thetitle of the Sovereign is a pure legal estate, to which beneficial53 Nor Nyawai I [2001] 6 MLJ 241, 268, 286; Nor Nyawai II [2006] 1 MLJ 256,269-70; Jalang Paran [2007] 1 MJL 412, 421-22; Madeli III [8/10/07] Civil AppealNo. 01-1-2006(Q) 24.57
Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast Asiarights may or may not be attached. But this estate is qualifiedby a right of beneficial user which may not assume definiteforms analogous to estates, or may, where it has assumedthese, have derived them from the intrusion of the mereanalogy of English jurisprudence.” 54The Privy Council further observed in Amodu Tijani v The Secretary,Southern Nigeria,“The title, such as it is, may not be that of the individual, as inthis country it nearly always is in some form, but may be thatof a community…To ascertain how far this latter developmentof right has progressed involves the study of the history of theparticular community and its usages in each case. Abstractprinciples fashioned a priori are of but little assistance, and areas often as not misleading.”The rights protected by native title are defined by the customs in which thattitle is housed. As such, the determination of the real character ofindigenous title to land therefore “involves the study of the history of aparticular community and its usages” to determine the true nature of thecustomary right in question. Each community’s customs must be treated ontheir own terms.In Amodu Tijani , according to Oluwa customs, the land belonged to thecommunity and never to individuals. Each community member held anequal right to the land, with the chief of the community or family acting as atrustee. The chief could not make important decisions with respect to theland without consulting the community or family elders, and grants tostrangers were subject to their consent. In interpreting the provisions of theOrdinance of 1903, the Privy Council considered these customs, and noted54 [1921] 2 AC 399, 403. This case has been cited by the courts in Sagong Bin Tasi& Ors v. Kerajaan Negeri Selangor & Ors [2002] 2 MLJ 591, 611 (‘Sagong I’),Adong I [1996] 1 MLJ 418, 427 and Madeli III [8/10/07] Civil Appeal No. 01-1-2006(Q) 24. Other common law jurisdictions have also relied on this case. SeeMabo (No 2) (1992) 107 ALR 2, 35 (Brennan J); Calder et al. v. Attorney-General ofBritish Columbia [1973] S.C.R. 313, 34 D.L.R. (3d) 145, 112 (Hall J dissenting)(‘Calder’).58
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Divers Paths to Justice - English - Forest Peoples Programme

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