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 Asiathat the community’s usufructuary occupation was ‘so complete as toreduce any radical right in the sovereign’. The Crown obtained no beneficialownership interests that displaced native title. Thus, the Governor wasrequired to pay compensation based on the full ownership interest of thecommunity. 55Similarly, in Oyekan and Others v Adele Oyekan’ 56 , the Privy Council ruledthat customs, and not English common law concepts of property, mustcontrol the determination of the rights held under native title so thatdisputes between inhabitants regarding property rights were determinedunder native law and custom “without importing English conceptions ofproperty law’. 57 The caution administered by the Privy Council was referredto at length in Sagong Tasi v Kerajaan of Selangor. The court went on touphold that the character of land tenure and use among the aboriginalTemuan people consisted in an interest in the land and not merely ausufructuary right.Another important leading case that the Court of Appeal in Sagong Tasireferred to was the decision of the Constitutional Court of South Africa(‘CCSA’) in Alexkor Ltd and Others v Richtersveld Community and Others(‘Richtersveld Community’), which suggests an approach for applyingcustoms in defining rights under native title. In the case of RichtersveldCommunity, members of an indigenous group, the Richtersveld Community,alleged they were entitled to compensation for dispossession of their land,which they held according to customary laws. They sought redress underthe Restitution of Land Rights Act (‘Act’), which authorised restitution to55 Adong I cites the principles of Amodu Tijani as stated in this paragraph as part ofits review of the common law decisions recognizing native title. [1997] 1 MLJ 418,427. Madeli III cites Amodu Tijani and in particular, the principles set out in thisparagraph, in support of its determination that Mabo (No 2) and Calder state thecommon law position regarding native title ‘throughout the Commonwealth.’ MadeliIII [2007] Civil Appeal No. 01-1-2006(Q) 26.56 [1957] 2 All ER 785.57 Madeli III cites Okeyan and in particular, the principles set out in this paragraph,in support of its finding that the common law rule requires courts to assume that theCrown will respect the property rights of indigenous inhabitants. [2007] CivilAppeal No. 01-1-2006(Q) 23-24.59
Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast Asiacommunities holding “a right in land” subsequently dispossessed on aracially discriminatory basis. The Act defined a right in land to include “acustomary law interest”. 58 The lower court found that the community heldan interest in their lands under customary law “akin to ownership undercommon law” and this interest included ownership of the minerals. 59 Theappellant challenged this finding on appeal to the Constitutional Court ofSouth Africa.In examining the ‘nature and the content of the rights’ held by thecommunity and whether those rights survived the Crown’s acquisition ofsovereignty over the Community’s territory in 1847, the CCSA noted thatsuch rights “must be determined by reference to indigenous law. That is thelaw which governed its land rights.” 60 The CCSA referred to the PrivyCouncil’s decision in Oyekan and Others v Adele, holding that Englishproperty law should not be imported in determining land rights held underindigenous customs. 61 Furthermore, the court stated,“While in the past, indigenous law was seen through thecommon law lens, it must be seen as an integral part of ourlaw. Like all laws, it depends for its ultimate force and validityon the Constitution. Its validity must now be determined noton common law but on the Constitution.”The Constitution of the Republic of South Africa 1996 required that courtsapply customary law where applicable, subject to Constitutional andlegislative requirements regarding such laws. Customs were an independentsource of law within the South African legal system, but were interpretedaccording to the values in the Constitution and subject to legislation. 62According to the CCSA, in this way, ‘indigenous law feeds into, nourishes,fuses with and becomes part of the amalgam of South African law.’ 63 In58 Richtersveld Community (2003) 12 BCLR 1301 (CC), 2003 SACLR LEXIS 79,*1159 ibid.:*3660 ibid.:*4261 ibid.62 ibid.:*42-4363 ibid.:*4460
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