Divers Paths to Justice - English - Forest Peoples Programme

Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast Asiacustoms, a Malay can transfer NCR lands to members of the same or othernative communities.Through oral evidence and narratives of respected members of the Malaycommunity, it was made evident that according to Malay customs, a pioneerwho occupies an area for farming, for the planting of crops or fruit trees, orgenerally for “cari makan” in (foraging for food or general use of the landfor livelihood purposes), would claim a right over the said land. The MalayNCL included the swamplands and rivers where they had planted andforaged for food. The plaintiffs claimed that it was fundamental to thesocial, cultural and spiritual aspects of Malay life. It was “not just for theirlivelihood, it was life itself.” The said land could be inherited bydescendants. Such inherited or acquired right over the NCL may by customalso be “serah”, that is to say, surrendered to another person or anothernative who may not be of Malay race but is a native of Sarawak.Wong J upheld the transfer of NCL in this case on the grounds that therewas nothing in their customs that prohibited it. Indeed, the concept of“serah” had evolved to the point that the “serah” involved a SuratPerjanjian Menyerah Tanah Temuda (a document of transfer) which wasrecognised by the Lands and Surveys Department.In both cases, the court rejected the defendants’ contention that there cannotbe NCR unless the same is embodied in statute. In a further explanation ofthe approach to proof of customs, Wong J referred to the observation byKirby J (as he was then called) when acting as the president of the Court ofAppeal of the New South Wales Supreme Court in Mason v Triton 69 , wherehe said,“In the nature of aboriginal society, their many deprivationsand disadvantages following the European settlement ofAustralia and the limited record keeping of the earliest days, itis next to impossible to expect that the aboriginal Australianswill ever be able to prove, by record details, their presencegenealogy back to the time before 1788. In thesecircumstances, it would be unreasonable for the common law69 (1994) 34 NSWLR 572 at 57263