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 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
Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast Asiaof Australia to demand such proof for the establishment of aclaim to native title. The common law, being the creation ofreason, typically rejects unrealistic and unreasonableprinciples.”Clearly, trial courts need to approach these trials with an appreciation of theevidentiary difficulties inherent in aboriginal claims and, by the same token,customary claims.ConclusionThe preceding cases illustrate that, to various degrees, indigenousconceptions of property ownership are relevant in determining the nativetitle rights recognised under the common law. The Privy Council recognisedearly on that seeking to render those rights in English law concepts wasunwise and unproductive, and ultimately undermined the object ofrecognition.As in Malaysia, there are other jurisdictions that recognise native title rightsreflected in traditional laws and customs. Australia and South Africa defineindigenous land rights by reference to traditional laws and customs.Canadian law acknowledges the importance of the indigenous perspectivein establishing proof of occupancy. What is sought to be protected are preexistingproperty rights founded on those very laws and customs.The basic principle underpinning the recognition of customary rights pointsto equality as a key objective in affirming indigenous land rights. The statusof customs as part of Malaysian law is well entrenched. Similarly, equalityof treatment among the various groups of peoples that comprise the multiracialcitizenry of Malaysia is part of the basic framework of the FederalConstitution. Article 8(1) of the Federal Constitution guarantees equalitybefore the law for all persons, and Art 8(2) prohibits discrimination againstcitizens based on their race or descent in regard to any law relating to theholding or disposition of propertyThe principle of equality requires that, with respect to property rights,64
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Divers Paths to Justice - English - Forest Peoples Programme

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