NOTES
The land was continuously occupied and maintained by the plaintiffs to the exclusion of others in pursuance of their culture and inherited by them from generation to generation in accordance with their customs
The land had been occupied by the Temuans including the plaintiffs for at least 210 years and the occupation was continuous up to the time of the acquisition. The land were customary and ancestral lands belonging to the Temuans including the plaintiffs and occupied by them for generations
SAGONG BIN TASI & ORS v KERAJAAN NEGERI SELANGOR & ORS [2002] 2 MLJ 591
HIGH COURT (SHAH ALAM) MOHD NOOR AHMAD J CIVIL NO MTI-21-314-1996 12 April 2002
Constitutional Law -- Right to property -- Aboriginal peoples' right over land -- Compulsory acquisition of ancestral land by government -- Whether proprietary interest of aboriginal people in their customary land was an interest in and to the land -- Whether aboriginal peoples' right under common law extinguished by Aboriginal Peoples Act 1954 -- Adequate compensation -- Meaning of 'land occupied under customary right' -- Land Acquisition Act 1960 s 2 -- Federal Constitution art 13(2)
Native Law and Custom -- Land dispute -- Customary rights over land -- Aboriginal peoples' right over land -- Compulsory acquisition of ancestral land by government -- Whether proprietary interest of aboriginal people in their customary land was an interest in and to the land -- Whether aboriginal peoples' right under common law extinguished by Aboriginal Peoples Act 1954 -- Adequate compensation -- Meaning of 'land occupied under customary right' -- Land Acquisition Act 1960 s 2 -- Federal Constitution art 13(2)
The plaintiffs were orang asli of the Temuan tribe. Pursuant to an acquisition of land, on 13 February 1996, the Sepang Land Administrator gave written notices to the plaintiffs to vacate the land they were occupying within 14 days failing which enforcement action would be taken ('the notices'). The plaintiff did not comply for obvious reason that they were not happy with the amount of compensation. The first defendant claimed that the land was state land and the defendants had refused to recognize that the plaintiffs had any proprietary interest in the land or any interest therein at all. Hence, the defendants had refused to compensate the plaintiffs for the value of the land lost except for the loss of their crops and fruit trees and the loss of their homes, ie the building structure only. On 21 March 1996, the plaintiffs were asked by the Sepang police to report at the Dengkil police station to collect their compensation cheques. Only the third and seventh plaintiffs collected the cheques. On 22 and 27 March 1996, the plaintiffs were evicted from the land by a police operation with support from the FRU in the presence of the officials from the Sepang District Office, the officials of the second and third defendants and of the Jabatan Hal Ehwal Orang Asli. The fruit trees and the crops on the land were destroyed, the houses, the Balai Raya and the Balai Adat of the Temuan community thereat were demolished. On 14 June 1996, the plaintiffs received their cheques for the limited compensation under protest and without prejudice to their legal rights.
Held:
(1)
In principle, oral histories of the aboriginal societies relating to their practices, customs and traditions and on their relationship with land should be admitted subject to the confines of the Evidence Act 1950, in particular s 32(d) and (e), that is to say: (i) they must be of public or general nature or of public or general interest; (ii) the statement must be made by a competent person, ie one who 'would have been likely to be aware' of the existence of the right, customs or matter; and (iii) the statement must be made before the controversy as to the right, customs or matter had arisen (see pp 623G-624A).
(2) The land had been occupied by the Temuans including the plaintiffs for at least 210 years and the occupation was continuous up to the time of the acquisition. The land were customary and ancestral lands belonging to the Temuans including the plaintiffs and occupied by them for generations (see p 610D-F).
(3) The proprietary interest of the orang asli in their customary and ancestral lands was an interest in and to the land. However, this conclusion was limited only to the area that formed their settlement but not to the jungles at large where they used to roam to forage for their livelihood in accordance with their tradition. As to the area of the settlement and its size, it was a question of fact in each case. In this case as the land was clearly within their settlement, the plaintiffs' proprietary interest in it was an interest in and to the land (see p 615F-G).
(4) In order to determine the extent of the aboriginal peoples' full rights under the law, their rights under the common law and the statute had to be looked at conjunctively, for both the rights were complementary, and the Aboriginal Peoples Act 1954 ('the Act') did not extinguish the rights enjoyed by the aboriginal people under the common law (see p 615H-I); Adong bin Kuwau & Ors v Kerajaan Negeri Johor & Anor [1997] 1 MLJ 418 followed.
(5) The defendants purported to compensate the plaintiffs only for what had been provided for under the Act. Such compensation was not adequate within the meaning of arts 13(2) of the Federal Constitution, although the Act was a special Act relating to the aboriginal people. The deprivation of the plaintiffs' proprietary rights was unlawful (see p 617H-I).
(6) As the land was continuously occupied and maintained by the plaintiffs to the exclusion of others in pursuance of their culture and inherited by them from generation to generation in accordance with their customs, it fell within the ambit of 'land occupied under customary right' within the meaning of the definition of s 2 of the Land Acquisition Act 1960 ('the LAA'). Therefore, the plaintiffs must be compensated in accordance with the LAA (see p 618A-B, H).
(7) The first and fourth defendants owed fiduciary duties towards the plaintiffs, which had been breached and therefore, the plaintiffs would be entitled to be compensated for the loss suffered which was the value of the land. However no order was made for the breach of fiduciary duties since it was not specifically prayed for
[2002] 2 MLJ 591 at 593
and to avoid duplicity in view of the award of compensation made in accordance with the LAA (see p621B, E-F).
(8) The eviction of the plaintiffs from the land was unlawful because the 14 day notice given was unreasonable and insufficient (see p 620D).
(9) Trespass had been committed against the possession of the land by the plaintiffs. The second and third
defendants were liable for it (see p 621C)
