evolving conceptions of native title in malaysia and ... · 1954 under the aboriginal peoples’...

(2007) 11(1) A ILR 79

EVOLVING CONCEptIONS Of NAtIVE tItLE IN MALAYSIA AND AUStRALIA – A CROSS NAtION COMpARISON

Amy Dennison*

I Introduction

This paper explores the extent to which Indigenous land rights have been recognised in Malaysian statute law, and traces the development and conceptualisation of native title in Malaysian common law. In doing so, the paper focuses on the experience of the Orang Asli, a group of Indigenous communities from the Malaysian Peninsula. The paper contrasts the effect that the legal recognition of Orang Asli land rights has had on the Orang Asli people with the experience that Australian Aborigines have had in the years following the High Court’s recognition of native title in Mabo v Queensland (No 2)1 and the consequent enactment of the Native Title Act 1993 (Cth) (‘NTA’). It is interesting to highlight the significant differences in the way that native title has been conceptualised in the two jurisdictions. Even though the Malaysian judiciary relied heavily on Australian case law in its conceptualisation of native title, it ultimately departed from the Australian model. This is arguably a positive sign for the Indigenous peoples of the Malaysian Peninsula: the Orang Asli.

Part I of the paper explores the socio-economic status and political recognition of the Orang Asli. Given the wealth of information on these issues as they pertain to Indigenous Australians, the paper eschews any cross-nation comparison at this point. Part II considers the extent to which Orang Asli land rights have been recognised in colonial and post-colonial legislation as compared with the experience of the Indigenous peoples of Sabah and Sarawak. Part III examines Indigenous land rights in Australia and the tension between the common law and legislation. Part IV mobilises the Australian experience as a means of understanding the conceptualisation of native title in Malaysia. The paper then concludes with a comparison between the extinguishment requirements in each jurisdiction, and comments on the resulting differences in legal outcomes for Indigenous peoples.

II The Orang Asli

The Orang Asli are the Indigenous peoples of the Malaysian Peninsula, constituting less than 0.7 percent of Malaysia’s population. In Bahasa, Malaysia’s official language, ‘Orang Asli’ means ‘original peoples’.2 The term, as it is presently used, was introduced by the British Colonial Government during the communist insurgence (the Emergency) of 1948-1960 as a less derogatory term than the previous nomenclatures ‘sakai’ and ‘aborigine’. The term ‘Orang Asli’ refers to the 19 ethnic sub-groups that, for administrative purposes, are officially categorised as Negrito, Senoi and Aboriginal Malay.3

A Socio-economic Status

Like many Indigenous groups globally, the Orang Asli record poor socio-economic indicators compared to the mainstream population of Malaysia. According to Cheah, Orang Asli make up 50 percent of the Malaysian population that live below poverty line.4 Much like Australian Aborigines,5 the Orang Asli have lower education levels,6 higher infant mortality rates,7 lower life expectancy,8 and significantly higher levels of preventable disease9 than the national average. Intimately associated with the socio-economic issues facing the Orang Asli is their struggle for the use and control of their traditional resources. Traditional Orang Asli communities depended on foraging from ancestral lands and subsistence farming. However, modernisation within Malaysia, and globally, has led to changes in the social and economic practices of the Orang Asli. The success of certain Orang Asli communities in embracing modern practices highlights the economically disadvantaged position of many of the communities within the Orang Asli group. Malaysia’s drive towards ‘Vision 2020’10 and a strong commitment to infrastructure development has resulted in the construction of dams (as in Adong bin Kuwau v Kerajaan Negeri Johor11) and highways (as in Sagong bin Tasi v The Selangor State Government12), along with intensive logging

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and other development projects. This has engendered the loss of extensive areas of rainforest, which are the Orang Asli’s ancestral lands and the land on which many continue to live.13

B Government Policies Towards the Orang Asli

The Colonial Government paid scant attention to the Orang Asli until the Emergency period of 1948-1960, during which time jungle areas became a battleground for communist insurgents and colonial troops. The British government consequently implemented schemes for the resettlement of the Orang Asli in tandem with a paternalistic attitude and close bureaucratic supervision.14

The independent Malaysian Government appears to have retained the Colonial Government’s view that the Orang Asli are culturally inferior and undeveloped, describing them as ‘an Indigenous community whose social, economic and cultural development prevents them from sharing fully in the rights and advantages enjoyed by other sections of the population’.15 Pursuant to this view, the Government adopted a policy aimed at assimilating the Orang Asli into the Malay section of the community. In 1961 the Department of Orang Asli Affairs (JHEOA) released its ‘Statement of‘Statement of Policy Regarding the Administration of the Orang Asli of Peninsula Malaysia’ (‘Statement of Policy’), which suggested the adoption of ‘suitable measures designed for theirsuitable measures designed for their protection and advancement with a view to their ultimate integration with the Malay section of the community’.16 Part of the assimilation policy involved converting the Orang Asli to Islam.17 They were considered ‘ripe objects for the zeal of religious missionaries’.18 Islamic missionary activity (dakwah) became particularly intense after 1980 to achieve the Islamisation of the whole Orang Asli community and the integration and assimilation of the Orang Asli with the Malays. This project in particular met with heavy resistance from the Orang Asli community.19

The 1961 Statement of Policy declares that:

The special position of aborigines in respect of land usage and land rights shall be recognised. Every effort will be made to encourage the more developed groups to adopt a settled way of life and thus to bring them economically into line with other communities in this country. Aborigines will not be moved from their traditional areas without their full consent.

While the decision of Sagong Tasi held that the Statement of Policy continues to apply,20 there has been very littlethere has been very littlehere has been very little realisation of those land-related policy statements. JHEOA’s new 10 point Development Strategy, which omits the considerations included in the Statement of Policy regarding land rights (as extracted above), suggests that there is little chance that Orang Asli land rights will be recognised under statute in the near future.

C The Political Voice of the Orang Asli

The Orang Asli are a marginalised and largely unrepresented group in Malaysian politics. This is exemplified by the fact that the Registrar of Societies has still not approved the application of the Orang Asli political party (Parti Orang Asli).21 Registration would enable the party to receive government grants and other benefits. The political, economic and cultural contributions of the Orang Asli to larger Malaysian society are rarely acknowledged except for the purposes of tourism.22

D The Department of Orang Asli (JHEOA)

JHEOA was established by the British colonial government in 1954 under the Aboriginal Peoples’ Ordinance 1954 (‘Ordinance’). Since its establishment, JHEOA has repeatedly implemented policies based on paternalism and ‘natural integration’.23 It has played a major role in disempowering the Orang Asli and has been criticised for failing to safeguard Orang Asli land rights. During the Emergency period JHEOA was responsible for relocating the Orang Asli from the inner jungle to the outer fringes so that authorities could control them. The purpose of this policy was to eliminate the influence of communist terrorists amongst the Orang Asli. The OrangThe Orang Asli consider JHEOA ‘distant, unapproachable and irrelevant‘distant, unapproachable and irrelevant in representing their interests at the national level’,24 which is perhaps not surprising given that only 35 percent of staff members are from the Orang Asli community.25

There are two other bodies that operate on behalf of the Orang Asli as alternatives to JHEOA. Unfortunately these two bodies have a history of conflict, but as some authors note, ‘at least they exist’.26 One is the Association of Orang Asli of Peninsula Malaysia (POASM), which is a non-government organisation founded in 1977. At that time, the majority of members were employees of JHEOA, but membership has gradually widened to include members from the Orang Asli community.27 In 1991, POASM launched a program entitled

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‘Development for Orang Asli in the Context of Vision 2020’, which included a series of proposed amendments to the Malaysian Constitution so that the Orang Asli would enjoy the same constitutional rights as Peninsula Malays and the natives of Sabah and Sarawak.28

The other body that may be considered a ‘political voice’ for the Orang Asli is the Centre for Orang Asli Concerns (COAC). This is a group of volunteers that act as a non-government organization to advance Orang Asli interests. It has been active in criticising JHEOA’s policies in addition to advancing Orang Asli land rights.

III The Legal Status of the Orang Asli

A The Indigenous Status of the Orang Asli

Prior to discussion of the extent to which Malaysian legislation and common law recognises Indigenous land rights, it is necessary to consider the meaning of the term ‘Indigenous’ in Malaysia. Under international law there is a focus on the non-dominance of the community concerned, such that Indigenous people constitute ‘non-dominant sectors of society and are determined to preserve, develop and transmit to future generation their ancestral territories, and their ethnic identity’.29 The Orang Asli undoubtedly fall within this definition. In addition to their non-dominant role in Malaysian society, anthropological and archaeological evidence indicates that the Orang Asli are ‘descendants of the earliest known inhabitants who occupied the Malaysian Peninsula before the establishment of the Malay kingdoms’.30

In spite of this, the Government refuses to acknowledge the Indigenous status of the Orang Asli. Instead, it is the Malays of the Peninsula and the natives of Sabah and Sarawak that enjoy Indigenous status. Malaysian leaders have claimed that the Malays are the exclusive Indigenous people of the Peninsula; they are the ‘bumiputra’ or ‘princes of the soil’.31 There is a prevailing attitude that the Orang Asli do not deserve Malay status because of an inherent inferiority or refusal to assimilate into the modern Malaysian state. Former Prime Minister Mahathir maintained this position,32 arguing that the Orang Asli are not the ‘definitive people’ of the Malay Peninsula because they did not historically ‘form effective governments’.33 This notion has been reinforced by the judiciary. In Adong Mohktar Sidin J said:

It is not disputed that traditionally, Peninsula Malaysia was

occupied by two groups of people; namely, the Malays who lived along the coast and rivers and the aboriginal people who lived in the interiors.34

The consequences of having ‘Indigenous’ status in Malaysia are extensive. ‘Indigenous’ peoples benefit from provisions in the Malaysian Constitution providing ‘special treatment’ for Malays, which is justified on the grounds that they are Indigenous and because of the social and economic disadvantage they suffered during and following British control. Article 153 of the Constitution safeguards the ‘special position of the Malays and natives of any of the States of Sabah and Sarawak’, while Article 161A provides for the special position of the natives on Sabah and Sarawak, extending to them the same ‘special privileges’ as Malays.

COAC argues that denying the Orang Asli Indigenous status is an infringement of international human rights standards such as those contained in the International Covenant on Civil and Political Rights and Convention (No 169) concerning Indigenous and Tribal Peoples in Independent Countries, as well as an infringement of the Orang Asli’s right to equality before the law under Article 8 of the Constitution.35 While the current situation has a falsehood reminiscent of the terra nullius doctrine that prevailed in Australia prior to 1992, Government recognition of the Indigenous status of the Orang Asli appears unlikely given the challenge this would constitute to the grounds of the Malays’ constitutionally enshrined ‘special treatment’.

B Recognition of Orang Asli Land Rights In Colonial and Post–Colonial Legislation

The colonial government and the more recent independent Malaysian government have repeatedly failed to adequately protect Orang Asli land rights. An examination of the various statutes pertaining to Indigenous land rights readily indicates this.

C The National Land Code 1965 (‘National Land Code’)

The National Land Code has been described as the ‘one piece of federal legislation most guilty of denying of Indigenous peoples’ land rights’.36 It is modelled on the Torrens system of land registration, meaning that all land belongs to the State and only vests upon registration. Much like the way that traditional lands are passed down from generation to

e v o l v i n g c o n c e p T i o n s o f n a T i v e T i T l e i n m a l a y s i a a n d a U s T r a l i a– a c r o s s n a T i o n c o m p a r i s o n

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generation in Australian Indigenous groups; Orang Asli land is passed down by traditional means in a way that is not recognised by a formal registration system. Before the recent recognition of native title at common law, land occupied by the Orang Asli technically belonged to the State and the Orang Asli were regarded as illegal squatters on government land.

One of the arguments made against the existence of native title in Malaysia was the complete and comprehensive nature of the law of land tenure outlined in the National Land Code. The argument was also made that the National Land Code makes no provision for common law native title.37 This argument is inconsistent with the co-existence of Torrens title land and native title in other jurisdictions such as Australia. In Adong Mokhtar Sidin J acknowledged the possibility of such co-existence in Malaysia, given the examples set in Canada, New Zealand and Australia where special statutes have been enacted or tribunals set up to enable Indigenous groups to claim rights over their traditional lands. His Honour went on to say that the Torrens system did not extinguish the Orang Asli’s common law right to their traditional lands, a result affirmed in Nor Anak Nyawai v Borneo Pulp Plantation38 as well as Sagong Tasi.

D The Aboriginal Peoples’ Act 1954 (Malaysia) (‘APA’)

The APA comes close to providing a statutory recognition of Orang Asli land rights, but ultimately fails to provide them with actual ownership of their ancestral lands. The APA confers a right of occupation,39 which includes the right to forage, collect produce, and hunt. Cheah has argued that the Orang Asli’s rights under the APA are in fact no better than those of ‘tenants-at-will’.40 Nevertheless, the continuing judicial view in Adong was that the APA evinces the Malaysian Government’s commitment to the ‘protection, well-beingprotection, well-being and advancement of the aborigines of West Malaysia’.41 In the appeal decision of Sagong Tasi, Kerajaan Negeri Selango v Sagong Bin Tasi,42 the Court of Appeal said that the APA was a ‘human rights statute’, the purpose of which was to ‘protect and uplift the First Peoples’ of this country’.43 Notwithstanding this judicial assessment the APA has been described as highly paternalistic, with obvious similarities in spirit and content to legislation that governed the Australian Aborigines during the Assimilation era during the 20th century. Nicholas has argued that the APA actually violates Article 8 of the Federal Constitution, which provides that all people should be equal before the law.

The APA only applies to the Orang Asli on the Malaysian Peninsula. In Sarawak and Sabah, the Land Code 1958 and Land Ordinance 1930 respectively are the relevant pieces of legislation, and provide for greater levels of ownership on East Malaysia than on the Peninsula.44

Sections 6(1) and 7(1) of the APA empower the Minister to grant land for use as Aboriginal areas or reserves. The Orang Asli are not the legal owners of these areas or reserves. Sections 6(3) and 7(3) allow the Minister to revoke those grants at any time, without consultation. To date, only a small amount of land has actually been granted45 with most of the grants having occurred during the 1960s and 1970s.Compensation for the revocation of a grant is highly discretionary. Section 11 provides that compensation shall be payable for State acquisition of land on which fruit or rubber trees are growing. The compensation payable ‘shall appear to the State Authority to be just’ (section 11(a)). Section 12 relates to the compensation payable for the acquisition of Aboriginal areas or reserve, and merely provides that the State may pay compensation if the Director General ‘thinks fit’.

E The Land Acquisition Act 1960 (Malaysia) (‘LAA’)

Section 2 of the LAA includes land that has been ‘occupied under customary right’ within the definition of ‘land’. The LAA empowers the State to acquire ‘land’ for any public purpose, for a purpose beneficial to the economic development of Malaysia, or for purposes such as mining or recreation.46 The Court of Appeal In Kerajaan upheld the High Court’s earlier findings that land occupied under customary right could include Orang Asli native title, and that the valuation of native title land for compensation purposes was to be in accordance with the LAA, which does not take into account the non-economic aspects of land.47 The LAA does not distinguish between the unique characteristics of native title and ordinary private ownership.

F Indigenous Land Rights in Sabah

The Indigenous people of the Malaysian states in Borneo (Sabah and Sarawak) form an ethnic majority in those states and have greater autonomy and political influence in those areas than the Orang Asli of the Malaysian Peninsula. The legislatures in Sabah and Sarawak have enacted laws quite separate from the Malaysian Peninsula in relation to Indigenous land rights.48

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Customary rights to land in Sabah are governed by the Land Ordinance 1930 (‘Land Ordinance’). Section 15(a) of the Land Ordinance provides that native customary rights exist overexist over land possessed by customary tenure, which is defined as ‘the‘the lawful possession of land by natives either by continuous occupation or cultivation for three or more consecutive years’.

If an Indigenous person can establish either customary title or one of the other customary rights in section 15 he or she will acquire an indefeasible interest in the land, which is a heritable and transferable right of use and occupancy. The Court of Appeal has also held that a person having native customary tenure should have the same status as one who is in possession of a title deed.49 Under section 23 of the Land Ordinance, the interest in land only applies to surface land; under section 24 all coal, minerals, precious stones and ores are reserved to the Government.

Section 67 of the Land Ordinance recognises communal title to customary land where ‘land is held for the common use and benefit of natives and is not assigned to any individual as his private property’.

Such land is held by the Collector as trustee, without the power of sale. Under section 77 communal title may be subdivided and assigned to individuals who will receive title in their own names.50

G Indigenous Land Rights in Sarawak

Native customary land rights in Sarawak are recognised in the Land Code 1958 (‘Land Code’). There has, however, been a distinct paucity of land grants to the Indigenous people of Sarawak. It is suggested that this is a result of the lucrative logging industry.51 The recognition of customary land ownership in Sarawak can be traced to the period of the first Rajah, James Brooke. In Nor Anak Nyawai52 Chin J commented that although proprietorship and sovereignty over Sarawak had been ceded to James Brooke, he had shown consistent respect for native customary rights over land, referring to them as ‘the indefeasible rights of the Aborigines’.53

Native customary rights may be created under section 5(1) of the Land Code, which states:

Native customary rights may be created in accordance with the native customary law of the community or communities concerned by any methods specified in subsection 2.

Under subsection 2 the methods by which native customary rights may be created are:

(a) the felling of virgin jungle and the occupation of the cleared land;

(b) the planting of land with fruit trees;(c) the occupation or cultivation of land;(d) the use of land for burial ground or shrine; and (e) the use of land of any class for rights of way.

The Land Code (Amendment) Ordinance 2000 deleted section 5(2)(f) which provided for the creation of native customary rights to land by ‘any lawful’ method.

IV Conceptualising Native Title In Australia

Prior to the introduction of the NTA Indigenous land rights were governed solely by State legislation. In the Northern Territory Aboriginal people were able to acquire land under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (‘ALRA’). The ALRA gives Aboriginal people ownership rights over their land, and has been used to acquire over 40 percent of land in the Northern Territory.

In South Australia, the Aboriginal Land Trusts Act 1966 (SA) (‘Land Trusts Act’) establishes a land trust to act on behalf of the traditional owners of land. The Governor may transfer any Crown land reserved for Aborigines to the Trust. In South Australia the Pitjantjatjara Land Rights Act 1981 (SA) and Maralinga Tjarutja Land Rights Act 1984 (SA) vest land in a corporate body: the ‘Anangu Pitjantjatjara’ and ‘Maralinga Tjarutja’ respectively. Like the ALRA, the Land Trusts Act confers freehold title. Under section 17 land is inalienable. Section 40 of the Aboriginal Land Rights Act 1983 (NSW) confers inalienable title on Land Councils, and under section 36(9) grants estates in fee simple with the exception of the Western Lands Division where claimants can be granted leases in perpetuity outside urban areas.54

The now defunct reserve system which existed in Queensland until the early 1980s paralleled the system imposed by the APA in Malaysia. Aboriginal reserves in Queensland were considered to be areas reserved for ‘a public purpose’, which could include an ‘Aboriginal purpose’. However, the Governor-in-Council could also reserve land for infrastructure or even commercial purposes.55


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Whether native title in Australia is a creature of statute or the common law is a question of some dispute. According to Noel Pearson the NTA was enacted after Mabo v Queensland (No 2)56 so that the rights and interests that flowed from Mabo (No 2) would be recognised and protected by Commonwealth legislation.57 For Pearson there was an assumption that claims would be made and adjudicated according to the Mabo (No 2) principles. This was evidenced from the wording of section 223(1), which came directly from Brennan J’s judgment, and the inclusion of section 12 (now repealed)58 in the NTA. Pearson outlines two possible meanings that could have been attributed to the definition of native title in s223(1): that the section is a faithful and accurate reflection of the meaning of native title under the common law of Australia or alternatively, that the statutory definition somehow alters or replaces the meaning of native title under the common law of Australia.59 Members of the Yorta Yorta Aboriginal Community v State of Victoria60 makes clear the High Court’s preference for the latter approach.

In Yorta Yorta the High Court interpreted s223(1) as defining native title to the exclusion of its common law meaning. The relevance of Mabo (No 2) to an understanding of native title was rejected. Chief Justice Gleeson, Gummow and Hayne JJ said that undue emphasis was given in the reasons to what was said in Mabo (No 2), at the expense of recognising the principal, indeed determinative, place that should be given to the NTA.

The Court further held that:

To understand par (c) as a drafting device of that kind would be to treat native title as owing its origins to the common law when it does not… it is… wrong to read par (c) of the definition of native title as requiring reference to any such body of common law, for there is none to which reference could be made.61

Although the Australian courts now have to deal with the conflation of the common law and the NTA, this paper focuses on the common law doctrine of native title in Australia as it developed in Mabo (No 2), Wik Peoples v State of Queensland62 and Western Australia v Ward.63 The reason for this is that Malaysia has not, and is not likely to enact a legislative equivalent of the NTA.64

A key issue in the Australian native title debate has been whether native title should be conceptualised as a

fundamental interest in land or a ‘bundle of rights’. The distinction is important in establishing the strength of the title in relation to other interests and its vulnerability to extinguishment.65 The concept of native title that emerged in Ward is significantly different from that which was first enunciated in Mabo (No 2), where it was held that native title amounted to a full beneficial title involving the ‘possession, occupation, use and enjoyment of the lands of the Murray Islands’.66 Nevertheless, the majority made it clear that the content of native title would vary from case to case depending on the interests of the particular community.67 Justices Deane and Gaudron also introduced the idea of personal and usufructuary rights.68 Their Honours posited a view of native title as being sui generis, meaning that it was not confined to interests analogous to the common law concepts of estate and proprietary interests. Therefore native title could accommodate more than interests in land. Although Deane and Gaudron JJ saw native title as a strong right,69 their arguments formed the basis for the Federal Court’s preference for the ‘bundle of rights’ approach adopted in Ward v State of Western Australia.70 In the High Court appeal against the decision of the Full Federal Court, the majority held that to view native title as a ‘single set of rights’ analogous to a fee simple would only assume the nature of the rights and interests that are possessed under traditional law and custom.71 Consequently, the majority preferred the ‘bundle of rights’ metaphor because ‘there may be more than one right or interest’ and ‘several kinds of rights and interests in relation to land exist[ing] under traditional law and custom’.72 The High Court held that the fact of occupation by itself is an ‘insufficient basis’ for proving title because it ‘says nothing of what traditional law or custom provided’.73 This may be contrasted with the view expressed by Toohey J in Mabo (No 2) where his Honour said that proof of ‘a presence amounting to occupancy’ would establish title.74 As we will see, it is this approach that has been adopted in Malaysian case law.

V Conceptualising Native Title in Malaysian Case Law

It has been noted that the legal recognition of Orang Asli land rights was, prior to 2002, similar to the pre-Mabo (No 2) situation in Australia.75 Land that traditionally belonged to the Orang Asli was regarded as and belonging to the State. While provisions for the granting of land existed under the APA, the title conferred was exceptionally weak owing to the ease with which the Minister could revoke such grants, often without consultation or compensation.

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Despite the centrality of Australian case law in the Malaysian judiciary’s consideration of native title, their conceptualisation of native title is markedly different. It is suggested that this is due to the fiduciary duty owed by the Malaysian Government to its citizensalong with special provisions in the Malaysian Constitution that allow for ‘special treatment’ of Indigenous peoples. The following discussion traces the development of common law native title in Malaysia, from the recognition of usufructuary rights in Adong in 2002 to full plenary rights in Sagong Tasi and its appeal in 2005 (Kerajaan).

A Conceptualisation of Native Title as a Usufructary Interest

Adong was the first time in Malaysia that the Orang Asli sued the Government on the basis of their traditional rights.76 The litigation was a response by the Orang Asli to the Johor State Government’s attempt to acquire land for the purposes of constructing a dam: land that the Orang Asli claimed was an Aboriginal area or reserve. The plaintiffs claimed that the defendants had restricted those areas, preventing them from entering upon those areas to forage in their traditional way. The Johor High Court declared that the plaintiffs, their families, and their ancestors were the native inhabitants of the disputed area. This, in combination with their continuing dependence on the produce of the area, gave rise to a common law right to move freely about the land and live off its produce.77

The Johor High Court engaged the Mabo (No 2) principle that native title has its origins in and is given its content by traditional customs. Justice Mokhtar Sidin declared that native title amounts to:

the right to move freely about their land, without any form of disturbance or interference and also to live from the produce of the land itself, but not to the land itself in the modern sense that the aborigines can convey, lease out, rent out the land or any produce therein.78

The characterisation of native title thus did not amount to an interest in the land itself, but rather a usufructuary interest that was held to be ‘a proprietary right protected by Article 13 of the Federal Constitution which mandates that all acquisition of proprietary rights shall be compensated’.79

In addition to the recognition of common law native title, the Johor High Court also declared that the Orang Asli had a statutory right to the land under the APA. The Court declared

that the common law and statutory rights enjoyed by the Orang Asli are ‘complementary’ and should be considered ‘conjunctively’.80 Sections 6 and 7 of the APA provide for the creation of areas for the exclusive use of the Orang Asli. Under section 10(1) the Orang Asli also have the right to ‘continue to reside’ in a Malay Reservation. The High Court was of the opinion that section 10 evinces a legislative intention to ‘allow the aboriginal people to lead the type of life they have always led’.81 The Court of Appeal in Kerajaan affirmed this decision. B Conceptualisation of Native Title in East

Malaysia

In Nor Anak Nyawai82 the plaintiffs, members of the Iban community of Rumah Nor in the Bintulu division of Sarawak, sued Borneo Pulp Plantation Sdn Bhd in respect of plans to clear the area. The government authority that issued title to the area - the Bintulu Superintendent of Lands and Surveysthe Bintulu Superintendent of Lands and Surveys - was joined as co-defendant. The plaintiffs sued for damages The plaintiffs sued for damages and sought both an injunction for trespass and a declaration recognising their ownership of the land in question. Justice Chin held that the common law of Sarawak recognises the pre-existing laws and customs of the Iban community. Citing Mabo (No 2) and Wik to support the declaration that native customary rights do not have their origins in legislative, executive or judicial declaration, Chin J declared:

It has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the Indigenous inhabitants of a territory.83

Native title was conceptualised as a right to clear virgin jungle and access the land surrounding the village, including the right to hunt, fish and collect jungle produce. The clear delineation of each of these rights suggests an approach more in line with the bundle of rights notion propounded in Australia, rather than a right to the land itself. The Court granted a declaration that the Ibans were entitled to exercise their customary rights over the disputed area. Damages were not awarded.

C Conceptualisation of Native Title as a Fundamental Interest in Land

Sagong Tasi concerned Government acquisition of land reserved to the Orang Asli under the APA for the purposes of constructing a highway to Kuala Lumpur International Airport. In February 1996 the Sepand District Land


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Administrator gave written notice to the Orang Asli ordering them to vacate their land within 14 days. Compensation was paid for the loss of crops, fruit trees and building structures, but not for the land itself. The plaintiffs felt that the compensation was inadequate and refused to vacate the land. They were ultimately evicted in March 1996. The community’s fruit trees, crops, houses, Balai Raya and Balai Adat were destroyed.84 The plaintiffs sought a declaration that they were the customary owners, original titleholders and the holders of usufructuary rights in respect of the land. They claimed damages for trespass, illegal eviction and breach of fiduciary duty.

Justice Mohd Noor Ahmad affirmed the view expressed in Adong that Malaysian common law recognises a form of native title ‘in accordance with their laws and customs, to their traditional lands’.85 In both Adong and Nor Anak Nyawai, native title engendered the right to ‘move freely about the land without any form of disturbance or interference, and to live from the produce of the land, but not to the land itself’.86 It was not a fundamental interest in land, but rather a ‘right to live on their land as their forefathers’87 had done. Sagong Tasi was distinguished from Adong to the extent that the Adong case had been concerned with the deprivation of traditional land on which the Orang Asli foraged for their livelihood,88 whereas Sagong Tasi concerned acquisition of ancestral land on which the Orang Asli actually resided. Thus, in Sagong Tasi, native title was conceptualised as a fully blown interest in land rather than a mere usufructuary right. The Court gave credence to the views expressed in Australian case law in reaching this conclusion:

Although the Adong case purported to follow Mabo (No 2), it did not consider that an essential character of aboriginal title to the land as described by the High Court of Australia was a proprietary interest in the land itself.89

Reliance was also placed on Canadian Pacific Case Ltd v Paul; Attorney General of Ontario, intervener90 in which it was said that native title is ‘more than the right to enjoyment and occupancy’, as well as Delgamuukw v The Queen in right of British Columbia et al; First National Summit et al, Interveners91 where Lamer CJ said ‘Aboriginal title is a right in land and, as such, is more than the right to engage in specific activities…activities are parasitic on the underlying title’.92

While the Court in Sagong Tasi did not expressly reject the ‘bundle of rights’ approach, the approval of Delgamuukw

suggests this may have been intended, since Lamer CJ in that case refuted the argument that Aboriginal title was analogous to a ‘bundle of rights’.

D Establishing a Connection under Australian Law

To establish native title under Australian common law, claimants must prove a connection with the land.93 What constitutes an adequate connection has been the subject of much debate. In Mabo (No 2) Brennan J said that a group’s traditional connection with the land must be ‘substantially maintained’.94 It was important that the ’general nature of the connection between the Indigenous people and the land remains’,95 although his Honour acknowledged that ‘in time the laws and customs of any people will change’96 such that the ‘foundation of native title’ could disappear.97 The High Court did not require traditional laws and customs to be ‘frozen’ in the past. Despite the undeniable impact of a cash economy upon the Meriam people, the Court maintained that traditional ways of living from subsistence fishing and gardening were still observed. Justices Deane and Gaudron went so far to say that even where laws and customs have been abandoned, native title may continue so long as occupancy can be established.98

Similarly, in Commonwealth v Yarmirr99 residence within modern settlements and the use of modern technology in their fishing practices did not deny native title rights to fish and hunt.100 In Ward101 Lee J declared that a ‘change or variation in the practice of traditional laws and customs will not declaim loss of native title’.102

However, in Yorta Yorta103 Olney J at first instance held that since the applicants’ ancestors had ceased to occupy the traditional lands, the ‘tide of history has indeed washed away any real acknowledgment of their traditional laws and any real observance of their traditional customs’.104The ‘frozen in time’ approach105 was rejected by the Full Federal Court on appeal.106 The Full Court held that common law native title could survive the modification of traditional laws and customs as long as the laws and customs ‘remain properly characterised as traditional.’107 The test adopted was whether or not the law or custom has ‘its roots in the tradition of the relevant community.108 In the subsequent High Court appeal Gleeson CJ, Gummow and Hayne JJ said that:

[t]he key question is whether the law and custom can still be seen to be traditional law and traditional custom. Is the

(2007) 11(1) A ILR 87

change or adaptation of such a kind that it can no longer be said that the rights or interest asserted are possessed under the traditional laws acknowledged and the traditional customs observed?109

In Ward110 the High Court held that continued use of land was not necessary to establish a connection with that land. The Court said ‘the fact of occupation, taken by itself says nothing of what traditional law or custom provided’.111 Rather, articulation of each of the laws and customs surviving from traditional practices is required to prove connection.

E Establishing a Connection under Malaysian Law

In Adong the Orang Asli’s ‘continuous and unbroken occupation and enjoyment’ gave rise to the rights granted.112 It follows from this that any physical separation of the natives from their traditional land severs the community’s connection to the land.113 This may be contrasted with the aforementioned approach in Ward.

In Nor Anak Nyawai the Court held that:

[i]f the present generation can prove that they are practicing what historians described as having been practiced 200 years ago, then that is sufficient proof that such native customary rights had been practiced 200 years ago.114

The Court held that at the time the First Rajah arrived the plaintiffs’ ancestors had established their own system of law and custom. They demonstrated this through the existence of old longhouse sites as well as other evidence of communal existence in the area. The plaintiffs also proved that they, and their ancestors, had continued to exercise those customary rights on their traditional lands through the performance of certain ritual ceremonies (punggul menoa).115 Justice Chin noted that occupation by itself may have been enough to satisfy the court:

I am prepared to go as far as to say that if you find a longhouse with a sizable number of families in a remote area, you must expect the activities of hunting, fishing, gathering of forest produce and farming to have been carried out.116

This contrasts with the approach in Ward, in which the High Court held that occupation alone was insufficient to establish the requisite connection, requiring instead the articulation of each of the laws and customs still in existence.

In Sagong Tasi, Mohd Noor Ahmad J adopted a flexible approach in respect of the extent to which laws and customs of the Orang Asli could change over time for the purposes of establishing proof of traditional connection. The following factors did not act as constraints on his Honour’s finding that the Orang Asli had continued to practice the laws and customs of the original inhabitants:

the Orang Asli no longer depended on foraging for their livelihood in accordance with their tradition;

they cultivated the lands with non-traditional crops such as palm oil;

they spoke other languages in addition to their native tongue;

some family members embrace other religions, and/or marry outsiders; and

some family members work elsewhere either before or after the acquisition.117

Justice Mohd Noor Ahmad applied Adong and Nor Anak Nyawai, observing that the Orang Asli had been in ‘continuous and unbroken occupation’118 of their traditional lands. Continuous occupation itself was sufficient to establish the requisite connection.

F Extinguishment

In Mabo (No 2) Toohey J took the approach that native title would only be extinguished by an inconsistent grant or appropriation that was clearly and plainly authorised by legislation. Where a Crown grant is inconsistent with the continued right to enjoy native title in respect of the same land, the Crown grant will prevail and native title will be extinguished to the extent of the inconsistency. The opinion of Toohey J prevailed in Wik with the majority agreeing that an inconsistent grant could only extinguish native title if legislation evinced a clear and plain intention that extinguishment should result.119 The inconsistency of rights test was emphasized in Yanner v Eaton.120 The ‘inconsistency of incidents’ test, which required a comparison between the two sets of rights, was preferred in by the High Court in Ward121 and Wilson v Anderson.122 After Ward and the Native Title Amendment Act 1998 (Cth), primary regard must be had to the NTA when the question of extinguishment arises. The common law is only relevant as an interpretive aid.123

In Adong it was held that at the time the Government entered into the agreement to construct the dam on traditional

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Vo l 11 No 1 , 200788

Orang Asli lands, the Orang Asli had a right of free access to the Linggiu Valley and to harvest the fruits of the jungle.124 However, the actual construction of the dam had the effect of extinguishing the plaintiffs’ common law and statutory rights to collect forest produce. Given the establishment of a proprietary interest over the land in favour of the Orang Asli, in addition to the defendant’s failure to establish that they held a right to deprive the plaintiffs of that interest,125 deprivation of that interest without compensation was held to be unlawful. Compensation was consequently owed under Article 13(2) of the Constitution.

In Nor Anak NyawaiNyawai the Court considered whether past legislation had extinguished native customary rights.126 The Court relied on common law cases from Australia,127 Canada,128 and Peninsula Malaysia129 in reaching the conclusion that ‘clear unambiguous words’‘clear unambiguous words’130 demonstrative of parliament’s intention to extinguish customary rights must be shown. Justice Chin also acknowledged that nativeChin also acknowledged that native title could be partially extinguished where the legislation provides for such extinguishment. In Mabo (No 2) Brennan J held that extinguishment may be partial. This view was upheld in Ward, where the Court held that native title could be subject to partial extinguishment both at common law and under the NTA. In respect of partial extinguishment Chin J said ‘the legislation is only relevant to determine‘the legislation is only relevant to determine how much of those native customary rights had been extinguished’.131 Justice Chin held that the Government authority’s grant ofheld that the Government authority’s grant of permission to Borneo Pulp Plantation Sdn Bhd to develop the area imposed restrictions on, but did not completely extinguish native customary rights. Justice Chin held that ‘[n]ative customary law[s] exist until abolished by orders or other legislation’.132

Consequently, Chin J discussed the relevant legislative acts and orders that had been passed in the period and the extent to which they were modified or extinguished by the legislation. In general he was reluctant to hold that native title was completely extinguished by any of the acts. The Land Order 1975, for example, did not abolish the Ibans’ rights to clear virgin jungle; the Timber Order of 1899, which required a person to obtain a permit before felling timber, did not extinguish native customary rights because the order did not apply to the area in dispute. Even if it did apply, Chin J made it clear that the order only imposed a fine and did not provide for the confiscation of timber to be an offence:

If [the Order] is intended to abolish the native customary right to enter into the jungle to fell and collect timber, then there must be explicit words to that effect and there is none.133

Native customary rights were said to have been extinguished where legislation was inconsistent with the continued exercise of such rights. For example, the Engkabang Trees Order I and II of 1912 prohibits the felling of Engkabang and Ketio trees. This restricted, but did not completely extinguish, the Ibans’ right to fell jungle trees in accordance with their tradition. The Ibans were prohibited from felling Engkabang and Ketio trees but not others.134

VI Conclusion

This paper has sought to outline the legal situation of the Orang Asli with respect to land rights, and trace the evolution of the judiciary’s recognition of native title in Malaysia. As we have seen, while native title was initially conceptualised as a mere usufructuary right in Adong, Malaysian common law then developed to tacitly recognise the Australian ‘bundle of rights’ approach in Nor Anak Nyawai, and finally, has moved to a position in the more recent appeal of Sagong Tasi where the Court preferred to conceptualise native title as a fully blown interest in land.

Notwithstanding the Malaysian High Court’s reliance on Australian case law, Sagong Tasi represents a significant departure from the Australian High Court’s approach to the proof required to establish native title. While the decision in Ward requires the articulation of individual laws and customs to establish the requisite degree of ‘connection’ to land, the Malaysian High Court has preferred an approach whereby continuous occupation in and of itself could satisfy that requirement.

In many respects this increased recognition of Indigenous land rights constitutes a reversal of the experience of Indigenous Australians. The High Court’s decision in Ward significantly narrowed the scope for connection to be established and expanded the circumstances in which extinguishment will be held to have occurred. A comparison of the developing conceptions of native title in Australia and Malaysia therefore clearly demonstrates the extent to which the Sagong Tasi decision represents a positive step for the Indigenous peoples of Malaysia.

(2007) 11(1) A ILR 89

Endnotes

* AmyDennisonisasolicitorbasedinSydney.

1 (2002)175CLR1.

2 ColinNicholas,‘IndigenousPolitics,DevelopmentandIdentity

inPeninsularMalaysia:theOrangAsliandtheContestfor

Resources’(PaperpresentedattheIndigenousRightsinthe

CommonwealthProject,SouthandSouthEastAsiaRegional

ExpertMeeting,NewDelhi,India,11–13March2002)2.

3 InternationalWorkGroupforIndigenousAffairs,Indigenous

Peoples in Malaysia<http://www.iwgia.org/sw18358.asp>at14

April2007.ForafullbreakdownofMalaysia’sethnicgroupssee

DepartmentofOrangAsliAffairs,Orang Asli<http://www.jheoa.

gov.my/e–orangasli.htm>at14April2007.

4 WiuLingCheah,‘Sagong Tasi:ReconcilingStateDevelopment

andOrangAsliRightsinMalaysianCourts’(WorkingPaperNo25,

AsiaResearchInstitute,NationalUniversityofSingapore,2004)

10.

5 JanetCechanski,‘PovertyinAustralia:AFocusonIndigenous

PovertyfromanInternationalHumanRightsPerspective’(2002)

11(3)Human Rights Defender25.AccordingtoCechanski,

unemploymentratesforIndigenousAustraliansarethreetimes

higherthanthatofthegeneralpopulation,infantmortalityrates

areatleastthreetimeshigherthanthatofthegeneralpopulation,

andIndigenouspeoplehavealifeexpectanceof20yearsless

thanotherAustralians.

6 Nicholas,aboven2,AppendixA,1.AccordingtoNicholas,ofthe

OrangAslischoolchildrenwhoregisteredinPrimaryOneeleven

yearsago,94.4percentdidnotreachtheendofsecondary

schooling.

7 IbidAppendixA,2.Inthe1984-1987periodtheOrangAsli

recordedaninfantmortalityrateof51.7deathsper1000infants

comparedtothegeneralpopulationof16.3per1000.

8 IbidAppendixA,8.OrangAsliwomenandmenareexpectedto

livefor52and54yearsrespectively,comparedwith68and72for

thegeneralpopulation.

9 StephenGray,‘SkeletalPrinciplesinMalaysia’sCommonLaw

Cupboard:theFutureofIndigenousNativeTitleinMalaysian

CommonLaw’(2002)LAWASIA Journal99,103.Diseasesinclude

tuberculosis,malaria,leprosy,choleraandtyphoid.

10 MohamadMahathir,Malaysia on Track for 2020 Vision(2007)

PerdanaLeadershipFoundation<http://www.perdana.org.my/

portal/index.php?option=com_content&task=view&id=33&Itemid

=35>at14April2007.

11 [1997]1MLJ418(‘Adong’).

12 [2002]2MLJ591(‘Sagong Tasi’).

13 Cheah,aboven4,1.

14 ‘CASEnote:NativeTitleinMalaysia:AdongCase’(2001)3(2)

Australian Journal of Asian Law198,200.

15 Cheah,aboven4,9.

16 JHEOA(1961).StatementofPolicyRegardingtheAdministration

oftheOrangAsliofPeninsularMalaysia,JabatanHal-Ehwal

OrangAsli,KualaLumpur.

17 Cheah,aboven4,9.

18 ColinNicholas, ‘The Orang Asli of Peninsular Malaysia’ in CNicholas,‘TheOrangAsliofPeninsularMalaysia’inC

NicholasandRSingh(eds)Indigenous Peoples Of Asia: Many

Peoples, One Struggle(1996)166.

19 ColinNicholas,‘TheOrangAsli:FirstontheLand,LastinthePlan’

inRichardMasonandAriffinSMOmar(eds),The ‘Bumiputera

Policy’: Dynamics and Dilemmas (2005),specialissueofKajian

Malaysia:Journal of Malaysian Studies(2004)XXI(1&2)315.

20 Sagong Tasi [2002]2MLJ591,619(MohdNoorAhmadJ).

21 ThereasonsforthismaybethatrecognitionoftheOrangAslias

aseparatecommunitymightbringintoquestionthe‘Indigenous’

statusoftheMalays:SyedHusinAli,‘IndigenousPeople’s

ExperiencewithElectoralandPartyPolitics’(Paperpresentedat

theWorkshoponIndigenousPeoples’ExperiencewithElectoral

andPartyPolitics,PoringNationalPark,14–16July2000).

22 Cheah,aboven4,9.

23 CASEnote,aboven14,198.

24 Cheah,aboven4,5.

25 Ibid11.

26 CASEnote,aboven14,211.

27 Ibid.

28 Ibid.Otheraimsoftheprogramweretoguaranteerecognition

oflandrights,rightstopractisetraditionalcultureandwayof

life,rightstofurthereconomicandeducationaldevelopmentas

wellasimprovementsinhealthstandards,rightstoparticipation

innationalpoliticsbyrepresentationinparliamentandonstate

executivecouncils,andtherightforOrangAsliculturetobe

recognisedaspartofthenationalculture.

29 JMartinezCobo,Study of the Problem of Discrimination against

Indigenous Populations, Volume 4: Conclusions, Proposals and

RecommendationsUNDocE/CN.4/Sub.2/1986/Add.4/(1987).

30 Gray,aboven9,102.

31 Bee-LanChangWang,‘PositiveDiscriminationinEducation:A

ComparativeInvestigationofitsBases,FormsandOutcomes’

(1983)27(2)Comparative Education Review 191.


33 Ibid107.Thisisreminiscentofthejustificationsusedbefore

andduringthecolonisationofAustraliaandtheextensionof

thedefinitionofterra nulliusatinternationallawtoinclude

acontinentwheretheIndigenouspeoplesdidnotform

governmentsrecognisedinEuropeanterms:seeHeatherMcRae,

GarthNettheimandLauraBeacroft,Indigenous Issues in the

Wake of Terra Nullius(1997)143.


Vo l 11 No 1 , 200790

34 [1997]1MLJ418,429.

35 Gray,aboven9,108-09.Article8(1) says that ‘all persons are(1)saysthat‘allpersonsare

equalbeforethelawandentitledtotheequalprotectionofthe

law’.

36 Cheah,aboven4,10.


38 [2001] 6 MLJ 241 (‘[2001]6MLJ241(‘Nor Anak Nyawai’).

39 RamyBulan,‘NativeTitleasaProprietaryRightUnderthe

ConstitutioninPeninsulaMalaysia:AstepintheRightDirection?’

(2001)9(1)Asia Pacific Law Review87.

40 Cheah,aboven4,1.

41 [1997]1MLJ418,425.

42 [2005]6MLJ289(‘Kerajaan’).

43 Ibid[20].

44 ThereasonforthismaybethatthenativesofBorneoforman

ethnicmajorityinthosestates,unliketheOrangAsli.Thereare

alsoconstitutionalprovisionsallowingthe‘specialtreatment’of

theEastMalaysiannatives(Article153).

45 Gray,aboven9,104.In1990theareasgazettedonlyrepresented

15percentofthe774OrangAslivillages.

46 Land Acquisition Act 1960(Malaysia)s3.

47 Kerajaan[2005]6MLJ289,[44].

48 DouglasSanders,‘Indigenous Land Rights in Malaysia:IndigenousLandRightsinMalaysia:Nor

Nyawai & 3 Ors v Borneo Pulp Plantation Sdn Bhd & 2 Ors’(2002)

5(14)Indigenous Law Bulletin21.

49 WanArfahHamzahandRamyBulan,An Introduction to the

Malaysian Legal System(2003)162.

50 Ibid163.

51 ForestsMonitorGroup,The Need to Control Trans-national

Logging Companies: A Malaysian Case Study<http://www.

forestsmonitor.org/reports/highstakes/part1.htm#case>at16

April2007.

52 Nor Anak Nyawai [2001]6MLJ241.

53 Ibid 267 (Chin J).Ibid267(ChinJ).

54 TheWesternDivisioncomprisesabout40percentofNewSouth

Wales.

55 OneexampleofthiswastherevocationatWeipawhereareserve

of354,000hectareswasreducedto124hectarestomakeway

foraComalcobauxitemine:seeFrankBrennan,Land Rights

Queensland Style: The Struggle for Aboriginal Self-Management

(1992)86.

56 Mabo v Queensland (No 2)(1992)175CLR1(‘Mabo (No 2)’).

57 NoelPearson,‘TheHighCourt’sAbandonmentoftheTime-

HonouredMethodologyoftheCommonLawinitsInterpretation

ofNativeTitleinMirriuwung GajerrongandYorta Yorta’(2003)

8(2)Australian Indigenous Law Reporter1.Thelegislationwas

alsodeemednecessaryforotherreasons,includingtovalidate

pastactsthatwouldhavebeeninvalidbecauseoftheRacial

Discrimination Act1975 (Cth),tocreatealegislativeprocessto

allowmininganddevelopmentonnativetitleland,andtocreate

certaintyaboutareasthatwouldbecomenativetitle.

58 Section12oftheNative Title Act 1993(Cth)(‘NTA’)providedthat

thecommonlawofAustraliainrespectofnativetitlehadthe

forceoflawundertheNTA.

59 Pearson,aboven57,3.

60 (2002)214CLR422(‘Yorta Yorta’).

61 Ibid453(GleesonCJ,GummowandHayneJJ).

62 (1996) 187 CLR 1 (‘(1996)187CLR1(‘Wik’).

63 (2002) 213 CLR 1 (‘(2002)213CLR1(‘Ward’).

64 InterviewwithRamyBulan(PersonalInterview,3June2005).

65 LisaStrelein,‘ConceptualisingNativeTitle’(2001)23Sydney Law

Review95,101.

66 Mabo (No 2) (1992)175CLR1,217.

67 Ibid88(DeaneandGaudronJJ).

68 Ibid88–89.

69 Ibid101.

70 (1998)159ALR483.

71 Ward (2002)213CLR1,37(GleesonCJ,Gummow,Gaudronand

HayneJJ).

72 Ibid40(emphasisadded)

73 Ibid93.

74 Mabo (No 2) (1992)175CLR1,188(TooheyJ).


76 Adong [1997]1MLJ418,424(MokhtarSidin).

77 Ibid425.

78 Ibid430.

79 Ibid419.

80 Ibid431.

81 Ibid430.

82 [2001]6MLJ241

83 Ibid269.

84 [2002]2MLJ591,598.

85 (2000)99FCR316,611.

86 Ibid.

87 Ibid.

88 Ibid.

89 [2002]2MLJ591,613.

90 (1988)53DLR(4th)487.

91 (1997)153DLR(4th)193(‘Delgamuukw’).

92 Ibid240(LamerCJ).

93 (1992)175CLR1,70(BrennanJ).

94 Ibid59–60(BrennanJ).

95 Ibid70(BrennanJ)(emphasisadded).

96 Ibid 61 (Brennan J).Ibid61(BrennanJ).

97 Ibid 60 (Brennan J).Ibid60(BrennanJ).

98 (1992)175CLR1,110.

(2007) 11(1) A ILR 91

99 (2001)208CLR1.

100 Ibid162.

101 Western Australia v Ward(1998)99FCR316

102 Ibid502–3.

103 [1998]FCA1606(18December1998).

104 Ibid[129].

105 Forexample,atthetimeofjudgmenttheYortaYortafishedasa

‘recreationalactivityratherthanasameansofsustaininglife’:ibid

123.

106 (2001)110FCR244.

107 Ibid122(BransonandKatzJJ).

108 Ibid123.

109 (2002)214CLR422,455(GleesonCJ,GummowandHayneJJ).

110 (2002)213CLR1.

111 Ibid93.

112 [1997]1MLJ418,430.

113 Bulan,aboven39,86.

114 [2001]6MLJ241,242.

115 Ibid249.

116 Ibid293.

117 Ibid606.

118 Ibid611.

119 (1996)187CLR1,123–24.

120 (1999)201CLR351.

121 (2002)213CLR1.

122 (2002)213CLR401.

123 (2002)213CLR1,19(GleesonCJ,Gaudron,GummowandHayne

JJ).

124 [1997]1MLJ418,433.

125 Ibid434.

126 Therelevantlegislationwas the legislation passed throughout thewasthelegislationpassedthroughoutthe

periodfromthereignoftheSultanofBruneiin1844,throughthe

Brookeruleupto1946whenSarawakbecameacolonyandto

thetimewhenSarawakjoinedMalaysiain1963.Itincludedthe

Land Order 1863,Fisheries Act 1985.

127 Mabo (No 2)(1992)175CLR1;Wik(1996)187CLR1.

128 Calder v AG of British Columbia(1973)34DLR(3d)145.

129 Adong [1997]1MLJ418.

130 [2001]6MLJ241,292.

131 Ibid269.

132 Ibid286.

133 Ibid263.

134 Ibid264.


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