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SAGONG TASI & ORS v. KERAJAAN NEGERI SELANGOR & ORS
HIGH COURT MALAYA, SHAH ALAM
MOHD NOOR AHMAD J
[CIVIL SUIT NO: MTI-21-314-1996]
12 APRIL 2002
JUDGMENT

Mohd Noor Ahmad J:

1. The plaintiffs sue in a representative capacity in respect of themselves and on behalf of each and every member of their respective families. The 2nd and 6th plaintiffs died and were properly substituted by their respective daughters. The suit was filed as the result of a dispute that arose out of the eviction of the plaintiffs and their respective families from 38.477 acres of land situated at Kampong Bukit Tampoi, Dengkil, Selangor (the land). In March 1996, the land was acquired for the purpose of the construction of a portion of the highway to the Kuala Lumpur International Airport. The land was in the shape of a strip running through a gazetted aboriginal reserve under the Aboriginal Peoples Act 1954 (the Act) and also land customarily occupied by the orang asli and therefore, classified as an aboriginal area or an aboriginal inhabited place under the Act. In the context of the purpose of the acquisition of the land the 1st defendant (the Selangor State Government) is the acquiring authority which acquired the land through the Sepang District Office, the 4th defendant (the Federal Government) is the decision-maker to undertake the construction of the highway, the 3rd defendant (Lembaga Lebuhraya Malaysia) is the authority to supervise and execute the design construction and maintenance of the highway and the 2nd defendant (United Engineers (M) Berhad) is the contractor engaged to construct the highway.

2.(1) By this writ action the plaintiffs seek the following declarations:



The plaintiffs also pray for the following orders:


(2) Consequently and in the alternative, the plaintiffs ask for the following reliefs:


3. Briefly, the undisputed facts are these. The plaintiffs are orang asli of the Temuan tribe. Pursuant to the acquisition of the land, on 13 February 1996 the Sepang Land Administrator gave written notices to the plaintiffs to vacate the land 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 1st defendant claims that the land is State land and the defendants have refused to recognise that the plaintiffs have any proprietary interest in the land or any interest therein at all. Hence, the defendants have 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 3rd and 7th 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 2nd and 3rd defendants and of the Jabatan Hal Ehwal Orang Asli (JHEOA). 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.

4.(1) Let me dispose off the preliminary points raised by the 1st defendant and adopted by the 4th defendant before proceeding any further. The issues of law are:





5.(1) On issue (a), to my mind, on the facts of the case and by reason of the fact that it was not raised as an issue at the trial, it has no force to stop the court from proceeding with the consideration on the merits of the substantive issues in the case for the following reasons:




(2) In respect of issue (b), in my view, the contention holds water notwithstanding that the point was not pleaded in the defence but raised at a late stage. This point, being substantive, stands on a different footing from issue (a) by reason of the concept of vicarious liability under common law imposed by the GPA on the government, that is to say, before the government can be held liable for trespass committed by its servant it must be proved that the servant has committed trespass. If he is not liable then the government is also exempted from liability. Section 5 of the GPA provides:


Section 6(1) states:



Section 6(4) reads:


And s. 18 provides:



These provisions require that the identity of the officer must be ascertained and the liability of the officer must be established before the government can be made liable. However, if I am wrong in this respect, at least the point is relevant for the purpose of determining the issue of trespass and unlawful eviction, as alleged, in the light of the evidence adduced, which will be discussed later.

6.(1) Now, I will deal with the substantive claims of the plaintiffs. The plaintiffs contend that the notices are unlawful and that the entry of the defendants onto the land to demolish their houses and destroy the crops thereon and deprive their continued occupation of the land is an act of trespass. The claims are based on their rights at common law, statutory law and under the Constitution.




7. On the other hand, the 1st defendant denies that the notices are unlawful and that a trespass had been committed since the entry and the taking of possession of the land was done according to law. It also denies that the plaintiffs are owners by custom, native title and the holder of usufructuary right over the land. On the contrary, it asserts that whatever occupation of the lands by the plaintiffs in the area concerned was only authorised in accordance with the Federated Malay States Government Gazette Notification (N.M.B. Selangor P.U. 1649/1935) and the right was given only for the purpose of residence and settlement but not at all the rights as claimed. Further, it denies owing any fiduciary duty towards the plaintiffs as alleged. However, if at all the duty exists the duty had been performed accordingly to the existing laws. The 4th defendant proceeds more or less on similar defence and asserts that all steps had been taken to protect the rights, interests and welfare of the orang asli and to enhance their wellbeing. The plaintiffs' claim against the 2nd and the 3rd defendants is limited to damages for trespass. The 2nd defendant claims to be the agent of the defendants and purports to seek shelter for all its actions under the authority of the Selangor State Authority, which is the legal owner of the land; whilst the 3rd defendant denies liability for trespass based on the fact that it is not the decision maker in respect of the acquisition of the land and other matters relating thereto, and that its involvement during the eviction is merely by the presence of its agent thereat.

8.(1) An aborigine is defined in s. 3 of the Act to mean:


Under s. 2, an aboriginal ethnic group means a distinct tribal division of aborigines as characterised by culture, language or social organisation and includes any group that the State Authority may, by order, declare to be an aboriginal ethnic group. And an aboriginal community means the members of one aboriginal ethnic group living together in one place.

The defendants recognise the plaintiffs as aboriginal Temuan people but challenge the fact as to whether they still continue to practice their Temuan culture. Therefore, the onus is on the plaintiffs to show that they speak an aboriginal language, follow an aboriginal way of life as well as aboriginal customs and beliefs.

(2) Evidence has been led to show the existence of a tribal council called the 'Lembaga Adat' from previous generations until the present day. It consists of five persons with specific roles and authority, namely the Batin who is the head of the whole community and is the highest authority, the Penghulu Balai who is the keeper of the Temuan culture, the Jenang who is the person that conducts and sanctions marriages in the community, the Jekerah who directs communal activities and the Pelima who is the watchdog against social ills and for peace in the community. It meets at the Balai Adat to resolve disputes and settle all matters relating to the adat (see the evidence of PW1, PW2 supported by the writings of Dr. Baharom Azhar bin Rafie'i, the former Director-General of the JHEOA in exh. P24 at pp. 245 and 267 and agreed to by DW7, the current Deputy Director-General of the JHEOA, the writings of Ahmad Ismail in exh. P24 from pp. 162 to 173 and the unchallenged expert evidence of PW7 at para. 79 in exh. P24 at pp. 17-18). Hence, it is manifestly evident that the Temuan people of Kampong Bukit Tampoi live in an organised society, with a system of adjudicating disputes, governed by their laws and customs and that they still practice a specific political system according to their culture with specific persons to hold offices that had been passed down from generation to generation. The plaintiffs also adduce evidence in respect of other essential matters, that is to say, their culture relating to land (adat tanah) and burial (adat kebumian), their religion or belief system, their community weapon, ie, the blowpipe (sumpitan), their tradition of sekor-menakor, their personal and place-names, their custom on inheritance, their traditional activities and their aboriginal language. On adat tanah, the opening of land is preceded by specific rituals called "adat tiga penjuru" in which the help of the spirits are invoked and homage to the spirits paid. The lands within the communal territory had been individually delineated by their forefathers as clearly-defined family lots having the force of property and ownership in their culture. Each individual lot is demarcated by traditional markers, such as the pinang palm or specific fruit trees or by geographical features, such as rivers and streams and these boundaries are invariably recognised by all in the community. The inheritance to the respective parcels of land is determined according to the adat and the distribution is resolved by the Lembaga Adat on the 7th day following the death of the land owner (see the evidence of PW1, PW2 and PW3). With regard to adat kebumian, the plaintiffs bury the dead according to their distinct custom. Briefly, the deceased must be buried within the following day of the death and that the deceased's clothings, valuables and basic necessities must be kept at the burial site. Food is left in a specially-built altar (sangkar) as the belief is that the deceased will rise up and eat the food. A 'sungkun' will be built wherein the incense (kemenyan) will be burnt. The Penghulu Balai will then invoke the spirits (serapah) and the relatives will be asked to call the spirit of the deceased. He will then take a bunch of leaves and after calling the deceased he will tell the deceased's spirit that the site is its home forever. The Pelima will burn the incense according to the adat and pray for the soul. Once the body has been lowered into the grave a palm frond is used six times to cushion the falling earth onto the body. Rice is then thrown on the grave at the same time telling the deceased that the food is for him. A white ribbon is then stretched across the grave with a square centre which must lie directly above the centre of the deceased's body and the original top soil replaced. Those returning from the grave-site will have to jump across a line that has been stretched across the path by someone who does not attend the funeral. The returnees are also required to beat a broken cooking pot (kuali) placed thereat. At the same time the person who has not been to the grave-site must throw soaked rice at the returning mourners. This is done to scare the spirit of the deceased from following them back to the village. On the third day, the family returns to the grave for the 'naik tanah' ceremony where food is again offered and prayers said. Then, on the seventh day, a meeting will be held usually at the Balai Adat presided by the Batin to distribute the property of the deceased including land (see the evidence of PW1 and the relevant photographs). On religion or belief system, in essence, it revolves around the belief in a supreme diety and in the existence of 'Moyangs' who act as intermediaries between the supreme diety and the living. The Temuans also believe that every living being is imbued with a spirit (roh) and needs to be appeased. Moyangs are the spirit beings that their ancestors are transformed into upon death. They watch over the community and their traditional lands, and are referred to as 'penunggu'. The Moyangs are not worshipped but are revered and often called upon to protect or help the community including their health, such as, to chase the rain away by a ceremony conducted by the Penghulu Balai. For that reason, the dead is buried within the vicinity of the village. The Temuans need to visit the graves regularly in order to conduct the ceremonies to appease and pay homage to their Moyang-protectors. The Moyangs are very site-specific in that they do not travel from one territory to another. Temuan religion is distinct and unique to themselves in the sense that they do not believe in or practice any of the religions of the other Malaysians (see the evidence of PW1 and PW7 in exh. P24 paras. 81, 82 and 83, and the 1984 study by Ahmad bin Ismail on Kampung Bukit Tampoi at p. 194 of exh. P24). In respect of the community weapon, the blowpipe has several terms to describe the various parts such as temiang, telak, tengkok, ipoh and damak. It is produced locally and the damak is made from 'pokok serdang'. It is used by adults and children for hunting small animals, self-protection and to chase intruders away (see the evidence of PW1 and PW3). By the tradition of sekor-menakor as practised by the Temuans, the customs (adat) handed down from one generation to another cannot be abandoned and that if anyone breaks the adat the person can be expelled from the community (dipulaukan) (see the evidence of PW1). On their personal and place-names, the names are derived from incidences or events that occurred during the respective infancy, for example, Dabak (PW1) got his name because he had bruises (debam) all over his body and Sagong (PW3) because he cried noisily (macam gong). Bukit Tampoi got its name from the forest fruit called Tampeh and Dengkil from the thin or shallow flesh of the Tampeh fruit (see the evidence of PW1, PW3, and PW7 in exh. P24 para. 58). With regard to custom on inheritance, only the children of the deceased can inherit (see the evidence of PW1, PW2, PW3 and PW9). On traditional activities, the Temuans used the self-made wooden boats as means of transport along the Langat River, fished in the river using fishing spear (tirok) made from penaga tree and used the 'tuba' obtained from the old cengal tree as poison to stupefy the fish in the river. The skill of boat-making and the boat-making tools had been passed down to the present day, and the spear-head and the remains of the trees are still in existence (see the evidence of PW3 and PW9, exhs. P7, P8, P9, P10, P11, P12, P23 and the photographs in exhs. P4 and P5). In relation to the aboriginal language, the Temuan community at Kampung Bukit Tampoi have a distinct language of their own, that is to say, the Temuan language which they still use today. There is no written script of their own but the language is passed down by word of mouth through the generations dated back to the pre-literate period (see the evidence of PW7, exh. P24 para. 44 at pp. 9, 10, 222-225 and 269-278). This fact is not challenged by the defence and no evidence to the contrary adduced. The fact that the plaintiffs spoke Temuan as their first language and that a Temuan interpreter was required to facilitate the translation of the questions and answers during their testimony is self-evident.

(3) In view of the foregoing, I am satisfied that the plaintiffs belong to an organised society, following an aboriginal way of life, practising customs and beliefs and having their own Temuan language which they use to the present day. Therefore, the plaintiffs belong to an aboriginal society within the meaning of the Act. To my mind, the facts that:


do not change their origin. The election of Tukas anak Siam (PW2) as Batin by the JKKK after his appointment by the Lembaga Adat should not be construed as an abandonment of their adat because it was held for administrative purpose only. Further, s. 3(2) of the Act preserves their ethnic identity, which reads:


9.(1) About the land, whether the plaintiffs have proved that the Bukit Tampoi lands are customary and ancestral land belonging to the Temuan and occupied by them for generations.




Further support to the claim that Kampung Bukit Tampoi was already an established orang asli settlement at least half a century ago can be gathered from the 1950 archival document relating to the Schedule of Aborigines Settlements in Ulu Langat (re Ikatan C at p. 42) which recorded that 50 families were living in Kampung Bukit Tampoi then and that there was a need for a school thereat. To my mind, the recognition by the authorities of the need of a school then is a clear indication that Kampung Bukit Tampoi was, prior to 1950, already a settled and established community. The evidence adduced has not been contradicted. Hence, I am satisfied that the Temuans including the plaintiffs have been living at Kampung Bukit Tampoi for at least 210 years.


(2) In the final analysis, I conclude that:


10. Before proceeding with the law, I need to deal briefly with the following matters:


11.(1) The common law recognises a form of native title which reflects the entitlement of the aboriginal people, in accordance with their laws and customs, to their traditional lands. The aboriginal people's right over the land include 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) since they have been in continuous and unbroken occupation and/or enjoyment of the rights of the land from time immemorial. In Malaysia the recognition was affirmed by the High Court in the case of Adong bin Kuwau & Ors v. Kerajaan Negeri Johor & Anor [1997] 1 MLJ 418 and confirmed by the Court of Appeal in the case of Kerajaan Negeri Johor & Anor v. Adong bin Kuwau & Ors [1998] 2 CLJ 665 (both are hereinafter referred to as 'the Adong case'). It was held that the aborigines' common law rights include, inter alia, the right to live on their land as their forefathers had lived and this would mean that even the future generation of the aboriginal people would be entitled to this right of their forefathers, and further, that the Act does not exclude rights vested in the aboriginal people at the common law. The decision in the Adong case was influenced by the persuasive authority of the Canadian case of Calder v. A-G of British Colombia [1973] 34 DLR (3d) 145 (hereinafter referred to as 'the Calder case') and the Australian cases of Mabo & Ors v. State of Queensland & Anor [1986] 64 ALR 1, Mabo v. Queensland [1991-1992] 175 CLR 1 (hereinafter referred to as 'Mabo No. 2') and Pareroultja & Ors v. Tickner & Ors [1993] 117 ALR 206. The Adong case is concerned with the deprivation of vast areas of the aborigines' traditional and ancestral land on which they did not stay but depended to forage for their livelihood in accordance with their tradition. However, in the case before me the acquisition is in respect of a small portion of their traditional and customary or ancestral land where they resided, that is to say, their settlement. I follow the Adong case, and in addition, by reason of the fact of settlement I am of the opinion that based on my findings of facts in this case, in particular on their culture relating to land and their customs on inheritance, not only they have the right over the land but also an interest in the land. I am fortified in my view by the leading Privy Council case of Amodu Tijani v. The Secretary, Southern Nigeria [1921] 2 AC 399 (hereinafter referred to as 'the Amodu case'), which was relied on by the High Court in the Adong case though the issue of settlement did not arise in the case. The issue in the Amoducase was whether the native people whose land was taken for a public purpose ought to be compensated on the basis of ownership of the land or merely on the basis of having a right of control and management of the land. In ruling that compensation should be on the basis of full ownership, the Privy Council observed (at p. 403-404):


The Privy Council had cautioned against interpreting native title by reference to the English land law principles (at p. 403) and in Mabo No. 2 Brennan J administered the same caution (at p. 29). Accordingly, the Privy Council relied upon a report on the character of the tenure of land among the native communities in West Africa which stated that all members of the native community had an equal right to the land although the headman or the head of the family had charge of the land and in loose mode of speech is sometimes called the owner who held the land for the use of the community or family and the land remained the property of the community or family. The same can be said of the character of land tenure and use amongst the Temuan people based on the facts as found. Further, the character of proprietary interest of the aboriginal people in their land as an interest in land and not merely an usufructuary right can be gathered from the following features of native title as decided by the courts:


The aforesaid principles of native title were adopted in the current leading cases on the subject in Australia and Canada viz. Mabo No. 2, The Wik Peoples case, and Delgamuukw v. The Queen in right of British Columbia et al; First Nations Summit et al., Interveners [1997] 153 DLR (4th) 193 (hereinafter referred to as 'the Delgamuukw case') which hold that the aboriginal people's rights included an interest in the land and not merely an usufructuary right. The position is the same in the United States of America from the time of the case of Johnson and Graham's Lessee v. William M'Intosh [1823] 21 US 681 at p. 688 where Marshall CJ said:


(2) My view is that, although I am inclined to wear blinkers in considering the issues involved in this case by confining only to our existing laws and local conditions, I am compelled not to be blinkered by the decisions of the courts of other jurisdictions which deserve much respect, in particular on the rights of the aboriginal people which are of universal interest, especially when there is no clear and plain indication to the contrary in our laws. In fact, the Court of Appeal in the Adong case had accorded much respect to those decisions of the courts of other jurisdictions when it agreed with the views expressed by the learned judge based also on the decisions of the courts of other jurisdictions for the same reason, where Gopal Sri Ram JCA held:


Although the Adong case purported to follow Mabo No. 2it 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. Brennan J (as he then was) explained it as follows:


His Lordship went on to explain that although aboriginal title was a community title belonging to the community as a whole, individuals within the community could by its laws and customs possess proprietary individual rights over their respective parcels of land, as follows:


The Adong case was decided at the time when the Calder case was the leading Canadian authority. It was decided before the landmark decision of the Canadian Supreme Court in the Delgamuukw case; and it appears from the judgment as reported, the case of Canadian Pacific Ltd. v. Paul et al.; Attorney-General of Ontario, Intervener [1988] 53 DLR (4th) 487 (hereinafter referred to as 'the Canadian Pacific case') was not cited before it. Therefore, it is evident that the Adong case did not take into account the important developments and clarifications made to aboriginal title by Canadian case-law after the Calder case. In the Canadian Pacific case the Supreme Court said of aboriginal interest in land that "... it is more than the right to enjoyment and occupancy" (at p. 505). And in the Delgamuukw case, the Supreme Court specified that the content of aboriginal title is a right in land, when it held:


This statement was made in refuting the argument by the government that the aboriginal title is no more than a bundle of rights to engage in activities or the right to exclusive use and occupation of land. And Lamer CJ went to explain that because the aboriginal title is a right in the land itself it cannot be limited to use only for activities which are traditionally aboriginal activities. He said:




Since the establishment of the Selangor sultanate in 1766, it was claimed that all lands in the State belonged to the Sultan, including those occupied by the aboriginal people since time immemorial. In general, the aboriginal people occupied the lands in the hinterland in an organised society, though some were nomadic. Although the Sultan owned the lands they were left undisturbed to manage their affairs and way of life thereon in accordance with their practices, customs and traditions except in respect of those lands which attracted activities to enrich the privy purse, such as tin mining etc. In my view, if now the aboriginal people are to be denied of the recognition of their proprietary interest in their customary and ancestral lands it would tantamount to taking a step backward to the situation prevailing in Australia before the last quarter of the twentieth century where the laws, practices, customs and rules of the indigenous peoples were not given recognition, especially with regard to their strong social and spiritual connection with their traditional lands and waters. The reason being that when a territory was colonised by the whites it was regarded as practically unoccupied, without settled inhabitants or settled land, an empty place, desert and uncultivated even though the indigenous peoples had lived there since time immemorial because they were regarded as uncivilised inhabitants who lived in a primitive state of society. However, Mabo No. 2changed the position and since then there had been a flurry of state and federal legislation relating to native title. Brennan J in his reasoning referred to international human rights norms. He said:

(3) Therefore, to be in keeping with the worldwide recognition now being given to aboriginal rights I conclude that the proprietary interest of the orang asli in their customary and ancestral lands is an interest in and to the land. However, this conclusion is limited only to the area that forms 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 is a question of fact in each case. In this case as the land is clearly within their settlement I hold that the plaintiffs' proprietary interest in it is an interest in and to the land.

12. With regard to their statutory rights, it was affirmed and confirmed in the Adong case (which was concerned with the aboriginal inhabited place) that the Act does not limit the aborigines' rights therein and in order to determine the extent of the aboriginal peoples' full rights under the law, their rights under the common law and the statute has to be looked at conjunctively, for both the rights are complementary, and the Act does not extinguish the rights enjoyed by the aboriginal people under the common law. This is what Mokhtar Sidin J (as he then was) said leading to the affirmation:


And in such confirmation, Gopal Sri Ram JCA said:




I follow the decision on the issue of their statutory rights. Hence, I need not labour too much on this issue.

13.(1) On their constitutional rights, the Constitution is the supreme law of the country. Article 4 provides that all laws passed after independence day, which are inconsistent with the Constitution, is void to the extent of the inconsistency. Under the Constitution, the aboriginal people enjoyed a special position. Article 8(5)(c) provides:



In the Adong case, wide interpretation was given to proprietary rights under art. 13 and the court held that the aboriginal peoples' rights both under the common law and the statutory law are proprietary rights protected by art. 13. The article provides:



The learned judge in so holding said:


In the case before me, it is evident that the defendants purported to compensate the plaintiffs only for what had been provided for under the Act. To my mind, in the light of what had been pronounced in the Adongcase as reflected above, such compensation is not adequate within the meaning of art. 13(2), although the Act is a special act relating to the aboriginal people. Therefore, I hold that the deprivation of the plaintiffs' proprietary rights was unlawful because they are entitled to the compensation in accordance with art. 13(2).

(2) The law governing the acquisition of land is the Land Acquisition Act 1960. Under s. 2, the word 'land' is defined to mean alienated land within the meaning of the State land law, land occupied under customary right and land occupied in expectation of title. To my mind, as the land was continuously occupied and maintained by them to the exclusion of others in pursuance of their culture and inherited by them from generation to generation in accordance with their customs, it falls within the ambit of 'land occupied under customary right' within the meaning of the definition. The expression 'land occupied under customary right' is not defined. Hence, in construing its meaning I adopt a purposive approach and hold that it should be given a wider interpretation so as to achieve the object of the LAA, that is to say, to ensure adequate compensation be paid for the land acquired. Although the Code including the previous State enactments make provision for the customary tenure and customary land-holder and that Judith Sihombing in the book entitled 'The National Land Code A Commentary' (Malayan Law Journal Sdn. Bhd, 1997) at paras. 353, 505-552 deal with those matters (in particular, in respect of the customary tenure referred to in s. 4(2) of the Code as that of the tribal adat in force in Negeri Sembilan and Malacca), in my view, it does not mean that the land cannot fall within the definition, because the Code and the enactments were enacted and the book was written before the Adong case was decided at the time when native title was unknown to our law. Further, by such construction full effect can be given to the requirements of arts. 13 and 8 of the Constitution otherwise ss. 11 and 12 of the Act relating to compensation would be ultra vires the Constitution, being inconsistent with the articles. And further, the definition clearly contemplates that the customary land may not have title and is distinguished from alienated land which has title and acquired land where the title is forthcoming. It should be noted that the definition of 'land' is peculiar to Malaysia only even though India and Singapore have similar legislation. Apart from the orang asli and the native people of the Borneo states, there are no other classes of people in Malaysia who occupy the said lands on the basis of customary right except the lands occupied under the tribal adat in Negeri Sembilan and Malacca. This was recognised when the Act was enacted. Thus, the Act speaks of aboriginal reserve land and aboriginal occupied land. The latter refers to hereditary land or customary land. The National Land Code (Penang and Malacca Titles) Act 1963 was enacted for the introduction of a system of registration of title to land in the States of Penang and Malacca, for the issue of replacement titles and for the assimilation of such system to the provisions of the Code, that is to say, to give full effect to the Torren system adopted. The absence of similar legislation in respect of the aboriginal land cannot be construed to mean that the aboriginal land is to be excluded from the expression 'land occupied under customary right' in the definition 'land' under the LAA. Therefore, the plaintiff must be compensated in accordance with the LAA.

14(1) The content of the fiduciary duties has been described in may ways. But in essence it is a duty to protect the welfare of the aborigines including their land rights and not to act in a manner inconsistent with those rights, and further to provide remedies where an infringement occurs. In Mabo No. 2,it was said that the obligation on the Crown was to ensure that the traditional title was not impaired or destroyed without the consent of or otherwise contrary to the interests of title holders. And in the Wik Peoples case it was reiterated that the fiduciary must act consistent with its duties to protect the welfare of the aboriginal people. The remedy, where the Government as trustee or fiduciary has breached its duties is in the usual form of legal remedies available, namely by declaration of rights, injunctions or a claim in damages and compensation.

(2) To my mind, the 1st and 4th defendant owe fiduciary duties towards the plaintiffs on the following grounds:






DW7 confirmed that the JHEOA still accepts the contents of the letter (see at p. 173 of the Notes of Evidence).

(3) It is evident that the Government is moving towards issuing permanent titles to orang asli lands but administratively hampered. It is also clear that the Government is implementing the integration policy in respect of the orang asli vis-a-vis the Malays by setting up 'Perkampungan Orang Melayu Orang Asli'. Further, the Government had spent millions of ringgit to improve their standard of living so that they will have a better quality of life at par with the other races. However, to my mind, unfortunately notwithstanding its good efforts the Government had breached the fiduciary duties owed to the plaintiffs by:


Therefore, had it not been for the reasons as stated in order (3) at para. 17 below the loss in consequence of the breach must be made good, and that loss would be the value of the lands lost as the result of the 1st and 4th defendants failing to protect it.

Trespass is a tort against possession. As the plaintiffs were in possession of the land a trespass had been committed in respect of the land. However, in my view, the 1st and 4th defendants are not liable for trespass by reason of the provisions of s. 6(4) of the GPA since the identity of the relevant officer has not been ascertained and the liability of the officer has not been established. For the same reason the 1st defendant is not liable in damages for the unlawful eviction. As for the 2nd and 3rd defendants, they are liable to the plaintiffs for trespass. They cannot take shelter under the authority of either the 1st or 4th defendants or both, because trespass is against possession but not ownership, and their misdeeds are reflected by the presence of the highway on the land now which had been constructed by the 2nd defendant and maintained by the 3rd defendant.

To summarise:


Therefore, the following orders are hereby made:




(1)The preliminary issue before me is whether the Plaintiffs should be allowed to adduce oral histories of the aboriginal societies relating to their practices, customs and traditions and on their relationship with the land?

(2)The plaintiffs seek to introduce evidence of oral histories relating to (i) the status of the said land viz, the land use and (ii) the practices, customs and traditions of the plaintiffs who are 'orang asli' known as Temuans. The defendants object on the ground that it offends against the hearsay rule.

(3)Briefly, the plaintiffs plead (para. 1 to 6 of the statement of claim) that they are Temuans and had acquired rights over the said lands by land use and occupation through customs, original possession and usufructuary rights derived from their forefathers and still continuing up to the present time, notwithstanding the past or present legislations pertaining to land. The defendants, in their defence, though not challenging the plaintiffs' authenticity or origin assert that the plaintiffs are no longer practicing or observing their traditional way of life and put the plaintiffs to strict proof of their averments. This is the real dispute in this primary issue for my consideration.

(4)It is trite that hearsay evidence is to be excluded because it is not the best evidence and not delivered on oath. The truthfulness and accuracy of the person whose words are spoken by another witness cannot be tested by cross-examination and the light which his demeanour would throw on his testimony is lost. That is the rational for the exclusion. Also, it is trite that hearsay becomes admissible only when specific provision has been made for its admissibility. Our pertinent legislation is the EA. Sections 32, 48, 49 and 50 are exceptions to the hearsay rule. In the context of the issue before me, s. 32(d) deals with the statement of a dead person which given the opinion of the person as to the existence of any public right or custom or matter of public or general interest (as opposed to private right, customs or interest), of the existence of which if it existed he would have been likely to be aware, and when the statement was made before any controversy as to the right, custom or matter had arisen and s. 32(e) is concerned with the statement relating to the existence of any relationship by blood, marriage or adoption on the same conditions as s. 32(d). Sections 48, 49 and 50 deal with the opinion of living person as to the existence of general right or customs, usages, tenets etc. and on relationship when relevant.

(5) It is manifestly clear that under art. 8(5)(c) of the Constitution and the Act the plaintiffs have the right to be protected and the right to well-being and advancement, in particular to land use. The situation here is similar to the aboriginal peoples of Canada where in the Delgamuukw case the Supreme Court of Canada affirmed the principles established in Van der Peetviz, first, that trial courts must approach the rules of evidence in light of the evidentiary difficulties inherent in adjudicating aboriginal claims, and second, that trial courts must interpret that evidence in the same spirit must be understood against this background. The first principle relates to the difficulties inherent in demonstrating a continuity between current aboriginal activities and the pre-contact practices, customs and traditions of aboriginal societies. Since many aboriginal societies did not keep written records at the time of the contact or sovereignity, it would be exceedingly difficult for them to produce conclusive evidence from pre-contact times about the practices, customs and traditions of their community. The second principle is to adapt the laws of evidence so that the aboriginal perspective on their practices, customs and traditions and on their relationship with the land, are given due weight by the courts. In practical terms, this requires the courts to come to terms with the oral histories of aboriginal societies, which, for many aboriginal nations, are the only record of the past.

(6) However, in Malaysia, the rules of evidence are codified and the reception of the UK common law under s. 3 of the Civil Law Act 1956 does not cover the hearsay rule. We have to look only at the four corners of the EA whether oral histories of aboriginal societies should be accepted and if so, under what circumstances. In this respect s. 32(d) and (e) come into play. Section 32 permits verbal statement as well. Based on this fact ie, the enabling provision, I am sure the framers of the EA would have been aware or ought to have been aware of the fact that our aboriginal peoples also did not keep or have written records of their histories. That being the case, the evidentiary difficulties as envisaged should not be a reason for the courts here to create further exceptions to the hearsay rule other than what have been codified otherwise it will make a mockery of the law. Although the courts in Canada, USA and Australia had adopted a liberal approach in this respect, the courts here must interpret and apply the relevant laws as existing until they are amended.

(7)It is pertinent to note that s. 32(d) of the EA merely permits statement of a dead person in the form of an opinion. Dr. Das contends that such statement is in fact only an opinion but still admissible except as to weight and how much weight to be attached to it will depend very much on the status of the maker in relation to the subject matter of the statement; eg, a Batin or a Penghulu Balai/Ketua Adat stating their practices, customs and tradition and on their relationship with the land. I agree with that contention in the sense that the statement gives the opinion of the declarant, that is to say, of general reputation which his position has naturally brought within his knowledge and not of facts within the declarant's knowledge. The statement must be founded on the concurring opinions of many others of the community who are equally interested in the matter, and which opinion having thus accumulated and grown through generations, furnishes strong presumptive evidence of its trustworthiness, such as statement of general reputation made by a Batin that the boundaries of land were demarcated by certain trees or made by a Penghulu Balai/Ketua Adat that the graves of their ancestors were lighted and provided with food for the souls to eat.

(8)In the final analysis, it is my considered view that, 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 EA, in particular s. 32(d) and (e), that is to say:


(9)In arriving at this decision I did also consider the necessity of the plaintiffs to overcome the burden of strict proof placed on them by the defendants. To my mind, the plaintiffs may do so by resorting to the aforesaid provisions of the EA and that would be sufficient because the degree of proof placed on the plaintiffs is only on the balance of probabilities. However, this is not a blanket sanction but just on ad hoc basis. That is to say, the defendants or the plaintiffs, as the case may be, are entitled to object to a particular piece of evidence to be given by a witness during the trial, only if it merits objection, and the matter may be argued on the respective merits only within the confines of this decision that I made.