Ketua Pengarah Jabatan Hal Ehwal Orang Asli & Anor v Mohamad bin Nohing (Batin Kampung Bukit Rok) & Ors and Another Appeal [2015] 6 MLJ 527

Court of Appeal, Putrajaya

Land Dispute – Extent of Native Customary Rights – Malay Reserve Land

1.    The Respondents are the Semelai people residing in the settlement area of Kampung Bukit Rok and Kampung Ibam in Bera, Pahang.

2.    On 20 December 2000, the Appellants declared 500 acres land located at Padang Kepayang and Kampung Batu Papan in Bera, Pahang to be undertaken by FELCRA for the purpose of cultivating oil palm trees.

3.    On or about 12 March 2007, an eviction notice of illegal occupation were issued to several Respondents residing in Padang Kepayang (“disputed land”).

4.    Several Respondents were instructed to remove huts and buildings erected on the disputed land and to vacate from there within 14 days of the eviction notice.

5.    On 19 April 2007, the Respondents filed an application for judicial review against the Appellants and sought for orders for certiorari, prohibitory order and declarations together with consequential orders in Temerloh High Court.

6.    The Respondents claimed three areas which are Padang Kepayang, Kampung Bukit Rok and Kampung Ibam to be native customary lands.

7.    Temerloh High Court held that the Semelai people are recognized aboriginal group and they have been living in Bera for a long time. Further, the Court also acknowledged that the Respondents are descendants of Semelai and claims are sufficiently identified.

8.    The learned judge also found that the Semelai people’s rights to the land began as soon as they arrived in the Bera region. Any later transfer of the land, including its designation as Malay reserve land in 1923 has to be de-gazetted and the creation of the FELCRA scheme is illegal.

9.    The learned judge held that the land alienated to the aboriginal community should be based on the community’s size and the area needed for them to freely roam and forage.

10.  Aggrieved by the decision, the Appellants appealed against the decisions of Temerloh High Court to the Court of Appeal.

2.    Whether a gazetted Malay reserve land takes precedence over customary title?

(a)      The Court held that native customary rights are established by the aborigines’ exclusive occupation and continuous use of the land. It was further decided that the areas of land used for roaming and foraging cannot be the factor in considering to what extent the lands in native customary rights. (Alexkor Ltd v Richetersveld Community [2003] 12 BCLR 130).

(b)      The Court was of the view that native customary rights are established by the aborigines’ occupation of the subject land. There can be occupation without physical presence as the actual physical presence on the land is not necessary, provided there exists sufficient measure control to prevent strangers from interfering.  (Superintendent of Land & Surveys Miri Division & Anor v Madeli bin Salleh (suing as Administrator of the Estate of the Deceased, Salleh bin Kilong) [2008] 2 MLJ 677)

(c)      In the present case, the Respondents failed to show the existence of sufficient measures of control over the land in Padang Kepayang to prevent strangers from interfering. To support this, the first Respondent in cross-examination, had no knowledge and was uncertain about the extent of the area used for roaming and foraging in Padang Kepayang. This indicates the absence of sufficient measures of control over the land.

(d)      Therefore, the Court varied the High Court’s order and held that the extent of native customary land areas shall correspond as close as possible to the area claimed only.

2.    Whether a gazetted Malay reserve land takes precedence over customary title?

(e)      The Semelai people of Bukit Rok and Ibam have lived on their customary lands in Bera for around 240 years or about eight generations since 1775, according to first Respondent and supported by expert report of Dr. Collin G Nicholas.

(f)        As such, Malaysian courts acknowledge the native land rights of aboriginal peoples that pre-existed. It is also recognized under common law that even the Crown’s acquisition of a fundamental or ultimate title to the land does not grant it full beneficial ownership. Instead, any Crown rights or interests in the land are subjected to the native rights held over it. (Superintendent of Land & Surveys Miri Division & Anor v Madeli bin Salleh (suing as Administrator of the Estate of the Deceased, Salleh bin Kilong) [2008] 2 MLJ 677, “Madeli”).

(g)      The Federal Court in Madeli’s case ruled that for the purpose of extinguishing native customary land rights of the aboriginal peoples, it must be done by invoking clear, unambiguous and plain legislation or by an executive act expressly authorized by such legislation.

(h)      In the present case, such clear and unequivocal legislation is absent, even after the amendment and consolidation of Federated Malay States Malay Reserve Enactment No.15 1913 in the year 1933 (currently known as Federated Malay States Malay Reserve Enactment No. 30 of 1933 Chapter 142 (“FMS Cap 142”) which did not unequivocally state that Malay reserve land takes precedence over any customary land.

(i)        Therefore, the Court of Appeal upheld the High Court’s decision that the gazetted Malay reserve land in 1923 pursuant to the 1913 Enactment which encroached upon the customary land of the Respondents has to be de-gazetted.

2.        Establishing native customary rights requires demonstrating exclusive occupation and continuous use of the land. In demonstrating exclusive occupation, the actual physical presence is not necessary as long as it can be established that there is sufficient measure of control that prevents strangers from interfering.

3.        Extinguishment of native customary lands rights is only through clear, unambiguous and plain legislation as illustrated in this case.