Landmark judgment challenged in Court of Appeal
Even if an Orang Asli tribe occupies ancestral land for 200 years,
this does not mean it ‘owns’ the land or that it is entitled to compensation
should the government acquire the land, the Court of Appeal was told today.
Senior Federal Counsel Abdul Rahim Uda said those claiming ancestral occupation of land only have customary and hereditary rights that permit them to live there and use it for agricultural activities.
He was representing the government in its appeal against a Shah Alam High Court decision in 2002 to award compensation to seven Temuan tribes after their ancestral land was compulsorily acquired to build the highway to the
The hearing began today before a three-member panel comprising judges Gopal Sri Ram, Ariffin Zakaria and Nik Hashim Nik Abdul Rahman.
More than 200
members of the Orang Asli community turned up, but the majority had to wait
outside the courtroom as space was limited inside.
Abdul Rahim argued that the Temuan tribes do not own the land, unlike other landowners, and that they cannot sell, charge or lease their lands because they do not have a title to the land.
“(Therefore) any compensation awarded for the acquisition of the land inhibited by the Orang Asli must be based on the Aboriginal People’s Act 1954 and not the Land Acquisition Act 1960,” he said.
Shah Alam High Court judge Mohd Noor Ahmad’s landmark judgment had recognised the existence of Orang Asli native (in this case the Temuan) land title at common law.
He ordered the federal government, Selangor government, the Malaysian Highway Authority Board (MHA) and private company United Engineers Malaysia Bhd (UEM) to pay compensation under the Land Acquisitions Act 1960 to Sagong Tasi and six others for acquiring 38 acres of land.
UEM, represented by Zaki Azmi, is also challenging the decision.
The judge said both the state and federal governments had breached their fiduciary duty to the plaintiffs, who were entitled to be compensated for losses - amounting to the value of the land. He also ordered MHA and UEM to pay damages for trespassing.
Prior to the judgment, the government had considered the Orang Asli as mere tenants. Revocation of their ancestral land is not protected under the Land Acquisitions Act, unlike in the case of private land.
Abdul Rahim also said the high court had committed an error in principle when it ordered the compensation to be assessed under the Land Acquisition Act.
“This is why the government is challenging the basis of the compensation, which we submit was wrong because this was not alienated land. As we said, the compensation should be assessed based on the Aboriginal People’s Act.”
When asked by Justice Gopal what would amount to fair compensation, he replied: “They should not be paid more than what they have lost.”
Replying, senior lawyer Dr
Cyrus Das (second from left)
argued that it was a finding of fact the plaintiffs were settled people of the
acquired land which was known as Kampung Orang Asli Bukit Tampoi.
He said the government’s claim that the native people do not “own” the land - since they do not have the title and therefore cannot conduct legal transactions - is baseless.
“It is untrue that the land could not be transacted, as section 9 of the Aboriginal People’s Act 1954 enables the plaintiffs to transfer, lease or charge the land with the consent of the Commissioner.
“Such provisions are common in state enactments such as the Kelantan Land Enactment. This points to the title of the land.
“Once you recognise that this land has all the qualities of any other title, its compensation for its deprivation must be accordance to the written law that governs payment and compensation of land - which is the Land Acquisition Act.”
Cyrus also told the court about the “harsh and oppressive”
treatment of the tribes
people, who were given 14 days to vacate their ancestral land after 210
years of occupation.
“They were given compensation according to the loss of their fruit tress and crops on the land and were told to pick up the cheque - issued by MHA - from the Dengkil police station.
At this juncture, Justice Gopal ordered the counsel to seek out legal precedents on damages for harsh conduct.
The hearing continues tomorrow.
Photos by Colin Nicholas.