Nettheim, Garth --- "Malaysia's Mabo case" [2000] IndigLawB 25; (2000) 4(28) Indigenous Law Bulletin 20

• Malaysia’s Mabo Case
• Postscript:

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Malaysia’s Mabo case

By Garth Nettheim

In March 2000, hearing began in Malaysia’s Federal Court (the final court of appeal) from lower court decisions of a case which had followed Mabo v Queensland^[1] and cases from other jurisdictions.

The 52 plaintiffs in the original action were heads of families representing a group of aboriginal people living around the catchment area of the Sungai Linggiu Dam. The defendants were the Government of the State of Johor and the State’s Director of Land and Mines. Plaintiffs sought declarations that the land acquired for the construction of the dam was aboriginal area or aboriginal reserve and that the defendants should pay them compensation. (A major purpose of the dam was to provide water to Singapore.)

Mokhtar Sidin JCA in the High Court (Johor Bahru) held that the plaintiffs’ original occupation and use of the land had been established, and that common law provides recognition and protection for such rights. The plaintiffs were entitled to compensation within the terms of a statute (the Malaysian Aboriginal Peoples Act 1939, as amended) but also, in respect of their common law rights, by virtue of the provision in Article 13 of the Federal Constitution. Article 13 provides that no person shall be deprived of property save in accordance with law, and that no law shall provide for compulsory acquisition or use of property without adequate compensation.^[2] His Honour calculated an amount of compensation that should be paid.

On appeal, the Court of Appeal in Kuala Lumpur upheld the substantive legal principles laid down in the court below, and added provision for the plaintiffs to be paid their costs, and interest on the compensation assessed.^[3] As noted, the appellants have appealed further to the Federal Court.

[The cases are to be reported in a forthcoming issue of the Australian Indigenous Law Reporter. Proceedings of a recent workshop in Kuala Lumpur to discuss the legal position of indigenous Malaysians will be published in a forthcoming issue of the Journal of Malaysian and Comparative Law; the Journal, in Volume 25 (1998) published proceedings of an earlier Conference held in Sarawak on ‘The Role of Customary Law in Preserving Indigenous Heritage’.]

Garth Nettheim is Emeritus Professor of Law at the University of NSW.

Postscript:

In March, Malaysia’s Federal Court rejected an appeal against the decisions of the lower courts.

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^[1] Mabo v Queensland [No 2](1992) [1992] HCA 23; 175 CLR 1.

^[2] Adong bin Kuwau & Ors v Kerajaan Negeri Johor & Anor, [1997] 1 MLJ 418.

^[3] Kerajaan Negeri Johor & Anor v Adong bin Kuwau & Ors, [1998] 2 MLJ 158.