Sanders, Professor Douglas --- "Indigenous Land Rights in Malaysia: Nor Nyawai & 3 Ors v Borneo Pulp Plantation Sdn Bhd & 2 Ors" [2002] IndigLawB 8; (2002) 5(14) Indigenous Law Bulletin 21

Indigenous Land Rights in Malaysia:

Nor Nyawai & 3 Ors v Borneo Pulp Plantation Sdn Bhd & 2 Ors

Justice Datuk Ian HC Chin
Malaysia High Court of Sabah and Sarawak, Kuching, Sarawak
Suit No 22-28-99-I
12 May 2001

by Professor Douglas Sanders

The pre-existing rights of Indigenous people that arise as a result of native law or custom are now respected by the common law in Malaysia. However, such rights may be removed by unambiguous words in legislation. This concept was borrowed from Mabo v State of Queensland (No 2)[1] (‘Mabo’) by the leading Malaysian case of Adong bin Kuwau & 51 Ors v The Government of Jahore[2] (‘Adong’). In the Adong case, which involved Indigenous Orang Asli in peninsular Malaysia, the courts upheld traditional land rights in a compensation suit. In coming to their decision the Malaysian courts relied on the leading aboriginal title cases from Australia, Canada and the United States.

Nyawai v Borneo Pulp Plantation Sdn Bhd (‘Nyawai’) also involves the issue of native customary land rights. It focuses on the rights held by Indigenous Iban over land in Sarawak, the largest of the Malaysian states located in northern Borneo. Both of the Malaysian states in Borneo - Sarawak and Sabah - have Indigenous majorities and greater autonomy than the states in peninsular Malaysia. While there is uniform land law for the peninsular states, separate land laws exist in Sarawak and Sabah, enacted by the local legislatures.

The land law in Sarawak has provisions which recognise native customary land rights. These provisions allow title to customary lands to be granted to the native owners. This recognition of customary ownership goes back to the period of the first Rajah, James Brooke. Justice Chin commented on this early recognition in the Nyawai case:

[...] In fact James Brooke had referred to native customary rights as “the indefeasible rights of the Aborigines”... [and] was “acutely aware of the prior presence of native communities, whose own laws in relation to ownership and development of land have been consistently honoured”.[3]

In reality, however, Indigenous peoples have not been granted titles under Sarawak land legislation for much of their lands. The Indigenous majority of Sarawak, divided along tribal lines, has not been able to control the State government and its development agenda. The government is based on an alliance of Malays, Chinese and coastal tribal peoples, while the issues of land rights, logging and plantations affect the interior tribes.

Sarawak is prosperous. Its wealth is primarily based on massive logging operations, and the logging companies are usually controlled by ethnic Chinese businesspeople. Many Indigenous people work in the harvesting operations. In this process, native customary land rights are largely ignored. Where titles have been granted to native tribes, they can be appropriated without consent under amendments passed a few years ago designed to facilitate the establishment of pulpwood and palm oil plantations.

The Facts

Nyawai examined the native customary rights of the Iban community of Rumah Nor (‘the plaintiffs’) to an area of land in the Bintulu Division of Sarawak. On 26 January 1999, the plaintiffs sued for damages and sought an injunction for trespass against two companies and a government authority for logging in their native lands. The Borneo Pulp Plantation Sdn Bhd (‘first defendant’) had been granted titles to two parcels of land in the area, which it subleased to Borneo Pulp & Paper Sdn Bhd (‘second defendant’) for logging. The plaintiffs argued that they hold unregistered native customary land rights over 672 hectares of these lands (‘the disputed area’), and that the second defendant had trespassed and damaged the disputed area. The government authority that issued the titles to the lands, the Bintulu Superintendent of Lands and Surveys, was named as the third defendant.

The implications of this case for the structure of the logging industry in Sarawak are potentially very significant.

The Judgement

The High Court (‘the Court’) again relied on common law decisions in Australia and Canada to hold that the common law of Malaysia recognises pre-existing native property rights unless they have been extinguished by legislation. This point was easily established, citing Mabo, Adong, a paper of the author[4] and Calder v Attorney-General of BC.[5]

After resolving the issue of the common law recognition of aboriginal title, the judgment focused on questions of evidence about the customary rights to the land in question. It then provided a detailed examination of relevant legislation, to see whether those rights had been extinguished.

Evidence of customary rights

As in the earlier Adong case and in the early stages of aboriginal title litigation in Australia and Canada, lawyers for the defendants seem to have relied mainly on technical arguments. The defendants had argued against oral tradition evidence of native customary rights as hearsay. The objection was dismissed:

If the present generation can prove that they are practising what historians described as having been practised 200 years ago, then that is sufficient proof that such native customary rights had been practised 200 years ago.[6]

The Court found that:

• when the First Rajah arrived, the Ibans already had a body of customs now referred to as native customary rights;
• the plaintiffs and their ancestors had exercised those customary rights in their traditional lands;[7] and
• the disputed area fell within the traditional lands of the plaintiffs.

Extinguishment

The Court held that although various laws since 1863 had imposed restrictions on native land rights, those laws had not extinguished all rights to the forests. Justice Chin warned of possible conflict between any future legislation restricting native customary rights and the constitutional protection of rights to property:

The authority should, in view of Adong, ponder carefully when considering future legislation with regard to and which adversely affects native customary rights in view of Article 13 of the Federal Constitution which states:
13. Rights to property.
1. No person shall be deprived of property save in accordance with law.
2. No law shall provide for the compulsory acquisition or use of property without adequate compensation.[8]

One of the most important rulings in the Adong case was that Article 13 applied to aboriginal title.

The defendants argued Iban laziness and greed,[9] urbanisation[10] and prosperity[11] as reasons to reject the claims. Perhaps they assumed they could appeal to established prejudices and stereotypes. Instead the judge emphasised the rights of Indigenous peoples:

They should be reminded of the global attitude towards natives and for this purpose I need only refer to the Draft Declaration on the Human Rights of Indigenous Peoples which declares the right of the natives to maintain their cultural characteristics [quoting Article 4].[12]

He carefully added that he did not rely on the Draft Declaration in coming to his conclusion as it did not have the status of being part of domestic law.

Remedies

As in Adong, the existence of a legislative scheme concerning customary land rights did not block the possibility of asserting such rights purely based on traditional ownership and common law principles. Having held that the native customary rights continued in effect,[13] Justice Chin issued injunctions preventing the first and second defendants from entering the disputed area, and declared their titles to the lands void. He also ordered the third defendant to rectify the titles so as to exclude the disputed area from the grant. However, he found that there was insufficient evidence to grant an order for damages.

The judgment is being appealed. If the decisions in Adong are an adequate guide, the appeals are unlikely to be successful.

Doug Sanders is Professor of Law with the Faculty of Law, University of British Columbia.

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[1] [1992] HCA 23; (1992) 66 ALJR 408.

[2] [1997] 1 MLJ 418 (confirmed by the Court of Appeal [1998] 2 MLJ 158).

[3] Nor Nyawai & 3 Ors v Borneo Pulp Plantation Sdn Bhd & 2 Ors (12 May 2001) Suit No 22-28-99-I, para 52.

[4] Professor Douglas Sanders, ‘Indigenous and Tribal Peoples: The right to live on their own land’ (Paper presented at the 12th Commonwealth Law Conference, Kuala Lumpur, September 1999).

[5] [1973] SCR 313.

[6] Nor Nyawai & 3 Ors v Borneo Pulp Plantation Sdn Bhd & 2 Ors, above n 3, para 29.

[7] Ibid para 19.

[8] Ibid para 50.

[9] Ibid para 106.

[10] Ibid paras 107-9.

[11] Ibid para 111.

[12] Ibid.

[13] Ibid para 115.