Aboriginal Title Victory in Malaysia
On May 12th, 2001 the High Court of Sarawak, a Malaysian state on the island of Borneo, issued a significant ruling with respect to indigenous land rights. The Court upheld the customary rights of the indigenous people from the Iban village, Rumah Nor, finding that the Borneo Paper and Pulp company did not have the right to infringe upon Iban customary rights.
The Plaintiffs, members of the Iban village, brought an action on January 26, 1999 claiming that they had native customary rights over the territory the Defendants were using to carry out the Borneo Pulp Plantation's operations. The Defendants consisted of 3 groups: 1) the Pulp Plantation that held title to the land; 2) Borneo Pulp and Paper who were the sublessees of the land; and 3) the Superintendent of Land and Surveys who issued title to the land in question. The Plaintiffs claimed that the Defendants had trespassed and damaged the disputed area.
At issue was the relationship the Iban had to the disputed land and its resources. The court cited the Australian case, Mabo v. State of Queensland, 1992, and the Canadian case, Calder v. Attorney-General of British Columbia, 1973, as authorities for the assertion that the "common law respects the pre-existing rights under native law or custom law, though such rights may be taken away by clear and unambiguous words in legislation." In other words, similar to the pre-1982 Canadian situation, a government wishing to extinguish aboriginal title must do so through clear and plain legislation. The question that arose was whether there had been any legislation that had extinguished the customary rights of the Iban people.
In his analysis, the judge first looked at whether the Plaintiffs were Iban and concluded that they were, based on the fact that they said they were and because they could all speak Iban. Once this prima facie identification was established, the onus shifted to the Defendants to rebut the assertion. The Defendants did not present any rebuttal evidence and thus it was concluded that the Plaintiffs were Iban.
Next, the judge discussed the nature and character of Iban customary rights to the disputed land and resources. He stated that the Iban term "pamakai menoa" refers to "a territorial domain of a longhouse community where customary rights to land resources were created by pioneering ancestors." He indicated that territory is chosen by the people based on whether it was fit for farming, and the presence of life sustaining resources such as water, fish, animals, and forest products.
The judge then had to determine whether these practices and rights were exercised by the Plaintiffs in the disputed territory. The judge indicated that the answer to this question lay in determining the extent of the Plaintiffs' pemakai menoa. In analyzing the evidence, the judge concluded:
"[W]hen the Rajah arrived, the Ibans had already a body of customs which is referred to as native customary rights and this includes the rights I have discussed. Those rights being customs, I can conclude that the Plaintiffs' ancestors must have practiced the same customs as the present day Ibans practice. The Defendants did not point to any writing of any historian that hold a contrary view. Therefore, I conclude that the Plaintiffs and their ancestors had exercised those native customary rights known as temuda, pulau, and pemakai menoa. I can also conclude that where you find a longhouse in a remote area, that is in an area with jungles and rivers, you can assume that activities connected with temuda and pulau and pemakai menoa have been carried out since it is the livelihood of the folks staying in the longhouse. They are dependent on them for survival" [para. 19, p.10].
The judge went through an extensive review of legislation affecting land rights, but consistently concluded that the legislation had not extinguished the Plaintiffs' customary rights to the disputed territory. He indicated that there is legislation that sets out the method by which native customary rights may be extinguished. The method includes clear notification and compensation to the affected native peoples.
After concluding that no legislation existed that was sufficient to have extinguished the Iban peoples' native customary rights to the disputed territory, the judge stated that the Plaintiffs were entitled to exercise native customary rights over the disputed area and that two corporate Defendants were not permitted to enter into the area. He indicated that an injunction would be issued against these Defendants and that the title issued to the Borneo Pulp Plantation, which included title to the disputed area, would be rendered void. Furthermore, he indicated that he expected the Superintendent of Lands & Surveys to rectify the title so as to exclude the disputed title from the grant.
Clearly, this case is a tremendous victory for the people of the Iban village, Rumah Nor. Not only have the Iban been able to protect their rainforest, but also, the definition of customary land rights has been expanded to include rivers, streams and communal forests.
This case stands as authority for the recognition of existing common-law native rights to land. It emphasizes that aboriginal title is a right that continues to exist until it is extinguished by the Crown through clear and plain legislation. In the Canadian context, of course, unilateral extinguishment of aboriginal rights (including title) has been impossible since the constitutional protection was afforded to these rights by s. 35 of the Constitution Act, 1982.
The Malaysian government intends to appeal this decision and it has been suggested that if it loses, it will press hard to enact legislation extinguishing native customary rights. Nevertheless, this decision represents a clear statement recognizing the inherent land rights of indigenous peoples.