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Landmark judgment challenged in Court of Appeal
Jun
13,
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.
Fair compensation
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.”
Harsh
treatment
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.
“On
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.
