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Seeking Redress in the Courts: Indigenous Land Rights and Judicial Decisions in Malaysia*

Published online by Cambridge University Press:  01 December 2010

S. ROBERT AIKEN  and
COLIN H. LEIGH
S. ROBERT AIKEN
Affiliation:
Department of Geography, Planning and Environment, Concordia University, 1455 de Maisonneuve Boulevard West, Montreal, Quebec, CanadaH3G 1M8 Email: [email protected]
COLIN H. LEIGH
Affiliation:
P.O. Box 113, Forest Hill, Victoria, Australia3131 Email: [email protected]
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Abstract

Malaysia's indigenous peoples continue to suffer numerous grievous injustices, including appropriation of their ancestral lands and socio-economic deprivation. In large part because their voices of resistance to development policies have gone unheard by the authorities, a growing number of individuals and communities have taken their grievances to the nation's courts. In particular, they have pleaded for judicial intervention to address alleged breaches of statutory land and other rights by governments and their contractors, and for recognition of native title at common law. In the landmark 1996 Adong case, the High Court ruled that Malaysian jurisprudence recognizes native title, thus bringing Malaysia into line with a number of other countries that share an English-derived legal system. The concept has been upheld in subsequent High Court, Court of Appeal, and Federal Court judgments. In spite of the rulings in favour of indigenous parties, the federal government, along with certain of the state governments, has continued to adopt an adversarial approach to indigenous land issues. An encouraging development is the reported willingness of governments in Perak and Selangor to tackle indigenous land rights issues through mediation rather than litigation. This paper summarizes seven court cases concerning alleged breaches of statutory rights and four cases dealing with native title at common law; it also looks at certain issues arising from the cases, as well as the responses of communities and governments to the various court judgments.

Type
Research Article
Information
Modern Asian Studies , Volume 45 , Issue 4 , July 2011 , pp. 825 - 875
Copyright
Copyright © Cambridge University Press 2010

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References

1 Although there is no universally agreed definition of ‘indigenous peoples’, the concept or idea of a distinct category of peoples called ‘indigenous’ has been widely accepted in recent years. For details on the question of how to define indigenous peoples, see José R. Martinez Cobo, ‘Study of the Problem of Discrimination against Indigenous Populations’, United Nations Document E/CN.4/Sub.2/1986/7/Add.4; Kingsbury, Benedict, ‘“Indigenous Peoples” in International Law: A Constructivist Approach to the Asian Controversy’, American Journal of International Law 92 (3) (1998): 414–457Google Scholar; and Thornberry, Patrick, Indigenous Peoples and Human Rights (Manchester: Manchester University Press, 2002), pp. 33–60Google Scholar.

2 The land, cultural, and self-government rights of indigenous peoples have been increasingly recognized in recent decades. This trend is reflected, for example, in various international instruments, including Convention No. 169 of the International Labour Organization and the United Nations Declaration on the Rights of Indigenous Peoples, and in acceptance of the doctrine of native title at common law in a growing number of jurisdictions. Regrettably, governments in Malaysia have paid little or no heed to these developments; on the contrary, they continue to target indigenous lands for development; see, for example, Erica-Irene A. Daes, ‘Indigenous Peoples and their Relationship to Land’, Final Working Paper Prepared by the Special Rapporteur, Mrs Erica-Irene A. Daes, United Nations Document E/CN.4/Sub.2/2001/21; Xanthaki, Alexandra, ‘Land Rights of Indigenous Peoples in South-East Asia’, Melbourne Journal of International Law 4 (2) (2003): 467–496Google Scholar; and Anaya, S. James, Indigenous Peoples in International Law, 2nd edn. (Oxford: Oxford University Press, 2004)Google Scholar.

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11 Note that this figure refers to the total number of Malaysian citizens. Also present were many migrant workers, most of them from Indonesia. In 2004, for example, there were an estimated one million illegal immigrants and about 1.2 million registered foreign workers in the country; see Swee-Hock, Saw, The Population of Malaysia (Singapore: Institute of Southeast Asian Studies, 2007), p. 16Google Scholar.

12 Ibid., p. 70. A residual category of so-called ‘Others’ comprised 1.2 per cent of the population.

13 The Malays claim that they, not the Orang Asli, are the indigenous peoples of the Peninsula, an assertion that has been roundly refuted by most anthropologists; see Dentan, Robert Knox et al. , Malaysia and the Original People: A Case Study of the Impact of Development on Indigenous Peoples (Needham Heights, Massachusetts: Allyn and Bacon, 1997), pp. 19–22Google Scholar. Alice M. Nah points out that the Orang Asli are ‘perceived as threatening to the Malay ‘Self’, because the former's socio-political identity has the potential to unsettle the latter's claim to special privilege on the basis of indigeneity’; see ‘Negotiating Indigenous Identity in Postcolonial Malaysia: Beyond Being “Not quite/Not Malay”,’ Social Identities 9 (4) (2003): 529; see also Nah's, ‘(Re)Mapping Indigenous “Race”/Place in Postcolonial Peninsular Malaysia’, Geografiska Annaler 88 B(3) (2006): 285–297Google Scholar.

14 Endicott, ‘Indigenous Rights’, p. 146.

15 Nicholas, Colin and Baer, Adela, ‘Health Care for the Orang Asli: Consequences of Paternalism and Non-Recognition’, in Health Care in Malaysia: The Dynamics of Provision, Financing and Access, edited by Leng, Chee Heng and Barraclough, Simon (London: Routledge, 2007), pp. 119–136Google Scholar.

16 Endicott, ‘Indigenous Rights’, p. 145.

17 Dentan et al., Malaysia, pp. 23–50.

18 Nicholas, Colin, The Orang Asli and the Contest for Resources: Indigenous Politics, Development and Identity in Peninsular Malaysia (Copenhagen: International Work Group for Indigenous Affairs; Subang Jaya, Malaysia: Center for Orang Asli Concerns, 2000), pp. 24–32Google Scholar.

19 The three numerically largest groups in Sarawak (by population) were the Iban (603,735), Bidayuh (166,756), and Melanu (112,984); and in Sabah, the three largest groups were the Kadazandusun (484,828), Bajau (347,193), and Murut (85,094), according to Saw, The Population, p. 73.

20 Lasimbang, Jannie, ‘The Indigenous Peoples of Sabah’, in Indigenous Peoples of Asia: Many Peoples, One Struggle, edited by Nicholas, Colin and Singh, Raajen (Bangkok: Asia Indigenous Peoples Pact, 1996), pp. 177–195Google Scholar; John Phoa, ‘The Dayaks and Orang Ulu of Sarawak’, in Indigenous Peoples, pp. 197–212; and Cramb, R. A., Land and Longhouse: Agrarian Transformation in the Uplands of Sarawak (Copenhagen: NIAS Press, 2007), pp. 5–7Google Scholar.

21 Hui, Wee Chong, Sabah and Sarawak in the Malaysian Economy (Kuala Lumpur: S. Abdul Majeed for Institute of Social Analysis, 1995)Google Scholar; Kaur, Amarjit, Economic Change in East Malaysia: Sabah and Sarawak since 1850 (New York: St Martin's Press, 1998), pp. 201–206Google Scholar; and Aeria, Andrew, ‘Globalization, Inequitable Development and Disenfranchisement in Sarawak’, in Southeast Asian Responses to Globalization: Restructuring Governance and Deepening Democracy, edited by Wah, Francis Loh Kok and Öjendal, Joakim (Copenhagen: NIAS Press, 2005), pp. 173–200Google Scholar.

22 The system provides for title to land by registration rather than title by deed. It was introduced into the Malay states of the Peninsula from the 1890s, and came into force in Sarawak in 1933; see Wong, David S. Y., Tenure and Land Dealings in the Malay States (Singapore: Singapore University Press, 1975), pp. 112, 155–159Google Scholar; and Mooney, Peter, ‘Land Law in Sarawak’, in The Centenary of the Torrens System in Malaysia, edited by Ibrahim, Ahmad and Sihombing, Judith (Kuala Lumpur: Butterworth/Malayan Law Journal, 1989), p. 242Google Scholar. The version of the system employed in Sabah does not confer indefeasibility of title to or interest in land, which is one of the system's cardinal features; see Sood, Teo Keang and Tee, Khaw Lake, Land Law in Malaysia: Cases and Commentary (Kuala Lumpur: Butterworths Asia, 1995), p. 5Google Scholar. Under the system, all land belongs to the state. Private interests in land vest only upon registration.

23 There are provisions for dealing with these matters in the federal Land Acquisition Act 1960 (revised 1992), the Sabah Land Acquisition Ordinance 1950, and the 1958 Sarawak Land Code. Article 83 of the Federal Constitution provides for the acquisition of state land for federal purposes, if such acquisition is deemed to be in the national interest. The government has used this provision sparingly and never, to our knowledge, for the express benefit of indigenous communities; see Rachagan, S. Sothi, ‘Constitutional and Statutory Provisions Governing the Orang Asli’, in Tribal Peoples and Development in Southeast Asia, edited by Ghee, Lim Teck and Gomes, Alberto G. (Kuala Lumpur: Department of Anthropology and Sociology, University of Malaya, 1990), pp. 103–104Google Scholar.

24 Its primary purpose is to maintain community harmony, stability, and wellbeing. Widely applied to most spheres of life, adat includes various rules and regulations regarding rights in land and other resources. See, for example, Sather, Clifford, introduction to Iban Adat and Augury, by Sandin, Benedict (Penang: Penerbit Universiti Sains Malaysia, 1980), pp. xi–xlvGoogle Scholar; and Ngidang, Dimbab, ‘Deconstruction and Reconstruction of Native Customary Land Tenure in Sarawak’, Southeast Asian Studies 43 (1) (2005): 47–51Google Scholar. Native Courts were established in Sabah and Sarawak during the colonial period to hear cases concerning native customs or adat, and native law has been variously incorporated into the English-derived Malaysian legal system through inclusion in subsidiary legislation, judicial decisions, and administrative codification; see Hooker, M. B., ‘Native Law in Sabah and Sarawak’, Malayan Law Journal 2 (1979): xxx–xxxviii, lxv–lxxvi, lxxxiv–xcvGoogle Scholar; Bulan, Ramy, ‘Native Title in Malaysia: A “Complementary” Sui Generis Proprietary Right under the Federal Constitution’, Australian Indigenous Law Review 11 (1) (2007): 69Google Scholar. Although there are undoubtedly advantages to giving formal expression to certain aspects of customary law, these provisions in no way undermine the federal and state governments’ contention that land matters are ultimately regulated by statute and not by adat; see Cramb, Land and Longhouse, pp. 233–236. In other words, customary rights are widely regarded as contingent rights.

25 There is no space here to deal with the many complexities and subtleties of indigenous communities’ conceptions of land and resource rights and how these vary from group to group; for additional details, see Endicott, Kirk, ‘The Impact of Economic Modernization on the Orang Asli (Aborigines) of Northern Peninsular Malaysia’, in Issues in Malaysian Development, edited by Jackson, James C. and Rudner, Martin (Singapore: Heinemann Educational Books (Asia), 1979), pp. 168–175Google Scholar; Appell, G. N., ‘The History of Research on Traditional Land Tenure and Tree Ownership in Borneo’, Borneo Research Bulletin 28 (1997): 82–97Google Scholar; and Cramb, Land and Longhouse, pp. 96–110. Long regarded by Malaysian officials as outmoded and a barrier to economic development, customary, community-based systems of land tenure ‘may in fact have a distinct advantage over statutory, state-based systems, to the extent that they allow greater flexibility to adapt to changing circumstances at the local level’, according to Cramb, R. A. and Wills, I. R., ‘Private Property, Common Property and Collective Choice: The Evolution of Iban Land Tenure Institutions’, Borneo Research Bulletin 29 (1998): 58Google Scholar.

26 The mainly rural-dwelling Orang Asli were suddenly and unexpectedly thrust into strategic significance during the Emergency, as the colonial government's struggle against forest-based communist insurgents came to be called. Efforts to win over the Orang Asli to the government side included providing rudimentary medical care and basic consumer goods at a number of ‘jungle forts’ and establishing the Department of Aborigines, the precursor of the Department of Aboriginal Affairs; see Dentan et al., Malaysia, pp. 61–66, and Nicholas, The Orang Asli, pp. 80–82.

27 Endicott, Kirk and Dentan, Robert Knox, ‘Into the Mainstream or Into the Backwater? Malaysian Assimilation of Orang Asli’, in Civilizing the Margins: Southeast Asian Government Policies for the Development of Minorities, edited by Duncan, Christopher R. (Ithaca and London: Cornell University Press, 2004), pp. 24–55Google Scholar.

28 The distinction would appear to be between ‘aboriginal reserves’ for permanent occupation and ‘aboriginal areas’ for temporary occupation; see Hooker, M. B., ‘The Orang Asli and the Laws of Malaysia with Special Reference to Land’, Ilmu Masyarakat 18 (1991): 63Google Scholar. In practice, however, the Orang Asli have no statutory rights of permanent occupation of their ancestral lands.

29 Nicholas, The Orang Asli, p. 33.

30 Hooker, ‘The Orang Asli’, p. 65.

31 Ibid., pp. 62–65.

32 Hooker, M. B., ‘“Native Title” in Malaysia: Adong's Case’, Australian Journal of Asian Law 3 (2) (2001): 199Google Scholar. The regroupment schemes are discussed in Dentan et al., Malaysia, pp. 117–141, and in Nicholas, The Orang Asli, pp. 113–118.

33 See footnote 22.

34 Aiken, S. Robert, ‘Losing Ground: Development, Natural Resources, and the Dispossession of Malaysia's Orang Asli’, in A History of Natural Resources in Asia: The Wealth of Nature, edited by Bankoff, Greg and Boomgaard, Peter (New York: Palgrave Macmillan, 2007), pp. 174–177Google Scholar.

35 Adam, Francis Johen, ‘Native Customary Rights Over Land in Sarawak’, Journal of Malaysian and Comparative Law 25 (Special Issue) (1998): 217–231Google Scholar; and Wong-Adamal, Juprin, ‘Native Customary Land Rights in Sabah’, Journal of Malaysian and Comparative Law 25 (Special Issue) (1998): 233–240Google Scholar.

36 Quoted in Thomas Jayasuriya, ‘Development of Land Law in Sabah’, in, The Centenary, p. 227.

37 Jayasuriya, ‘Development of Land’, pp. 227–228; Bulan, ‘Native Status’, pp. 281–284.

38 The two other classes of land are Mixed Zone Land, in which any person who is a Malaysian citizen or a permanent resident of Sarawak may acquire title, and Reserved Land, which is land reserved to the government for forest reserves, national parks, and other public purposes.

39 The date established a firm cut-off point for recognising the legality of native land claims in Sarawak. In principle, native customary rights may be acquired after 1 January 1958 by felling ‘virgin forest’ and occupying the cleared land, by planting fruit trees, and by other methods, but only in Interior Area Land and then only if a permit to occupy this class of land has been obtained from a District Officer. As noted above, however, the authorities no longer issue such permits. In practice, it is now virtually impossible to create new customary land rights; see Cooke, Fadzilah Majid, ‘Vulnerability, Control and Oil Palm in Sarawak: Globalization and a New Era?’ Development and Change 33 (2) (2002): 199—200Google Scholar; and Bulan, Ramy, ‘Native Customary Land: The Trust as a Device for Land Development in Sarawak’, in State, Communities and Forests in Contemporary Borneo, edited by Cooke, Fadzilah Majid (Canberra: ANU E Press, 2006), pp. 49–50Google Scholar.

40 King, Victor T., ‘Indigenous Peoples and Land Rights in Sarawak, Malaysia: To Be or Not To Be a Bumiputra’, in Indigenous Peoples of Asia, edited by Barnes, R. H., Gray, Andrew and Kingsbury, Benedict (Ann Arbor, Michigan: Association for Asian Studies, 1995), pp. 298–305Google Scholar; Hooker, M. B., ‘A Note on Native Land Tenure in Sarawak’, Borneo Research Bulletin 30 (1999): 31–34Google Scholar.

41 Doolittle, Amity A., ‘Powerful Persuasions: The Language of Property and Politics in Sabah, Malaysia (North Borneo), 1881–1996’, Modern Asian Studies 38 (4) (2004): 841–843Google Scholar; Colchester, Marcus et al. , Land is Life: Land Rights and Oil Palm Development in Sarawak (Moreton-in-Marsh, England: Forest Peoples Programme; Bogor, Indonesia: Perkumpulan Sawit Watch, 2007), pp. 15–16Google Scholar; and Cramb, Land and Longhouse, pp. 228–231.

42 Reference here is to the ground-breaking Adong case (discussed below). The ruling mirrored judgments in Canada, Australia, and several other countries with a mainly English-derived legal system and paved the way for indigenous communities to seek declaration that they hold native title at common law, thereby, among other things, making them eligible for compensation if their land should be compulsorily acquired; see Dennison, Amy, ‘Evolving Conceptions of Native Title in Malaysia and Australia—A Cross National Comparison’, Australian Indigenous Law Review 11 (1) (2007): 79–91Google Scholar; Gilbert, Jérémie, ‘Historical Indigenous Peoples’ Land Claims: A Comparative and International Approach to the Common Law Doctrine on Indigenous Title’, International and Comparative Law Quarterly 56 (3) (2007): 583–612Google Scholar. As the cases described below indicate, Malaysian law in this area continues to evolve. Note that in Sabah, Sarawak, and Labuan, native title may also refer to customary land rights that have been entered in a government register.

43 The doctrine is generally called aboriginal title in Canada and native title in Australia. Court rulings in other jurisdictions have referred to one or other or both of these terms. The generic label ‘indigenous title’ embraces both terms. Seminal cases that have lead to the judicial recognition of the doctrine include the 1973 Calder and 1997 Delgamuukw cases in Canada and the 1992 Mabo (No. 2) case in Australia; see McNeil, Kent, ‘The Vulnerability of Indigenous Land Rights in Australia and Canada’, Osgoode Hall Law Journal 42 (2) (2004): 271–301Google Scholar. The historic origins of the doctrine include the Royal Proclamation of 1763 and various Indian treaties in Canada, Chief Justice John Marshall's ruling in Johnson v M'Intosh (1823) in the United States Supreme Court, Regina v Symonds (1847) in New Zealand, and rulings of the Privy Council in London in the late nineteenth and early twentieth centuries; see Bartlett, Richard H., Native Title in Australia, 2nd edn. (Chatswood, NSW (Australia): LexisNexis Butterworths, 2004), pp. 1–9Google Scholar; Gilbert, Jérémie, Indigenous Peoples’ Land Rights Under International Law: From Victims to Actors (Ardsley, New York: Transnational Publishers, 2006), pp. 55–63Google Scholar.

44 Gilbert, ‘Historical Indigenous’, pp. 584–590.

45 Ibid., p. 590.

46 Bartlett, Native Title, pp. 100–102.

47 In Canada, the Constitution Act, 1982 provides aboriginal title with protection against extinguishment. Kent McNeil points out that unlike ‘native title in Australia, Aboriginal title in Canada is constitutionally protected against both legislative and executive action, whether federal or provincial’; see McNeil, ‘The Vulnerability’, p. 87. In both countries, however, indigenous peoples’ land rights are vulnerable to infringement by the creation of third party interests by the Crown.

48 Daes, ‘Indigenous Peoples’, para. 41.

49 Gilbert, ‘Historical Indigenous’, pp. 602–611.

50 See, for example, King, Victor T. and Jawan, Jayum A., ‘The Iban of Sarawak, Malaysia: Ethnicity, Marginalisation and Development’, in Ethnicity and Development: Geographical Perspectives, edited by Dwyer, Denis and Drakakis-Smith, David (Chichester, England: John Wiley, 1996), pp. 195–214Google Scholar.

51 Brosius, Peter, ‘Voices for the Borneo Rain Forest: Writing the History of an Environmental Campaign’, in Nature in the Global South: Environmental Projects in South and Southeast Asia, edited by Greenough, Paul and Tsing, Anna Lowenhaupt (Durham and London: Duke University Press, 2003), p. 327Google Scholar; see also Barney, Keith, ‘Uprooting Communities and Reconfiguring Rural Landscapes: Industrial Tree Plantations and Displacement in Sarawak, Malaysia, and Eastern Thailand’, in Development's Displacements: Ecologies, Economies, and Cultures at Risk, edited by Vandergeest, Peter, Idahosa, Pablo and Bose, Pablo S. (Vancouver: University of British Columbia Press, 2007), pp. 92–7Google Scholar.

52 Hong, Evelyne, Natives of Sarawak: Survival in Borneo's Vanishing Forests (Penang: Institut Masyarakat, 1987), pp. 169–200Google Scholar; Keong, Choy Yee, ‘Sustainable Development and the Social and Cultural Impact of a Dam-Induced Development Strategy—the Bakun Experience’, Pacific Affairs 77 (1) (2004): 50–68Google Scholar.

53 Vandergeest, Peter, Idahosa, Pablo and Bose, Pablo S., conclusion to Development's Displacements: Ecologies, Economies, and Cultures at Risk, edited by Vandergeest, Peter, Idahosa, Pablo, and Bose, Pablo S. (Vancouver: University of British Columbia Press, 2007), p. 258Google Scholar.

54 Leigh, Michael, ‘Political Economy of Logging in Sarawak, Malaysia’, in The Politics of Environment in Southeast Asia: Resources and Resistance, edited by Hirsch, Philip and Warren, Carol (London: Routledge, 1998), pp. 93–106Google Scholar; Ross, Michael L., Timber Booms and Institutional Breakdown in Southeast Asia (Cambridge: Cambridge University Press, 2001)Google Scholar.

55 Aiken, S. Robert and Leigh, Colin H., ‘Natural Wealth: Depletion or Conservation?’ epilogue to Managing Natural Wealth: Environment and Development in Malaysia, by Vincent, Jeffrey R. and Ali, Rozali Mohamed (Washington, DC: Resources for the Future; Singapore: Institute of Southeast Asian Studies, 2005), pp. 367–373Google Scholar.

56 Brosius, Peter, ‘Between Politics and Poetics: Narratives of Dispossession in Sarawak, East Malaysia’, in Reimagining Political Ecology, edited by Biersack, Aletta and Greenberg, James B. (Durham and London: Duke University Press, 2006), p. 288Google Scholar.

57 Aiken and Leigh, ‘Natural Wealth’, pp. 367–373.

58 Williams-Hunt, Anthony, ‘Land Conflicts: Orang Asli Ancestral Laws and State Policies’, in Indigenous Minorities of Peninsular Malaysia: Selected Issues and Ethnographies, edited by Rashid, Razha (Kuala Lumpur: Intersocietal and Scientific Sdn. Bhd. (INAS), 1995), pp. 42–43Google Scholar; and Dentan et al., Malaysia, p. 103.

59 The reality is that most such land is used by local communities for forest fallows, for hunting, fishing, and gathering, or for watershed protection. Lands that are regarded as ‘empty’ are actually full of historical associations and cultural meanings.

60 Colchester et al., Land is Life: pp. 35–41.

61 The total area under oil palm in Sabah expanded rapidly from the early 1980s and in Sarawak from the mid-1990s; see Fold, Niels and Hansen, Tina Svan, ‘Oil Palm Expansion in Sarawak: Lessons Learned by a Latecomer?’ in Environment, Development and Change in Rural Asia-Pacific: Between Local and Global, edited by Connell, John and Waddell, Eric (London: Routledge, 2007), pp. 151–152Google Scholar. In Sarawak, government policy calls for the planted area to grow from about 0.3 million hectares in 1999 to about one million hectares in 2010, much of this expansion to occur on native customary lands under joint venture arrangements involving government agencies, private capital, and native communities; see Majid Cooke, ‘Vulnerability’, pp. 193—200; and Majid Cooke, ‘Expanding State Spaces Using ‘Idle’ Native Customary Land in Sarawak’, in State, Communities and Forests, pp. 27–31; see also Ngidang, Dimbab, ‘Contradictions in Land Development Schemes: The Case of Joint Ventures in Sarawak, Malaysia’, Asia Pacific Viewpoint 43 (2) (2002): 164—165Google Scholar; and Ramy Bulan, ‘Native Customary Land’, pp. 52–62. Indigenous peoples’ lands in Sarawak are also coming under increasing pressure from the expansion of the area devoted to timber plantations; see Barney, ‘Uprooting Communities’, pp. 82–85.

62 Osman, Sabihah, ‘Globalization and Democratization: The Response of the Indigenous Peoples of Sarawak’, Third World Quarterly 21 (6) (2000): 977–988Google Scholar; Clarke, Gerard, ‘From Ethnocide to Ethnodevelopment? Ethnic Minorities and Indigenous Peoples in Southeast Asia’, Third World Quarterly 22 (3) (2001): 413–436Google Scholar.

63 Gomes, Alberto, ‘Modernity and Indigenous Minorities in Malaysia and Indonesia’, Review of Indonesian and Malaysian Affairs 33 (1) (1999): 7Google Scholar, emphasis in original.

64 Endicott, ‘Indigenous Rights’, pp. 156–159; Cooke, Fadzilah Majid, ‘Non-Governmental Organisations in Sarawak’, in Social Movements in Malaysia: From Moral Communities to NGOs, edited by Weiss, Meredith L. and Hassan, Saliha (London: RoutledgeCurzon, 2003), pp. 165–180CrossRefGoogle Scholar.

65 Note that we do not discuss cases concerning adat-related land rights issues that were adjudicated in the Sabah and Sarawak Native Courts or Native Courts of Appeal, with some cases being appealed to the Supreme (later High) Court. A number of cases involving disputes over such matters as community territorial boundaries, movement between longhouses, leasing and selling of land, and property succession are described in Hooker, M. B., The Personal Laws of Malaysia: An Introduction (Kuala Lumpur: Oxford University Press, 1976), pp. 116–119Google Scholar; Hooker, ‘Native Law’, lxxxvii–xcii; and Cramb, Land and Longhouse: pp. 233–242.

66 Neo, Jaclyn Ling-Chien, ‘Malay Nationalism, Islamic Supremacy and the Constitutional Bargain in the Multi-ethnic Composition of Malaysia’, International Journal on Minority and Group Rights 13 (1) (2006): 100–103Google Scholar.

67 Prior to 1985, the highest court in Malaysia was the Supreme Court, and there was provision for further appeal to the Privy Council in London. Appeals to the Privy Council on criminal and constitutional matters were abolished in 1978 and civil appeals were abolished in 1985, when the Supreme Court became the final court of appeal. Following a 1994 amendment to the Federal Constitution, a new two-tier appellate system was introduced: the Supreme Court was renamed the Federal Court and it in turn established a new lower Court of Appeal. In 1993, a Special Court was established to hear any civil or criminal action instituted by or against any of the nine royal Malay Rulers, one of whom serves as paramount ruler or king (the Yang di-Pertuan Agong) for a five-year term. The Penghulus’ Courts in Peninsular Malaysia are empowered to hear minor civil cases, and the Native Courts in Sabah and Sarawak can hear cases concerning native customs (adat). For additional details, consult Mahkamah Malaysia, the official Malaysian Court website; it is available at http://www.kehakiman.gov.my/ [accessed 20 September 2010].

68 Aun, Wu Min, ‘The Malaysian Judiciary: Erosion of Confidence’, Australian Journal of Asian Law 1 (2) (1999): 124–153Google Scholar; Sinnadurai, Visu, ‘The 1988 Judiciary Crisis and its Aftermath’, in Constitutional Landmarks in Malaysia: The First Fifty Years 1957–2007, edited by Harding, Andrew and Lee, H. P. (Petaling Jaya, Malaysia: LexisNexis, 2007), pp. 173–195Google Scholar. As Charles Hector puts it, Mahathir apparently ‘believed that the Executive must lead and all others must follow. He seems to have not grasped the importance of the doctrine of separation of powers or the need for a strong and independent judiciary’; see ‘Mahathir and the Judges: The Judiciary during the Mahathir Era’, Aliran Monthly 23 (8) (2003): 13–14. National and international attention was again focused on the judiciary during 1999–2004, when the High Court and the appellate courts ruled on corruption and sodomy charges brought against the then Deputy Prime Minister, Anwar Ibrahim.

69 Colchester et al., Land is Life, p. 35.

70 The facts relating to the cases discussed and the courts’ decisions are taken from the court judgments and are referenced according to accepted legal convention. Case citations are given throughout the text and listed for convenience in the Annex. References that discuss the cases are also cited. The Jok Jau Evong case is reported in the Malayan Law Journal [1990] 3 MLJ 427 and briefly discussed in Harding, Andrew, ‘Practical Human Rights, NGOs and the Environment in Malaysia’, in Public Law in Contemporary Malaysia, edited by Aun, Wu Min (Petaling Jaya, Malaysia: Addison Wesley Longman Malaysia, 1999), pp. 242–243Google Scholar.

71 The reserve was established in 1951 by a proclamation issued pursuant to section 29 of the Sarawak Forest Ordinance 1954.

72 Jok Jau Evong & Ors v Marabong Lumber Sdn Bhd & Ors [1990] 2 CLJ (Rep) 169.

73 They also sought declarations stating that the Lemiting forest proclamation (see footnote 71) impaired their customary rights, that the Third Defendant was precluded from issuing a licence to extract timber, and that three Articles of the Federal Constitution had been violated (namely, Article 5: No person shall be deprived of his personal liberty; Article 8: Equality before law; and Article 13: No confiscation of property without adequate compensation). In addition, they sought injunctions restraining the First and Second Defendants or their agents from entering the land and requiring them to cease operations and remove all structures. They also sought damages and costs; Jok Jau Evong: pp. 170–171.

74 Jok Jau Evong: p. 175.

75 Sarawak's Public Authorities Protection Act 1948 requires that any challenge to an action by a public servant (in this case against the officer who issued the logging licence in 1981) must occur within 36 months of the action.

76 Jok Jau Evong: p. 179.

77 Koperasi Kijang Mas Bhd & Yang Lain lwn Kerajaan Negeri Perak & Yang Lain [1991] 1 CLJ (Rep) 650.

78 Hamit Matusin & Ors v Superintendent of Lands & Surveys & Anor [1991] 2 CLJ (Rep) 677.

79 Ibid., 683.

80 Superintendent of Lands and Surveys, 4th Division & Anor v Hamit B. Matusin & Anor [1994] 3 CJL 567.

81 Hamit Matusin v Superintendent of Lands and Surveys & Anor [2001] 6 CLJ 303.

82 Hamit Matusin & Ors v Penguasa Tanah dan Survei & Anor & Another Appeal [2006] 2 CLJ 251.

83 Salleh Kilong v Superintendent of Lands & Surveys & Anor [2000] 8 CLJ 538. In Sarawak, according to Article 161A(7) of the Federal Constitution, a Malay is considered a native or indigenous person; see Bulan, ‘Indigenous Identity’ and ‘Native Status’.

84 The Court of Appeal and Federal Court appeals are discussed in a later section because, unlike the High Court trial, both appeal trials raised the important issue of customary land rights at common law, a matter that deserves separate attention.

85 A detailed EIA was also required pursuant to the Environmental Quality (Prescribed Activities) (Environmental Assessment) Order 1987, which lists a number of ‘prescribed activities’ that require the preparation of a detailed EIA pursuant to the EQA, including dams and hydroelectric power schemes with either or both of the following characteristics: dams over 15-metres high together with ancillary structures covering a total area in excess of 400 hectares, and reservoirs with a surface area greater than 400 hectares. The massive Bakun project certainly qualified; see Choy, ‘Sustainable Development’, p. 50.

86 This is required by the Handbook of Environmental Impact Assessment Guidelines, which the Director General of Environmental Quality had approved.

87 The Environmental Quality (Prescribed Activities) (Environmental Impact Assessment) (Amendment) Order 1995.

88 The Order was introduced pursuant to the Sarawak Natural Resources Ordinance 1949.

89 Public participation in the project until about 1995 is discussed in Spires, Caroline, ‘Rhetoric and Reality: Public Participation in the Environmental Impact Assessment of the Bakun Dam Project’, in Environment and Conservation in Borneo, edited by Eaton, Peter (Phillips, Maine: Borneo Research Council, 1999), pp. 77–110Google Scholar.

90 Kajing Tubek & 2 Ors v Ekran Bhd & 4 Ors [1996] 3 CLJ 96. There were five defendants: Ekran Bhd (Project proponent), the federal Director of Environmental Quality, the Government of Malaysia, the Sarawak Natural Resources and Environment Board, and the Government of Sarawak.

91 Kajing Tubek: pp. 103, 106–107.

92 Ibid., p. 106.

93 Ketua Pengarah Jabatan Alam Sekitar & Anor v Kajing Tubek & Ors & Other Appeals [1997] 4 CLJ 253.

94 Kanniah, Rajeswari, ‘Public Participation in the Environmental Impact Assessment Process in Malaysia’, Malayan Law Journal 3 (2000): cxlvi–cliGoogle Scholar.

95 Ketua Pengarah Jabatan Alam Sekitar: p. 256.

96 According to Gurdial Singh Nijar, the Court of Appeal took a ‘relatively pedantic’ stand on the issue of federal versus state jurisdiction, in contrast with ‘the informed and dynamic wisdom of the highest courts in Australia and India’; see ‘The Bakun Dam Case: A Critique’, Malayan Law Journal 3 (1997): ccxxix.

97 Sharom, Azmi, ‘Understanding the Environmental Quality Act 1974’, in Current Legal Problems in Malaysia, edited by Majid, Mimi Kamariah (Kuala Lumpur: University of Malaya Press, 1998), p. 13Google Scholar. As in Sarawak, Sabah has introduced its own EIA legislation, namely, the Conservation and Environment Enactment 1996 and the Conservation of Environment (Prescribed Activities) Order 1999.

98 Amit Salleh & Ors v The Superintendent, Land and Survey Department Bintulu & Ors [2005] 8 CLJ 1.

99 In mid-May 2009, the value of the Malaysian ringgit (RM) was about RM1.0 to US $0.2831.

100 Judicial Review: Rambilin Binti Ambit v Assistant Collector for Land Revenues, Pitas; Judicial Review: Rambilin Binti Ambit v Director of Land & Surveys, Sabah, Assistant Collector for Land Revenues, Pitas Registrar of Titles; and Civil Suit: Rambilin Binti Ambit v Ruddy Awah (all details regarding this case are from the following website: http://www.iwgia.org/sw21941.asp [accessed 20 September 2010]).

101 A detailed chronology of events is given in the judgment. An Order of mandamus is ‘A writ issued by a superior court to compel a lower court or government officer to perform mandatory or purely ministerial duties correctly’, and an Order of certiorari is an ‘Extraordinary writ issued by an appellate court directing a lower court to deliver the record in the case for review’; see Garner, Bryan A., ed., Black's Law Dictionary, 2nd pocket edn (St Paul, Minnesota: West Group, 2001), pp. 91, 435–436Google Scholar.

102 Rambilin was awarded special damages of RM66,500 (US $18,783) and exemplary and aggravated damages of RM10, 000 (US $2,824).

103 It is worth noting that in the early 1990s, when some of the cases discussed above were before the courts, government and private interests were also successfully challenged by coalitions of environmental and other NGOs. We briefly describe two cases in point. In 1990, the Penang state government signed an agreement with a private company for a development project on Penang Hill, the oldest hill station in the Peninsula and a popular tourist destination. However, widespread public protest against the scheme, and rejection of the required EIA by the federal Department of the Environment, eventually led to the project being abandoned; see Harding, ‘Practical Human Rights’, pp. 234–236. Another environmental issue that attracted media attention was the Asian Rare Earth controversy. Villagers in Papan and Bukit Merah, near Ipoh in Perak, became alarmed at the dumping at nearby locations of radioactive material by a Japanese-Malaysian joint-venture company producing monzanite from tin tailings. Eight villagers sought a High Court injunction requiring the company to stop dumping the radioactive waste, and the High Court ruled in their favour (Woon Tan Kan & Ors v Asian Rare Earth Sdn Bhd [1992] 3 CLJ (Rep) 786). The Supreme Court overturned the decision (Asian Rare Earth Sdn Bhd v Woon Tan Kan & Ors [1992] 1 CLJ (Rep) 8), but the plant soon closed; see Ichihara, Mika and Harding, Andrew, ‘Human Rights, the Environment and Radioactive Waste: A Study of the Asian Rare Earth Case in Malaysia’, Review of European Community and International Environmental Law 4 (1) (1995): 1–14CrossRefGoogle Scholar; and Harding, ‘Practical Human Rights’, pp. 237–241.

104 Discussions of the High Court and subsequent Court of Appeal decisions in Adong, as well as those of the Federal Court, are given in Bulan, Ramy, ‘Adong bin Kuwau v Kerajaan Negeri Johor: One Step Forward, Two Steps Backwards for Native Title?’ in Environment, Conservation and Land, vol.1 of Borneo 2000: Proceedings of the Sixth Biennial Borneo Research Conference, edited by Leigh, Michael, 4 vols. (Kuching, Malaysia: Universiti Malaysia Sarawak, 2000), pp. 262–277Google Scholar; Hooker, ‘Native Title’, pp. 198–212; Stephen Gray, ‘Skeletal Principles in Malaysia's Common Law Cupboard: The Future of Indigenous Native Title in Malaysian Common Law’, LAWASIA Journal (2002): 109–116; and Bulan, ‘Native Title in Malaysia’, pp. 54–78.

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

106 Bulan, ‘Adong’, p. 263; and Nettheim, Garth, ‘Malaysia's Mabo Case’, Indigenous Law Bulletin 4 (28) (2000): 20Google Scholar.

107 Adong: pp. 423–424.

108 Ibid., p. 424.

109 Hooker discusses their relevance in the Adong case and looks at how they were interpreted by the judge; see Hooker, ‘Native Title’, pp. 203–208.

110 Adong: p. 426; and see footnote 22.

111 Ibid., p. 430. Note that the Federal Constitution (as well as federal and state legislation) recognizes common law and English-derived common law. Article 160 of the Constitution states that the law includes written law and the common law, and that there is provision in the federal Civil Law Act 1956 and the Interpretation Acts 1948 and 1967, in the Sabah Application of Laws Ordinance 1951, and in the Sarawak Application of Law Ordinance 1949 for the recognition of English common law.

112 Adong: p. 431.

113 Article 8 of the Federal Constitution states, inter alia, that ‘All persons are equal before law and entitled to the equal protection of the law’, and Article 13 states that ‘No person shall be deprived of property save in accordance with law’ and that ‘No law shall provide for the compulsory acquisition or use of property without adequate compensation’.

114 Adong: p. 436.

115 Ibid.

116 Kerajaan Negeri Johor & Anor v Adong Kuwau & Ors [1998] 2 CLJ 665.

117 The Court of Appeal awarded the Orang Asli costs and interest on the compensation.

118 Kerajaan Negeri Johor & Anor v Adong Kuwau & Ors [2002] 4 CLJ 259.

119 Hooker, ‘Native Title’, p. 210.

120 Nor anak Nyawai & Ors v Borneo Pulp Plantation Sdn Bhd & Ors [2001] 2 CLJ 769; there are discussions of the Nor case in Gray, ‘Skeletal Principles’, pp. 116–123; Hooker, M. B., ‘Native Title in Malaysia Continued—Nor's Case’, Australian Journal of Asian Law’, 4 (1) (2002): 92–105Google Scholar; Crook, Peter, ‘After Adong: The Emerging Doctrine of Native Title in Malaysia’, Journal of Malaysian and Comparative Law 32 (1) (2005): 72–88Google Scholar; and Cramb, Land and Longhouse, pp. 242–245.

121 The defendants were the Borneo Pulp Plantation Sdn Bhd (First Defendant), which had been issued with titles to two parcels of land; Borneo Pulp and Paper Sdn Bhd (Second Defendant), a sub-lessee engaged to clear the trees; and the Bintulu Superintendent of Lands and Surveys (Third Defendant), the authority that had issued the titles.

122 Bulan, Ramy, ‘Nor Anak Nyawai and Ors v Borneo Pulp Plantation Sdn Bhd and Ors’, Australian Indigenous Law Reporter 6 (3) (2001): 83Google Scholar.

123 Nor: p. 773. The judgment in the Australian Wik case is discussed in Strelein, Lisa, Compromised Jurisprudence: Native Title Cases Since Mabo (Canberra: Aboriginal Studies Press, 2006), pp. 24–37Google Scholar.

124 Superintendent of Lands & Surveys, Bintulu v Nor anak Nyawai & Ors and Another Appeal [2005] 3 CLJ 555. The Iban cross-appealed against the High Court's failure to award them damages.

125 Superintendent of Lands & Surveys, Bintulu: p. 575.

126 For further details regarding the appeal, see the Borneo Project's website at http://www.borneoproject.org/article.php?id=747 and http://www.borneoproject.org/article.php?id=748 [accessed 20 September, 2010].

127 Sagong Tasi & Ors v Kerajaan Negeri Selangor & Ors [2002] 2 CLJ 543.

128 The First Defendant was the Selangor state government; the Second, United Engineers (M) Berhad; the Third, Lembaga Lebuhraya Malaysia; and the Fourth, the Federal Government.

129 A key witness was Dr Colin Nicholas, Coordinator of the Center for Orang Asli Concerns (COAC). His detailed affidavit can be viewed on the COAC website: http://www.coac.org.my/codenavia/portals/coacv2/code/main/main_art.php?parentID=0&artID=11381407092937) [accessed 20 September, 2010]. Yogeswaran Subramaniam discusses the role of oral evidence provided by indigenous community members and the testimony of expert witnesses in establishing proof of customary ownership of land; see Subramaniam, Yogeswaran, ‘Beyond Sagong Bin Tasi: The Use of Traditional Knowledge to Prove Aboriginal Customary Rights over Land in Peninsular Malaysia and its Challenges’, Malayan Law Journal 2 (2007): xxx–liGoogle Scholar; see also Bulan, ‘Native Title in Malaysia’, p. 68.

130 Sagong Tasi: pp. 563–568.

131 Ibid., p. 570.

132 Ibid., pp. 574–575.

133 Kerajaan Negeri Selangor & Ors v Sagong Tasi & Ors [2005] 4 CLJ 169.

134 Kerajaan Negeri Selangor: p. 196. In response to the cross-appeal, the judge overturned the lower court's decision not to award aggravated damages for trespass.

135 Kerajaan Negeri Selangor: p. 200.

136 Gan Pei Lin [2009], ‘Selangor Withdraws Appeal in Dispute with Temuans’; available at http://www.coac.org.my/ [accessed 20 September, 2010]; Center for Orang Asli Concerns [2010], ‘Sagong Tasi Case Remains a Precedent for Land Rights’; available at http://www.coac.org.my/codenavia/portals/coacv2/code/main/main_art.php?parentID=0&artID=12749713957167 [accessed 4 October 2010]. In October 2010, the value of the Malaysian ringgit (RM) was RM1.0=US $0.32.

137 Madeli Salleh v Superintendent of Lands and Surveys & Anor [2005] 3 CLJ 697. The plaintiff, Salleh bin Kilong, died before the appeal was heard. The court allowed his son, Madeli bin Salleh, the administrator of his estate, who also claimed to have acquired native customary rights in the land, to replace his deceased father in the case.

138 Superintendent of Land & Surveys Miri Division & Anor v Madeli Salleh [2007] 6 CLJ 509.

139 Superintendent of Land and Surveys Miri: pp. 525–526, 529. In a submission to Suhakam, the Human Rights Commission of Malaysia, Sarawak's Attorney-General claimed that ‘what constitutes “native customary rights” over land must. . .be determined with reference to the relevant State law’; see State Attorney-General's Chambers, Sarawak for Human Rights Commission in 2004, ‘Native Customary Laws and Native Rights over Land in Sarawak’ [section 1.1]; available at http://www.rengah.c2o.org/assets/pdf/de0157a.pdf [accessed 20 September, 2010]. There is no acknowledgement or discussion of common law rights. A local scholar supports the official view, commenting that ‘No customary rights in the local land law regime can exist independently of statute and without a document of title’; see R. R. Sethu, ‘The Orang Asli Cases and Property Rights’, in Constitutional Landmarks, p. 265. Yogeswaran Subramaniam gives a detailed rebuttal of this position on the matter; see ‘A Review of “The Orang Asli Cases and Property Rights”: An Aboriginal Title Perspective’, Malayan Law Journal 7 (2007): i–xxi.

140 Superintendent of Land and Surveys: p. 537.

141 See Baru Bian, ‘Press Release by Baru Bian on 20 June 2009’ (available at http://hornbillunleashed.wordpress.com/2009/06/22/1989/ [accessed 20 September, 2010]) and Tony Thien [2009], ‘S'wak Gov't Defeated in Landmark NCR Ruling’ (available at http://www.borneoproject.org/article.php?id=761 [accessed 20 September, 2010]).

142 Sagong Tasi: p. 570.

143 Superintendent of Lands and Surveys, Bintulu: p. 555.

144 Brosius, Peter, ‘Endangered Forest, Endangered People: Environmentalist Representations of Indigenous Knowledge’, Human Ecology 25 (1) (1997): pp. 56–60CrossRefGoogle Scholar.

145 Bulan, Ramy, ‘Boundaries, Territorial Domains, and Kelabit Customary Practices: Discovering the Hidden Landscape’, Borneo Research Bulletin 34 (2003): p. 23Google Scholar.

146 Bulan, ‘Native Title in Malaysia’, p. 67.

147 Bulan, ‘Adong’, pp. 269–271; Bulan, Ramy, ‘Native Title as a Proprietary Right under the Constitution in Peninsular Malaysia: A Step in the Right Direction?’ Asia Pacific Law Review 9 (1) (2001): 99–100Google Scholar; Cheah Wui Ling, ‘Sagong Tasi: Reconciling State Development and Orang Asli Rights in Malaysian Courts’, Asia Research Institute (ARI) Working Paper Series No. 25 (Singapore: National University of Singapore, 2004) and ‘Sagong Tasi and Orang Asli Land Rights in Malaysia: Victory, Milestone or False Start? Law, Social Justice and Global Development Journal (LDG) 2(2004): [electronic law journal]Google Scholar; available at www.go.warwick.ac.uk/elj/lgd/2004_2/cheah [accessed 20 September 2010].

148 Bulan notes that the High Court awarded compensation on the grounds pleaded before it, since the judge was compelled to deal with the arguments presented to him; see ‘Native Title as a Proprietary Right’, p. 101.

149 Gray, ‘Skeletal Principles’, p. 116.

150 Bulan, ‘Native Title as a Proprietary Right’, p. 91; Cheah, ‘Sagong Tasi and Orang Asli’; and Sharom, Azmi, ‘A Critical Study of the Laws Relating to the Indigenous Peoples of Malaysia in the Context of Article 8(j) of the Biodiversity Convention’, International Journal on Minority and Group Rights 13 (1) (2006): 66CrossRefGoogle Scholar.

151 Bulan, ‘Adong’, pp. 269–270; Cheah, ‘Sagong Tasi and Orang Asli;’ see also Anthony Oliver-Smith, ‘Displacement, Resistance and the Critique of Development: From the Grass Roots to the Global’, Final Report Prepared for ESCOR R7644 and the Research Programme on Development Induced Displacement and Resettlement (Oxford: Refugee Studies Centre, University of Oxford, 2001), p. 35.

152 Bulan, ‘Adong’, pp. 270–271; Bulan, ‘Native Title as a Proprietary Right’, p. 101.

153 Ainul Jaria Bt. Maidin, ‘Challenges in Implementing and Enforcing Environmental Protection Measures in Malaysia’ (paper delivered at the 13th Malaysian Law Conference, Kuala Lumpur, 16–18 November, 2005); available at http://www.malaysianbar.org.my/ [accessed 20 September, 2010].

154 Bulan, ‘Native Title in Malaysia’, pp. 71–72. Elsewhere she comments that a burden rests on indigenous plaintiffs’ counsels ‘to enlighten and persuade the courts to look beyond the well trodden grounds of redressing public wrongs, to point out new horizons and to tap into new possibilities within the law;’ see ‘Native Title as a Proprietary Right’, p. 101.

155 Azmi Sharom, ‘A Critical Study’, pp. 13–16.

156 Colchester et al., Land is Life p. 35.

157 For additional details on counter-mapping see, for example, Chapin, Mac, Lamb, Zachary, and Threlkeld, Bill, ‘Mapping Indigenous Lands’, Annual Review of Anthropology 34 (2005): 619–638Google Scholar; and Cooke, Fadzilah Majid, ‘Maps and Counter-Maps: Globalised Imaginings and Local Realities of Sarawak's Plantation Agriculture’, Journal of Southeast Asian Studies 34 (2) (2003): 265–284Google Scholar.

158 Majid Cooke, ‘Maps’, pp. 279–283; Bulan, ‘Boundaries’, pp. 53–54; and Nor: pp. 790–792.

159 Information about the counter-mapping initiatives of these NGOs is available on their websites.

160 Majid Cooke, ‘Maps’, p. 266.

161 See footnote 85.

162 Aboriginal Mapping Network [2002], ‘Government Bans Community Mapping in Malaysia!’ Available at http://www.nativemaps.org/?q=node/1715 [accessed 20 September, 2010]; and Colchester, Marcus, ‘Indigenous Peoples and Communal Tenures in Asia’, Land Reform, Land Settlement and Cooperatives 1 (2004): 37Google Scholar.

163 See, for example, Justice Ian Chin's comments in the Rambilin binti Ambit judgment (refer to the website in footnote 100).

164 Cramb, Land and Longhouse, p. 244.

165 Possible models for such a mechanism include the procedures for negotiated and mediated settlement of indigenous peoples’ grievances that have been adopted with considerable success in Australia by the National Native Title Tribunal, in New Zealand by the Office of Treaty Settlements, and in Canada by the Indian and Northern Affairs Comprehensive Claims Branch. Details of the functions of these organisations can be found on their websites. Jeswynn Yogaratnam suggests that rights to negotiate with the authorities could be attached to the bundle of rights that native title holders possess, thereby creating capacity to generate agreements and to enable indigenous communities to participate more effectively in the management of their traditional lands; see ‘Mabo: Whistle Blowing the State Government on Native Title in Malaysia’, Alternative Law Journal 33(4) (2008): 242.

166 Federal and state legislative powers are listed in the Ninth Schedule of the Federal Constitution. List 1, the Federal List, includes ‘Welfare of the aborigines’; List IIA, called Supplement to State List for State of Sabah and Sarawak, includes ‘Native law and custom’.

167 See footnote 23.

168 See, respectively, the foregoing discussion of the Adong, Nor, and Sagong Tasi cases; see specifically Sagong Tasi: p. 557 and Nor: p. 775.

169 For a series of newspaper articles relating to the Pakatan Rakyat government's initiatives in Perak, see the COAC website at http://www.coac.org.my/codenavia/portals/coacv2/code/main/main_art.php?parentID=11374493258660&artID=12263647690297 (accessed 20 September 2010).

170 Gan, ‘Selangor Withdraws.’

171 Muehlebach, Andrea, ‘“Making Place” at the United Nations: Indigenous Cultural Politics at the U. N. Working Group on Indigenous Populations’, Cultural Anthropology 16 (3) (2001): 415–448CrossRefGoogle Scholar.

172 Tuck-Po, Lye, Changing Pathways: Forest Degradation and the Batek of Pahang, Malaysia (Lanham, Maryland: Lexington Books, 2004), pp. 95–121Google Scholar; see also Zerner, Charles, ‘Introduction. Moving Translations: Poetics, Performance, and Property in Indonesia and Malaysia’, in Culture and the Question of Rights: Forests, Coasts, and Seas in Southeast Asia, edited by Zerner, Charles (Durham and London: Duke University Press, 2003), pp. 1–23Google Scholar.

173 Harding, ‘Practical Human Rights’, p. 246.

174 See Bulan, ‘Native Title’, pp. 95–99. The federal and state governments’ fiduciary obligations to the Orang Asli are clearly laid out in the Sagong Tasi High Court and Court of Appeal Judgments (see Sagong Tasi: pp. 574–575 and 193–196, respectively), and such duties would appear to apply equally to the natives of Sabah and Sarawak; see Bulan, Ramy (with Amy Locklear), Legal Perspectives on Native Customary Land in Sarawak (Kuala Lumpur: Suhakam, 2008), pp. 155–159Google Scholar.

175 Daes, ‘Indigenous Peoples’, paras. 94–104.