Did the Temuan tribe - who were awarded customary title and propriety rights to 15.39 hectares in Kampung Bukit Tampoi, Dengkil, Selangor - encroached into sultanate land when they decided to reside there 210 years ago?

This is one of the issues which the government wants the Federal Court to consider in dealing with a landmark decision by the Court of Appeal which recognised Orang Asli native land rights under common law.

Senior Federal Counsel Mary Lim today urged the Federal Court to grant the government leave to appeal against the Appeals Court decision which ordered the government to compensate seven Temuan tribesman for the loss of their native customary land.

She argued that prior to the tribe's settlement on the land 210 years ago, it had already belonged to the Selangor sultanate and therefore could not have held a native or customary rights status.

"The decision of the Appeals Court was therefore fundamentally flawed as the status of the land, which was part of the sultanate land, was not properly considered in the judgment," she said.

On Sept 19 last year, the Court of Appeal upheld the Shah Alam High Court's ruling ordering the government, the Malaysian Highway Authority and private conglomerate UEM to compensate Sagong Tasi and six others from the Temuan tribe under the Land Acquisition Act 1960, for the loss of their 38 acre native customary land in Bukit Tampoi.

Financial implications

Lim said there was an urgent need for the apex court to consider this judgment as it had used many unfamiliar legal terms and concepts to the Malaysian law including labelling the Aboriginal Peoples Act 1954 as a 'human right statute'.

"The Court of Appeal also said that the act was not only a human right statute- which was never heard of before - but also has a quasi-constitutional status giving it pre-eminence over ordinary legislation.

'This is undoubtedly a novel issue and never before determined by the Federal Court," said Lim

She said it was important for the government to argue against the Appeals Court's decision as the matter had serious implication on the government's policy concerning the Orang Asli.

"There are about 149,723 Orang Asli in Malaysia occupying a land area of about 138,862.2 hectares. Any decision will invariably have serious financial implications on both state and federal governments.

"Considering the ensuing social implications, direction by this court would be highly desirable."

'Serious flaws'

Lim said the government must not be denied the opportunity to further argue on this matter especially when it was involved as a party for the first time, and its liability under the Federal Constitution and related laws being defined.

"The government is charged with the responsibility of looking after the welfare of Orang Asli If such responsibility extends to securing land rights, it is obvious that this is quite an erroneous task since land is within the exclusive jurisdiction of the state government."

She further argued there were serious flaws in the Court of Appeal judgment which failed to examine Malaysia's 'unique legislative history'.

"When the legislative history concerning Orang Asli is examined, it will be seen that the position of this country is quite unique and distinct than other countries. Other countries don't have sultanate land.

"Hence the danger when one is recognising and adopting common law without due and proper regard to local conditions. More so because it is to be in 'keeping with worldwide recognition now being given to aboriginal rights'".

The leave to appeal hearing before Chief Judge of Malaya Abdul Malek Ahmad and Federal Court judges Allaudin Mohd Sherif and Augustine Paul continues on May 2.

Airport highway

In its ruling last year, the appeals court had held that the Shah Alam High Court was right to have ordered UEM and MHA to pay damages for trespassing on the ancestral land to build a highway to the Kuala Lumpur International Airport (KLIA).

Additionally, it ordered UEM and MHA to pay exemplary and special damages for 'the harsh treatment' of the Orang Asli when being evicted from their land.

The seven Temuan are also to receive compensation for both gazetted and non-gazetted land that were taken from them. The Shah Alam High Court decision had only allowed compensation for areas gazetted as 'aboriginal reserves'.

Prior to this case, native customary and ancestral rights were deemed not equal to propriety rights as defined under common law.