Laws and Native Customary Rights

Native Customary Rights or native titles are well protected under the laws applicable in Malaysia.General Laws of Sarawak and Laws in Malaysia are the laws that are applicable in Malaysia.

Native Court Ordinance 1955, Native Court Ordinance 1992 and Land (Classification) Ordinance 1948 define general laws of Sarawak to mean not only:-
(1)Statutory Laws but
(2)Custom and usage as well and as such
(3)Native Customary Rights that have existed before the rule of Rajah and continue until now.

Interpretation Acts 1957 & 1958 and Article 160 of Federal Constitution of Malaysia describe Law in Malaysia to include:-
(1)Written Laws,
(2)Common Laws in so far as it is in operation in the Federation or any part thereof, and
(3)any custom and usage having the force of laws in the Federation of Malaysia in any part thereof.

In short, Adat and Written Laws are the laws used in Malaysia.

Adat is a custom or a rule of conduct which is obligatory upon communities within its scope established by long usage. A valid custom has the force of the law. Custom is to a society what law is to the state. Avalid custom is immemorial antiquity, certain and reasonable, obligatory, not repugnant to statue law, though it may derogate from the common law. Native customary rights can be defined as rights of the native acquired and/or created by virtue of custom or adat of the natives. Native customary rights may refer to:-
(1)the rights over land, or
(2)rights that govern the social life of the native communities which is called adat, or
(3)eveb customary laws. These practices and usages include hunting, fishing, agriculture, gathering, cremonial and religious function.

Sarawak was ceded to James Brooke with proprietorship and sovereignty over land, but James Brooke had shown a consistent respect for native customary rights over land. He had referred to native customary rights as "the indefeasible rights of aborigines". He was actuely aware of prior presence of native communities, whose own laws in relation to ownership and development of land had be consistently honoured.

Written Laws in Malaysia include (1)Constitutional Laws, (2)Statutory Laws, (3)Common Laws, and (4)International Laws.
(i)Constitutional Laws
Federal Constitution of Malaysia is the Supreme law of the country. The issues of fiduciary obligation towards the natives have arisen in Malaysia In Sagong case, Federal and State governments were both said to have owed a fiduciary duty to Orang Asli to protect them from unscrupulous exploitation and to safeguard their tribal organisation and their way of life.That duty emanates from Article 8(5) of Federal Constitution of Malaysia. In case of Sarawak and Sabah, Article 153 of Federal Constitution of Malaysia imposes fiduciary obligation on Yang di-Pertuan Agong to protect the interest of the natives. Further preferential treatment as rehards to alienation of land by the state is contained in Article 161A(5), while protection of native law and custom is also under Article 150(6A) Clause 5 of Federal Constitution of Malaysia.

(ii)State Constitution of Sarawak
For the natives of Sarawak, this is a reflection of the Brooke's government's belief that Sarawak is "heritage" of its people and that the land is their Lifehood. In the Nine Cardinal Principles of Rule of English Rajahs, the government held itself as trustee of the people and it was for this reason that policies were put in place for protection of natives' interest against outside exploitation.

The state fiduciary duty also arises because of inalienability of native customary rights and native customary right land as a form of property which involves resources. The state power to impair native customary rights by way of alienation and by issuing of licences to parties to extract resources fro native customary right land and the fact that such rights are inalienable except to another native ot to the state, give rise to fiduciary obligation on the state.The fiduciary obligation proctects those rights so that they cannot be terminated without:-
(a)involving,
(b)informing,
(c)consultingt, and
(d)negotiating
with the customary rights holders ingood faith, limiting the impact and detriment on the affected natives.

Statutory Laws
The natives can assert their rights under Satatutory Laws to protect or defend their NCR land.
The Forest Ordinance only has three provisions for isuing Timber Licence.
(a)Section 49- ti issue Timber Licence over Forest Reserve;
(b)Section 51- to issue Timber Licence over Protect Forest Reserve; and
(c)Section 55-to issue Timber Licence over State Land.

Any Timber Licence that covers NCR land is null and void.

Land Code does not have any provision for alienation of native customary right land.
Native customary rights cannot be extinguished if not according to the law without adequate compensation.

Section 96, 97 and 105 of Panel Code provide rights of private defence of body and property against thief, robbery,Mischief and trespass.Section 27(5) provides right to arrest.
The native communities can assert these rights against any intruder from outside the communities.

Common Law
Common Laws are judge-made laws which are based on the decision of the courts. Common Law recognises pre-existence of native customary rights. In Madeli III, the Federal Court handed down its decision in Superintendent of Land and Survey Miri Division and Government of Sarawak v Madeli bin Salleh(Suing as Administrator of the Estate of deceased, Salleh bin Kilong). The Federal Court reviewed and commented on a number of Privy Council, High Court of Australia, and High Court of Canada decisions stating that the common law on indigenous property rights. The Federal Court acknowledged that the rule, upon acquiring soveriegnty, court assumes that the Crown intends to respect existing property rights. Further, the Crown's acquisition of soveriegnty did not disturb indigenous land rights held pursuant to customs, although the Crown could extinguish such rights with clear and unambiguous legislation. Following the decision in Mabo(No.2), the Federal Court explained that the Crown did not acquire absolute beneficial ownership of land, but instead, obtained radical title, subject to any indigenous rights over land. Finally the Federal Court cited a Privy Council decision emphasizing the importance of understanding indigenous rights and customs on their own terms without importing English conception of property law.

International Laws
As member state of United Nations, Malaysia is obliged by Article 56 of Chartter of United Nations. Malaysia ought to observe UN Instruments like Chartter of United Nations, Universal Declaration of Humah Rights, UN Declaration of Rights of Indigenous Peoples, CBD, ILO 169, Convenant on Civil and Political Rights. Malaysia had voted for the adoption of UN Declaration of Rights of Indigenous Peoples in the General Assembly of United Nations. Articles 25,26 and 27 of the declaration deal with rights of indigenous peoples to their land.