6 AMR 290;  2 MLJ 677;  6 CLJ 509
Federal Court – Civil Appeal No. 01-1-2006 (Q)
Alauddin Mohd Sheriff, Arifin Zakaria, Azmel Maamor FCJJ
October 8, 2007
Superintendent of Land & Surveys Miri Division & Anor v. Madeli bin Salleh (suing as administrator of the estate of the deceased, Salleh bin Kilong)  6 AMR 290 (Madeli Salleh) was a landmark judgment, being the first by an apex court on native customary rights.
The case was brought by Salleh bin Kilong, a native of Miri, Sarawak, who claimed that the Sarawak State Government had wrongfully interfered with his native customary rights over a land measuring approximately 6 acres in Miri. For many years prior to 1958, Salleh and his family had occupied the land, having cleared it and having planted rubber and fruit trees. He continued to control the land without interruption until 1982, when the government, by a Gazette, reserved it for a park and later built a school on it.
Salleh argued that the government had interfered with the enjoyment of his native customary rights. In its defence, the government contended that Salleh had not acquired any native customary rights because the land had been reserved for the operation of the Sarawak Shell Oilfields Limited by a Rajah’s Order made on November 15, 1921. It argued that, in any case, Salleh’s rights, which the government contested, would have been extinguished by the 1921 Order.
The Federal Court decision
The High Court dismissed Salleh’s case. Salleh passed away before his appeal was heard. His son, Madeli bin Salleh, took his place in the appeal. The Court of Appeal overturned the High Court’s decision. Arifin Zakaria FCJ delivered the Federal Court’s judgment on October 8, 2007. In essence:
1. It affirmed the progressive decisions upholding the rights of the aboriginal peoples and natives to their lands enunciated in Adong bin Kuwau & Ors v. Kerajaan Negeri Johor & Anor  1 MLJ 418, HC (Adong Kuwau); Kerajaan Negeri Selangor & Ors v. Sagong bin Tasi & Ors  5 AMR 629;  6 MLJ 289, CA (Sagong Tasi); and Nor anak Nyawai & Ors v. Borneo Pulp Plantation Sdn Bhd & Ors  2 AMR 2222; 6 MLJ 241, CA. By extension, the decision affirmed the common law position laid down by Mabo & Ors v. State of Queensland (No. 2) (1992) 107 ALR 1; Amodu Tijani v. Secretary, Southern Nigeria  2 AC 399; and Calder v. A-G (British Columbia)  SCR 313recognising native customary rights over land, and that the Crown acquires radical title, subject to those rights being preserved. The principles applicable to communal rights1 similarly apply to individual rights.
2. It recognised that native customary rights, being part of the common law, was applicable by virtue of s 3(1) of the Civil Law Act 1956. It is substantive law which has the same force and effect as “written law” in Malaysia under the Federal Constitution. Rights under these laws cannot be taken away unless by clear and unambiguous words in the relevant legislation.
Madeli Salleh cemented the growing judicial recognition of native customary rights by the Malaysian courts, and represented the high water mark of the emergent doctrine of native title. The decision provided much needed legal certainty on the matter. But while the lower courts have paid heed to Madeli Salleh, there have since been some troubling developments.
Trend: Occupation and control
First, some judgments2 have taken Madeli Salleh as requiring claimants to prove continuous occupation or control to establish their claims. In other words, they took it as a sine qua non for native customary rights.
Madeli Salleh does not, in fact, support this proposition. The issue of occupation or control over land in Madeli Salleh only arose because the court had before it the Rajah’s Order IX of 1875 forbidding the common practice among native communities of clearing the jungle and then abandoning it. The Order stated that should the lands be cleared in such a way and be uncared for, the community would lose its claim or title to the lands. It was in that context that the Federal Court found that continuous occupation or control was necessary in Madeli Salleh. Importantly, the court surveyed pre-existing customary practices and considered them to decide, on the facts, if Salleh had made out his claim.
However, not all native communities practise the same customs. For each community unto their own, and the court is entitled to delve into the evidence of native customary practices in arriving at its decision. As the Court of Appeal explained in Sagong Tasi (at para ):
The precise nature of such a customary title depends on the practices and usages of each individual community. And this brings me to the second important point. It is this. What the individual practices and usages in regard to the acquisition of customary title is a matter of evidence as to the history of each particular community. In other words it is a question of fact to be decided (as it was decided in this case) by the primary trier of fact based on his or her belief of where, on the totality of the evidence, the truth of the claim made lies. In accordance with well established principles, it is a matter on which an appellate court will only disagree with the trial judge in the rarest of cases.
Development: Customary practices
Second, the two judges who were part of the Federal Court majority in Director of Forests, Sarawak & Anor v. TR Sandah Tabau & Ors & Other Appeals  AMEJ 0216; MLRAU 1 (Sandah Tabau) appeared to qualify the principle affirmed in Madeli Salleh that customary practices have the force of law. They held that only customs recognised by the laws of Sarawak could be given effect. As the native customs of pemakai menoa and pulau galau were not expressly embedded in s 5(2) of the Sarawak Land Code, they therefore could not be legally enforced under Article 160(2) of the Federal Constitution.
The third majority judge in Sandah Tabau preferred to hold that the claimants failed on the evidence, not the law. His Lordship chose not to answer the questions posed, and seemed to have affirmed the Madeli Salleh position that customary practices may, without more, support a common law claim for native customary rights.
Zainun Ali FCJ wrote a strong and well-reasoned dissent. Her Ladyship held that native customary rights did not owe their existence nor their enforceability to statute (at paras  and  (MLRAU)):
This needs to be said. I find it peculiar that the answer to the question of whether there can be recognition of customary rights at common law is a no, simply because statute has not recognised it or “only if it has been recognised by statute”. This cannot be the answer to the question. … To turn the question back to whether or not it has previously been recognised by statute is puzzling. This can be proven by a simple question: would it still be necessary for common law recognition if the NCR was already recognised or enshrined in statute? The answer is a simple, no because then they would be able to rely upon statutory rights to establish their claim.
… To fit usufructuary NCR into the picture, they would fit either as an aspect of “common law” or “customs” that are recognised by the common law and thus have the “force of law”.
Thus the repeated reliance on the fact that these customs have never received legislative recognition misses the heart of the appeal in this case.
Her Ladyship then accepted the evidence of the claimants (as found by the trial judge) that they practised the native customs of pemakai menoa and pulau galau thus establishing their rights over the lands in question.
Sandah Tabau was decided by four Federal Court judges. It was unfortunate that the fifth judge, Abdull Hamid Embong FCJ, did not opine on the case as he had since retired when the judgment was delivered on December 20, 2016.
Due largely to the differing views in Sandah Tabau, the legacy of Madeli Salleh survives. But an interpretation requiring customs to be recognised by statute runs contrary to the common law position that native customary rights may exist independently of statute law, as recognised by Madeli Salleh and established precedents both domestically and internationally.
Notwithstanding, Madeli Salleh has undeniably opened the door for native communities to assert their customary land rights. The recognition of such rights is often the first step towards addressing the problems and injustices befalling them, often in the name of development and progress. It remains to be seen how the courts will apply Sandah Tabau or if the issues will be re-litigated in another case.
Adong Kuwau, Sagong Tasi, Madeli Salleh and now Sandah Tabau highlight the vulnerability of Malaysia’s indigenous and native populations, and the significant but limited role of the courts in protecting their customary land rights. What is urgently needed is a government-led national conference on the rights of the aboriginal peoples of the Peninsular, and the natives of Sabah and Sarawak; or a Commission of Enquiry to recommend remedial steps to protect their rights and way of life. A fresh initiative to conduct a nationwide mapping of aboriginal and native community land boundaries is mandatory.
While our Constitution clearly envisages affirmative action for the aboriginal peoples and special protection for the natives, rules of the legal process have today shifted the burden on them — with limited resources and know-how — to prove that they are entitled to rights to their own lands. In the larger picture, the complexity and costliness of court trials and our system of administration militate against the well-intended provisions of our Constitution.
It goes without saying that all three branches of government, viz. the Executive, Legislature, and Judiciary, must bear the responsibility of protecting the sons and daughters of our soil, so that all Malaysians may live harmoniously together, each taking their rightful place under the Malaysian sun.
1 Adong Kuwau and Sagong Tasi dealt with communal rights while Madeli Salleh concerned individual rights.
2 See, for example, Sangka bin Chuka & Anor v. Pentadbir Tanah Daerah Mersing, Johor & Ors  AMEJ 0109;  8 MLJ 289 and Ketua Pengarah Jabatan Hal Ehwal Ehwal Orang Asli & Anor v. Mohamad bin Nohing (Batin Kampung Bukit Rok) & Ors and another appeal  6 AMR 505;  6 MLJ 527.
This commentary appeared in Justice Above All: Selected Judgments of Tun Arifin bin Zakaria With Commentaries (2017) published by the Chief Registrar’s Office, Federal Court and Sweet & Maxwell (pp. 54-59).