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ACQUISITION OF ORANG ASLI LAND BY THE GOVERNMENT - Coggle Diagram
ACQUISITION OF ORANG ASLI LAND BY THE GOVERNMENT
Kerajaan Negeri Selangor & Ors v Sagong bin Tasi & Ors [2005] 6 MLJ 289
DECISION OF THE COURT
Upheld the decision of the lower court. The respondent in this case is entitled to receive adequate compensation.
Exists customary title upon the land under the Common Law and no exclusion to the Common Law rule under any National laws.
Relied on s.8(5)(c) of the Federal Constitution + the existence of customary title upon the disputed land.
S.12 1954 Act is unconstitutional because it is ultra vires with art. 13(2) of FC.
Can apply compensation under 1960 Act because customary land falls under the definition of land in 1960’s Act
FACTS OF THE CASE
The pff is aboriginal people from the Temuan tribe that settles in Bukit Tampoi, Dengkil, Selangor. The land was being held under customary title. The first def. Is the State Govt. of Selangor. The second def. is UEM Group. The third def. is Malaysian Highway Authority. The first def. Acquired the land and all defs. Evicted the plaintiffs from the land.
ARGUMENTS BY THE APPELLANTS
The respondent is entitled for compensation under ss.11 and 12 of the 1954 Act
ISSUE
Whether the compensation to them shall be made according to 1954 Act or 1960 Act
Adong bin Kuwau & Ors v Kerajaan Negeri Johor & Anor. [1997] 1 MLJ 418
ISSUES
Whether the defendants jointly or severally pay to the plaintiffs all the compensation received by them from the Government of Singapore or a sum deemed just by the court
FACTS OF THE CASE
The plaintiffs were heads of families representing a group of aboriginal people living around the Sungai Linggiu catchment area. The defendants were the government of Johor and the director of Land and Mines, Johor. The State acquired the land of the plaintiffs for the purpose of constructing the Sungai Linggiu Dam near Kota Tinggi, Johor. The plaintiff sought declaration that the land was an aboriginal reserve land.
DECISION OF THE COURT
Allows the application from the plaintiff - entitled for adequate compensation under the APA 1954 and LAA 1960
Common law recognizes native land rights -
Worcester v State of Georgia (1832) 31 US 530
Amodu Tijani v Secretary, Southern Nigeria [1921] 1 AC 399
The customary title is prima facie on a communal usufructuary occupation - no evidence that this kind of usufructuary title of the community disturbed in law - The original native right was a communal right, and it must be presumed to have continued to exist unless the contrary is established by the context or circumstances.
Later applied in Mabo & Ors v State of Queensland & Anor (1986) 64 ALR 1
Under the APA 1954, the government may take the rights of the aboriginal people without compensation but upon looking further and deeper, compensation is ought to be made.
Adequate compensation for the loss of livelihood and hunting ground ought to be made - not for the land but for what is above the land that the plaintiff has rights over it
Art 8(5) & 13(2) of FC - Rights of the plaintiff is being deprived
Land Acquisition Act 1960
Section 2 ; '
LAND
' means alienated land within the meaning of the state land law, land under customary right
Aboriginal Peoples Act
Section 12
states that if any rights or privileges in any of the aboriginal area or the aboriginal reserve that is granted to any aborigines community in revoked (wholly/ in part). the State Authority may grant compensation and may pay it to the persons entitled to it.
APPLICATION
In applying Section 2 of the LAA 1960; the phrase 'land occupied under customary right' is referred to customary land in which it is a specific area that a group of indigenous people identifies as its territory
it is considered a customary land due to the fact that the indigenous community had early occupied said land and considering their settlement with their customs on said land (immemorial, customary laws and practices have existed longe before.)
To conclude, LAA 1960 opens up doors for compensation to be given to the Orang Asli when their land has been taken away by the State Authority to safeguard their interest and to ensure they are not prejudiced in situation such as this
Fundamental rights of the people has been laid down in the Federal Constitution, the supreme law of the Federation - Art. 8(5)(c) & 13(2) of the FC
Applying the case of
Sagong bin Tasi
- exists the customary title over the land - entitled for compensation under the Land Acquisition Act 1960
Federal Constitution
Article 8 ; Equality and protection of Law
All persons are equal in the eyes of the law and are entitled to equal protection by the law
(5) This Article does not invalidate or prohibit: (c) any provision for the protection, well-being or advancement of the aboriginal peoples of the Malay Peninsula
Article 13; Rights to Property
(1) No one should be deprived from property in accordance to the laws; in (2) it states that no law shall provide for the compulsory acquisition or use the
property without adequate compensation.
Article 83; Detailed procedure for Land Acquisition and Compensation
it states that if the land is not being alienated and is needed for federal purpose, the land will be granted after a consultation with then Federal government has been carried out. The Orang Asli Land acquisition falls within the ambit of this article as Orang ASLI native lands are un-alienated in nature