Report of the National Inquiry into the Land Rights of Indigenous Peoples 79 5.48 At the Court of Appeal in Kerajaan Negri Selangor v Sagong Tasi and Ors241 (Sagong II) the court employed the language of ‘customary communal title’ to refer to the aboriginal rights to land. Gopal Sri Ram JCA held that under the common law doctrine of indigenous title, the plaintiffs had ownership of lands in question under a customary community title of a permanent nature”.242 They had proprietary rights and were entitled to be compensated under the Land acquisition Act 1960, and that included compensation for part of the land that was ungazetted land. They were also entitled to damages for trespass and to exemplary damages. In 2006, leave was granted to the defendants to appeal to the Federal Court on points of law but the appeal was postponed pending negotiations for settlement between the parties. After settlement negotiations, the claim was settled amicably on 26 May 2010 on the terms that the Federal Government and other defendants withdraw their appeal and the highway authorities agree to pay compensation in the sum of RM6.5 million to the plaintiffs.243 5.49 The Adong and Sagong Tasi decisions are significant because they established that a) The radical title of the State is subject to any pre-existing rights held by Orang Asli.244 b) The common law recognizes and protects the pre-existing rights of the Orang Asli in respect of their rights and resources.245 c) Oral histories of the aboriginal societies relating to their practices, customs and traditions and on their relationship with land are admissible, within the confines of the Evidence Act 1950.246 For customs to be admitted as evidence they must be of public or general interest, made by a competent person, and the statement must be made before the controversy as to the right customs has arisen. d) The Temuan held a proprietary and full beneficial interest in and to the land, albeit only to areas of settlement and not to the areas used as foraging lands; 247 e) The APA 1954 does not extinguish the rights enjoyed by the aboriginal peoples under the common law and in order to determine the extent of the full rights, the common law and the statute had to be looked at ‘conjunctively’, for both rights were ‘complementary’;248 and f) The Governments of Selangor and Malaysia owe fiduciary duties and were in breach of those duties when they failed to gazette lands for Orang Asli. 249 g) Where customary rights are extinguished, there must be adequate compensation. 5.50 The law on aboriginal land rights as laid down by Sagong Tasi remains intact. In recent years, more cases have been brought to the courts, touching on different aspects of aboriginal life. In Yg di Pertua Majlis Daerah Gua Musang v Pedik bin Busu (Pedik),250 Orang Asli in Kampung Jias, RPS Kuala Betis Kelantan, had their church building demolished by the local authority 241 [2005] 6 MLJ 289. 242 [2005] 6 MLJ 289. 243 See M Mageswari, ‘Justice at last,’ The Star (Malaysia), 27 may 2010. 244 Sagong Tasi v Kerajaan Negeri Johor, at 612; Kerajaan Negeri Johor v Sagong Tasi, at 301-301 245 Adong bin Kuwau v Kerajaan Negeri Johor at 430; Kerajaan Negeri Johor v Adong bin Kuwau, at 162-163; Sagong Tasi I, at 301302; Sagong Tasi II, at 612. 246 Sagong I [2002] 2 MLJ 591, 623-24. 247 Sagong I [2002] 2 MLJ 591, 613; Sagong II [2005] 6 MLJ 289, 308. 248 Sagong I [2002] 2 MLJ 591, 616. 249 Sagong I [2002] 2 MLJ 591, 619; Sagong II [2005] 6 MLJ 289, 312. 250 [2010] 5 MLJ 849. chapter 5_a4.indd 79 7/5/13 6:47 PM