68 Chapter 5 | JUDICIAL DEVELOPMENT CHAPTER 5 JUDICIAL DEVELOPMENT 5.1 There is an emerging body of judicial authorities affirming recognition of and protection for native customary land rights arising out of traditional laws and customs. The Malaysian courts have, in several judgments, recognized native title to indigenous lands, territories and resources. These include the judgments in the cases of Adong Kuwau,193 Nor Nyawai,194 Sagong Tasi,195 Rambilin,196 Madeli Salleh197 and more recently, the case of Bato’ Bagi.198 There is also the case of Andawan Ansapi199 which was a case related to forest reserve. These judgments confirm that customary land rights are based on native law and customs and that the customs of the various communities, define the content of the customary title. The “customs and usage” are part of the laws of Malaysia, as defined under the Federal Constitution. Customs are also recognized and may be proved under common law.200 5.2 The Malaysian courts have developed the principles of common law native title through cases and in litigations brought by indigenous peoples against State agencies, the private sector or private individuals. The courts have referred to and followed precedents from other common law jurisdictions while developing local jurisprudence in dealing with claims to land or forests by indigenous peoples based on their customary rights. These cases are dealt with by region. 5.3 In this Chapter, the terms native customary rights to land (NCR), customary title, aboriginal title and native title are used interchangeably. Since these principles have been developed based on common law principles, the term “common law native title” is used. NATIVE CUSTOMARY LAND RIGHTS IN SABAH 5.4 One of the earliest cases in Sabah on native customary land rights was the case of Naung Felix Sitom v Pedakwa Raya.201 There it was established that persons having native customary tenure as defined under the Sabah Land Ordinance 1930 (SLO) are to be accorded the same status as one in possession of a title deed. In Sabah, natives may enter State land for the purpose of creating customary rights through the methods stipulated under section 15 of the SLO. These generally comprise traditional occupation under customary tenure, use of land for cultivation, grazing lands. 193 Adong bin Kuwau & Ors v Kerajaan Negeri Johor & Anor, No. 24-828-1994 (High Court, Johor Bahru, November 21, 1996). 194 Nor Anak Nyawai & Ors v Borneo Pulp Plantation Sdn. Bhd. & Ors, No. 22-28-99-I (High Court of Sabah and Sarawak, Kuching, 12 May 2001). 195 Sagong Tasi & Ors v Kerajaan Negeri Selangor & Ors, No. MTI-21-314-1996 (High Court of Malaya, Shah Alam, May 27, 2010). 196 Rambilin binti Ambit v Assistant Collector for Land Revenue, Pitas, No. K 25-02-2002 (High Court of Sabah and Sarawak, Kota Kinabalu, September 28, 2010). 197 Superintendent of Land & Surveys Miri Division & Anor v Madeli Salleh, No. 01-1-2006 (Q) (Federal Court, Putrajaya, October 8, 2007). 198 Bato Bagi v Kerajaan Negeri Sarawak [2011] 6 MLJ 297 199 Andawan Ansapi & 5 Ors v Public Prosecutor, No. K41-128-2010 (High Court of Sabah and Sarawak, Kota Kinabalu, March 5 2011) 200 Ramy Bulan and Amy Locklear, Legal perspectives on Native Customary Land Rights in Sarawak, Human Rights Commission of Malaysia (SUHAKAM), Kuala Lumpur, 2008. 201 [2002] 7 MLJ 605. chapter 5_a4.indd 68 7/5/13 6:47 PM