72 Chapter 5 | JUDICIAL DEVELOPMENT ancestors for hunting, fishing and collection of forest produce in exercise of NCR. The High Court further held that this right was passed down through the generations. Each claimant’s rights arose by virtue of being a member of a community in lawful occupation and possession of the claimed lands. Ian Chin J held that the customs presently practised were the same customs practised by the plaintiffs’ ancestors. Evidence of present occupation was, the court held, proof of past Iban occupation of the land. Ian Chin J made references to other customary rights of the Iban. Beyond the rights to clear virgin jungle for cultivation, which formed the temuda and tanah umai within the pemakai menoa, they could access the lands for hunting, fishing and collection of forest produce. 5.18 The court chronicled the extensive history of the regulation of customary land use and occupation, starting with the Rajah’s Orders from 1863, 1875, 1899, 1921, 1931, the subsequent Land Settlement Rules 1934, the Land (Classification) Ordinance 1948 and the Land Code 1958. Fishing rights of the natives were clearly recognised by the Brooke Government.211 Hunting in the jungle was also acknowledged as a customary right of the Dayak.212 The right to collect jungle produce was also preserved by early orders of the Rajah.213 References were also made to other legislation, including the Native Courts Ordinance of 1955 and its successor of 1992. The High Court concluded that the ‘pre-existing rights’ had not been extinguished by the legislation.214 5.19 Furthermore, the High Court noted the Brooke administration’s regular acknowledgement of the existence and importance of customary laws, referring to them as ‘“the indefeasible rights of the Aborigines”’.215 The High Court also noted that ‘James Brooke was “acutely aware of the ‘prior presence of the native communities, whose own laws in relation to ownership and development have been consistently honoured”’.216 Native customary law existed and operated side by side with the Orders of the Rajah. Those orders explicitly recognized and referred to matters relating to temuda, pulau and pemakai menoa. 5.20 To the extent that the natives could show they exercised jurisdiction over a certain area at the time of acquisition of sovereignty, first by the Brookes, the British colonial Government and then Malaysia, they were entitled to a form of native title at common law. Citing the decisions in Mabo (No. 2), The Wik Peoples v The State Of Queensland And Ors (‘Wik Peoples’)217 and Adong, the court held that the common law respected the pre-existing rights under native law and custom. The court declared that ‘native customary rights are similar 211 Nor Nyawai I [2001] 6 MLJ 241, 265. See the Tuba Fishing Order 1900 and the Tuba Fishing Ordinance 1949. Under Malaysian law, the Fisheries Act 1985, which applies in Sarawak through the Fisheries (Adoption) Ordinance 1994, and the Sarawak Inland Fisheries Rule 1995 contain no prohibition against natives with regard to fishing in any river in exercise of their native customary rights. In general, the rules only forbid the use of certain equipment and devices. The Resident may grant an exception to the prohibition on fishing certain species. 212 Nor Nyawai I [2001] 6 MLJ 241, 265. The orders and ordinances existed only to regulate or modify that right. In 1884, the Pig Traps Order prohibited the setting of pig and deer traps in the jungle. This order was modified in 1924 by the Pig and Deer Traps Ordinance to allow the setting up of traps in or on the boundaries of rice fields or cultivated gardens. 213 Nor Nyawai I [2001] 6 MLJ 241, 265-66. Order XIV 1921, rule 11, for instance, allowed for removal of any timber or other forest produce required for a person’s own use and not for sale, exchange or profit. That right was protected under the Forest Ordinance 1934 s 55(1) and, although restrictions were imposed by way of the Forest Rules 1947, the underlying protection remains. The Forest Ordinance 1934 was replaced by the Forest Ordinance 1953, but s 65(1) retained the same right. Similarly, the Forest Rules of 1954 did not abolish the native customary right of taking forest produce, but only prohibited the felling of certain trees or injuring of trees for the purpose of collection of fruits and damar. These rights are retained as ‘pre-existing rights and privileges’ of natives. 214 Nor Nyawai I [2001] 6 MLJ 241, 284. 215 Nor Nyawai I [2001] 6 MLJ 241, 267. 216 Nor Nyawai I [2001] 6 MLJ 241, 267. 217 Wik Peoples [1996 – 1997] 187 CLJ 1. chapter 5_a4.indd 72 7/5/13 6:47 PM