Report of the National Inquiry into the Land Rights of Indigenous Peoples 77 5.38 In Adong bin Kuwau & Ors v Kerajaan Negeri Johor & Anor (‘Adong I’),234 the 52 plaintiffs were representatives and heads of Orang Asli families living around Sungei Linggui catchment area in the State of Johor. The defendants were the State of Johor and its Director of Lands and Mines. The defendants had acquired a total of 53,273 acres of land for the purpose of constructing a dam to supply water to Johor and the Republic of Singapore. The plaintiffs claimed the compensation that Singapore had paid to Johor on the ground that the lands within the vicinity of Sungei Linggui were their traditional and ancestral lands upon which they depended for their livelihood. They claimed rights to the lands both under common law and statute, as well as property rights under the Federal Constitution. 5.39 The High Court accepted as evidence various historical and judicial documents, which established that the plaintiffs had inhabited or occupied the area since time immemorial. The learned judge considered authorities from various common law jurisdictions from North America, Africa and India,235 and finally referred to the Australian High Court’s decision in Mabo (No 2).236 In a decision which was affirmed by the Court of Appeal and the Federal Court, Mokhtar Sidin JCA determined that the Orang Asli have a common law right to their ancestral land based on a continuous and unbroken occupation and enjoyment of rights to the land since time immemorial. 5.40 In reaching this conclusion, the court noted that the Malays had traditionally occupied the coastal areas, while the Orang Asli lived in the interior areas of Peninsular Malaysia, in some cases, exclusively and indisputably occupying those areas. In his decision, Mokhtar Sidin JCA noted: “Before the introduction of the Torrens land system, these lands were unclaimed land in the present sense but were ‘kawasan saka’ to the aboriginal people. On the introduction of the Torrens system, all the kawasan saka became State land but the aboriginal people were given the freedom to roam about these lands and harvest the fruits of the jungle. Some of these lands have been gazetted as forest reserves. The plaintiffs, however, continue to live in and/or depend upon this unalienated land. It was not denied that some of them had lived on these lands, and all of them still consider the jungle as their domain to hunt and extract the produce of the jungle just like their forefathers had done.” 5.41 In further explication of the term native title, Mokhtar Sidin JCA said that, “although in the general sense, title denotes a document of title, native title consists not of a document of title, but a right acquired in law”.237 The court gave a wide interpretation to proprietary rights, and held that the plaintiffs’ rights were proprietary rights protected under Article 13 of the Federal Constitution. Their right was, however, a right to the produce on the land but not a right to the land. Thus, the holders of the title had no right to convey, lease out or rent the land. Nonetheless, deprivation of the rights by the defendants without compensation was unlawful. 234 [1997] 1 MLJ 418 235 For example, the court referred to Worcester, 31 US 515 (1832), Re Southern Rhodesia [1918] AC 211; Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399, Calder [1973] SCR 313, and Hamlet of Baker Lake v Minister of Indian Affairs and Northern Development (1980) 107 DLR (3d) 513. 236 (1992) 107 CLR 1. Mokhtar Sidin CJA quoted at length from Pareroultja & Ors v Tickner (1993) 117 ALR 206, where the main findings of the High Court of Australia in Mabo (No 2) are summarised. Adong I [1997] 1 MLJ 418, 429. 237 Adong I [1997] 1 MLJ 418, 428. chapter 5_a4.indd 77 7/5/13 6:47 PM