78 Chapter 5 | JUDICIAL DEVELOPMENT 5.42 In Kerajaan Negeri Johor & Anor v Adong bin Kuwau & Ors (‘Adong II’), the Court of Appeal agreed entirely with the views expressed by the High Court, stating that ”[t]hose views accord with the jurisprudence established by our courts and by the decisions of the courts of other jurisdictions which deserve much respect”.238 Adong was soon followed in Sagong Bin Tasi & Ors v Kerajaan Negeri Selangor & Ors, where the principles in Adong were reiterated and other issues clarified. 5.43 In Sagong Bin Tasi & Ors v Kerajaan Negeri Selangor & Ors (‘Sagong I’), the plaintiffs were Orang Asli families of the Temuan tribe evicted from a strip of 38,477 acres of land running through their gazetted aboriginal reserve, as well as other lands they customarily occupied.239 The land was situated at Kampong Bukit Tampoi, Dengkil, Selangor and was classified as an aboriginal area or aboriginal inhabited place. In March 1996, the land was acquired for the purpose of the construction of a portion of a highway to the Kuala Lumpur International Airport. 5.44 The plaintiffs based their claims on rights under common law, statute and the Federal Constitution. At common law, they claimed native title and usufructuary rights over the land based on customs. The land was customary and ancestral land occupied by them and their forefathers for generations; hence, they had customary and proprietary rights in and over the land. 5.45 In that significant decision, Orang Asli were held to have a right in and on the land. The lands were customary and ancestral land belonging to the Temuan based not only on present occupation, but also a traditional connection that had existed for generations. The lands had been continuously occupied and maintained by the plaintiffs to the exclusion of others in pursuance of their culture, and inherited by them from generation to generation in accordance with their customs and thus fell within the meaning of ‘land occupied under customary right’ within the meaning of the Land Acquisition Act 1960. The APA 1954 did not extinguish the common law rights, and therefore the eviction of the plaintiffs from their lands was unlawful. The first and second defendants were thus liable in trespass against the possession of the land by the plaintiff. 5.46 The defendants adduced evidence to suggest that the plaintiff’s cultural life had been so altered by modernisation that they should no longer be considered traditional Temuan. These included, for instance, the fact that some or all of the plaintiffs or members of the Temuan no longer depended on the land to forage for their livelihood in accordance with their tradition; cultivated the lands with non-traditional crops such as palm oil; in addition to Temuan, spoke other languages; had embraced other religions and/or married outsiders; and worked outside the aboriginal reserves or inhabited areas prior to and after acquisition. 5.47 Modernization, intermarriages and speaking of other languages do not affect their aboriginal identity.240 Under s 3(2) of the APA 1954, conversion to another religion does not affect Orang Asli ethnic identity, neither did election of a leader to the JKKK (Village Development and Security Committee) constitute abandonment of their adat as the ‘Balai Adat’ remained the custodian of their adat. 238 Adong II [1998] 2 MLJ 158, 162 (Gopal Sri Ram JCA). The Federal Court issued a decision awarding interest on the compensation awarded to the respondents. 239 Sagong I [2002] 2 MLJ 591, 597. 240 Sagong I [2002] 2 MLJ 591, 607. chapter 5_a4.indd 78 7/5/13 6:47 PM