80 Chapter 5 | JUDICIAL DEVELOPMENT who objected to the building being erected without the necessary approval under the Street, Drainage and Building Act 1974. Orang Asli applied for, amongst other things, declaratory relief claiming confirmation of their customary title and damages for the demolition. The court held that Orang Asli were owners of the land in question although title had yet to be issued. Damages were given to Orang Asli as the proper notice was not given to them. The Court however held that RPS Regroupment lands were not customary lands. 5.51 In Wet Ket v Pejabat Tanah Daerah Temerloh (Wet Ket) Jah Hut applicants sought judicial review of the local authority’s refusal to grant the supply of water and electricity for a multipurpose hall constructed on land which they had occupied since 1920. The local authority issued a notice for demolition on the ground that the building was on State land and not gazetted as aboriginal lands. The court held that there was neither gazettement of aboriginal lands nor approval for aboriginal inhabited lands. As the land concerned was State land, the court dismissed the application with costs. On appeal, a consent order was recorded for the provision of water and electricity with the issue of customary lands to be decided in separate proceedings. 5.52 In the case of Kalip bin Bachik v Pengarah Tanah & Galian Johor, the Orang Laut (Seletar) were resettled to Kuala Masai by the Johor Government in 2003. They were promised that the new lands would be gazetted as aboriginal reserves. Although approved, the lands were not formally gazetted. They were also given the assurance that they could build a church on the land. However, a chapel that was built there was demolished on the ground that no approval was obtained to build the structure. They filed an action for declaration that they were holders of customary title and that the demolition was unlawful. The Court declared that the demolition was unlawful, ordered damages for trespass and further ordered damages for delay and failure to gazette the Kuala Masai lands and the loss of their original lands in Kuala Stulang. The Court also declared that the State had breached its fiduciary duty in failing to gazette the new lands. Key Features of Aboriginal and Native Customary Rights 5.53 The forgoing cases have illustrated the main features of customary title as developed through the Courts. These features have been summarized in the decision of the High Court and Court of Appeal in Sagong Tasi as well as the Federal Court in Madeli bin Salleh. The latter is a Federal court decision and hence, the common law principles would apply in all three regions. 5.54 Malanjum CJSS provided some pointers in Bato Bagi v Government of Sarawak which would lend some guidance to courts in future. On the matter of compensation it is pertinent that His Lordship said: “[C]ompensation should not be merely adequate but should be sufficient and reasonable based on the long term effect that extinguishment would inflict on the natives. In considering the quantum of compensation, the relevant authority should not attempt to evaluate native customary right purely from monetary aspect but take into account all relevant factors including the fact that the natives belong to the land and are part and parcel of the land instead of being mere owners and how their total dependency is on the land and its surroundings and how their daily livelihood depends on the land.” 5.55 Malanjum CJSS reiterated the importance for the courts to consider in “pragmatic, liberal fashion the constitutional provisions to safeguard not just the textual but the implicit rights.” chapter 5_a4.indd 80 7/5/13 6:47 PM