Column - A blow to indigenous rights

A RECENT majority Federal Court decision dealt a fatal blow to the customary rights of indigenous peoples to freely access the forest for food, medicines and such like.

Such a right has existed since time immemorial as universally recognised. Indeed the immense contribution of traditional knowledge associated with the forest resources to modern medicine has been acknowledged by the World Health Organisation.

In the Bakun Dam case the Appeals Court pronounced that the forest provided the sustenance of life for indigenous peoples.

All this is now set to be negated. The Federal Court (Sandah's case) ruled that such a right – to freely access the forest for such sustenance – does not exist in law.

The majority three judges ruled that this customary practice of the indigenous peoples did not have the force of law because – even if shown to exist – it did not fall within the definition of customary laws under Sarawak State Laws.

In the words of Justice Raus Shariff: "Put simply, there are customs which the laws of Sarawak does not recognise and hence do not form part of the customary laws of the natives of Sarawak and remain merely as practices or usages of the native. They are not integral to the particular community in question and remain incidental. As such they do not come within the definition of law under Article 160(2) of the Federal Constitution. We must not lose sight of an important fact that recognition alone that such custom or practice exist is not enough."

This conclusion flies in the face of established jurisprudence both here and elsewhere.

By patient and exact analysis, Justice Zainun Ali's dissent identified clear judicial precedents (which have the force of law) which have recognised such rights as those claimed in this case – menoa and pulau – in addition to the right to temuda.

The former is the right to forage the forests for their life-support – gathering medicines, wood and food from time to time; the latter is where the natives have cleared the forest and settled. There is a range or spectrum of customary rights. Where they have settled, they claim title; for the rest – a lesser right – to forage and access.

Our highest courts have acknowledged these lesser rights. In the landmark Adong Kuwau case the court said that " ... the aboriginal peoples' rights over the land include the right to move freely about their land, without any form of disturbance or interference and also to live from the produce of the land itself but not to the land itself in the modern sense that the aborigines can convey, lease or rent out the land."

Citing high Canadian and Australian judicial authority, the court held that the natives were entitled to enjoy rights to the land as their forefathers had lived from time immemorial. So it does not involve the normal concept of property rights; and it requires ascertaining (through evidence) how the forefathers lived.

Later cases are similar. Sagong Tasi recognised the native community's customary "user" enjoyment rights.

The Canadian Supreme Court acknowledges rights short of title – non-exclusive uses such as hunting; that is, a site-specific right to engage in a particular activity.

A recent Federal Court decision acknowledges that the government's title is subject to any native rights over such land: Madeli's case.

All these judicial precedents crisply merged in Justice Zainun's conclusion: "Thus the nature and types of rights the natives are entitled to are embodied in their customary practices. There exist circumstances where proprietorship of the lands is not the real issue but the right to engage in specific activities on the land which are critical components of their customary practices ... inextricably tied up with the land."

This the majority missed. They insisted on a formal recognition of the customary "foraging" right through an enacted law.

Ignored were the numerous previous decisions stating that these rights were valid as they pre-existed the enacted law; and were never abrogated explicitly by any state law. The baby was thrown out with the bath water.

I am reminded of Professor Glanville Williams's critique of the House of Lords decision of Anderton v Ryan published in the Cambridge Law Journal: "The tale I have to tell is unflattering of the higher judiciary. It is an account of how the judges invented a rule based upon a conceptual misunderstanding; ...of their invincible ignorance of the mess they had made of the law; ...."

The House of Lords gracefully acknowledged this critique and later rectified their error – (R v Shivpuri) – describing Glanville's language as "not conspicuous for its moderation, but it would be foolish, on that account, not to recognise the force of the criticism and churlish not to acknowledge the assistance … derived from it".

Abandoning all "pretension to infallibility", the court said that "If a serious error embodied in a decision of this House has distorted the law, the sooner it is corrected the better".

May we expect the same posture by our highest court?

Else, the hope that the dissenting judgment of Justice Zainun Ali may in due course reach the same significant status as that of Lord Atkin's dissent in Liversidge v Anderson. Years later, Lord Diplock, confessed: "The time has come to acknowledge openly that the majority of this House in Liversidge v Anderson were expediently and, at that time, perhaps, excusably, wrong and the dissenting speech of Lord Atkin was right" (I.R.C. v Rossminster Ltd).

Gurdial, a former law professor, has written widely on indigenous rights in international law journals. Comments: letters@thesundaily.com