Dayak granted tribal land title

PUBLISHED : Thursday, 18 October, 2007, 12:00am
UPDATED : Thursday, 18 October, 2007, 12:00am

Malaysia's highest court has overturned a 1921 decree that sought to extinguish native Dayak tribes' rights to land handed over to oil giant Shell.

The landmark ruling will have a major impact on scores of land claims by Malaysia's indigenous tribes, many of whom are battling to safeguard their ancestral lands from logging and oil palm cultivation.

Last week's ruling, which was only made available yesterday, overturned a decree by the third White Rajah of Sarawak, Vyner Brooke, that Dayak tribes had lost their customary rights to six hectares of land that the Rajah handed over to Shell.

The court ruled that such customary rights are inalienable and recognised by common law.

Lawyers hailed the judgment, saying it settles the battle for recognition of ownership under native customary rights, which is radically different from common law ownership in that there is no title and ownership is communal, not individual.

The three-judge panel of the Federal Court led by Mr Justice Allaudin Sheriff, also said that no current law extinguishes customary rights.

In finding for a 64-year-old native, Madeli Salleh, the judges ruled that common law must respect customary rights that precede the written laws introduced by James Brooke, the first Rajah of Sarawak, a title granted by the Sultan of Brunei. He founded a dynasty that ruled Sarawak from 1841 to 1946.

The judges also ruled that permanent and continuous occupation of land is unnecessary to prove ownership, another victory for natives, some of whom are nomadic.

Vyner Brooke, the last of the three White Rajahs, alienated the six hectares to Shell subsidiary Sarawak Oilfields Limited, now Sarawak Shell, for oil exploration.

Ownership of the land passed to the Sarawak government in the 1950s despite the protests of Mr Madeli, whose ancestors intermittently occupied the land.

Lawyers persuaded Mr Madeli to file a claim of native customary ownership rights in 2003 as a test case against the government.

'My ancestors had a hut on the land long before Brooke set foot in Sarawak,' Mr Madeli had argued.

The government countered that Brooke was the lawful authority and his decree transferring rights to the land had extinguished Mr Madeli's native rights and such rights now resided with the state.