Customary land rights of indigenous peoples co-exist with statutory provisions; legal recognition requires proof of continuous occupation and adherence to cultural practices.

[1] This appeal arises out of a decision of the High COURT dated 29^th October 2013, dismissing the Plaintiffs claim without no order as to costs as agreed between parties hence the appeal before us. For purposes of convenience we will refer to the appellants as the plaintiffs and the respondents as the defendants.

[2] This appeal raises several interesting points of law and fact over the plaintiffs claim to the said land, the subject matter of this dispute based on common law and customary rights.

[3] The Background Facts

i. The plaintiffs belong to the Semaq Beri subgroup of the 'Senoi' category of the Orang Asli (see pp 135-136, AR 2(1))

ii. Their purported claim to the said lands (ie Kampung Mengkapur) cover an area of approximately 7000 acres (the said Land). It includes two primary settlement areas namely, 'Çhahabuk' and 'Tumpesel'. Apart from settlements, there are also grave sites, orchards and ancestral ceremonial sites on the customary lands. A detailed description of the said lands is set out in pp 138-1440, AR 2(1).

iii. The plaintiffs claimed they have lived on and have had an interest in the said lands since at least 1850 (see para 8, p 141, AR, 2(1).

iv. The plaintiffs also claimed that they have maintained a close connection to their said lands through their continuous occupation and use of the same. Various flora and fauna on the said lands (and in fact the said land itself) are used as part of the Plaintiffs customs and practices. The Semaq Beri of Kampung Mengkapur are inextricably linked to the customary lands (see pp 146-154, AR, 2(1).

v. During the Emergency (1948), the plaintiffs' ancestors were forced by the government to relocate to Kampung Paya Bungor and were informed that such relocation would only be temporary. Kampung Paya Bungor is located about twelve (12) kilometres away from the customary lands (pp 142-143, AR, 2(1)).

vi. It is noteworthy that the plaintiffs' ancestors never abandoned the customary lands during this period as they continuously returned to the said lands to tend to/harvest their orchards for collection of forest produce, for hunting and fishing, and to visit and maintain places of cultural, spiritual and religious importance (see pp. 143-144, AR 2(1)).

vii. In 1970, after the end of the Emergency, a number of the Semaq Beri of Kampung Mengkapur households returned permanently to the customary said lands and continued to occupy the same (se p 144, AR 2(1)).

viii. It is noted that the matters stated above concerning the plaintiffs as members of the Semaq Beri tribe and their occupation of, and interest in, the said lands are also found in the expert evidence of Dr Collin George Nicholas, an independent expert on the socio-historical aspects of the Orang Asli community (see pp 180-189, AR 2(1))

ix. The unlawful encroachment into the customary lands began in mid-September 2010. The plaintiffs discovered a notice containing the name of a contractor /agent of the 2^nd defendant and the details of his license to conduct logging activities in the south-western part of the said lands (see para 44, p 155, AR 2(1))

x. Next, the plaintiffs also found that contractors/agents of the 2^nd defendants and/or the 1^st defendant had placed stone markers and paint markers on forest trees in various locations in the said lands for the intended logging activities (see para 45 pp 155-156, AR 2(1)).

xi. Subsequently, and without the consent of the plaintiffs, the contractors/agents of the 2^nd defendant and/or the 1^st defendant began cutting down the trees and removing timber from the said lands. Further, they had also begun clearing parts of the said land and planting oil palm. The plainti