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2014 MarsdenLR 2761
FEDERAL COURT PUTRAJAYA
SUPERINTENDENT OF LANDS AND SURVEYS SAMARAHAN DIVISION & ANOR – Appellant
Versus
ABAS NAUN & ORS AND ANOTHER APPEAL.... – Respondent
[Civil Appeals No: 01(f)-14-07-2012(Q) & 01(f)-15-07-2012(Q)]
Claims to native customary rights can proceed under private law rather than public law mechanisms, serving as an exception to the general requirement for judicial review due to unique socio-economic challenges faced by indigenous claimants.
Headnote:(A) Native Customary Rights - Exception to Judicial Review in Administrative Law - The court explored whether suits by individuals claiming native customary rights to challenge public authority decisions fall outside the general judicial review principles stipulated in O'Reilly v. Mackman. The dispute involves applications to strike out writs by appellants arguing against the validity of land leases affecting respondents' customary rights. (Paras 2, 4, 11-13)
(B) Public Law vs Private Law - The appellants contended that the claims related to public law and judicial review were necessary, while respondents argued their rights were private and actionable as civil suits. Court acknowledged the complexity of jurisdictional categorization in claims of native rights against public authorities. (Paras 21, 29-31)
(C) Procedural Fairness - The court noted the potential for substantial injustice under strict procedural requirements for indigenous claimants, affirming their ability to pursue civil actions over public law judicial reviews. (Paras 35-37)
Facts of the case:
The respondents claimed longstanding native customary rights over lands allegedly invalidly alienated under leases by the appellants, invoking legal protections from the Sarawak Land Code and the Federal Constitution, while the appellants argued for the dismissal of writs under public law principles, asserting their actions were justified. (Paras 3-4, 6-8)
Findings of Court:
Court found the actions of respondents should proceed under private law, recognizing their claims as meriting independent review outside the parameters of public law judicial review, thus dismissing the appeals against previous court decisions. (Paras 21, 37)
Issues: Whether suits by claimants asserting native customary rights should proceed under public law mechanisms or if they are valid under civil law, considering potential harm from procedural constraints on claimants.
Ratio Decidendi: The court held that native customary rights effectively show a private law element, warranting the use of ordinary civil suit procedures over judicial review, particularly given the socio-economic disadvantage of the claimants which necessitated unimpeded access to justice.
Result: Appeals dismissed with costs.
| Table of Content |
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| 1. leave granted to appeal on native rights. (Para 1 , 2) |
| 2. respondents claim infringement of customary rights. (Para 3 , 4) |
| 3. appellants argue improper judicial process. (Para 5 , 6) |
[1] On 27 June 2012 the Federal Court granted leave to the appellants for appeals number 01(f)-14-07-2012(Q) (the 1st appeal) and 01(f)-15-07-2012(Q) (the 2nd appeal), cumulatively referred to as the appeals. The appeals were against the decisions of the Court of Appeal, delivered on 15 February 2012, dismissing the appellants' appeals against the decision of the High Court at Kuching.
[2] The leave granted was to determine the following question of law:
"Whether a suit filed by a person(s) claiming native customary rights to challenge the decision of a public authority which supposedly infringes the claimant's alleged rights is an exception to the general rule enunciated by the Federal Court in Ahmad Jefri Mohd Jahri v. Pengarah Kebudayaan & Kesenian Johor & Ors, ".
Facts Of The Cases
[3] In two separate writs of summons actions filed against the appellants, the respondents who are Bidayuh by race and also natives of Sarawak, prayed for various declaratory reliefs. The respondents pleaded that they previously acquired native customary rights (NCR) over tracts of land, hereinafter referred to as native customary rights land (NCR land), which had been infringed. The respondents claimed that the NCR was acquired pursuant to adat or customs of the Bidayuh of Sarawak, with their ancestors and themselves, being entitled to the NCR land. They also pleaded that the principle of Common Law aided them in acquiring the NCR. Those rights are recognised by the Sarawak Land Code (Cap 81), created and acquired prior to 1 January 1958, and still subsisting as such. It was the respondents' case that their NCR was extinguished by the 2nd appellant, acting through the 1st appellant, when alienating their NCR land through three Provisional Leases or Forests Timber Licences (interchangeably referred to as the leases) to companies over the NCR land. Not only were the act of granting the leases not made known to them but no compensation in accordance with law was provided for. The respondents therefore pleaded that the alienation under those leases was null and void.
[4] We now provide more details. The respondents pleaded that the granting of the leases by the 1st and 2nd appellants were public acts or decisions in the exercise of statutory powers, conferred by the Land Code of Sarawak (Cap 81) and the Sarawak Forests Ordinance respectively. The acts of the appellants were invalid and unlawful, with the acts anchored heavily on abuse of power, breach of the rules of natural justice, unconstitutionality, illegality and breach of fundamental liberties as enshrined in Part II of the Federal Constitution . The respondents pleaded that the extinguishment of the NCR violated their rights under the .
[5] The filing of the two writs of summons (the writs) by the respondents met with the appellants' disapproval who forthwith filed two separate applications to strike them out under O 14A of the Rules of High 1980 ("RHC"). The applications were heard together.
[6] The appellants argued that the principal remedies sought by the respondents in the writs were declarations to nullify the leases or to entitle them to exercise their alleged NCR over the alleged acquired NCR land. The format of the respondents' action therefore was improper and an abuse of the process of the Court as their actions tantamount to challenging the decision of a public authority. That being so, the respondents ought to have proceeded by way of judicial review under O 53 of the Rules of the High 1980 (O 53).
