Gopal Sri Ram JCA:

The judgment against which this appeal has been preferred is reported in the law reports. See Adong bin Kuwau & Ors v. Kerajaan Negeri Johor [1997] 1 MLJ 418. In it the learned trial judge has admirably dealt with the factual background, the issues before him and the applicable law. We therefore find it unnecessary to go into these in any detail.

In a gist, the learned judge held that the respondents (plaintiffs in the court below) being the aboriginal people of this country are seised of common law rights over land and are entitled, by reason of art. 13(1) of the Federal Constitution, to receive fair and reasonable compensation when such rights are deprived by state action. Dato' Zainal Adzam, the learned State Legal Adviser who appeared in support of the appeal (but not in the court below) informed us that the appellants did not quarrel with this proposition. His complaint is that the learned judge was wrong in holding that there existed any such rights as aforesaid. According to the learned State Legal Adviser, the respondents' rights and the manner of their enforcement are exclusively governed by the Aboriginal Peoples Act 1954 (the Act) . Consequently, there is no room for the co-existence of common law rights. Before we express our views upon the correctness of the submissions made in support of the appeal it is important that we hearken to certain passages in the judgment of the learned judge which were drawn to our attention by the learned State Legal Adviser and which form the subject matter of the appellants' complaint.

The first of these passages appears at p. 50 of the Appeal Record and reads:

"My view is that, and I get support from the decision of Calder's case (Calder v. Attorney-General of British Columbia [1973] 34 DLR (3d) 145) and Mabo's case (Mabo & Ors v. State of Queensland [1986] 64 ALR 1), 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 out, rent out the land or any produce therein since they have been in continuous and unbroken occupation and/or enjoyment of the rights of the land from time immemorial. I believe this is a common law right which the natives have and which the Canadian and Australian courts have described as native titles and particularly the judgment of Judson J in the Calder case at p. 156 where His Lordship said the rights and which rights include ... 'the right to live on their land as their forefathers had lived and that right has not been lawfully extinguished ... ' I would agree with this ratio and rule that in Malaysia the aborigines common law rights include, inter alia, the right to live on their land as their forefathers had lived and this would mean that even the future generations of the aboriginal people would be entitled to this right of their forefathers.

The next passage is at pp. 52-3 of the Appeal Record. In it the judge said:

These people live from the hunting of animals in the jungle and the collection of jungle produce. These are the only source of their livelihood and income. Can these rights be taken away by the government without compensation? At a glance this could be done, but upon looking further and deeper, it is my opinion that compensation ought to be made. This can be discerned from s. 11 of the Act , which guarantees adequate compensation for land, bearing rubber or fruit trees claimed by the aboriginal people, that is alienated. It is clear to me that the land on which those trees are planted is either a reserve land for the aboriginal people or an area where they had a right to access, which is a jungle reserve. In the first case, there is no problem because it is their reserved land. In the second case, it is clear that the land belongs to the state but they were planted by the aborigines.