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Eddy Salim & Others v Iskandar Regional Development Authority & 12 Others

On 23 February 2014, the Johor Bahru High Court commenced hearing for the trial of a civil claim brought by 188 Orang Asli Seletar from Johor Bahru against Iskandar Regional Development Authority and 12 others vide Suit No: 22NCvc-158-06 / 2013. They are seeking recognition of their customary lands and waters in Southern Johor.

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The High Court had earlier on 10 December 2013 granted an injunction against Node Dua Sdn Bhd and Strait Bay Sdn Bhd, the 7th and 9th Defendants respectively, which effectively restricted the Defendants’ ability and/or rights to carry out and/or continue any works within the Plaintiffs’ customary territory, pending the determination of the civil claim.

Judicial Commissioner Teo Say Eng heard the Plaintiffs’ lead counsel, Steven Thiru, commenced the Plaintiffs’ case by giving an opening statement that covered, among others, the history and the people of Orang Asli Seletar and the encroachments on their lands. Mr Thiru then commenced examination-in-chief of the Plaintiff’s first witness, Salim bin Palon who is the Batin (village head/chief) of one of the two villages on the claimed lands. The day ended with plans for a site visit the next day where the Court and all parties will visit the subject matter lands and seas of the civil claim.

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Background:
As a traditional fishing community, the Orang Asli Seletar have historically occupied the coastal areas of Johore as their customary territories. These areas have been for many years the subject of sustained and continuous encroachment by the state authorities. The Orang Asli Seletar have consistently maintained that the areas they occupy and conduct customary practices (both on land and sea) are their customary territories. However, as in so many other claims of this nature throughout the country, the authorities have paid scant regard to these claims. As such, the Orang Asli Seletar have lost much of their lands. Their unique way of life that enriches the fabric of our multicultural society and livelihood has been seriously diminished, if not completely eviscerated. This has in particular occurred through the decimation of mangrove forests and pollution of the rivers and coastal waters. The Orang Asli Seletar have consequently been unable to carry out their traditional, subsistence and economic activities and in the result have been driven to poverty, and possible extinction.

A majority of the Orang Asli Seletar today live amidst thriving development on their lands, from which they do not benefit. There are nine Orang Asli Seletar villages in Malaysia, all of which are located along the southern coast of Johore. Seven out of these nine villages are located within the Iskandar Development Region. Only two villages, namely Kampung Bakar Batu, Johor Bahru and Kampung Simpang Arang, Gelang Patah have been partly gazetted as Aboriginal Reserves under the Aboriginal Peoples Act 1954 (‘Act 134’). The rest of the Orang Seletar population of more than 2,000 people, are regarded by the state as ‘tenants-at-will’ or worse, as squatters and illegal occupants on lands which have been alienated to private entities without the free, prior and informed consent of these indigenous peoples. The customary rights of the Orang Asli Seletar in and over their lands have been simply ignored with impunity.

The Orang Seletar have repeatedly demanded that their land rights to be recognised and explored numerous avenues with the State authorities of Johor to have their demands met. However, their efforts have fallen on deaf ears, and matters came to head more recently when there was an attempt to desecrate their ancestors’ graves. They therefore decided to commence the action in court. In December 2012, one hundred and eighty-eight Orang Asli Seletar filed this class action in the Johor Bahru High Court against thirteen parties including the Johor State Government and the Federal government. In addition to a claim for customary title, the Orang Asli Seletar claim includes a claim for customary sea rights, a unique customary rights claim which is yet to be considered by our courts. The Orang Asli Seletar are represented by a team of lawyers from the Bar Council’s Committee on Orang Asli Rights.

In the civil suit, the Plaintiffs are claiming, among others, the following:

  1. Declaratory orders in relation to their customary lands and/or customary rights in and over Kampung Orang Asli Sungai Temon and Kampung Orang Asli Bakar Batu;
  2. Declaratory orders in relation to their communal customary rights and interests in relation to the sea, sea bed, rivers, river beds, tidal inlets, bays, estuaries, harbours or subterranean waters (or the beds or subsoil under them or the airspace over them), the shore or subsoil under the shore (between the high water and the low water), inter-tidal areas and all other waters within the area demarcated;
  3. Damages for: –
    • The Defendants’ trespass and the willful destruction of the customary lands including the Plaintiffs’ burial grounds; and
    • The Defendants’ activities within the customary waters, including the clearing of mangroves and/or land reclamation;
  4. A permanent injunction to prevent the Defendants and/or any of them from encroaching unto the customary lands; and
  5. Further and/or in the alternative, compensation for:-
    • the acquisition of the customary lands as per Article 13 of the Federal Constitution and/or under the Land Acquisition Act 1960; and
    • loss of the customary rights and interests to the said waters as above that have been impaired, restricted or extinguished by the 1st to 6th Defendants (or any of them) by virtue of Article 13 of the Federal Constitution and/or the fiduciary duty owed by 1st to 6th Defendants (or any of them) to the Plaintiffs and/or pursuant to the common law.

The following legal counsel appeared at the trial on behalf of their clients:-

  • Plaintiffs: Steven Thiru, K. Mohan, Aaron Mathews and Lee Lyn-Ni appeared for the 188 Orang Asli Seletar Plaintiffs,
  • 1st Defendant: Nurain Mohamed appeared for Iskandar Regional Development Authority,
  • 2nd and 3rd Defendants: Shahrizal Shaari from the Johor State Legal Office appeared for the Director of Land and Mines of Johor and State Government of Johor,
  • 5th and 6th Defendants: Noor Hisham Ismail, SFC, Nurul Farhana Khalid, SFC, Muzila Mohd Arsad, SFC appeared for the Director of Department of Orang Asli Development (JAKOA) and Federal Government of Malaysia,
  • 7th, 8th, 9th, 10th Defendants: G. Rajasingam, Sahada Salihin, Nik Azila Shuhada appeared for Node Dua Sdn Bhd, Timur Terang Sdn Bhd, Strait Bay Sdn Bhd, Layar Suria Sdn Bhd,
  • 11th Defendant: Chua Chen Cher appeared for Carillion Sdn Bhd,
  • 12th and 13th Defendants: S. Jeyakumar appeared for Tong Luan Moi and Tong Boon Huat.

For further details, please contact the Plaintiffs’ legal counsel:-
Dr Yogeswaran Subramaniam (yoges_s@yahoo.com / 013 340 2377)
Aaron Mathews (aaronmathews@shooklin.com.my / 012 332 4879)

Thank you.

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