PERMOHONAN BAGI SEMAKAN KEHAKIMAN KES 425 KTN 1965

“Terjemahan”
DALAM MAHKAMAH TINGGI MALAYA DI TEMERLOH
PERMOHONAN BAGI SEMAKAN KEHAKIMAN NO: - 07
Dalam perkara keputusan
Kerajaan Negeri Pahang yang
ternyata dalam Notis bertarikh
12.3.2007;
Dan
Dalam perkara Seksyen 16, 425
dan 426A Kanun Tanah Negara
1965, Seksyen 4, 7 dan 8 Akta
Orang Asli 1954 dan Perkara 5,
8, 11 dan 13, 83, 85 dan 86
Perlembangaan Persekutuan;
Dan
Dalam perkara suatu
permohonan untuk Perintah
Certiorari dan deklarasi;
Dan
Dalam perkara Aturan 53
Kaedah-Kaedah Mahkamah
Tinggi, 1980.
Antara
1. Mohamad Bin Nohing
[Batin Kampung Bukit Rok]
2. Raman Bin Mat [Batin Kampung Ibam]
3. Rohani Binti Nehir [Penduduk Kampung Bukit Rok]
4. Romani Bin Mohamad
[Penduduk Kampung Bukit Rok]
5. Zainuddin Bin Yong [Penduduk Kampung Bukit Rok]
6. Jariman Bin Jali [Penduduk Kampung Ibam]
(Kesemua 6 Pemohon mendakwa bagi
pihak dirinya dan semua yang lain yang
merupakan Orang Asli Kampung Bukit Rok
dan Kampung Ibam) Pemohon-
Pemohon
page 2
Dan
1. Pengarah Tanah Dan Galian Negeri Pahang
2. Kerajaan Negeri Pahang
3. Ketua Pengarah Jabatan Hal Ehwal Orang
Asli
4. Kerajaan Malaysia
Responden-
Responden
A F F I D A V I T
I, MOHAMAD BIN NOHING (NRIC NO. 530624-06-
5311), a Malaysian Citizen of full age and having an address at
Kampung Bukit Rok, 28300 Triang Bera, Pahang Darul Makmur,
do hereby solemnly and sincerely affirm and say as follows:
1. I am the Batin [village Headman] of Kampung Bukit
Rok, Mukim of Guai, in the District of Bera, Pahang. Together
with Raman bin Mat (NRIC NO. 701014-06-5537), the Batin of
Kampung Ibam, Rohani binti Nehir (NRIC NO. 500624-06-5162),
a resident of Kampung Bukit Rok, Romani bin Mohamad (NRIC
NO. 641101-06-5293), a resident of Kampung Bukit Rok,
Zainuddin bin Yong (NRIC NO. 660514-06-5279), a resident of
Kampung Bukit Rok and Jariman bin Jali (NRIC NO. 650514-06-
5085), a resident of Kampung Ibam we bring this action on our
page 3
own behalf and on behalf of the Aboriginal Peoples from Semelai
tribe of the said Kampung Bukit Rok and Kampung Ibam.
2. Save as otherwise expressly stated, the facts deposed
to herein are within my personal knowledge in my capacity as the
Batin of Kampung Bukit Rok.
3. The 1st Respondent is the Pahang State Director of
Lands and Mines appointed under the National Land Code 1965
under which he is entrusted with certain functions, powers and
duties for the administration of the said Code. He is named as a
party by virtue of Section 16 (2) of the National Land Code 1965.
4. The 2nd Respondent is the State Government of
Pahang. Under the National Land Code 1965, the National Forestry
Act 1984 and the Aboriginal Peoples Act 1954 (Revised 1974) the
2nd Respondent is entrusted with certain functions, powers and
duties pertaining to the administration of forests, land and
aboriginal peoples’ land rights.
5. The 3rd Respondent is the Commissioner of Aboriginal
Affairs appointed under Section 5 of the Aboriginal Peoples Act
1954. By virtue of the Titles of Office Act 1949, he is now
page 4
referred to as the Director General for Aboriginal Affairs. He is
the head of the Department of Orang Asli Affairs or Jabatan Hal
Ehwal Orang Asli [hereinafter referred to as “the JHEOA”]
established by the 4th Respondent.
6. The 4th Respondent is the Government of the
Federation of Malaysia and is commonly referred to as the Federal
Government. Under the Aboriginal Peoples Act 1954, the 4th
Respondent is entrusted with certain functions, powers and duties
pertaining to the administration for the "welfare of the
aborigines". The welfare of aborigines is expressly set out in the
Federal Constitution to be within the legislative and executive
competence of the 4th Respondent.
7. The Federal Constitution is the supreme law of the
land. Article 8 (5) (C) of the Federal Constitution vests in and
entrusts the Respondents with the authority to make provision for
the protection, well-being or advancement of the aboriginal
peoples of the Malay Peninsula, including the reservation of land
which favour them over other communities notwithstanding the
guarantee of equality before the law.
page 5
8. Under section 4 of the Aboriginal Peoples Act 1954 the
3rd Respondent is charged with the responsibility for the
"administration, welfare and advancement of the aborigines". He is
given the authority to do all acts reasonably necessary and
incidental to or connected with the performance of his functions
under the Act.
9. Section 7 of the Aboriginal Peoples Act 1954 provides
for the State Authority of the 2nd Respondent to declare by
notification in the Gazette any area exclusively inhabited by
aborigines to be an aboriginal reserve.
10. The "Statement of Policy Regarding the Long Term
Administration of the Aborigine People in the Federation of
Malaysia" [hereinafter referred to as the “Policy Statement”] on
20.11.61 sets out the policies and underlying principles to be
adopted in relation to various aspects of the protection and
advancement of the Orang Asli.
Now produced and shown to me and marked as “MN-1” is a copy
of the Policy Statement.
page 6
11. The Policy Statement touches upon several matters of
fundamental importance to the special position of the Orang Asli
which are modelled along the principles contained in Convention
No. l07 of l957.
Now produced and shown to me and marked as “MN-2 “is a copy
of Convention No.107 of 1957.
12. The Policy Statement recognises the right of the Orang
Asli to benefit equally with the other sections of the community
and the need to promote their social, economic and cultural
development. Therein is also stated the commitment to adopt
special measures for protecting their institutions, customs, mode
of life, person, property and labour. It sets out integration of the
Orang Asli as opposed to assimilation as the object of the
promotion of the social economic and cultural development of the
Orang Asli. The basic principle of collaboration with Orang Asli
in all matters concerning their welfare and development is stated
as an imperative of the government.
13. The policy and underlying principle in regard to land
in the Policy Statement is set out as follows:
page 7
"The special position of the aborigines in respect of
land usage and Land Rights shall be recognised. Thus,
every effort will be made to encourage the more
developed groups to adopt a settled way of life and
this is to bring them economically into line with other
communities in their country. Aborigines will not be
moved from their traditional areas without their full
consent".
14. The Applicants are aborigines/aboriginal people of
West Malaysia [Peninsular Malaysia] from the Semelai tribe. The
Applicants and their ancestors have for generations settled as an
aboriginal community in the lands covering 2,023.47 hectares in
the Mukim of Guai, District of Berai, Pahang marked in yellow as
shown in the JHEOA Plan [hereinafter referred to as “Aboriginal
Inhabited Place”] annexed to this Affidavit. The said Aboriginal
Inhabited Place is customary and ancestral land occupied by the
Applicants and their forefathers for generations. By virtue thereof,
the Applicants have customary and proprietary rights in and over
the lands in the Aboriginal Inhabited Place.
page 8
Now produced and shown to me and marked as “MN-3 (a) – (b)”
is a copy of the Plan from the JHEOA and a copy of the Plan from
Jabatan Perhutanan Negeri Pahang.
15. Sometime in the year 2000 arising from an increase in
population, the said Aboriginal Inhabited Place which was
originally known as Kampung Bukit Rok, was administratively
organised into 2 cantons; namely, Kampung Bukit Rok and
Kampung Ibam under 2 headmen. Padang Kepayang which is a part
of the Aboriginal Inhabited Place remains within the headmanship
of the Batin of Kampung Bukit Rok.
16. That part of Kampung Bukit Rok known as Padang
Kepayang is being used by the Applicants as farming, rituals and
ancestral burial grounds. The Applicants gain sustenance from the
said Padang Kepayang where they hunt, fish and gather jungle
produce for their livelihood. The said Padang Kepayang provides
sources of traditional medicine like roots and herbal leaves, forest
produce like Kruing and Jelutong, as well as atap leaves and rattan
for furniture and home building tools. In Padang Kepayang are
also small-holdings of rubber trees and oil palm which provide
another source of likelihood. The huts and/or buildings erected in
the said Padang Kepayang are constructed as part and parcel of the
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economic pursuit of the Applicants providing shelter and storage
facilities. The three burial grounds in Padang Kepayang are still in
use today namely Cerakak, Tanjung Rambutan and Seberang
Giyah. The Applicants and the Semelai tribe aborigines consider
Padang Kepayang to be a holy and sacred place which shall not be
trespassed or taken by outsiders.
17. I am advised by my solicitors and verily believe that
Respondents owe constitutional, statutory and fiduciary duties to
the aboriginal peoples of West Malaysia including the Applicants
who are members of the Semelai tribal community in relation to
the said Aboriginal Inhabited Place. In particular, such duties
extend to the protection of their common law, constitutional and
statutory rights in and over their customary and ancestral lands
[including lands under customary communal/community title] as
well as lands occupied and/or inhabited by the aboriginal peoples
[hereinafter collectively referred to as “Land Rights”].
18. I am further advised by my solicitors and verily
believe that the Respondents are obliged to meet and to fulfil the
legitimate expectations of the Applicants with regard to the
protection of their Lands Rights over the said Aboriginal Inhabited
Place.
page 10
19. The said Aboriginal Inhabited Place being an area
exclusively inhabited by the Applicants has been approved by the
State Authority of the 2nd Respondent to be declared as an
aboriginal reserve under the Aboriginal Peoples Act 1954 vide
Surat Kelulusan Bil. (22) Temp 9/74.
Now produced and shown to me and marked as “MN-4” is a copy
of the Data Tanah, Jabatan Hal Ehwal Orang Asli, Kementerian
Dalam Negeri Malaysia 1990, page 37.
20. I am advised by my solicitors and verily believe that
the aforesaid approval although not administratively gazetted is
sufficient to constitute the Aboriginal Inhabited Place as
aboriginal reserves. The Applicants have thereby acquired the
rights vested in them under the Aboriginal Peoples Act 1954.
Furthermore the restrictions in favour of the Applicants as set out
in the said Act will also apply to the said Aboriginal Inhabited
Place.
21. I am further advised by my solicitors and verily
believe that the Applicants have common law rights over the
Aboriginal Inhabited Place which include but are not limited to the
proprietary right, customary and/or native title [including lands
page 11
under customary communal/community title], usufructuary rights
in and to the Aboriginal Inhabited Place, 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 and the right to
live on their land as their forefathers had lived together with the
right to the resources in and on the said land.
22. On or about 30.8.2004, the Applicants discovered that
part of the Aboriginal Inhabited Place known as Padang Kepayang
had been encroached and trespassed upon by unknown persons.
The trespassers were conducting land surveying work on the
Aboriginal Inhabited Place. The Village Headman of Kampung
Bukit Rok on behalf of the Applicants immediately lodged a police
report.
Now produced and shown to me and marked as “MN-5” is a copy
of the police report dated 30.8.2004.
23. On or about 27.10.2004, without the presence of the
Applicants or representative of the Applicants, a meeting was
held, inter alia, between the representatives of 1s t Respondent,
representatives of 2nd Respondent, District Officers of 3rd
Respondent under the charge of 4th Respondent and representatives
page 12
of 4th Respondent together with a representative of FELCRA
BERHAD [a corporation wholly owned by the 4th Respondent] and
the Village Headman of the adjacent Kampung Batu Papan. It was
disclosed that the Forestry Department of the 2nd Respondent had
granted a logging licence to carry on the logging activities on or
in the vicinity of that part of the Aboriginal Inhabited Place
known as Padang Kepayang (hereinafter referred to as the “First
Meeting”).
Now produced and shown to me and marked as “MN-6” is a copy
of the minutes of the meeting.
24. At the aforesaid First Meeting it appeared that
FELCRA BERHAD had been appointed to undertake the
development of a tract of land in the Mukim of Guai incorporating
that part of the Aboriginal Inhabited Place referred to as Padang
Kepayang for the benefit of certain unnamed villagers of the
adjacent Kampung Batu Papan (hereinafter referred to as the
“Development”).
25. It is evident that all the parties attending the First
Meeting acknowledged that such part of the Aboriginal Inhabited
page 13
Place as is confirmed to be aboriginal reserve shall be excised
from the tract of land intended for the Development aforesaid.
26. The 1s t Applicant has by way of several letters
informed the 1s t Respondent, a representative of 1st Respondent,
the Menteri Besar of 2nd Respondent, the District Office of the 3rd
Respondent, and the Deputy Prime Minister of the 4th Respondent
regarding the encroachment on the Aboriginal Inhabited Place by
FELCRA BERHAD and the timber company. Vide these letters the
intervention of the 1s t to the 4th Respondents towards the
fulfilment of their obligations to protect the Applicants’ Land
Rights in and over the Aboriginal Inhabited Place was sought.
However, the 1s t to 4th Respondents did not take any steps to
intervene and to act to protect the interests of the Applicants.
Now produced and shown to me and marked as “MN-7 (a)-(e)” are
a copy of letter dated 24.9.2004, a copy of letter dated 28.11.2004,
a copy of letter dated 2.2.2006, a copy of letter dated 12.2.2006
and a copy of letter dated 25.9.2006 respectively.
27. On or about 21.4.2006, the 1s t Applicant together with
members of the Majlis Lembaga Adat Semelai of Kampung Bukit
Rok and Kampung Ibam held discussions (hereinafter referred to
page 14
as the “Second Meeting”) with the officers of the 1s t Respondent,
together with the representative of 2nd Respondent, the officers of
the 3rd Respondent and the officers of the Department of Orang
Asli Affair under the charge of 4th Respondent. During the
aforesaid Second Meeting, the officers from the 3rd Respondent
confirmed that the approval to gazette the Aboriginal Inhabited
Place had been obtained.
Now produced and shown to me and marked as “MN-8” is a copy
of minutes of meeting held on 21.4.2006.
28. Pursuant to the Second Meeting, in acknowledgement
of the Land Rights of the Applicants in the Aboriginal Inhabited
Place, it was agreed that the timber company which had been
granted the logging licence shall pay compensation for the
removal of the timber thus far extracted from Padang Kepayang.
29. On or about 12.3.2007, several of the Applicants were
issued a Notice intituled “PENDUDUKAN TANAH KERAJAAN
TANPA KEBENARAN PIHAK BERKUASA NEGERI” [hereinafter
referred to as the “Eviction Notice”] to the Applicants occupying
the Aboriginal Inhabited Place described as Padang Kepayang.
page 15
Now produced and shown to me and marked as “MN-9” is a copy
of the Notice.
30. The Eviction Notice issued under Section 425 of the
National Land Code 1965 to the Applicants required them to
remove huts and/or buildings erected on Padang Kepayang and for
the said villagers to leave Padang Kepayang within 14 days of the
date of the Notice failing which the Pentadbir Tanah Daerah Bera
will proceed to demolish and to destroy the said buildings without
further notice under Section 426A of the said Code.
31. From the foregoing, it is clear that the 2nd Respondent
had decided, notwithstanding the Land Rights of the Applicants
and the representations of the Applicants’ concerning their Land
Rights in and over the said Aboriginal Inhabited, that Padang
Kepayang should be the site of a project to be undertaken by
FELCRA BERHAD which is a corporation wholly owned by the 4th
Respondent, for the benefit of certain unnamed villagers of the
adjacent Kampung Batu Papan [hereinafter referred to as the
“FELCRA Development Decision”]. Consequent to that decision,
the Applicants are being asked to leave failing which they will be
page 16
removed from Padang Kepayang to make way for the said
Development; hence the issuance of the said Eviction Notice.
32. I am advised by my solicitors and verily believe that
the 1s t and/or 2nd Respondents have breached their constitutional
and/or statutory and/or fiduciary duties and/or acted contrary to
the common law rights and/or legitimate expectations of the
Applicants which they owe to the Applicants with regard to their
Land Rights in and over the said Aboriginal Inhabited Place in the
following respects:
(a) the 2nd Respondent administratively failed to
gazette the declaration of the Aboriginal
Inhabited Place as an aboriginal reserve;
(b) the 2nd Respondent failed to afford the
Applicants the right to be heard with regard to
the said FELCRA Development Decision
affecting that part of the Aboriginal Inhabited
Place known as Padang Kepayang;
(c) the 2nd Respondent failed to consult and/or to
obtain the consent of the Applicants with
page 17
regard to the said FELCRA Development
Decision affecting that part of the Aboriginal
Inhabited Place known as Padang Kepayang;
(d) the 2nd Respondent unlawfully made the
FELCRA Development Decision affecting that
part of the Aboriginal Inhabited Place referred
to as Padang Kepayang for the benefit of
certain unnamed villagers of Kampung Batu
Papan notwithstanding that the Applicants had
Land Rights in and over the said Aboriginal
Inhabited Place including such rights arising
from the said Aboriginal Inhabited Place
being land constituted as Aboriginal Reserve;
(e) the 2nd Respondent unlawfully approved the
development of that part of the Aboriginal
Inhabited Place referred to as Padang
Kepayang by FELCRA BERHAD for the
benefit of certain unnamed villagers of
Kampung Batu Papan instead of for the
benefit of the Applicants;
page 18
(f) the 2nd Respondent discriminated against the
Applicants by purportedly approving the
development of the said Aboriginal Inhabited
Place by FELCRA BERHAD for the benefit
of certain unnamed villagers of Kampung Batu
Papan notwithstanding that the Applicants had
prior title, occupancy and enjoyment of the
said Aboriginal Inhabited Place;
(g) the 2nd Respondent unlawfully caused or
permitted the grant and issue of a logging
licence or otherwise permitted the extraction
of timber by non-aboriginal peoples on that
part of the Aboriginal Inhabited Place known
as Padang Kepayang;
(h) the 2nd Respondent failed to positively
discriminate and/or to act in favour of the
Applicants notwithstanding Article 8(5) (c)of
the Federal Constitution; and
page 19
(i) the 2nd Respondent unlawfully caused and/or
permitted issuance of the said Eviction
Notice.
33. The FELCRA Development Decision which will result
in the eviction of the Applicants from that part of the Aboriginal
Inhabited Place known as Padang Kepayang is tantamount to a
gross violation of the constitutional, statutory and common law
rights of the Applicants and also of the legitimate expectations of
the Applicants with regard to their Land Rights. The 2nd
Respondent would also be in breach of the constitutional, statutory
and fiduciary duties owed to the Applicants. The constitutional
right to life and the right to property of the Applicants will also be
violated besides causing serious and irreparable damage to the
Applicants inconsistent with the aforesaid rights and legitimate
expectations of the Applicants and the duties of the 2nd
Respondent for the following reasons:
(a) the Applicants have resource rights over the
Aboriginal Inhabited Place known as Padang
Kepayang where they hunt, fish and gather
jungle produce for their livelihood and if
page 20
FELCRA Development Decision is executed it
would deprive the Applicants’ resource rights
and right to livelihood;
(b) many of the Applicants are also dependent on
the rubber small-holdings cultivated on the
Aboriginal Inhabited Place known as Padang
Kepayang for their livelihood and if the
FELCRA Development is executed it would
deny them access to the said rubber smallholdings
cultivated and it will affect and/or
deprive the Applicants’ right to economic
returns and livelihood;
(c) the huts and/or buildings erected in the
Aboriginal Inhabited Place known as Padang
Kepayang are constructed as part and parcel
of the economic pursuit of the Applicants
providing shelter and storage facilities and if
the FELCRA Development Decision is
executed, the huts and/or buildings erected
will be demolished and the Applicants’
page 21
economic activity and livelihood will be
impaired;
(d) the said Aboriginal Inhabited Place known as
the Padang Kepayang is the location of the
burial grounds of the Applicants’ ancestors
which include but are not limited to Cerakak,
Teluk Rambutan and Seberang Giyah and it is
a sacred and holy place to the Applicants
where they practice their aboriginal customs
and beliefs, if the FELCRA Development
Decision is executed it would result the burial
grounds of the Applicants’ ancestors to be
destroyed and it will deprive them the rights
to practice an aboriginal way of life, customs,
beliefs and freedom to worship;
(e) the Applicants have been occupying and
enjoying the full benefits of that part of
Aboriginal Inhabited Place known as Padang
Kepayang and if the FELCRA Development
Decision is executed the Applicants will be
deprived of the rights to their customary lands
page 22
and the right to enjoy the full benefits of it;
and
(f) the effect of the FELCRA Development
Decision if implemented will cause the
Applicants to suffer irreparable losses and
damage.
34. I am further advised by my solicitors and verily
believe that the 3rd and/or 4th Respondents have breached their
constitutional and/or statutory and/or fiduciary duties and/or acted
contrary to the legitimate expectations of the Applicants which
they owe to the Applicants in that they have failed to exercise
their duty to undertake the welfare of the Applicants and their
protection, well-being and advancement with particular regard to
the Land Rights of the Applicants in and over that part of the
Aboriginal Inhabited Place known as Padang Kepayang as well as
the entire Aboriginal Inhabited Place in the following respects:
(a) the 3rd Respondent and the 4th Respondent
permitted and/or facilitated the process for
FELCRA BERHAD to undertake the
development of Padang Kepayang for the
page 23
benefit of certain unnamed villagers of
Kampung Batu Papan and/or did not take
steps to stop the same;
(b) the 3rd and 4th Respondent failed to act in
favour of the Applicants notwithstanding
Article 8 (5) (c) of the Federal Constitution
and their express statutory and constitutional
duty to ensure the welfare, protection and
well-being of aboriginal peoples;
(c) the 3rd and 4th Respondents failed to intervene
and/or take steps to ensure that the State
Authority of the 2nd Respondent took steps to
gazette the declaration of the Aboriginal
Inhabited Place as aboriginal reserve;
(d) the 3rd and 4th Respondent failed to effectuate
the reservation of the said Aboriginal
Inhabited Place to be reserved or granted to
the 4th Respondent for a federal purpose, to
wit the protection, advancement and wellpage
24
being of aborigines of Applicants who are
from the Orang Asli Semelai tribe;
(e) the 3rd and 4th Respondent permitted and/or
failed to intercede or intervene on behalf of
the Applicants with regard to the FELCRA
Development Decision which will result in the
eviction of the Applicants from that part of
the Aboriginal Inhabited Place known as
Padang Kepayang contrary to their Land
Rights, their constitutional right to life and
their right to property of the Applicants in the
manner set out in paragraph 33 hereinbefore;
and
(f) the aforesaid acts and/or omissions constitute
gross breaches of the constitutional, statutory
and fiduciary duties of the Respondents vested
with the duty to safeguard and advance the
welfare of the aboriginal peoples of West
Malaysia, including the Applicants as the first
peoples of the West Malaysia; the same being
aggravated by gross violation, neglect, failure
page 25
and refusal to take cognizance of the special
position guaranteed to aboriginal peoples of
West Malaysia under the Federal Constitution,
the Aboriginal Peoples Act 1954 and the
undertakings of the 3rd Respondent and 4th
Respondent as set out in the Policy Statement.
35. Having regard to the facts referred to in the paragraphs
hereinbefore, I am advised by the Applicants’ solicitors and verily
believe that the 2nd Respondent erred in law and/or acted without
jurisdiction when it decided that the part of the Aboriginal
Inhabited Place referred to as Padang Kepayang is to be developed
by FELCRA BERHAD for the benefit of the villagers of Kampung
Batu Papan, such aforesaid decision being formally communicated
through the issuance of the Eviction Notice dated 12.3.2007. The
grounds upon which the Applicants rely on are as stated in the
Statement filed herein pursuant to Order 53 Rule 1 of the Rules of
the High Court, more particularly that:
(a) the 2nd Respondent had unlawfully made the
FELCRA Development Decision affecting that
part of the said Aboriginal Inhabited Place
known as Padang Kepayang for the benefit of
page 26
the certain unnamed villagers of Kampung
Batu Papan;
(b) the 2nd Respondent had failed to take into
account various relevant considerations
pertaining to the Land Rights, Constitutional
and statutory rights as well as the legitimate
expectations of the Applicants together with
the constitutional, statutory and fiduciary
obligations which the 2nd Respondent owed to
the Applicants arising from relevant
provisions of the Federal Constitution, the
Aboriginal Peoples Act 1954 and the Policy
Statement:
(i) that the Applicants had common law
rights, over that part of the said
Aboriginal Inhabited Place referred
to as Padang Kepayang;
(ii) that Article 8(5) (c) of the
Constitution expressly provides for
positive discrimination in favour of
page 27
Aboriginal Peoples including the
Applicants with regard to land
matters;
(iii) that even without such provision for
positive discrimination, the
Applicants had in any event prior
claims and overriding rights over that
part of the said Aboriginal Inhabited
Place referred to as Padang Kepayang
to the unnamed villagers of Kampung
Batu Papan;
(iv) that the Aboriginal Inhabited Place
including Padang Kepayang is land
which the State Authority of the 2nd
Respondent had approved to be
declared as aboriginal reserves;
(v) that with regard to aboriginal
reserves no land shall be declared a
Malay Reservation or be alienated,
granted, leased or otherwise disposed
page 28
of except to aborigines of the
aboriginal communities normally
resident within the reserve and no
temporary occupation of any land
shall be permitted under any written
law relating to land;
(vi) that with regard to that part of the
Aboriginal Inhabited Place referred
to as Padang Kepayang which the 2nd
Respondent had approved to be
declared Aboriginal Reserve only
aboriginal peoples in particular the
Applicants had the right and/or
legitimate expectations to the benefit
of development by FELCRA
BERHAD or any other entity and the
said FELCRA Development Decision
is thereby contrary to law;
(vii) that with regard to that part of the
Aboriginal Inhabited Place referred
to as Padang Kepayang statutory
page 29
restrictions apply which will prohibit
the 2nd Respondent from making the
FELCRA Development Decision;
(viii) the right of Orang Asli including the
Applicants to benefit equally with the
other sections of the community and
the need to promote their social,
economic and cultural development
as set out in the Policy Statement;
(ix) the recognition of the special position
of the aborigines in respect of land
usage and land rights is a policy
imperative under the Statement of
Policy;
(x) the policy that every effort will be
made to encourage the more
developed groups to adopt a settled
way of life and this to bring them
economically into line with other
page 30
communities in their country as set
out in the Policy Statement; and
(xi) the policy that Aborigines will not be
moved from their traditional areas
without their full consent as set out
in the Policy Statement.
(c) The 2nd Respondent had for the reasons set out
hereinbefore, improperly exercised its
statutory discretion and/or failed to apply its
mind to the true nature of the Land Rights of
the Applicants, the nature of the rights of
aboriginal peoples to aboriginal inhabited
places which have been approved as
aboriginal reserves and the restraints on their
powers concerning such lands as well as the
fiduciary, constitutional and statutory duties
emplaced on it when exercising its powers and
functions in making the FELCRA
Development Decision affecting that part of
the Aboriginal Inhabited Place referred to as
page 31
Padang Kepayang for the benefit of the
villagers of Kampung Batu Papan;
(d) The 2nd Respondent in making the FELCRA
Development Decision affecting that part of
the Aboriginal Inhabited Place referred to as
Padang Kepayang for the benefit of certain
unnamed villagers of Kampung Batu Papan,
had misconstrued and misinterpreted the
object, purposes, policy and scope of the
Aboriginal Peoples Act 1954 and the National
Land Code 1965 as well as the Policy
Statement and/or Federal Constitution and/or
in any event his decision militates against the
object of the said statutes and/or Policy
Statement;
(e) Having regard to the facts and circumstances
set out hereinbefore in this Affidavit, the 2nd
Respondent had unlawfully exercised its
executive powers pertaining to land and/or its
statutory power under the National Land Code
1965 without any lawful basis;
page 32
(f) By reasons, inter alia, of the foregoing, the
2nd Respondent made the FELCRA
Development Decision which is perverse
and/or which is so unreasonable that no
reasonable authority in his position who is
obliged to exercise his discretionary power
upon an objective assessment of the facts and
materials pertinent to the case could have ever
come to it, in issuing the said Notice; and
(g) The 2nd Respondent committed procedural
impropriety when it failed to consult and/or to
afford the Applicants the right to be heard
before making the FELCRA Development
Decision and the same is therefore null and
void and of no effect.
36. I am further advised by my solicitors and verily
believe that the matters aforesaid also constitute a denial of the
legitimate expectations of the Applicants.
page 33
37. I further state that the conduct and/or actions of the
Respondents as set out aforesaid have caused the Applicants to
suffer loss and damage and put the Applicants to expenses, full
particulars of which will be provided for at the assessment of
damages to be conducted in accordance with rules of court.
38. In the premises, I pray for an Order in terms of the
Application filed herein to which this Affidavit relates.
Forms of Jurat
To an affidavit by one deponent )
)
MOHAMAD BIN NOHING )
)
affirmed on the day of )
)
, 2007 )
)
at )
)
(Through the interpretation of )
)
[interpretation not required]) ) ...........................................
(MOHAMAD BIN NOHING)
Before me,
Commissioner for Oaths.
This Affidavit is affirmed by Mohamad Bin Nohing
on and filed on by Messrs Lee
Hishammuddin Allen & Gledhill (formerly known as Messrs Lee
Hishammuddin), Level 16, Menara Asia Life, 189, Jalan Tun Razak,
50400 Kuala Lumpur, Solicitors for the Applicants abovenamed. (Tel
No. 21612330/ Fax No. 21613933) (LHS/34139/07) (my
document:shila/Afd/LHS~34139-afd-bi)