Discovery consists not in seeking new lands but in seeing with new eyes.
– Marcel Proust, French novelist
The 15th century code for empire-building was ‘land ahoy,’ shouted by the ship’s watch to inform the weary seafaring crew that land has been spotted. Whether or not the ship’s captain and company shouted “land owners ahoy’ when they met natives ashore is doubtful. The hoisting of a colourful flag may have been watched with curiosity by natives, but it did not warn them that their lands were ripe for the taking, or more accurately, stealing, without any form of compensation except for vague promises of protection.
Pedro Scotto arrived in the Bahamas (“New World”) in 1492, met with natives, and figured he had arrived in India because he had set sail westbound for India. But this buccaneer with a royal charter took it upon himself to claim all the lands he visited as a Spanish acquisition. Subsequently, Cortes, Pizzaro, Balboa, Alvarado, and others helped the royal Spanish coffers and treasury with gold and silver traditionally owned by the natives under the ad coleum rights doctrine.
Incidentally, Pedro Scotto was later bestowed with a Hollywood name: Christopher Columbus.
Free land represented the motherlode to the discoverer-eurosettler with well-planned sinister agendas prepared by the papacy and the royal court of Spain. Gradually the land title system crept in to identify, alienate, register and own land. Private ownership of property was alien to the native inhabitants of the Americas, Africa, Asia, Australasia, Melanesia, Polynesia and Micronesia who practised communal property ownership.
G. Cheshire and E. Burn write in their seminal Modern Law of Real Property (15th edn, London, Butterworths, 1994), at p.26, that “it has been said, rightly, that there is no law of ownership of land in England and Wales, only a law of possession.” If this means anything it means the eurosettler had no legitimate claim to land possession except by physical force under colour of law.
Harman J, in Stokes v. Costain Property Investments [1983] 1 WLR 907, 910, complained that ‘difficult problems arise in English real property law on the concept of possession.’ But, the concept of land titles leading to land ownership in ‘fee simple’ had already been in vogue since the Norman conquest. Why he wrestled with the concept of possession’ is because he may not have been aware of concepts like usucapion (Latin: ownership due to lengthened possession), and ad coleum (Latin: all land above, around and beneath belongs to the original occupier). Harman J should have been cognisant of the Latin maxim in pari causa possessor potior haberi debet – in an equal cause he who has prior possession should be preferred. Errant judges cause jurisprudence to stumble in orderly chaos and falter in consecrated confusion.
Post-Independence America never found permanent solutions for the forced taking of Native lands that were periodically swallowed up by settlers going westward to the ‘land ahoy’ invitation. In Cramer v. US 261 US 219, 227 (1923) the US Supreme Court held that native rights were to be respected even when they had not been expressly guaranteed by treaty, statute or executive order. Cramer was cited again in US v Santa Fe Railroad Co 314 US 339 (1941) by the apex court when it went the extra mile to declare that compensation had to be paid even when a tribe had freely consented to expropriation. Australia’s Mabo 2 decided in 1992 still walks tall for all other global cases dealing with customary native title.
In Malaysia, sections 6 and 7 of the Aboriginal Peoples Act 1954 (Act 134) read together with section 4(2)(a) of the National Land Code (Act 56 of 1965) eminently silences the concepts of leasehold, freehold, bumiputera lot, and the Torrens system as did the common law in Sagong Tasi, Nor anak Nyawai, and Adong bin Kuwau which Malaysian legal scholars labelled as an ‘emerging concept of native title’ in Malaysian law. If submerging the truth was the cause, then truth emerging is the effect.
One would be hard-pressed to find any law that grants government the inalienable right to own land. Colonial laws still lingering in existing legislation talk about the ‘fiduciary duty’ of the government to hold native lands in trust quite forgetting that natives did very well as custodians of their lands well before unnecessary outside influence and unwelcome foreign interference emerged.
The government has a duty to protect and preserve lands. That is the pith and substance of a fiduciary duty – a duty to act in a way that will benefit someone else economically, and in this instance it’s the original inhabitants whose descendants still live amongst us. Article 8(5)(c) Federal Constitution of Malaysia is very clear on this issue. Any violation of a fiduciary duty should be deemed a criminal offence. Practical politics consists in ignoring facts, remarked Henry Adams.
The courts of the conqueror will never understand the anthropological connection of natives to their ancestral lands because they choose not to in the name of civilised conduct, organised religion and constitutional fiat. Government courts finding in favour of native title has not translated into ultimate native land ownership – parchment promises at best.
New eyes are urgently needed for separating the wheat from the chaff concerning land ownership and empire-building where political force is the equaliser that encourages a two-tier justice system.
The views expressed here are those of the columnist and do not necessarily represent the views of New Sarawak Tribune.
