PUTRAJAYA: The Federal Court has granted a group of Orang Asli leave to appeal in their bid to stop two companies from constructing a hydroelectric dam on their ancestral land in Gopeng.
A three-member bench chaired by Tengku Maimun Tuan Mat said the applicants had satisfied the requirements under Section 96(a) of the Courts of Judicature Act 1964.
Also on the panel were Justices Zabariah Yusof and Nordin Hassan.
In a civil case, the Federal Court will only hear an appeal on its merits if an applicant raises a question of law which the apex court has not previously ruled on or involves an important question for which a decision would be to public advantage.
The question approved by the apex court involves whether on an interpretation of Section 18 of the Specific Relief Act 1950, an action for recovery of land can seek both specific relief and an alternative claim for damages.
On April 21, 2021, then Judicial Commissioner G Bhupindar Singh allowed the Orang Asli an interlocutory injunction against Perak Hydro Renewable Energy Corporation Sdn Bhd and Conso Hydro or their agents pending the disposal of the main suit.
However, on April 1 last year, the Court of Appeal set aside the injunction.
Lawyers Aaron Mathews, Vinu Kamalananthan, Conrad Lopez, Sarah Tiong Wei Shin and Shahrul Azwan appeared for the Orang Asli while Goik Kenzin, Ramesh Sivakumar and Calvin Lim represented the companies in today’s proceedings.
In 2018, 22 Orang Asli settlers from Ulu Geruntum, Gopeng, filed a suit naming the two private companies, the Perak government, the Orang Asli development department’s director-general, the Perak lands and mines department and the federal government as defendants.
The plaintiffs want work on the dam to be stopped as it infringes their community’s rights to their ancestral land which they claim was cleared without their consent.
The settlers, who are from the Semai tribe, come from six villages in the Ulu Geruntum area, namely Kampung Sungai Kapor, Kampung Sat, Kampung Ulu Kepayang, Kampung Empang Main, Kampung Poh and Kampung Ulu Geruntum.
The two companies started the project in Sungai Geruntum in 2012.
The Orang Asli said the project had destroyed fruit tree plantations and about 50 ancestral burial grounds without the permission of the Semai tribe of Ulu Geruntum.
They said the water source had also become contaminated.
The plaintiffs added that the state and federal agencies had a fiduciary duty to protect their rights under the Federal Constitution and the Aboriginal Peoples Act 1954.
Among the declarations and injunctions sought by the plaintiffs are that they are the legal owners of the ancestral land in Ulu Geruntum and that the defendants have no right to damage or extinguish their land rights.
They are also seeking a court order for the companies to vacate the land immediately and compensate them for the encroachment.
The group also wants the court to order the federal and state governments to compensate them for failing to uphold their fiduciary duties.