Client Alert – Customary Rights Over Ancestral Graves

What Happened

On 16 June 2026, the Federal Court unanimously reinstated a High Court award of RM140,000 (RM20,000 each) to seven Orang Asli villagers whose ancestral burial ground was cleared during the development of a prawn farming project in Pekan, Pahang. The Court of Appeal had earlier overturned the award, holding that the villagers lacked standing — the tombstones were unnamed, and there were no death certificates. The Federal Court disagreed. It held that the villagers had established their connection to the graves through oral testimony, photographs, and even the company’s own sketch plan.

Why It Matters

• State leases do not extinguish native customary rights. The Federal Court was explicit: “Issuance of land titles … cannot simply cancel or extinguish their customary rights to their land.” Rights to burial grounds, foraging areas, and ancestral paths survive unless lawfully acquired under the Land Acquisition Act 1960 with compensation.
• Standing can be established without formal documents. Oral testimony, photographs of personal items, and even a developer’s own sketch plan were accepted as proof of connection. A rigid demand for death certificates will not be the final word.
• Written admissions become evidence. The company’s apology letter — acknowledging that it cleared the cemeteries to make way for the “biggest aquaculture park in Asia” — was cited by the court. What your project team puts in writing will be read in court.

What You Should Do Now

1. Map customary sites before a single machine moves. Commission an independent community‑based mapping exercise. Treat identified graves, ritual sites, and foraging areas as physical constraints in your project design.
2. Engage the community directly — not through a single intermediary. Build a structured, documented engagement process with elders, the community, and JAKOA. Record minutes, share maps, and obtain explicit, written acknowledgement of site boundaries.
3. Implement a stop‑work protocol for contractors. Make it a contractual requirement: if burial sites, tombstones, or personal items are unearthed, work stops immediately, the site is secured, and the community is contacted.
4. Train site managers on communication discipline. Emails, letters, and even WhatsApp messages can become evidence. Obtain legal advice before issuing any admission or apology.

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