Orang Asli land rights: A raw, not-so-new deal

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Principles such as equality, social justice, reconciliation for past injustices and the right to participation in public life all seem to be missing from the proposed land policy for Orang Asli, observes Yogeswaran Subramaniam.

 

The recent announcement by the Federal government that more than two-thirds of Orang Asli families are to be given between 450 square metres and 0.1 hectare for housing and up to 2.4 hectares of planted palm oil or rubber (see ‘Orang Asli families are to get land’, New Straits Times, 19 November 2008) raises a plethora of issues and unanswered questions for the Orang Asli community.

It is not the intention of the article to delve into the complicated web of law, human rights and government policy that has constantly plagued this area. This article merely attempts to articulate, in a succinct manner, some of the more salient areas of concern for the introduction of the policy from an Orang Asli perspective and evaluates the need for a systemic change in the policy for the administration of Orang Asli, particularly their land matters.

 

Human rights concerns

Before this article is said to presume the needs of the Orang Asli, it is pertinent to note that it draws inspiration from the recent Memorandum from the Orang Asal (including representatives of the Orang Asli) calling for the protection of their customary lands (see ‘A wish list too far?’, Aliran Monthly (2008), Vol 28 No 8). This call was not only an impassioned plea from yet another marginalised and dispossessed part of our society but a cry for justice in the form of the obligations contained in the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

Malaysia has voted in favour of the adoption of the UNDRIP twice at the Human Rights Council and General Assembly without any reservation whatsoever. Accordingly, the government has at least a moral obligation to follow the UNDRIP as a standard of achievement to be ‘pursued in a spirit of mutual respect’.

In essence, the UNDRIP declares that Indigenous peoples have rights to lands traditionally occupied (Article 26) and shall not be removed from their lands without prior free and informed consent and the payment of just and fair compensation (Article 10). It also provides for the rights of Indigenous peoples to freely pursue their economic, social and cultural development (Article 3) and participation, if they so choose, in the life of the state (Article 5).

Subject to further clarification by the government, it is unclear if all the reported 870 Orang Asli settlements ‘effectively’ participated or consented to this proposed scheme. Even in the unlikely event that they did so, the policy does not seem to explain whether the Orang Asli have an option to accept the scheme and if adequate compensation will be awarded for any deprivation of their traditional lands.

Further, the devastating cultural impact arising from the potential loss or conversion of ancestral and culturally significant portions of Orang Asli land does not appear to be dealt with by the policy. After all, the right to cultural integrity is also protected under the UNDRIP and other international human rights instruments.

Unfortunately, enforcement of these particular rights by the Orang Asli in the international arena would be just short of impossible at this stage due to the non-binding nature of the UNDRIP.

 

Legal rights, equality and a consultative approach

Contrary to popular belief, the Orang Asli do possess readily available legal rights within our legal system. Article 8 of the Federal Constitution provides amongst others, for equality before the law and goes further by allowing, by way of exception, positive discrimination in favour of the Orang Asli in respect of reservation of their land. Further, Article 13 provides for adequate compensation for deprivation of property.

These rights have been recognised by two Court of Appeal decisions concerning Orang Asli customary lands (see Johor v Adong bin Kuwau [1998] 2 MLJ 158; Selangor v Sagong bin Tasi [2005] 6 MLJ 289). Given that the common law (that includes local cases) and custom fall within the definition of ‘law’ (Article 160(2) Federal Contsitution), it cannot be said that the Orang Asli have no rights in law to their customary lands and are solely dependent on the goodwill of the government in this regard.

For present purposes, the legal position highlights a more important point: Orang Asli should, as a matter of law and morality, be treated as equal stakeholders and not merely unwitting beneficiaries in the formulation of any policy affecting their customary lands.

A meaningful consultative process involving the effective participation of the Orang Asli in a bona fide manner should form the cornerstone of any such policy formulation. Only then can there be a proper foundation for prior ‘free and informed’ consent.


Socio-economic development concerns

From a purely economic perspective, the scheme raises a number of issues.

First, the scheme that involves 143, 318 acres does not take into account the 315,000 acres currently occupied by the Orang Asli (see ‘Still many unanswered questions’, New Straits Times, 9 December 2008). No public explanation has been proffered as to how this massive shortfall will be managed by the Government and if there will be adequate compensation in the event there is such a loss.

Second, the scheme does not cater for the disparity in value between lands occupied by the Orang Asli that are located in urban, fringe or interior areas. An acre in an urban area would surely be worth more economically than an acre in the interior.

Third, the fixed allocation of land homogenises the 18 sub-groups of Orang Asli thus assuming that their occupation and use of land is similar when the contrary is true.

Fourth, would the income derived from the new deal be adequate for their socio-economic and cultural sustenance and development if the effect of the policy would be the permanent deprivation of their existing means of income?

Fifth, the Orang Asli do not appear to have a say in the manner in which the agricultural land is to be cultivated or used. These are but a few of the issues that make the policy questionable even from an economic development standpoint.

If previous experiences of other states are anything to go by, forced policies of Indigenous self-sustenance and the allocation of individual titles (albeit with a seven-year moratorium on transfer in this case) as earlier observed in countries such as the United States, Australia and Chile have had devastating effects on Indigenous society. Why then reinvent the wheel and drag the Orang Asli through the same outmoded policies when there are contemporary international standards contained in the UNDRIP that afford better respect and recognition for Orang Asli customary land rights?

 

Principles not policies

There is no doubt that customary lands are of paramount importance to the sustenance and vitality of the political, economic, social and cultural well-being of the Orang Asli community. Despite this, the Department of Orang Asli Affairs (‘JOA)’ does not place too much importance on the protection of customary lands in its administration of the Orang Asli.

A perusal of the department’s mission, vision statement and strategy reveals no reference to the importance of respect and recognition for Orang Asli customary lands. Even more disappointing is its mission to only preserve ‘positive cultural values’ (nilai budaya positif) of the Orang Asli.

This outdated paternalistic and ‘top-down’ approach from the self-confessed ‘godfather of Orang Asli Affairs’ may explain the lack of effective participation of the Orang Asli in decisions affecting them and the selective manner in which Orang Asli culture has been respected.

To apportion blame for such a predicament solely in the hands of the JOA is misconceived as it is the government that plays an integral role in devising policies for the ‘welfare’ of the Orang Asli. A policy that fails to take into account the preservation and development of the culture of a particular community cannot, by any stretch of imagination, be for its welfare.

Moreover, such a policy bears a disturbing resemblance to the culturally destructive racist and ethnocentric policies of Western settlers and colonials towards Indigenous societies previously observed in the Americas and Australasia.

What is important is not a policy itself but the principles upon which a policy is based. It is disappointing to note that principles such as equality, social justice, mutual respect, reconciliation for past injustices and the right to participation in public life all seem to be missing from the public version of the proposed policy.

Regrettably, incorporating all these principles would involve a complete change in the administrative structure and the modus operandi of the Government in its dealings with Orang Asli affairs. Such a change, despite repeated pleas by the community, NGOs, civil society and academicians, is still not forthcoming.

If cultural diversity in our country is to be upheld, all ethnicities should be afforded this privilege on an equal basis without exception. The Orang Asli, as first peoples of Peninsular Malaysia, form part of the fabric that enriches our society and should not be moulded into any existence that suits anyone else but themselves.

Aliran member Yogeswaran Subramaniam is currently pursuing a doctoral thesis in Orang Asli land rights at the Faculty of Law, University of New South Wales, Sydney.

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