Payback time

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Enough has been taken away from the Orang Asli, observes Yogeswaran Subramaniam, and it is now time to give a little back to them.

The United Nations International Day for the World’s Indigenous People was celebrated on 9 August without too many Malaysians even realising it or, for that matter, knowing its meaning. This sad state of affairs in a way sums up society’s ignorance and apathy about indigenous minorities in this country.

Of the four indigenous groups covered in the Federal Constitution, the Orang Asli of Peninsular Malaysia (the Constitution uses the term “Aboriginal peoples”) are the most underprivileged in terms of basic education, health care and land rights and development (whether political, economic or social).

There is no doubt that they are in serious need of assistance and development – but, as a minority, this usually comes at a price. Would the possibility of losing one’s culture, identity and traditional lands in favour of being absorbed into mainstream society be too high a cost to pay? Would we willingly make such a sacrifice if we were in their position? Unfortunately for the Orang Asli, they are not being asked these questions so that they can decide for themselves.

In this article, we will revisit the ongoing challenges faced by the Orang Asli in holding on to their traditional lands, which they have occupied for centuries, and try to translate these problems in a form that is easily understood.   

The term "Orang Asli"

The term Orang Asli or “aborigines” (as used in the Federal Constitution and the Aboriginal Peoples Act 1954) means the original or first peoples of Peninsular Malaysia. As at 2003, their total population stood at around 147,000, clearly indicating their minority status. The Orang Asli, however, are not homogenous peoples but a collective term for the 18 ethnic subgroups that are in turn officially classified for administrative purposes under Negrito, Senoi and Aboriginal Malays (more popularly known as Proto-Malays) (Nicholas, 2000). Shared socio-economic indicators and social histories, however, can justify their treatment as one (Nicholas, 2000).

The Federal Constitution expressly distinguishes between Malays, the Natives of Sabah, the Natives of Sarawak and the Aborigines and their respective rights. Unlike Article 153 (1) of the Federal Constitution – which imposes a duty to safeguard the special position of Malays, the Natives of Sabah and the Natives of Sarawak – Article 8(5)(c) of the Federal Constitution only appears to vest a discretion to act affirmatively in the protection, well-being and advancement of Orang Asli rights (Lim, 1997).

 

Orang Asli land rights in Malaysia

To appreciate the predicament of the Orang Asli in respect of their lands, it is necessary to understand the extent of the role of traditional lands to the Orang Asli. Like most indigenous communities worldwide who still practice a traditional way of life, the Orang Asli do not view their traditional land as a commodity belonging to an individual whose ownership allows him for the most part to deal with and use the same freely.  

The Orang Asli who practise a traditional way of life use their traditional land not merely as their home but as a source of livelihood (e.g. swidden farming, agriculture, hunting, fishing and, of late, tourism), a place of religious practices and cultural heritage (e.g. ceremonial and ancestral burial grounds and the sources), health care (e.g. traditional medicines) and social interaction (e.g. balai adats used for communal gatherings). They view land as community property, the basis of their cultural identity and sometimes life itself (Kajing Tubek & 2 ors v Ekran Bhd & 4ors [1996]).

Until recently, the only rights of occupation that the Orang Asli had in respect of their traditional land were contained in the Aboriginal Peoples Act 1954 (APA). Under the APA, the State Authority may declare any area exclusively inhabited by aborigines to be an “aboriginal reserve” (section 7) and declare any area predominantly or exclusively occupied by aborigines that is not an “aboriginal reserve” to be an “aboriginal area” (section 6). The nature of these rights are so limited that Orang Asli occupying these gazetted lands have been regarded as being not more than a mere tenant at the will of the State Authority as the status of the land can be revoked at any time (Lim, 2007, Yogeswaran Subramaniam, 2007).

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To make matters worse, the record in approving applications for aboriginal reserves has been dismal. As at 31 December 2003, 62.5 per cent of applications were still pending (Center for Orang Asli Concerns’ website), thus turning the Orang Asli into squatters on their own land! Admittedly, there are administrative difficulties as the welfare of the aborigines is a federal matter and land is a state matter. But considering the fact that the welfare of the Orang Asli (including the reservation of land) is expressly provided for under the Federal Constitution, such delay is unacceptable. Add to this the problem of under-gazetting of Orang Asli land, where not all land validly claimed is gazetted (Nicholas, 2000), and the Orang Asli are left with a pittance.

But two relatively recent cases involving Orang Asli land have recognised aboriginal rights over land. In Adong bin Kuwau v Kerajaan Negeri Johor & Anor (1996), the High Court (affirmed subsequently in the Court of Appeal) in 1996 held that the Orang Asli common law rights in Malaysia included, amongst others, “the right to live on their land as their forefathers had lived and this would mean that even the future generations of the aboriginal people would be entitled to this rights of their forefathers”. The appeal to the Federal Court by the Johor State Government and the other defendants was dismissed but no written grounds for the decision were given.

Six years later, in the case of Sagong bin Tasi & Ors v Kerajaan Negeri Selangor & Ors, the High Court decided that the proprietary interest of aboriginal people in their customary and ancestral land was an interest over land. Additionally, the Court also held that the State and Federal governments owed a fiduciary duty to the Orang Asli in respect of their land. The defendants’ appeal to the Court of Appeal was dismissed in 2005. Against concurrent developments in other common law jurisdictions such as Australia, Canada and New Zealand and international standards, the Government has appealed against a decision of the Court of Appeal recognising the customary title of the Orang Asli. The case is still pending and the Orang Asli anxiously await the outcome of this case.

International standards

Article 14 of the International Labour Organisation Convention (No 169) concerning Indigenous and Tribal Peoples in Independent Countries of 1989 explicitly provides for the recognition of rights of ownership and possession of traditional land and for the governments of the countries that are party to the Convention to guarantee effective protection of these rights. Notwithstanding that Malaysia is not a party to this Convention, the two decisions nevertheless do demonstrate consistency with international standards.
 
The draft United Nations Declaration on the Rights of Indigenous Peoples, adopted by the Human Rights Council on 29 June 2006 (Malaysia is a member of the Human Rights Council and voted in favour of its adoption), provides for, amongst others:

•    The right of restitution of traditional lands and compensation in the form of lands equal in quality, size and legal status (Article 27)
•    The right not to be forcibly removed from their lands without the free and informed consent of the indigenous peoples and after agreement on just and fair compensation (Article 10)
•    The right of prevention and redress for any action which has the aim of dispossessing them of their lands (Article 7(b)).

READ MORE:  Right of Orang Asli community to live with dignity

Article 8(j) of the Convention on Biodiversity 1992, to which Malaysia is a signatory, calls for the preservation and maintenance of indigenous traditional knowledge. The loss of rights in respect of lands and, consequently, the loss of the lands traditionally occupied by the Orang Asli may result in a loss of biodiversity and indigenous knowledge systems at an alarming rate (Nicholas, 2005).

What is the big deal?

The total area involved in respect of aboriginal reserves (gazetted, approved and pending) amounted to 127, 698 hectares at the end of 2003 (COAC website), roughly 1,277 square km. This is less than 1 per cent of the total land area of Peninsular Malaysia. It goes against good conscience that security of tenure for this relatively small tract of land is not given to the Orang Asli. They have already lost so much over the years to make room for others to lead the lives that they lead today. Furthermore, security concerns during the communist insurgency in the 1950s and 1960s, one of the prime reasons for the outdated APA, no longer exist. Simply put, there are no cogent reason to preserve this status quo if the welfare of the Orang Asli is truly of paramount concern.

Recognising native title is not only a moral or legal issue. There are economic benefits even if the Orang Asli choose to continue to observe their traditional lifestyle on their lands.

Other than the obvious contribution to tourism, Orang Asli possess unique indigenous traditional knowledge (e.g. in plant and animal life) that has proved invaluable to, amongst others, the pharmaceutical, agricultural and biotechnology industries.  This scarcely documented traditional knowledge that is passed from generation to generation continues to evolve daily with practice. The total dispossession of the Orang Asli from their lands and a change to mainstream lifestyle would inevitably lead to the gradual extinction of this valuable asset.

Orang Asli practising a traditional way of life over their traditional lands also play an important role in contributing to the preservation of our forests and the biodiversity of our ailing environment.

The argument here is not for the Orang Asli to remain on their lands without “progress” but for the Orang Asli to be given security of tenure over their land so that those who choose to continue with their lifestyle can do so. In this respect, Article 3 of the United Nations Draft Declaration of Indigenous Peoples explicitly provides that Indigenous Peoples have the right to self-determination to freely pursue, amongst other things, their cultural and economic development.

A sad turn of events

Instead of embracing the recognition of Orang Asli customary land title and regulating it for the betterment of the Orang Asli, the Government has decided to contest its very recognition in a court of law by appealing against the decision of the Court of Appeal in Sagong’s case.

This has resulted in even more legal tussles. In April 2007, the Semelai of Kampong Bukit Rok and Kampong Ibam applied to the Temerloh High Court for the judicial review of an eviction order served on them by the Pahang State Government, claiming, amongst other things, common law customary rights over their land.

The recent proposed National Arboretum and Kelau Dam project, which involved the possible relocation of the Orang Asli, still shows the lack of priority to Orang Asli land rights. No suitable resolution was reached resulting in the Orang Asli refusing to move and both projects being delayed (The Star, 27 March and 6 April 2007). Instead of listening to the case of the Orang Asli, politicians blamed third party “instigators” for instigating the Orang Asli to stand up for their rights (The Star, 27 March 2007).

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More disturbing perhaps was a video that revealed that the proposed resettlement of the Chewong and Temuan for the proposed Kelau Dam may have actually been involuntary (available at the COAC website). Paragraph (d) of the Jabatan Hal Ehwal Orang Asli Statement of Policy Regarding the Long Term Administration of the Aborigine Peoples in the Federation of Malaya of 1961 explicitly provides that “Aborigines will not be moved from their traditional areas without their full consent”.  Again, this does not reflect well on the government, which in law owes a fiduciary duty to the Orang Asli and has to act for their welfare as provided for in the Federal Constitution.

With everything in limbo or pending in court, what is in store for the Orang Asli in respect of their lands?  The Government is in the process of introducing a policy of allocating each Orang Asli family 2.9 hectares of land to build their homes and plant commercial crops (The Star, 2 October 2006). Despite its attractive appearance to the average non-Orang Asli, this policy may result in not only a further loss of more than 30 per cent of their existing lands but also the possible annihilation of their traditional culture and ethnicity. If the Orang Asli were to be “herded” into farming and fruit growing for their own “good”, further drawbacks would include the gradual extinction of the invaluable traditional knowledge of the Orang Asli and the loss of the contribution of the traditional Orang Asli to the preservation of our forests and the biodiversity of our environment.

Turning the traditional Orang Asli into farmers against their better judgment or will may effectively be ethnocide. A decision of this magnitude is not for anyone to make but the Orang Asli themselves. Justice, fairness and any civil society in this day and age would demand it.

To fairly and justly address Orang Asli land concerns, the following recommendations should be considered:
•    The complete review of the decision to introduce the “Felda-type” home and farming scheme to the Orang Asli having regard to the Orang Asli’s right to self determination mentioned above.
•    The recognition of Orang Asli lands through the introduction of specific legislation that would regulate such matters.
•    The expedient approval and gazetting of Orang Asli applications that are pending with a view that they be converted to titles when the legislation mentioned above is passed.  

Society should not force the Orang Asli to join our rat race (Abdul Rahman Ismail, 2005). We owe it to them and ourselves to respect their way of life and afford them the opportunity to choose their right to earn a livelihood freely.  Enough has been taken away and it is time to give a little back.

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