Orang Asli struggle for customary lands continues

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It is high time that the government thinks ‘out-of–the box’ and explores the notion that Orang Asli progress lies in empowering Orang Asli over their customary lands, says Yogeswaran Subramaniam.

Orang Asli demand their land rights - Photo by Komas

Events since the 17 March Orang Asli protest against the proposed Orang Asli land titles policy indicate that their land woes are far from being resolved and have the potential of spiralling out of control. If not handled with due care by the government, this situation could escalate into an embarrassing legal tussle over the policy.

Under the proposed policy, each Orang Asli head of household would be granted between two and six acres of plantation lands and up to a quarter of an acre for housing but at the cost of losing their customary lands. It has been estimated that Orang Asli would lose almost 80 per cent of their customary lands if the policy is fully implemented.

In addition, Orang Asli households would have to reimburse the development costs of these lands to a government-sanctioned developer. The external management of agricultural development projects in all new Orang Asli development schemes proposed in the 10th Malaysia Plan would further function to deprive Orang Asli of de facto control over these plantation lands and leave them at the mercy of the managers.

Orang Asli dissatisfaction with the proposed policy finally manifested itself in the 17 March protest and a lengthy objection memo to the government setting out Orang Asli demands. Since then, the government has not yet come back with any proposal with regard to these demands. Instead, sources indicate that the Department of Orang Asli Affairs has merely intensified efforts to explain the rationale of the proposed policy and its purported benefits to Orang Asli.

On 20 May, the Peninsular Malaysia Orang Asli Village Network, fearing that the proposed land policy may be implemented without meaningful consultation with the Orang Asli, delivered a letter to the Rural and Regional Development Minister, who is in charge of Orang Asli affairs, reiterating their objection to the proposed policy.

In a recent interview in Malaysiakini.TV, Bob Manolan, a representative of the Orang Asli Graduates Association, lamented that Orang Asli had not yet received a final draft of the proposed policy and proposed amendments to the Aboriginal Peoples Act 1954 (APA) for their consultation, consideration and feedback.

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His concern is not unfounded. If one were to wait until the relevant bill is presented to Parliament, it might be too late. Amendments to legislation similar to the APA can be bulldozed with a simple majority, a feat that is well within the power of the Federal government.

Genuine consultation needed

Such is the apprehension about the lack of Orang Asli consultation in respect of the proposed policy and its effects on the entire 147,000-strong Orang Asli community that the Bar Council has stepped into the picture. In a press release dated 24 June 2010, the Bar called upon the government to “make public the proposed amendments” and “allow for a comprehensive and frank discussion with all the relevant stakeholders before the proposals are tabled in Parliament”. On a sterner note, the Bar Council opposed “any attempt to hasten” the amendments to the APA “through Parliament without the benefit of feedback from all concerned parties after they have been given an opportunity to fully consider the proposals”. At the time of writing, the relevant documents in relation to the policy are not publicly available.

Recent public responses regarding the policy from Rural and Regional Development Minister Shafie Apdal raise cause for concern. In the Star on 5 July 2010, the Minister said that the “conclusion from the meetings would be presented to the National Land Council”. What ‘conclusion’ and ‘meetings’ were being referred to? Admittedly, there may well be Orang Asli who agree to the proposed policy. However, under what circumstances did they agree? Conversely, there are also many Orang Asli who oppose the policy but have not been represented at these ‘meetings’.

In a report in Utusan Malaysia on 5 July 2010, the Minister was quoted as saying that he would consult with state governments on the Orang Asli land ownership issue. Will Orang Asli be adequately represented in these consultations? In response to this statement, Gerakan’s Central Bureau on Unity called upon the federal government to consult Orang Asli in its deliberations and during these meetings. Experience, however, suggests that this call may be wishful thinking on the part of Gerakan and other like-minded Orang Asli.

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Raja Nazrin Shah could not have been more lucid when urging the government to consider the views of Orang Asli before implementing development programmes affecting them recently. He said “their culture and ways of thinking should serve as guidance”.

This is not an idealistic plea. ‘Free prior and informed consent’ of Orang Asli on matters affecting their lands and consultations in good faith are principles contained in the United Nations Declarations on the Rights of Indigenous Peoples 2007. Malaysia voted in favour of this declaration twice without any reservations. From a purely legal perspective, such principles should also not be disregarded in view of the fiduciary duty that the government owes Orang Asli. In this regard, it should be understood that a genuine consultation process for a proposed policy does not involve the promotion of the policy but a readiness to amend policy proposals in the light of information received. This is common knowledge and there is a growing number of Orang Asli who are aware of these rights.

Moving beyond pigeon-holing

To start on the right foot, the consultation process must take into account the particularities of Orang Asli political associations. As a result of a long history of government paternalism and Orang Asli political, economic and numerical inferiority, Orang Asli methods of association and collaboration when confronting the government are fluid with fine lines being drawn between dissent and agreement. As one Orang Asli explained to me, “It is not easy to tell the government they are wrong when you are reliant on them for assistance. One has got to be smart about these matters and wait for the right time to voice out matters.”

To illustrate, thunderous applause for a politician who visits a village does not necessarily translate to satisfaction with government policies. By the same token, Batins (heads of a settlement or village) who receive financial assistance from the government to make ends meet may not be so candid about their settlement’s grouses. The membership of an individual in an Orang Asli association whose representatives have a particular view about a government policy does not mean that the individual supports the association’s view. In many an instance, the contrary is true.

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These complexities should not be deemed as confusion or a lack of understanding on the part of Orang Asli but more of a conciliatory way of putting views forward to a government that has extraordinary powers over them.

When it comes to Orang Asli, bona fide consultations should therefore go far beyond pigeon-holing Orang Asli into associations and securing their participation. They would engage all stakeholders (including human rights-based NGOs) in a meaningful way.

In its rush to achieve poverty eradication targets, cultural sensitivities and particularities of the Orang Asli community should not be ignored. General assumptions and formulae likening them to other marginalised communities may well produce adverse results.

It is high time that the government thinks ‘out of the box’ and explores the notion that Orang Asli progress lies in empowering Orang Asli over their customary lands. As it stands now, this concept has failed to find acceptance with the federal policy-makers. In the end, it must be appreciated that continued persistence with this mindset may fuel the political-awakening of Orang Asli who thus far have been termed as a ‘fixed deposit’ for Barisan Nasional votes.

Yogeswaran Subramaniam, an Aliran member, is pursing a doctoral thesis in the Reform of Orang Asli Land rights at the Faculty of Law, University of New South Wales, Sydney. This article was written on 15 July 2010.

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