The Malaysian Bar views with concern the position taken by the Perak state government in respect of the logging activities conducted in areas claimed to be the customary land of the Tasik Cunex Gerik Orang Asli.
The Perak chief minister had reportedly commented that the logging activities were in compliance with the relevant laws and “the area where logging activities are being carried out have not been gazetted as ‘kawasan rayau’, which allowed the Orang Asli to farm, rear animals and grow crops”.
The state’s forestry director had also reportedly rubbished claims by the Orang Asli that their customary land had been encroached upon, allegedly saying that “the area they claim is the Air Chepam forest reserve and not the Orang Asli customary land.”
In response, the Department of Orang Asli Development (Jakoa), the federal government agency in charge of Orang Asli affairs, called for the suspension of all logging activities near the Orang Asli settlement concerned.
It is misleading for the Perak state government to claim that it has complied with the law in acceding to the logging activities concerned, in circumstances where the Orang Asli may possess customary land rights at common law.
Over the past two decades, the Malaysian superior courts have recognised the common law rights of Orang Asli communities over specific tracts of land that they have continuously occupied, inhabited or used for generations (see Kerajaan Negeri Johor v Adong bin Kuwau  and Kerajaan Negeri Selangor v Sagong bin Tasi ).
These common law rights can exist notwithstanding the state’s designation of an area as a reservation (see Ketua Pengarah Jabatan Hal Ehwal Ehwal Orang Asli v Mohamad bin Nohing [Batin Kampung Bukit Rok] and another appeal ). It is equally clear that Malaysian common law cases such as these fall within the definition of law in Article 160 of the Federal Constitution.
The Malaysian superior courts have also held that state governments have a fiduciary duty to protect Orang Asli land rights and to not act inconsistently with such rights (see Kerajaan Negeri Selangor v Sagong bin Tasi ).
Having the legal power and being charged with the duty to reserve lands for the Orang Asli, the Perak state government would seem to have opted to retain the Air Chepam forest reserve and consented to logging activities within the reserve without sufficiently examining possible overlapping common law land rights of the Orang Asli of Kampung Tasik Cunex.
The Perak state government’s failure to exercise its power to fully and appropriately investigate, survey and (if warranted) legally reserve the lands in question for the affected Orang Asli raises serious questions about whether there has been a violation of its fiduciary duty towards these Orang Asli.
The Malaysian Bar thus calls upon the Perak state government to:
- suspend all logging activities in areas that may potentially overlap with lands claimed to be Kampung Orang Asli Tasik Cunex Gerik customary lands and
- investigate and survey the claimed lands jointly with the Orang Asli of Kampung Tasik Cunex Gerik and, where the Orang Asli possess customary land rights at common law, to reserve all such lands in favour of the Orang Asli community
Additionally, the Malaysian Bar urges the federal government and Jakoa to take all necessary action, including legal measures, to ensure that the customary land rights of the Orang Asli of Kampung Tasik Cunex Gerik are protected.
More broadly, the Malaysian Bar reiterates its call for the federal and state governments to:
- impose, as an interim measure, a moratorium on the creation of any land and resource interests and the continuation of resource extraction and enforcement activities within places claimed to be Orang Asli customary areas, pending the resolution of the affected Orang Asli community’s customary territorial claims
- implement the 18 recommendations contained in the 2013 report of the National Inquiry into the Land Rights of the Indigenous Peoples in Malaysia by the Human Rights Commission of Malaysia (Suhakam); and
- take all appropriate measures, including legislative measures — in consultation and cooperation with the Orang Asli — to achieve the spirit and intent of the United Nations Declaration on the Rights of Indigenous Peoples 2007
George Varughese is president of the Malaysian Bar.