Part 5: Orang Asli customary land rights in Peninsular Malaysia
Around the world, the indigenous customary land rights have been the source of confusion for the modern nation state. In this article, we will discuss the legal framework for the Orang Asli customary land rights in Peninsular Malaysia. For more information on the violations of the Orang Asli customary land rights in Peninsular Malaysia, please see our 2016 joint-publication with the Jaringan Kampung Orang Asli Semenanjung Malaysia (JKOASM), Encroachment on Orang Asli Customary Land in Peninsular Malaysia, Causes and Solutions. This is the fifth article of a seven-part series on the indigenous customary land rights.
The Federal Constitution stipulates that while matters on land and forests are under the jurisdiction of states, Orang Asli affairs fall under federal jurisdiction. As such, the regulation of all Orang Asli affairs are deemed to fall entirely under the Aboriginal Peoples Act 1954, regulated by the Department of Orang Asli Development (JAKOA), a federal department under the Ministry of Rural and Regional Development.
However, decisions such as land acquisition, land and forest gazetting and the issuance of permits for logging, mining and other resource extractive operations as well as land development, will be under state jurisdiction, undertaken through the land, forestry or conservation laws, depending on the context.
As a result, it is not uncommon for Orang Asli communities who have been impacted by land rights violations, to have to repeatedly interact with different government agencies, back and forth, without being able to obtain any effective solutions. Apart from this legal conundrum, there are numerous weaknesses, limitations and flaws in the laws affecting Orang Asli customary land rights in Peninsular Malaysia.
The following section will attempt to capture these concerns.
Aboriginal Peoples Act 1954
The Aboriginal Peoples Act 1954 is a colonial law introduced to stop the Orang Asli community, who know the thick rainforests of Malaya like the back of their hand, from connecting further with the communist insurgency against the British, that was forced to base itself in, where else, the thick rainforests of Malaya. Therefore, there are numerous provisions of this law that are severely restrictive in nature and encroach upon the personal space of the Orang Asli community. In fact, many of the provisions of the law have the effect of eroding the basic rights of citizens. In short, this law was not specially enacted to protect the customary land rights of the Orang Asli.
The Aboriginal Peoples Act 1954 classifies Orang Asli customary territories into three classes, two of which require a gazetting process for them to be in force. These are the aboriginal inhabited place, which is defined as ‘any place inhabited by an aboriginal community, but which has not been declared to be an aboriginal area or aboriginal reserve’; and the Aboriginal Areas and Aboriginal Reserves, which can only be established through the gazetting process. Aboriginal Reserves are equipped with the strongest legal protection.
Section 6 of the law stipulates the protection received by the Aboriginal Area. First, the land may not be declared a Malay Reservation. Second, the land may not be declared as a sanctuary or reserve for wildlife and birds. Third, the land may not be alienated, granted, leased or disposed of to non-indigenous persons or for commercial activities without authorisation. Fourth, licence for the collection of forest produce may also not be issued to non-indigenous persons or commercial activities without authorisation. In cases where this is permitted, employment of a specific proportion of indigenous labour may be ordered.
Section 7 of the law stipulates the protection received by the Aboriginal Reserve. Apart from receiving the same first, second and third protection accorded to Aboriginal Areas, Aboriginal Reserves may also not be declared as forest reserves and no temporary occupation is permitted under the land law.
Unfortunately, as with other gazetting processes, Aboriginal Areas and Aboriginal Reserves may also be de-gazetted by state governments, as stipulated in sub-sections 6(3) and 7(3) of the law.
States have also sometimes chosen to utilise section 62 of the National Land Code 1965 to gazette Aboriginal Reserves. Section 62 allows for states to gazette any land for public purposes. There is a prevailing legal view that this will allow a state to have greater power to regulate the concerned area, in comparison to when the Aboriginal Peoples Act 1954, a federal law, is employed. The National Land Code 1965 can also be used to issue private documentary land titles to Orang Asli customary land.
Meanwhile, section 8 of the law describes the rights of occupancy within Aboriginal Areas and Aboriginal Reserves as to not confer any person a title any better than that of a tenant at will. The use of the term tenant is obviously contentious and offensive to the communities. Tenancy does not only limit the indigenous customary land rights as a very limited form of usufructuary rights, it also wrongly reduces that the continuous occupation of the first peoples of Malaya of their ancestral territories to a short-term or temporary nature.
Section 9 further prohibits Orang Asli communities from involving their ancestral territories in any form of business or commercial transactions without authorisation.
While the gazetting of production forests and conservation areas under forestry and conservation laws will enforce a variety of rules and to protect them, including the prohibition against the unauthorised entry into such forests, these may not be fully applicable to the Orang Asli community. Section 10 of the law provides a few exemptions for the community, including the stipulation that indigenous communities are not obliged to leave such gazetted forests or conservation areas. (as well as Malay reservations).
Nevertheless, various activities related to the exercise of the indigenous customary land rights, such as the opening of new farms and further prescriptions on wildlife hunting, may still be imposed with new conditions, which in the end may still cause the significant erosion of such rights. These regulations can be set by the minister, as provided for by section 19 of the law.
However, states are also given the authority to altogether order affected communities to leave or remain out of such gazetted areas. If this takes place, section 10 further stipulates that compensation may be paid, as may be necessary.
Meanwhile, section 11 of the law provides for the payment of compensation for the loss of crops in non-gazetted territories, if the community land is acquired by the state for any public purpose. In such non-gazetted areas, the land clearly is being interpreted as a form of state land. As such, no provisions are made for compensation for the loss of the land itself. The amount of compensation is discretionary i.e., as long as it shall appear to the state authority to be just.
The payment of compensation for the loss of the land itself may only be carried out if the land has been gazetted either as an Aboriginal Area or an Aboriginal Reserve. Section 12 stipulates that in such a case compensation may be paid for the loss of the land itself. However, the provision does not stipulate that this action is mandatory. Further, the method in which the compensation must be calculated is not at all specified by the section.Clearly, the provisions of sections 11 and 12 are not capable of providing adequate compensation as demanded by Article 13 of the Federal Constitution and the decision ruled by the Court of Appeal in Sagong Tasi.
National Land Code 1965
In Peninsular Malaysia, the main statute on land, the National Land Code 1965, does not mention anything about Orang Asli customary territories or the rights of occupancy on such land by the communities. In fact, sub-section 4(2)(a) of the law clearly states that its enactment does not affect any statutory provisions that are in force on customary land.
The National Land Code 1965 deems state land as all land that has not been issued with a documentary land title, gazetted as a government reserve under section 62 for a public purpose, issued with a mining permit and gazetted under a forestry-related law. This indicates that while Orang Asli customary territories that are without any form of documentary land title or a reservation status are deemed as state land; customary territories that have been gazetted either under the Aboriginal Peoples Act 1954 or the National Land Code 1965 are considered as government reserves. Any Orang Asli customary territory which has become part of any gazetted forest under any of the relevant laws, whether for production or conservation purposes, will simply be classed as part of the gazetted forest concerned.
National Forestry Act 1984
The National Forestry Act 1984, which provides for the gazetting of Permanent Reserved Forests (PRF), with 12 functional classes for the purpose of production and protection, through its sections 11 and 12, is the main forestry law in Peninsular Malaysia.
Provisions for the gazetting of the PRF do not contain any references to regulate the claims of or objections to the payment of compensation for Orang Asli customary land rights that may be extinguished or reduced as a result of the gazetting. Unlike the forestry laws in Sabah and Sarawak, this legislation does not call for any mandatory action that states are compelled to undertake with in respect of the publication and display of any extinguishment notification and compensation payment for Orang Asli communities affected by the gazetting of a PRF.
Section 14 of the law declares all forest produce property of the state. Section 32 stipulates the prohibition against occupying or the carrying out of any activity within the PRF without state authorisation in the form of a licence. Section 81, meanwhile, lists a host of activities that are prohibited within the PRF. These include the prohibition against the felling and cutting of trees, the use of fire to damage the trees, land clearing or ploughing activities for any purpose, including for agriculture, and any action that constitutes as trespass. These provisions have thus allowed states to regulate and prevent the full exercise of Orang Asli customary land rights within the PRF, even though the affected communities may still be allowed to remain within the PRF after it has been gazetted.
Equally important, logging and timber tree plantation licences are also issued under the National Forestry Act 1984, whether on the PRF or state land forests. Since the PRF and state land forests are interpreted as state property, while Orang Asli customary land rights are interpreted as merely a limited form of usufructuary rights and as a right no better than that of a tenant at will, such logging and timber tree plantation licences would frequently encroach on Orang Asli customary territories.
The National Forestry Act 1984 only once mentions the Orang Asli community, in its sub-section 62(2)(b). This provision only permits the community to take forest produce within state land forests and alienated forests, without the requirement for royalty payments for activities such as the construction and repair of temporary huts on any land lawfully occupied by such aborigine; the maintenance of his fishing stakes and landing places; fuelwood or other domestic purposes; or the construction or maintenance of any work for the common benefit of the aborigines.
This exemption, however, does not extend to the PRF and only permits the taking of forest produce for domestic use and not for sale or profit. This provision is far from bestowing any form of recognition on Orang Asli customary land rights.
Conservation areas or also known as totally protected areas or protection areas may include forested, wetland, coastal and other high value and sensitive ecosystems and the habitats of vulnerable species. However, like the National Forestry Act 1984, all laws on conservation areas in Peninsular Malaysia do not contain any provisions to regulate the claims and compensation payments for the loss and deprivation of Orang Asli customary land rights extinguished or reduced due to their establishment.
Similarly, the establishment of all such conservation areas also introduces new prohibitions against the various traditional practices of Orang Asli customary land rights, including those against the entry, occupying and utilisation of such gazetted areas without state authorisation. Similarly, they also do not mention anything about the extinguishment of Orang Asli customary land rights and the payment of adequate compensation prior to the enforcement of the gazetting process.
These laws include the National Parks Act 1980 that has established the Penang National Park and the Wildlife Conservation Act 2010 which regulates Wildlife Reserves and Wildlife Sanctuaries and the protection of various protected and totally protected animal and plant species. Section 51 of the wildlife legislation however permits members of the Orang Asli community to hunt certain protected wildlife, but only for their domestic needs and not for sale or profit. This permission is not a form of recognition of the Orang Asli customary land rights. Both laws are under the authority of the Department of Wildlife and National Parks (PERHILITAN).
Apart from the National Parks Act 1980 and the Wildlife Conservation Act 2010, which are federal laws, there are several other state-enacted conservation laws that were introduced either during the colonial era or after independence that provide for the gazetting of their respective conservation areas. They include the National Park Enactment (Kelantan) 1938, the National Park Enactment (Pahang) 1939 and the National Park Enactment (Terengganu) 1939, which collectively established the Taman Negara National Park; the National Parks Corporation Enactment (Johor) 1989; and the State Parks Corporation Enactment (Perak) 2001.
These state laws also provide for the establishment of their own distinctive state governance structures, such as corporations or trustees, which would function as the authorities for the conservation areas concerned. In certain cases, states have also allowed for either the state or federal PERHILITAN offices to act as authorities for such areas.
Size of Orang Asli customary territories unilaterally determined by the state
Tables 1 and 2 demonstrate the sorry state of the size of Orang Asli customary territories estimated by the government, as of 2012. (We were unable to seek a more up-to-date publicly available data.) As can be seen, the size of Orang Asli villages estimated by JAKOA to be only approximately 151,141 hectares. From this, only 20 per cent or 30,883 hectares have either been gazetted or issued with private documentary titles. The remaining 80 per cent or 120,257 hectares have yet to receive any form of recognition. For areas that have received some form of recognition, 27,768 hectares were under a gazetted status, carried out either under the Aboriginal Peoples Act 1954 or the National Land Code 1965. The remaining 3,115 hectares were land with private documentary titles issued under the National Land Code 1965, consisting only of land for housing and agricultural activities, and not forested areas.
In 2012, the size of Aboriginal areas that have been gazetted under the Aboriginal Peoples Act 1954 stood at only 10,078 hectares. Meanwhile, the size of Aboriginal reserves, which receive the strongest protection under the Act, was merely 13,512 hectares or around 9 per cent of the customary territories estimated by the government. It must be stressed, however, that the size of customary territories as interpreted by the Orang Asli community is almost certainly higher than these official estimations.
From the above, we can conclude that there are numerous weaknesses, limitations and flaws in the content of the various laws on land, forestry and conservation areas in Peninsular Malaysia, as well as those on Orang Asli customary land rights itself, which collectively have failed to provide adequate protection on the Orang Asli customary land rights, as demanded by landmark judicial decisions and the Federal Constitution.
The Aboriginal Peoples Act 1954 in particular, requires a massive overhaul; the amendments needed obviously are not only limited to land rights concerns. At the same time, there are also parties who have additionally advocated for the enactment of a new legislation that is solely dedicated to address Orang Asli customary land. Among others, this law would address the granting of the indigenous land title to Orang Asli customary territories. We are not opposed to such as a proposal, provided that its development involves comprehensive and meaningful consultations, including with the Orang Asli communities themselves and that the proposed law is widely supported by the community.