Part 1: Origins of the rights of the first peoples
Around the world, the indigenous customary land rights have been a source of confusion for the modern nation state. Who exactly are the indigenous peoples? What are the origins of the indigenous customary land rights? What are the features, organisation and constitution of such rights? How do they intrinsically link communities with their ecosystems? What can the modern world learn from the richness, sustainability and efficiency of the land use patterns of indigenous customary territories? If you wish to learn more, you can begin here. This is the first article of a seven-part series on the indigenous customary land rights in Malaysia.
Historically, the modern nation state and its legal system, with roots in the western colonisation, industrial revolution and capitalism, have never been kind to the indigenous customary land rights, with legal fictions such as terra nullius being used to justify the conquer of any land deemed empty and legalise forced occupation and political rule. This system also advanced the legal doctrine that the rights to land and properties are only legitimate if they are supported by documents, issued under the written law of a power claiming sovereignty.
Consequently, indigenous customary land that has not been granted a documentary title or a reservation status by the state, issued under the authority of a legislation, will be deemed as the property of the state instead of the people.
Nevertheless, if we go further back into history, this was not how it used to be. Land documents in the non-modern world were not necessarily widespread in a given locality. Just like the nation state, any overlord trying to claim radical title over a territory would not only need a loyal bureaucracy and military, but also a reasonable access to writing, documentation, record keeping and technological-driven facilities such as transportation and other public infrastructure on its side.
Therefore, once a upon a time, all rights to land or properties were in fact claimed and exercised in accordance with the oral laws and customs of a community. In rare occasions, communities may have these written down and guarded by those tasked to do so; as literacy itself was not particularly widespread in traditional communities. Among others, these customary laws and rules would seek to ensure the sustainable use of natural resources in the local ecosystems; birthing a way of life that is culturally and spiritually connected to the land. Most of these rights were also communal in nature; while sharing and cooperation are crucial to the survival of any human community, they are even more integral to and obvious in traditional social systems.
In England and western Europe, this customary way of life was largely ended by the advent of the industrial revolution from the eighteenth century onwards. As a result of the advancements in recent machinery inventions, the mass production of wool had suddenly become possible and hence, extremely profitable in Europe. Consequently, the access to larger swathes of land was suddenly desirable, for the purpose of their conversion into sheep pasture. Soon the aristocracy, nobilities and various other assortments of your local warlords, began to lead the enclosure movement in England. This was a cruel process of evicting the peasantry living and working on land that is supposedly under the authority of some form of overlordship, although these communities had been doing so for generations, in accordance with local customs, with little help from the ones lording over them. In fact, their produce may even be taxed and their men, conscripted, when the need arose.
If all these sound familiar to you, it is simply because the enclosure is in fact a land grabbing programme that has continued to this very day. While the world prior to the industrial revolution was also filled with your garden variety of feudal lords lacking in common sense, any claims of suzerainty tend to only bring taxable income, often in the form of agricultural produce that preferably could feed a standing army, instead of large amounts of direct, personal monetary profits. There was simply no technology to grant human greed the access to mass production, national and international markets and in many cases, monetary currency. Further, one could only hoard a certain amount of perishable produce without refrigeration and chemicals. In this respect, in the past, power and wealth had a restricted capacity to grow into unreasonableness.
Through this enclosure process, the European community territories were then fenced, documented and titled through a deed, giving rise to the true landowning class, who had the access to technology and labour to directly profit from large swathes of land, without actually having to ever work on the land or operate any of the factory machines. Laws were further enacted on the side of those with access to the means of mass production, to justify and legalise the unjust and brutal mass eviction.
The enclosure effectively ended Europe’s customary open field agricultural system and birthed the modern agrocommodity sector. Essentially, this is a programme that aims to turn community landowners into labourers and crops into commodities, resulting today in the farmer being replaced by the corporation, which in reality is just an updated version of the overlordship.
Gradually, in the eighteenth and nineteenth centuries, the new primacy of the crown-issued private documentary land titles and rights over the older, pre-existing customary land titles and rights, became more widespread and integral to the modern legal system across the world as a result of colonisation and industrialisation.
However, although you can evict all the people some of the time and some of the people all the time, you cannot evict all the people all the time. Somewhere around the world, many traditional communities continue to maintain their rights to their ancestral territories in accordance with their customs, up to this very day; or at the very least, continue to claim their rights to territories that had been seized by other parties, who are now in possession of not just the land, but the documents to legally justify the possession.Today, many of these communities are often identified as indigenous, although terms such as tribal communities may also be used, depending on the country and context. Around the world, they are the last ones standing against the assault on community territories, a result of the capacity of their traditions and customs to maintain a strong relationship with the land and ecosystems. Consequently, their territories continue to harbour natural resources that are even more coveted by the overlordship of modern industries. The violations of the indigenous customary rights and territories by industrial activities today can thus be placed right within the continuum of the enclosure programme that began in eighteenth century western Europe.
Who are the indigenous peoples?
Around the world today, the population of indigenous peoples reportedly stands at around 370 million, spread across 70 countries. Due to the diversity of communities who are recognised as indigenous or tribal in these countries, the term ‘indigenous peoples’ tend to be broadly described rather than strictly defined at the international level. The United Nations(UN) system for instance, notes on the following:
Practicing unique traditions, they retain social, cultural, economic and political characteristics that are distinct from those of the dominant societies in which they live. Spread across the world from the Arctic to the South Pacific, they are the descendants – according to a common definition – of those who inhabited a country or a geographical region at the time when people of different cultures or ethnic origins arrived. The new arrivals later became dominant through conquest, occupation, settlement or other means.
According to the UN, the indigenous people can be recognised on the basis of their self- identification; historical continuity with pre-colonial and/or pre-settler societies; strong link to territories and surrounding natural resources; distinct social, economic or political systems; distinct language, culture and beliefs; existence as a non-dominant groups of society and the resolution to maintain and reproduce their ancestral environments and systems as distinctive peoples and communities.
From the above, there at least five broad features of indigenous peoples that can be summarised.
First, indigenous peoples are the earliest documented communities in the given area. Often, their history of occupation on the land goes back to prehistory, prior to the arrival of other communities.
Second, the subsequent economic, political and cultural dominance of the latter would then lead to the marginalisation of these first peoples. In many countries including Malaysia, this was later exacerbated by western European colonisation, with its huge demand on land and raw materials. In fact, indigenous peoples may continue to live in colonial-like conditions within the dominant power structures of the postcolonial state, which remain focused on the exploitation of land and natural resources.
Third, the sources of livelihood, culture, spirituality, traditions, customs and laws of indigenous communities tend to be distinct from the dominant communities in any given nation state. As colonisation and industrialisation turned more farmers, fishers and artisans into labourers who would gradually lose the access and connection to their ancestral land, indigenous peoples continue to sustain their intimate relationship with their territories; many are in fact still in occupation of their ancestral territories and continue to derive livelihoods directly from the natural resources found on them. Even if members of the communities have adopted modern life in more urbanised areas, their relationship with their ancestral territories would continue to be part of their flesh and blood. Indeed, these rights are embedded with their own psychology that creates meanings for a fulfilling life.
Fourth, these rights are prescribed by customary laws that govern the acquisition, continuous occupation, management, land use, inheritance and even abandonment of community territories, in order to ensure optimal livelihoods and cultural vibrancy of the community, peace and protection of the local ecosystems.Fifth, as opposed to the private documentary land title, indigenous land rights are characterised by the concept of territoriality. Therefore, although familial ownership of land and properties may exist, especially for land under cultivation, communal land functioning as the commons is an integral component of an indigenous territory. Typically, these may include forests, pasture, hunting grounds, sacred areas and burial grounds and even water bodies.
Indigenous peoples of Malaysia
In Malaysia, indigenous community-based organisations have advocated the use of the term ‘orang asal’ in the Malay language to collectively represent the term indigenous peoples in the country.
The legal identities of the indigenous population in Malaysia are defined in the Federal Constitution and in Sabah and Sarawak state laws. In Peninsular Malaysia, the legal system collectively terms its indigenous peoples as ‘Orang Asli’ in Malay or Aboriginal Peoples in English. In Sabah and Sarawak, they are legally termed as ‘Anak Negeri’ in Malay or the ‘Native’ in English, although the term ‘Dayak’ is also commonly used. The frequently used term ‘bumiputra’ (or sometimes, ‘pribumi’) which literally means child of the soil and would be inclusive of the Malay community as well, in actual fact are not mentioned by the Federal Constitution or any other statutory laws in the country.
As finding centralised statistical data on our indigenous population remains a challenge in Malaysia, as the case is with matters related to land and forests in this country, we are relying on the population data reported by the International Work Group of Indigenous Affairs (IWGIA).
In Peninsular Malaysia, the Orang Asli consists of 18 cultural groups; the Semai, Temiar, Jakun and Temuan are some of the larger ethnic groups. Altogether, they form a very small minority of around 200,000 or only 0.7 per cent of the population of Peninsular Malaysia, with heavier population concentrations in the states of Pahang, Perak, Kelantan, Johor and Selangor. In 2018, the Department of Orang Asli Development (JAKOA), recorded 854 Orang Asli villages in Peninsular Malaysia.
In Sabah, its 2.2 million indigenous population is made up of 39 cultural groups speaking at least 80 dialects, forming close to 60 per cent of the population, with the Kadazan-Dusun and Bajau being the majority ethnic groups. For Sarawak, its 1.9 million indigenous population from more than 25 cultural and linguistic groups makes up around 70 per cent of the population of the state. Around 30 per cent of these are the Iban who form the state’s majority ethnic group. The evolution of numerous distinct but interrelated cultural and linguistic communities in Borneo is certainly linked to the geography of thick rainforests, large river systems, infertile tropical soils and its mountainous terrain in the interior.
Altogether, as of 2017, the population of indigenous peoples in Malaysia is estimated to stand at around 4.4 million or 14 per cent of the country’s population, with Sabah and Sarawak contributing around 95 per cent of the overall figure.
Constitution of the indigenous customary territory
Territoriality is an integral component of the indigenous customary land rights. In Malay, our indigenous communities will refer to the term wilayah tanah adat i.e., the territory of customary land. In Sarawak, the Iban calls this territory the tanah pemakai menoa; while the Bidayuh calls theirs the topat pimuung and the Penan calls their forested domain, tana pengurip. In Sabah, many indigenous communities call this territory simply as kampung. The Semai in Peninsular Malaysia calls it the nenggerik. More detailed land use patterns and categorisations are also further described in an intimate fashion in each indigenous language. Indeed, there is a richness in the various indigenous vocabularies when describing community territories.
The rights to an indigenous territorial claim can be acquired through a set of commonly recognised actions that demonstrate the intent of a community or its members, to sustainably derive livelihoods from the land, in accordance with their customs. In the process of doing so, a cultural and spiritual relationship would be formed with the land, from which a meaningful life can be constructed, sustained and memorised for generations to come. These territories are defined by specific boundaries, delineated based upon naturally occurring landmarks such as mountains, ridges, rivers, streams, confluences and other available geographical features, in consultation with neighbouring communities.
Such rights to can also be permanently lost upon the demonstration of permanent abandonment – whether for an entire community territory or individual family farms and properties. Continuous occupation is an important rule for the continuation of such rights. The process of fallowing, undertaken for the purpose of fertility restoration especially for swidden rice agriculture, does not constitute permanent abandonment.
In the past, based upon the prevailing circumstances surrounding a community, such as the general decline in soil fertility or natural resources, reduced availability of arable land, the unusually high incidence of illnesses, accidents in a community, persistent conflicts with neighbouring communities, or population pressure – an entire community may migrate to a new location – forsaking their rights to the old territory and creating new rights to a new territory.
Additionally, communities may also move their housing site to a new area within the same territory for similar reasons. Wooden houses may fall into a state of disrepair, or a new site may suddenly seem more advantageous. Today, housing relocation may even take place to improve access to newly constructed infrastructure such as roads.
The decision to relocate would naturally be accompanied by careful deliberations on their various location options and meticulous planning. For example, there must be sufficient stocks of rice and seeds being accumulated; cultivation and construction work in the new site must also be executed ahead of the relocation.
Within a territory, the immediate land surrounding the housing site is naturally cultivated with vegetables and frequently used crops by individual families. Animals such as chickens may also be bred. Meanwhile, family farms are often located near riverbanks (or roads) for the ease of access. Many families often plan their travel and farming schedules together; reciprocal labour is commonplace. While hill rice cultivation, the traditional staple of sedentary communities, is a very labour-intensive annual process that requires some land to be left in fallow; other longer-living crops, including certain cash crops, may continually be harvested.
The farms left in fallow will regenerate into a secondary forest rather quickly in the tropical climate, potentially misleading the untrained eye into mistaking such land as virgin forests held under community control. In addition, families may even leave parts of their land largely forested, especially if they contain long-living fruit, medicinal and multi-purpose trees like rattan and bamboo and a rich wildlife population. These practices may easily confuse outsiders on the extent of familial and common rights within an indigenous territory.
Depending on the community, specific wild trees may also be claimed by families through a series of collectively recognised actions. These may be sago trees whose pith are harvested and processed into starch that is the staple of hunter-gatherer communities; or timber trees of superior quality; or trees who like to host beehive colonies; or trees that are producers of fruits, dyes, resins, oils, or fibres.
Beyond the collections of familial rights, lie the vast communal property i.e., the virgin forest where hunting and trapping activities are carried out; plants are harvested for food, medicines and other household needs; and timber of superior quality is sought for housing, boat and construction materials. Water bodies, including lakes, rivers and seas, may also be communally owned or managed.
For communities who historically did not engage in agriculture, such as the Batek of Peninsular Malaysia and the Penan of Sarawak, their territories would consist entirely of forested areas. Their hunting, fishing and gathering activities will be based upon the seasonal cycles of plant harvesting, wild tree fruiting and movements of wildlife, relocating around three to four times annually within their territories.Last but not least, indigenous customary territories also naturally harbour special niches of great spiritual significance. These areas may consist of naturally occurring geographical features, from mountains, hills to rocks, boulders, caves and swamps; water bodies; and burial grounds.
Conclusion: Abandoning the language of ignorance
The violations of the indigenous customary land rights around the world have often taken place within a language that constantly attempts to ignore the organised, efficient, rational and sustainable use of land, forests and natural resources of indigenous peoples. This ignorance is dangerous for both the community and the world at large. The industrialised world has so much to learn from them; the last ones still standing against its unrestrained exploitation of ecosystems and communities, just so private wealth could be hoarded for the few.
Today, the indigenous way of life continues to be suggested as unproductive and wasteful, lacking in long-term planning and strategy. A favourite insinuation of Malaysian bureaucrats and politicians is the use of tanah rayau or literally, roaming land, to describe the indigenous communal forest. This term is in fact absent in the vocabulary of all indigenous languages. It is deeply racist and offensive. Unfortunately, it has been used so liberally, openly and repeatedly; even those with good intentions may begin to adopt its usage.
No community in history could ever survive by roaming aimlessly, lest they would have perished. In fact, it is the modern, industrialised world that is deeply disorganised, inefficient, irrational and unsustainable. We are unproductive because we are wasteful. Our greed roams aimlessly in seek of infinite growth and profits, lacking in any long-term planning and strategy for our future generations.
Although we have yet to perish, it sure does look like we are getting there soon enough.
