The Pos Simpor Orang Asli community at the Kota Bharu High Court hearing in July of the application by the Kelantan state government to strike out the AG’s suit (Photo courtesy of Siti Kasim)

In Defence of Orang Asli Rights

[First published Sept 26, 2019; updated Jul 3, 2021]

On Sept 25, the court heard an injunction application to stop private entities from logging and farming in Temiar customary land in Kelantan. This is the latest hearing related to the first legal action taken by the Malaysian federal government on behalf of Orang Asli regarding land rights. SL Wong and Darshana Dinesh Kumar report.

CAN YOU imagine having to barricade your home to prevent its destruction? That is what forest-based indigenous communities in Sabah and Sarawak have had to resort to for almost 40 years.

In Peninsular Malaysia, the Temiar Orang Asli community were forced to do so for the first time in 2012. The Gua Musang, Kelantan, communities started setting up barricades after repeatedly failing to resolve land use conflicts with the state government, federal agencies and companies. 

(Photo: The Pos Simpor community at the July Kota Bharu High Court hearing of the Kelantan state government’s application to strike out the AG’s suit. Courtesy of Siti Kasim)

A long-running battle

The battle started in 2010 (see ‘The First Blockade’ below). Since then, roads have been blockaded and counter-blockaded, petitions presented, ministers visited, people arrested and lawsuits filed.

Still, state-sanctioned and illegal loggers, miners and durian planters continue clearing the ancestral forests of 31 Temiar villages.

However, in January, there was a new development.

In a landmark High Court case, the Malaysian Attorney-General (AG), on behalf of the Temiar people, filed a lawsuit against the Kelantan state government and its business partners for violating the Temiar’s rights. 

The suit names the state government and two agencies for issuing licences to companies to log customary Temiar land in Pos Simpor, without consulting the Temiar communities or offering them compensation. Five companies are also named.

Fighting back

Subsequently, the Kelantan government made an application to strike out the suit. However, in August, the Kota Bharu High Court dismissed the application. The state is appealing the ruling.

Then, a month later, the federal government applied for an injunction to stop the companies from logging and farming in the area until the matter was adjudicated.

It is a long, drawn-out process but the AG’s suit is seminal. This is the first time the federal government is seeking legal recognition of the customary land rights of the Orang Asli, who make up 0.5% of the population.

This begs the question: what is the legal status of Orang Asli customary land?

‘Orang Asli’ refers to the indigenous people of Peninsular Malaysia. ‘Orang Asal’ or ‘natives’ is the terminology used for the indigenous people of Sabah and Sarawak.

According to Dr Colin Nicholas from the Centre for Orang Asli Concerns, several laws affect the Orang Asli’s control and management of their territories and resources.

(Note that the natives of Sabah and Sarawak are governed by different legislation of the respective states)

In ‘The Law on Natural Resource Management as it affects the Orang Asli’ (2005), Nicholas said that “there is actually enough in our local laws to support recognition of this inalienable right—if we only want to do so.”

At the same time, these laws give governments at both federal and state level, “a tremendous amount of leverage against the Orang Asli”.

For example, one of these laws is the Aboriginal Peoples Act 1954 (revised 1974). Said Nicholas, “(W)hile the Act provides for the establishment of Orang Asli Areas and Orang Asli Reserves, it also grants the state authority the right to order any Orang Asli community to leave—and stay out of—an area.”

Customary land I A common law principle, customary tenure refers to the idea of traditional rights to land and other natural resources. This is often associated with indigenous communities and their inhabited land. The territory is considered customary by virtue of its prior occupation, utilisation and settlement by indigenous communities in accordance with their cultural norms.

In fact, there is a more fundamental issue at play in Malaysia’s legal system, explained lawyer Kiu Jia Yaw. Kiu is the co-chair of the Malaysian Bar Council’s environment and climate change committee.

“We have a funnel in place in civil proceedings where property owners can go to court if they have suffered direct harm to their persons and properties,” he said.

“But legitimate claims to customary land are often filtered out by our legal system because rights and relationships with the wider ecosystem, like streams and forests, cannot be divided into land titles with boundaries.”

Kiu said that “we need to break out of our mental structures of land titles with their imagined boundaries and owners with their property rights…

“In pursuing environmental justice, we need to recognise these ecosystems for what they are and the dynamic relationships different human beings have with them.”

The Pos Gob community at their blockade in 2016. (Photo courtesy of Kiran Kreer)
A blockade at Pos Gob in 2016, one of several in the Gua Musang Temiar customary land area. (Photo courtesy of Kiran Kreer [IG: Kiran Kreer])

Kiu added that a major impediment to claims for the recognition of customary land rights is the restrictive concept of locus standi. Locus standi can be defined as the right to bring an action or to be heard in court. 

This strict interpretation is often backed up by citing the so-called Bakun Dam Case of 1996. To build the Bakun Dam in Sarawak, around 10,000 Orang Ulu natives were relocated to make way for the flooding of their customary lands. 

Three individuals sued the government for deprivation of their livelihood and cultural heritage.

However, the Court of Appeal held that in order to have locus standi to appear in court, the respondents had to prove that they either suffered special injuries over and above the other 10,000 natives affected by the Bakun Dam, or bring a representative representing all the other natives.

Recourse to courts

In the case of the Temiar of Pos Simpor, a strict interpretation of locus standi would mean they had no recourse to courts. Hence the importance of the AG’s suit on their behalf.

Violations of indigenous customary land rights in Malaysia are systemic, said the Human Rights Commission of Malaysia (Suhakam) in its 2013 ‘Report of the National Inquiry into the Land Rights of Indigenous Peoples’.

It is time that the current Pakatan Harapan (PH) government adopted and implemented the report’s 18 recommendations, said Theiva Lingam, legal advisor of Sahabat Alam Malaysia (SAM).

Six issues related to indigenous land rights
1.     Recognise indigenous customary rights to land
2.     Remedy for land loss
3.     Address land development issues/imbalances
4.     Prevent future loss of native customary land of the indigenous people
5.     Handle land administrative issues
6.     Recognise land as the central to indigenous peoples’ identity 
‘Report of the National Inquiry into the Land Rights of Indigenous Peoples’, Suhakam, 2013 

“Not all licensed logging, plantation and other resource extractive activities conducted in accordance with statutory laws must be presumed to have obtained legal impeccability,” she pointed out. 

“‘Legal’ logging may still encroach on forests customarily owned by indigenous communities.”

Theiva emphasised that these rights have been obtained legally through indigenous peoples’ customary laws and are protected by the Federal Constitution as a right to property.

However, she said that policy and legal reforms are needed in environmental governance and justice, which are intertwined with the protection of the rights of indigenous peoples.

Draft rules of procedure

In terms of environmental justice, the Bar Council’s Kiu said the judiciary has actually drawn up draft rules of procedure on environmental proceedings. The Bar Council’s environment and climate change committee is working with the judiciary on these.

Theiva also lauded the fact that the PH government has begun to resolve institutional malfunctions and inefficiencies as well as corruption.

However, in conducting reforms, she was concerned about how PH would overcome the challenges of technical knowledge and possibly, capacity.

Reform needed

“Many of the highest executive officials and lawmakers from PH appear to lack pertinent, balanced and correct information that is necessary to push forward meaningful policy and legal reforms in these intertwined areas.”

SAM is calling for all laws on land, forests, conservation areas, resource extractive activities and indigenous peoples in Peninsular Malaysia, Sarawak and Sabah to be amended “to reflect the legal fact that the indigenous customary land rights are a form of property rights”. 

This also entails “the incorporation of a meaningful consultative and consent process for any activity that may affect such land”.

The Fight for Kelantan’s Forests I This short documentary was produced for Channel News Asia; a producer, Jules Ong, was arrested while filming this.

Back to the Temiar case, the AG had said in his statement that the federal government’s suit on behalf of the Orang Asli was, for the first time in Malaysia’s history, “in recognition of the federal government’s constitutional and legal duty to protect and promote their well-being and advancement.”

The AG added that the federal government was bound by a “paramount and non-delegable duty” to do so. 

Environmental justice

For Kiu, the case was a great example of pursuing environmental justice. “While the case, as filed, was premised on the Temiars’ fundamental right to land, the overarching objective is to fight for the indigenous community’s well-being”.

This is because the communities’ property rights to the land, though important, make up but one facet of their inextricable relationship with the natural environment that is connected to their well-being. 

As the AG said in his statement, “Across the globe, the fundamental rights of indigenous people have been recognised, declared and enforced in landmark court cases…

“It is time Malaysia joins the ranks of nations recognising and protecting the rights of our Orang Asli.”

The First Blockade

Temiar villagers gathered to form a human blockade after exhausting all avenues against encroachment on their customary land (JKOASM/Shafie Dris).

The first blockade in Peninsular Malaysia was a human blockade of 800 Orang Asli at Pos Utama Kampung Parik, Kuala Betis, Gua Musang, on 28 January 2012.

According to the press release issued by Orang Asli NGO the Jaringan Kampung-kampung Orang Asli Semenanjung Malaysia, police burned the communities’ surrounding infrastructure and arrested 13 protestors.

Here is a video of that blockade (courtesy of Shafie Dris and Lim Teck Wyn).

Contributing writer Darshana Dinesh Kumar is an A-Level student who aims to pursue law at university as it would allow her to combine her interests in research and social advocacy. 

We thank two lawyers who reviewed this article.

[UPDATE July 3, 2021: The Court of Appeal on June 3, 2021, ruled that the Federal government has no legal standing to file a legal action on behalf of the Orang Asli over customary land.]