Never assume that Orang Asli are not deserving of their customary lands, says Yogeswaran Subramaniam. Law, human rights, justice and morality demand that we give Orang Asli due respect and recognition of their customary lands.
“Why should Orang Asli customary land rights be protected?” “What makes Orang Asli so special compared to other Malaysians that they demand land for ‘nothing’?”
These are two common questions that I have been asked by many fellow Malaysians during social occasions, particularly when they come to know that my research supports the recognition of Orang Asli customary land rights.
The alarming frequency with which I am asked these questions by Malaysians whom I assume to be in the know about these matters prompts me to revisit these basic issues.
And by Orang Asli, I mean those Indigenous communities who traditionally occupy Peninsular Malaysia and not those from Sabah and Sarawak.
As food for thought, here are ten reasons why Orang Asli customary land rights should be protected.
1. Unlike other communities in Peninsular Malaysia, Orang Asli communities possess a special relationship with their customary lands. For others (including me), landed property is just a commodity of economic value.
Orang Asli perspectives of their land are distinct and multi-faceted if compared to other Peninsular Malaysians’. As Bah Tony Williams-Hunt, an Orang Asli of the Semai race has written, “land stands for the way of life of the Orang Asli, and symbolises the cultural vitality and continuity of the community.”
Land is therefore intricately linked with Orang Asli culture and identity. ‘Walah tik walah sinnui’, a common Semai phrase illustrates the gravity of the interdependence between customary lands and the maintenance and vitality of Orang Asli culture and identity. It simply means ‘No land, no life’.
2. Orang Asli are Indigenous. What do I mean by this?
According to the former Chairperson-Rapporteur of the United Nations Working Group on Indigenous Peoples, the relevant factors in determining whether a particular group is ‘Indigenous’ are (1) priority in time, with respect to the occupation and use of a specific territory; (2) the voluntary perpetuation of cultural distinctiveness, including social organisation, spiritual values, modes of production and laws and institutions; (3) self-identification, as well as recognition by other groups, or by state authorities, as a distinct collectivity, and (4) past experience of subjugation, marginalisation, dispossession, exclusion or discrimination.
Orang Asli, who have persevered to maintain their way of life over the centuries, fulfil all these criteria.
3. Experiences from other jurisdictions show that a communal underlying title and an Indigenous community’s collective decision-making powers provides far better outcomes for Indigenous communities than individualised titles. For instance, the United States General Allotment Act 1887, whicht created individual titles for Native Americans to be assimilated as farmers, resulted in loss of traditional lands, economic problems, loss of cultural identity, loss of governance ability and resultant administrative costs. This culminated in the abolition of allotment in 1934. The allotment in the United States is not dissimilar with the current proposed land policy touted by the Federal government. Under the proposed policy (include link to previous article on 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. Should we as Malaysians, through our duly appointed federal government representatives, commit the same mistakes with the Orang Asli without proper consideration of other customary land rights-based alternatives?
4. As an embodiment of the principle of equality under the Federal Constitution, the federal government is empowered to legislate for the “protection, well-being and advancement” of Orang Asli under art 8(5)(c) of the Federal Constitution. Legislating in a manner that is destructive to Orang Asli lands, and consequently their culture cannot, by any stretch of imagination, be said to be for their “protection, well-being and advancement”.
5. Both Federal and State governments owe a fiduciary duty to Orang Asli, particularly in relation to their customary lands (Sagong bin Tasi v Selangor  2 MLJ 591, Selangor v Sagong bin Tasi  6 MLJ 289). This effectively puts Orang Asli in a unique position where the government must act honourably and for the benefit for Orang Asli when dealing with Orang Asli and their lands.
6. Orang Asli customary land rights have been recognized by Malaysian courts (Adong bin Kuwau v Johor  2 MLJ 158; Selangor v Sagong bin Tasi  6 MLJ 289). These rights do not need recognition by the government through legislation or any executive act.
7. The customary land rights mentioned in paragraph 6 are also protected by the constitutional guarantee to the right to property afforded to Malaysians under article 13 of the Federal Constitution.
8. The Malaysian courts have also held that the deprivation of Indigenous communities’ traditional livelihood and way of life amounts to the deprivation of the right to life under art 5(1) of the Federal Constitution (Ketua Pengarah Jabatan Alam Sekitar v Kajing Tubek  3 MLJ 23).
9. The United Nations Declaration on the Rights of Indigenous Peoples, to which Malaysia voted for twice, states that Indigenous peoples have the right to own, use, develop and control the lands and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired (article 26 paragraph 2).
In giving recognition and protection to these lands and resources, article 26 paragraph 3 states that such recognition shall be given with due respect to the customs, traditions and land tenure systems of the Indigenous persons concerned.
This creates a genuine moral expectation that the government will pursue the achievement of the Declaration as a standard of achievement in the spirit of ‘partnership and mutual respect’ (preambular paragraph 24).
10. The maintenance of Orang Asli customary lands is crucial to the development of traditional knowledge, a valuable tool for the development of, for example, the agricultural, forestry and medical science industries.
The list goes on but I shall stop for now. Never assume that Orang Asli are not deserving of their customary lands. Law, human rights, justice and morality demand that we give Orang Asli due respect and recognition of their customary lands.
Yogeswaran Subramaniam, an Advocate & Solicitor and a member of Aliran, is pursuing a doctoral thesis in the reform of Orang Asli land rights at the Faculty of Law, University of New South Wales, Sydney.
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