Orang asli customary land rights must be protected


THE Malaysian Bar is disappointed by the action taken by the Perak state government on May 16 to demolish the blockade set up by the orang asli community at Kampung Tasik Cunex, Gerik, Perak, to protect lands claimed to be within their customary territory and to bar entry by logging trucks.

Perak Chief Minister Datuk Seri Ahmad Faizal justified the demolition of the blockade by contending that both the blockade and logging were carried out on state land and that the loggers’ activities were in compliance with the law.

Of particular concern to the Bar is his reasoning that “the government has yet to recognise the area as customary land as claimed by the villagers”.

Based on this reported statement, the Chief Minister’s legal justification appears to be misinformed, as the Malaysian superior courts have recognised the common law rights of orang asli to lands that they have historically and traditionally occupied without the need for a formal executive order “recognising” these rights (see Kerajaan Negri Johor v Adong Bin Kuwau [1998] 2 MLJ 158; and Kerajaan Negeri Selangor v Sagong Bin Tasi [2005] 6 MLJ 289].

The Chief Minister’s statement raises serious questions about whether the Perak state government’s action was reasonable in the circumstances and had taken into account the relevant consideration of whether the Kampung Tasek Cunex orang asli community may have acquired customary land rights at common law over the land in question.

Such common law rights can exist notwithstanding the state’s designation of an area as a reservation (see Ketua Pengarah Jabatan Hal Ehwal Orang Asli v Mohamad Bin Nohing [Batin Kampung Bukit Rok]) and where these rights exist, a state government is under a fiduciary duty to protect the orang asli lands concerned by, among other methods, reservation (see Kerajaan Negeri Selangor v Sagong Bin Tasi [2005] 6 MLJ 289).

It is also equally clear the state of Perak is no exception to the recognition of common law orang asli customary land rights (see Kong Chee Wai lwn Pengarah Tanah Dan Galian Perak [2016] 1 CLJ 605, affirmed by the Court of Appeal in Kong Chee Wai & Anor v Pengarah Tanah dan Galian Perak, Civil Appeal No. A-01-[NCVC][A]-38S-12/2015, 24 October 2016].

On a more positive note, the Malaysian Bar welcomes the eight resolutions regarding orang asli customary lands adopted at the National Orang Asli Convention organised by the federal government last month.

Two of the resolutions that arose from the convention are:

(1) To recognise orang asli rights over their ancestral land; and

(2) To guarantee and protect orang asli land, including gazetting the land and imposing a moratorium on any dispute pending the gazetting process.

With a potential resolution of the protracted orang asli land issue in sight, it is troubling that the Perak state government takes actions that run counter to the protection of remaining lands potentially subject to orang asli customary land rights.

The Malaysian Bar reiterates our call upon the Perak state government to:

(1) Suspend all logging activities in areas that may potentially overlap with lands claimed to be Kampung Tasik Cunex orang asli customary lands; and

(2) Investigate and survey the claimed lands jointly with the Kampung Tasik Cunex orang asli and, where the orang asli possess customary land rights at common law, to reserve all such lands in favour of the orang asli community.

ABDUL FAREED ABDUL GAFOOR

President

Malaysian Bar