Check common law on Orang Asli land claims in Perak, says Bar

Villagers from Kampung Tasik Cunex protest outside the blockade they set up to prevent the entry of lorries from ferrying felled timber. (Peka pic)

PETALING JAYA: The Malaysian Bar voiced concern today over the Perak government’s stand on logging activities in areas claimed by the Orang Asli community as customary land, saying the land may in fact belong to them under common law.

Bar president George Varughese said for two decades now, the superior courts had recognised the common law rights of Orang Asli communities over specific tracts of land continuously occupied, inhabited or used for generations.

“These common law rights can exist notwithstanding the state’s designation of an area as a reservation.

“It is equally clear that such common law cases fall within the definition of ‘law’ in Article 160 of the Federal Constitution,” he said.

The Orang Asli community in Grik accused the state government earlier this month of encroaching onto their land to carry out logging activities.

Villagers from Kampung Tasik Cunex Grik set up a blockade to prevent lorries ferrying felled timber from entering the area.

They also lodged a police report, claiming they were being threatened by the logging company and the Perak Forestry Department.

Varughese said Perak Chief Minister Ahmad Faizal Azumu had reportedly said the logging activities were in compliance with the relevant laws, and that the areas in question were not gazetted as “kawasan rayau”.

He said the state director of forestry was also reported as saying that “the area they claim is the Air Chepam forest reserve and not Orang Asli customary land”.

In a statement, he said it was “misleading” for the Perak government to claim it had complied with the law in circumstances where the Orang Asli might possess prior customary land rights through common law.

“The superior courts have also held that state governments have a fiduciary duty to protect Orang Asli land rights and to not act inconsistently with such rights.

“Having the legal power and being charged with the duty to reserve lands for the Orang Asli, the Perak state government would seem to have opted to retain the Air Chepam forest reserve and consented to logging activities within the reserve without sufficiently examining possible overlapping common law land rights of the Kampung Tasik Cunex Orang Asli.”

He urged the Perak government to suspend all logging activities in areas that might overlap with lands claimed by the Orang Asli, and to investigate these together with the Orang Asli to determine whether they are indeed customary land under common law.

He also called on the federal government and the Department of Orang Asli Development to ensure that the customary land rights of the community are protected.

He suggested that a moratorium be imposed on activities within places claimed as Orang Asli customary land pending the resolution of their claims.