Enough ‘legal fictions’ about Orang Asli land, NGO tells ministers, officials

Orang Asli at Kampung Tasik Cunex, Grik, protest against logging activities by the Perak government.

PETALING JAYA: Sahabat Alam Malaysia (SAM) today called on ministers and top government officials to stop using outdated “legal fictions and culturally offensive terms of the Old Malaysia” in dealing with the rights of the Orang Asli.

Voicing support for the statement by the Malaysian Bar Council for federal and state governments to protect Orang Asli customary land rights, SAM president SM Mohamed Idris said policymakers should look at the law in its entirety.

“The law does not only comprise statutory law, it also includes common law, customs and usage having the force of law, and judicial decisions.

“The fiduciary duty of states to protect the indigenous customary land rights is in fact trite law. Therefore, compliance to statutory laws does not negate the state’s duty to sufficiently examine any possible overlapping of common law land rights of the Orang Asli community,” he said in a statement.

He said the argument of Perak Menteri Besar Ahmad Faizal Azumu that logging activities in Kampung Tasik Cunex, Grik, were in compliance with the relevant laws could not be accepted.

“We have also heard senior executive officers in Peninsular Malaysia ignorantly repeating that indigenous customary land rights do not exist in their states. This only demonstrates the woeful state of their understanding of the law.

“Further, the usage of phrases like ‘kawasan rayau’, which is offensive to many indigenous peoples, seems to continue in the New Malaysia. Such outsider-imposed terms erroneously imply that our indigenous peoples merely engage in ‘foraging’ activities in forested areas, without any sense of rights, planning and strategy.”

He said territoriality was a very important concept in the exercise of indigenous customary land rights, and that indigenous territorial boundaries were strictly adhered to by the different communities while hunting and gathering. Agricultural activities, he added, were sustainably planned and strategised.

Idris referred to a report SAM published in 2016 entitled “Encroachment on Orang Asli Customary Land in Peninsular Malaysia” which contains 12 case studies of how logging and plantations had impacted Orang Asli communities.

“This publication discusses the inability of statutory law to fully protect the Orang Asli customary land rights. It explains how licensed logging, plantation and other resource-extractive activities conducted in accordance with statutory laws must not be simply presumed to have obtained legal impeccability.”

“Legal” logging, Idris said, might still encroach on forests customarily owned by the Orang Asli community, whose rights had been obtained legally through their customary laws, “protected by the Federal Constitution and recognised by the judiciary”.

He added that “legal logging” could still be destructive logging, damaging the Orang Asli’s “lawfully owned forests and natural resources”.

He urged the Perak government and the Department of Orang Asli Development to “take the correct course of action to protect the land rights” of the Orang Asli in Kampung Tasik Cunex.

Urging the federal and state governments to do the same, Idris also called for the implementation of recommendations made by the National Human Rights Commission, or Suhakam, in its “Report on the National Inquiry into the Land Rights of Indigenous Peoples” published in 2013.