PETALING JAYA: The Malaysian Bar has expressed its disappointment over the action by the Perak government on May 16 to demolish a blockade against logging set up by the Kampung Tasik Cunex Gerik Orang Asli.
The community had set up the blockade to protect lands claimed to be within its customary territory and to prevent lorries from taking away sawn timber.
Bar president Abdul Fareed Abdul Gafoor, in a statement today, however, welcomed the immediate statement from Juli Edo, the director-general of the Federal Department of Orang Asli Development (Jakoa), who was reported to have defended the Orang Asli blockade.
Juli had said that it “was not to oppose development planned by the state government” but to “defend their ancestral land, which has been passed down for millennia”.
“Regrettably, Perak Menteri Besar Datuk Seri Ahmad Faizal Azumu justified the demolition of the blockade, 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’.”
Fareed said based on this reported statement, the menteri besar’s legal justification appears to be misinformed and is arguably misleading.
The Bar president said Malaysian superior courts have already recognised the common law rights of Orang Asli to lands that they have historically and traditionally occupied, inhabited or used for generations, without the need for a formal executive order “recognising” these rights.
He said the Perak government needs to take a look at these two settled law cases: Kerajaan Negeri Johor v Adong Bin Kuwau (1998) 2 MLJ 158; and Kerajaan Negeri Selangor v Sagong Bin Tasi (2005) 6 MLJ 289.
“The menteri besar’s statement raises serious questions about whether the Perak government’s action was reasonable in the circumstances and had taken into account the relevant consideration of whether the Kampung Tasek Cunex Gerik Orang Asli community may have acquired customary land rights under common law over the lands in question.”
Fareed said such common law rights can exist notwithstanding the state’s designation of an area as a reservation.
He gave two case references: Ketua Pengarah Jabatan Hal Ehwal Orang Asli v Mohamad Bin Nohing (Batin Kampung Bukit Rok) and another appeal (2015) 6 MLJ 527.
He said where these rights exist, a state government is under a fiduciary duty to protect the Orang Asli lands concerned by, among other methods, reservation, referring to the case: Kerajaan Negeri Selangor v Sagong Bin Tasi (2005) 6 MLJ 289.
He said it was also equally clear that Perak was no exception to the recognition of common law involving Orang Asli customary land rights.
He said this was seen in the case of Kong Chee Wai v Pengarah Tanah Dan Galian Perak  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, Oct 24, 2016.
8 resolutions at Orang Asli convention
On a more positive note, the Malaysian Bar welcomed the eight resolutions regarding Orang Asli customary lands adopted at the National Orang Asli Convention organised by the federal government last month.
Fareed said two of the resolutions 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 government continues to not consider the full spectrum of Orang Asli customary land rights as pronounced by the Malaysian courts.
“Perhaps, more alarmingly, it is taking action that runs counter to the protection of the remaining lands potentially subject to Orang Asli customary land rights.”
Fareed said the Malaysian Bar was reiterating its call for the Perak government (made earlier in its press release dated Feb 26) to:
(1) suspend all logging activities in areas that may potentially overlap with lands claimed to be Kampung Tasik Cunex Gerik Orang Asli customary lands; and,
(2) investigate and survey the claimed lands jointly with the Kampung Tasik Cunex Gerik Orang Asli and, where the Orang Asli possess customary land rights through common law, to reserve all such lands in favour of the Orang Asli community.
More broadly, the Malaysian Bar reiterated its call for the federal and state governments to:
(1) impose, as an interim measure, a moratorium on the creation of any land and resource interests and the continuation of resource extraction and enforcement activities within places claimed to be Orang Asli customary areas, pending the resolution of the affected Orang Asli community’s customary territorial claims;
(2) implement the 18 recommendations contained in the 2013 Suhakam Report on the National Inquiry into the Land Rights of the Indigenous Peoples in Malaysia; and,
(3) take all appropriate measures, including legislative measures — in consultation and cooperation with the Orang Asli — to achieve the spirit and intent of the United Nations Declaration on the Rights of Indigenous Peoples 2007.