CHAPTER 8

FINDINGS - PENINSULAR MALAYSIA

8.1This Chapter discusses the findings for Peninsular Malaysia and contains three sub-sections i.e. issues related to land rights of Orang Asli (ToR 2); constraints that impede rights to land (ToR 3); and the effectiveness of responses to land claims (ToR 1). The first section on issues related to Orang Asli land rights contains a summary of the issues based on information from the public consultations, public hearings, academic research commissioned by the Inquiry, as well as from written and oral replies from the government agencies and corporate entities. The findings are supported by the cases presented at the Public Hearings. The summaries of these cases can be found in a CD in the Annex.

8.2During the Consultations in five states in Peninsular Malaysia, 287 statements were recorded (Selangor

– 50, Perak – 70, Pahang – 71, Johor – 48, Kelantan – 45, Negeri Sembilan – 2 and Melaka – 1), of which 17 were considered outside the scope of the Inquiry. For the purpose of the Public Hearing, the statements were categorised and 60 representative cases were selected. Most, if not all, of the cases for the public hearings involved more than one issue.

i.ISSUES RELATED TO ORANG ASLI LAND RIGHTS

General Administrative Issues

8.3Government agencies informed the Inquiry that all matters involving the Orang Asli are channelled through the Department of Orang Asli Development or Jabatan Kemajuan Orang Asli (JAKOA), formerly known as the Department of Orang Asli Affairs or Jabatan Hal Ehwal Orang Asli (JHEOA). The Department of Lands and Mines also informed the Inquiry that they only accepted applications for an Orang Asli area to be gazetted as an Orang Asli Reserve from JAKOA.

8.4JAKOA admitted that it had insufficient capacity and resources (financial and otherwise) to meet most of the requests of the other government agencies, especially with regard to the securing of the customary lands of the Orang Asli. Compared to other financial allocation, surveying of Orang Asli land gets a relatively much lower annual budget.

8.5The Orang Asli’s claims to their traditional lands and territories are often ‘invisible’ in the eyes of the District and Land Office or Pejabat Daerah dan Tanah (PDT) and/or the Lands and Mines Office or Pejabat Tanah dan Galian (PTG) at district and state levels respectively largely because the claims of the Orang Asli to their customary lands are not marked or identified in the cadastral maps of the Department of Survey and Mapping Malaysia or the Jabatan Ukur dan Pemetaan Malaysia (JUPEM).

8.6The cadastral maps of JUPEM in the land offices are regarded by the PTG and the state government as definitive of the status of the land in the state. Typically, Orang Asli lands that have not been gazetted as Orang Asli Reserves are not indicated, marked, blocked or caveated as Orang Asli lands on such maps. So long as those lands are not marked as such on the JUPEM maps, it is deemed by the authorities that Orang Asli rights to these lands do not exist. According to PDT, such areas can be ‘blocked’ or earmarked for Orang Asli in the land offices maps, but no PDT has taken the pro-active step to do so.

8.7In case A54 involving an allegation that the Federal Land Development Agency (FELDA) had encroached on an estimated 1,880 acres of Temiar land in Kg Jeram Papan, Gerik in Perak, FELDA witness Ms Harisah bt Abu Hasan (W25) claimed that they were unclear as to the status of Orang Asli land as it

Report of the National Inquiry into the Land Rights of Indigenous Peoples 111

was not marked on the PTG map. As such, no discussions were held before the opening of the rubber plantation and no compensation paid on land that was taken. Perak PTG witness, Mr Syed Mokhtar b Idris (W43) said the said land was bought by FELDA from settlers and claimed that the PTG never received an application to gazette the area as an Orang Asli reserve or any complaints from the Orang Asli.

8.8Another problem raised repeatedly at the Inquiry is the marking of foraging areas (kawasan rayau) on maps or the lack of understanding of the kawasan rayau, which often lead to areas being awarded to other bodies. In case A34 involving traditional land claimed by Semai communities in Kg Batu Barangkai in Kampar, Perak, Mr Mohammed b Sudin (W19) representing PDT Kampar said that because the reference on kawasan rayau was neither clear in the Aboriginal Peoples Act nor clearly marked on the ground, the government approved the 123-acre wakaf site to the Perak Islamic Council. However, the Council has agreed to surrender the area and return the area to the Orang Asli.

8.9In some cases, the Orang Asli complained that their correspondences and appeals on land-related issues to various government agencies (eg. JAKOA, PDT, and PTG) had not received any response or were dismissed. In case A253, the complaints by the Mahmeri communities who were forced to move from their original villages in Kg Kokoh and Kg Permatang Tareh in Pulau Carey, Selangor were simply dismissed by the authorities, while Sime Darby, which has been granted ownership to the land said it is the legal owner of the land.

8.10There were also complaints of fraudulent or dishonest land deals and transfers involving Orang Asli traditional lands and territories in the land office. In case A268, a Temuan settlement in Kg Jambu, Dengkil was included in the land alienated to Syarikat Piagamas for development. Because the community refused to move and persisted in the appeal against the transfer of their land, the government cancelled the project in April 2010. However, the application for the land to be gazetted as an Orang Asli reserve could not proceed pending a court decision in the case brought by the company against the Selangor Government for cancelling the project.

Gazetting of Orang Asli lands

8.11There are three categories of Orang Asli customary lands, as recognised by the government: Gazetted Orang Asli Reserves, Orang Asli areas approved for gazetting as Orang Asli Reserves but not gazetted as yet, and Orang Asli lands applied for gazetting but not approved yet. The approving body in this case is the State Authority, or in practical terms, the State Executive Committee or Majlis Mesyuarat Kerajaan Negeri (MMKN).

8.12Data as presented to the Inquiry by JAKOA on the status of Orang Asli lands as at 1990 and 2010 can be summarised as follows:

Status of Land (hectares)

1990

2010

Change

% change

 

 

 

 

 

Gazetted Orang Asli Reserves

20,666.96

20,670.83

3.87

0.02

Approved but not gazetted

36,076.33

26,288.47

(9,787.86)

(27.13)

Applied for gazetting but not

67,019.46

85,987.34

18,967.88

28.30

approved

 

 

 

 

Total

123,762.65

132,946.64

9,183.99

7.42

8.13The data shows that there has been only a very small increase (3.87 hectares or 0.02 per cent) in the number of gazetted Orang Asli reserves over the 20-year period. The data also shows that a

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total of 9,787,86 hectares of Orang Asli lands approved for gazetting by the state authorities never became Orang Asli reserves. Some of these approvals were made in the 1960s and 1970s.

8.14There was an increase in size of Orang Asli lands applied to be gazetted as Orang Asli reserves (18,967.88 hectares or 28.30 per cent). However, the status of such land applications to be gazetted as Orang Asli reserves is not guaranteed particularly in the context of the new Policy on the Alienation and Development of Land for Orang Asli for Agricultural and Residential Purposes or the Dasar Pemberimilikan Tanah kepada Orang Asli Untuk Kegunaan Pertanian dan Kediaman (DPTOA).

8.15Nevertheless, the overall statistics do not reveal the local situation within specific Orang Asli localities. The recognition and security of Orang Asli traditional lands and territories are being jeopardised by one or a combination of three administrative shortcomings:

Under-gazetting. This occurs when the full extent of the Orang Asli customary land is not taken into account when an Orang Asli settlement is gazetted as an Orang Asli reserve.

Non-gazetting. This occurs when lands which have been approved by the state authority to be gazetted as Orang Asli reserves are not gazetted because of an administrative shortcoming. In most cases, this is due to the failure to produce a properly-surveyed map of the area to be reserved, in compliance with normal land alienation procedures.

De-gazetting. This occurs when an Orang Asli reserve is degazetted as such, and the land reverts to the state and/or is given to another entity.

8.16As an example of under-gazetting, Bah Jalia/l Bah Jit (W4) of Kg Batu 6, Jalan Pahang, Tapah in case A47 lamented the difference between the land sizes applied to be gazetted by the Orang Asli community, and the final area approved for gazetting. The problem according to W4 lies in the survey of the area in 1968 and 1971. W4 also complained about the allocation of land within the Orang Asli Reserve to outsiders for building of bungalows and for growing flowers. It cannot be ascertained how such project was approved.

8.17One example of an administrative shortcoming is in case A246, where the process of gazetting an Orang Asli reserve is still pending after more than 10 years. Mr Mohamad Yasid b Bidin (W16) of PDT Kuala Langat said Sime Darby had set aside 329 acres of land in 2002 as a reserve for the Orang Asli in Kg Sungai Bumbun in Pulau Carey but because Sime Darby still owes tax to the state government and that JAKOA has failed to put in an application for the land, the land has not been gazetted as an Orang Asli reserve. JAKOA’s Deputy Director General, Mr Nisra bin Asra Ramlan (W47) however denied receiving any documents regarding Sime Darby’s decision.

8.18The data in the table above only refers to lands recognised by the government as being occupied by the Orang Asli, which in 2010, amounted to 132,946.64 hectares. It is estimated that this area represents only 17 per cent272 of the lands claimed by the Orang Asli.

8.19There were some reservations expressed regarding gazetting of land as Orang Asli Reserves, strictly from an economic viewpoint. W16 in case A246 said the state government would receive not any premium from Orang Asli reserves compared to alienation of land for economic development. Case A225 is another illustration of the priority given to the economic benefits to be derived over the interests of Orang Asli. In that case, although it was aware that Kg Orang Asli Sungai Putur, Kahang, Johor had existed since 1952 i.e. earlier than the gazetting of the area as a Malay Reserve in 1954, yet PDT Kluang allowed a non-bumiputra company, Syarikat Kemasik Sdn Bhd, to operate in the area and even issued a 30-day eviction notice to the Jakun community there.

8.20Reservations although a positive move, may not necessarily be in line with expectations of the Orang Asli. For example, the reservation of a rayau reserve in Kuala Langat North Forest Reserve, Selangor

272 Based on a calculation from JHEOA’s Data Tanah (1990)

Report of the National Inquiry into the Land Rights of Indigenous Peoples 113

the size of 12,900 acres (gazette no 2578). With the allocation of this area, villagers are expected to move and prohibited from entering their old areas.

8.21Although the PDT/PTG said the process of gazetting a reserve takes about 3 months, in most cases, the process would take much longer. Some witnesses said that they were forced to submit more than one application/request after they received no feedback. Batin Ogeh bin Gandoh (W1) in case A226 told the Inquiry that several applications had been submitted to the authorities for Kg Sungai Peroh Orang Asli to be gazetted as an Orang Asli Reserve. Other than being told that their applications were still being processed, Batin Ogeh had not heard of any other progress made in the processing of the application by the authorities. In response, Mr Shahril Nizam b Abd Rahim from PDT Kluang said they received an application for the OA Sungai Peroh reservation (150.245 ha) in June 1998, which the office had processed and forwarded to PTG Johor in January 2006, but had not received any response.

8.22There are also examples of delays in processing and/or eventual rejection of applications for Orang Asli reserves. In case A228 in Kg Pengkalan Tereh, Mukim Nyior, Kluang, Johor, Batin Jarih Bin Uni said he applied for the area to be gazetted an Orang Asli Reserve in 1976. He produced letters saying the application had been approved but despite efforts by the PDT and JAKOA, the land was eventually alienated to non-Orang Asli individuals in 2010.

8.23An example of an Orang Asli reserve that has been de-gazetted is case A168 involving Kg Permatang Keledang Orang Asli Reserve in Pekan, Pahang, which was gazetted in 1959 but was cancelled by the state authorities in 1970 and reverted to state land. The Inquiry deduced from information given by PDT Pekan that the government wanted development in the area that would have been more economically beneficial.

Fiduciary Duty of JAKOA

8.24The fiduciary duty of the Department of Orang Asli Development (JAKOA) is unambiguously stated in the preamble to the Aboriginal Peoples Act: “An Act to provide for the protection, well-being and advancement of the aboriginal peoples of Peninsular Malaysia.” This is further reinforced by the appointment of a Director-General of Orang Asli Affairs with explicit responsibility for the administration, welfare and advancement of the Orang Asli.

8.25However, it was widely and repeatedly asserted during the Inquiry that the JAKOA has not been fulfilling its fiduciary duty, as evidenced by civil suits taken by Orang Asli against the government on this matter, and that JAKOA has in fact from time to time acted against the interests, well-being and advancement of the Orang Asli.

8.26State authorities made it clear that the application for Orang Asli Reserves must be made by JAKOA. At the Inquiry, many witnesses representing whole villages and in some cases, groups of villagers came forward expressing anger and disappointment with JAKOA that their applications for their traditional land to be gazetted were not forwarded to the relevant authorities. Among these are A206 in Kg Lebuh Kangkar, Senagar, Johor; A29 in Kg Gesau, Ulu Slim, Perak; A136 in Kg Satak andA181 in Kg Sungai Mangkapor, Kuantan in Pahang. In A181, Mr Abd Rahman bin Abdullah (W6) of PDT Kuantan said PDT never received any application to gazette Kg Mengkapor as an Orang Asli reserve.

8.27Further support for the assertion that JAKOA has failed in fulfilling its fiduciary duty may also be drawn from the number of Orang Asli lands that have been approved for gazetting as Orang Asli reserves in the 1960s and 1970s but which were never gazetted as Orang Asli reserves due to the failure of JAKOA to produce the required survey maps. As the table above indicates, of the 36,076.33 hectares that was approved to be gazetted as Orang Asli reserves between 1990 and 2010, only 3.87 hectares had actually been gazetted.

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8.28Furthermore, of the 36,076.33 hectares that were approved for gazetting in 1990, only 26,288.47 hectares remain with the same status in 2010, leaving a question mark over the status of the balance of 9,783.99 ha (i.e. 9,787.86 minus 3.87 ha). In many of those cases, the Inquiry was informed that the lands had reverted to the state as state land or had been transferred to other entities. In some areas, these formerly approved Orang Asli lands were turned into Malay Reserves.

8.29In case A245, PDT Kuala Langat (W16) said that the Temuan settlement of Kg Orang Asli Bukit Serdang in Banting, which was formerly gazetted as a Malay Reserve has been approved by the Selangor government to be cancelled and gazette as an Orang Asli reserve. However, between the applications for the Orang Asli reserve in 1965 until today, there has been no follow-up action and the Orang Asli settlement area remains as state land and the surrounding areas remain a Malay Reserve.

8.30JAKOA informed the Inquiry that the main reason for their inability to gazette Orang Asli reserves under the Aboriginal Peoples Act is that JAKOA is a federal agency while land is a state matter. JAKOA’s Deputy Director General (W47) also refuted the statements by PDT and PTG that JAKOA has often failed to submit applications for Orang Asli reserves. He countered that the various PDT and PTG have reported loss of files containing applications Orang Asli reserves.

8.31The Inquiry noted JAKOA’s engagement with other parties (including government agencies, corporate interests and individuals) in deals/agreements/MOUs without the consent of or consultation with the Orang Asli because it considers itself the representative of the Orang Asli. In several instances, JAKOA referred to itself as the father/godfather/parent of the Orang Asli. However, many Orang Asli witnesses considered JAKOA as being very paternalistic, making decisions affecting the communities, without much consultation with them and expecting their full compliance.

8.32Community witnesses told the Inquiry that JAKOA had never supported them in situations where disputes over their customary lands were brought to court. According to a senior Official of the Department, the position of JAKOA was that any Orang Asli who took any court action against the Government was viewed as their adversary.

8.33As the department tasked to provide protection and well-being of the Orang Asli, JAKOA is expected to help bridge the Orang Asli’s expectations and to facilitate consultations with the community. In case A149, the Semai community from Pos Lanai said that they were reluctant to move to Pos Pantos because the area is hilly and near to a Malay village. However, discussions on the relocation were only done with the Batin of the village, who then convinced people to move. PDT said it was not explained to them why the Orang Asli resisted. In this case, a logging permit was already issued in Ulu Lanai.

Legitimate Expectation of Orang Asli

8.34The Inquiry heard that on various occasions, Orang Asli were led to believe that their customary lands were theirs to own and occupy. These assurances often came from JAKOA officials, politicians, government servants and those having authority over land matters in the state.

8.35Several Orang Asli complainants reported that they were informed by the authorities that they were free to live, hunt and forage where and as they like. The Orang Asli usually took this at face value. The PDT-Pekan, for example, while admitting that there were no Orang Asli reserves in the district, told the Inquiry that the “Orang Asli are free to practise their way of life there. But not in a big commercial way.” Such remarks and promises have led the Orang Asli to genuinely believe that their lands are recognised and secured.

8.36The Inquiry was also told that promises to secure the land rights of the Orang Asli had been made by government officers whom the Orang Asli held in good stead. Letters to that effect were also

Report of the National Inquiry into the Land Rights of Indigenous Peoples 115

submitted to the Inquiry. In response, JAKOA, while asserting that they did not purport to make promises outside their jurisdiction with respect to land, admitted that some officers might have had genuine intentions, but such promises remained unfulfilled largely because of the mobility of those officers and the failure of their successors to follow up on the promises made.

8.37Orang Asli witnesses also said that the building of PPRT houses (houses for the hardcore poor) and the provision of infrastructural facilities in Orang Asli settlements, including those that were not gazetted, led them to believe that recognition had been accorded to their customary lands.

8.38In case A120, Wan Ngah Murni Alangsodi (W8), a Temiar from Kg Jenut, RPS Kuala Betis in Kelantan, expressed her frustration and anger when the community was ordered to relocate against their will from Kg Jawa to Kg Jenut in 1986. The community had to build the houses themselves, which are now dilapidated, and they cannot rebuild as, being surrounded by plantations, they have no access to building materials.

8.39Some Orang Asli witnesses who were resettled during the Emergency for security reasons also told the Inquiry that they held on to the promise made by the then Prime Minister, Tunku Abdul Rahman that they would be allowed to “return to their original homes and live in peace”. However, some communities were not allowed to do so and now face overcrowding and insufficient land-base in resettlement or regroupment schemes.

Inter-agency Coordination and Perception

8.40While JAKOA denies that it is so, the general perception among government agencies is that JAKOA is responsible for all matters involving the Orang Asli, or that the agency must go through JAKOA. During the public hearings, the Inquiry heard several instances of government agencies passing the responsibility for Orang Asli matters to other agencies or to JAKOA and vice versa.

8.41Some of the government officers who testified at the public hearings, including those from the PDT and District offices, admitted to being ignorant of the Aboriginal Peoples Act or of court decisions/ precedents favouring Orang Asli on land matters.

8.42To ascertain the location and identity of Orang Asli customary lands, the government agencies rely on the markings or indications on the cadastral maps put out by JUPEM. Consequently, where there are no markings or indications of an Orang Asli area or reserve on those maps, the assumption is that the Orang Asli have no rights in those areas. Complaints and years of worries on the part of the Orang Asli could be avoided if markings are made in the cadastral maps which are available to the public and companies.

8.43In case A251, the Temuan community of Kampong Orang Asli Kolam Air Bangkong, Selangor are worried about the proposed construction of the MEX Expressway, which they thought would involve their land and destroy their crops. YM Raja Azhar Raja Alias (W22) from the PDT Sepang and Hulu Langat, however, explained that the land which had been alienated (to six companies) did not include the kawasan rayau or foraging area. Apparently, the area which has been cultivated by the Orang Asli is within the Bukit Bangkong and Bukit Tampoi sakai reserve. Such an assurance, if conveyed earlier, would have allayed the concerns and worries of the affected Orang Asli.

8.44The need for better inter-agency coordination is significant and the willingness by the relevant agencies to be pro-active in their responses can result in the resolution of many outstanding cases. In case A249 involving access to traditional burial grounds of the Mahmeri community of Bukit Perah, the complaint by Mr Arif bin Embing (W4) was resolved at the Inquiry itself. Once the Kuala Langat PDT confirmed that the burial grounds were outside the perimeters of the Ministry of Defence (MoD)

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shooting range training grounds, it was then just a matter of arranging safe access to visit the graveyards. MoD witness, Major Baharum b Ismail (W8) said there were no restrictions on access and agreed to meet with the community to resolve the issue.

8.45There are also some glaring gaps in communication and coordination between JAKOA and other departments, including the PDT/PTG. In case A207, while the Johor Parks Board, Department of Wildlife (Jabatan Perhilitan) and Forestry Department made no admission on the excision of Kg Orang Asli Air Tawas from the Gunung Ledang Forest Reserve in 2009 (this area was gazetted as Park in 2005), Mr Suhairy b Abd Ghani (W35) said correspondences to that effect had been received by JAKOA.

8.46Similarly, in case A223 regarding Kg Punan, Mersing, Johor, both Mr Abd Hakim b Abd Manap (W26) of PDT Mersing and Mr Khairul Adha b Mat Amin (W30) from the Wildlife Department, denied receiving any applications from JAKOA for the area to be gazetted as an Orang Asli reserve. In response, W35 claimed that JAKOA had applied for the cancellation of the Wildlife Reserve in 1985 and 2001 and to gazette the area as an Orang Asli reserve.

8.47State PDT offices have acknowledged that the Orang Asli land issue is very overwhelming and difficult to resolve. In this regard, the Inquiry was concerned that the responsibility to solve the Orang Asli land problem is placed squarely on JAKOA, more so when the department does not allocate sufficient human and financial resources for land surveys to be done, which are critical in resolving the issue.

Rejection/Non-application of Policies and/or Legal Precedents

8.48The first known declared policy statement of the government for the Orang Asli is the 1961 ‘Statement of Policy Regarding the Administration of the Orang Asli of Peninsular Malaysia’. According to the testimony of the JAKOA Director-General in the Sagong Tasi’s case, the 1961 Policy Statement is still in force and has not been rescinded.

8.49Para 1(d) of the 1961 Policy Statement reads as follows:

The special position in respect of land usage and land rights shall be recognised. That is, every effort will be made to encourage the more developed groups to adopt a settled way of life and thus to bring them economically in line with other communities in the country. Also, the Orang Asli will not be moved from their traditional areas without their consent.

8.50The Policy Statement presumes the duty of the state to recognise the right of the Orang Asli to their customary lands and for it to be given due recognition and force of law. Judicial decisions in cases involving Orang Asli land matters (e.g. Sagong Tasi, Adong Kuwau, and Khalip Bachik) have laid down legal precedents the prior rights of the Orang Asli to their customary lands are to be recognised. Such lands are to be treated as if they were the same as titled land. Such policy, declaration and legal decisions, however, are not widely known among government officers, or if known, are not followed for various reasons.

8.51A senior official of JAKOA had admitted in his testimony to the Inquiry that the UNDRIP principles were not consciously promoted or internalised within the Department due to the different interpretation of the term “indigenous”.

8.52The Inquiry took cognisance that the PDT is guided by the National Land Code. This further suggests that, as far as land matters involving the Orang Asli are concerned, the relevant agencies and officers tend to restrict themselves to legal provisions as prescribed under existing laws such as the National Land Code, and are not guided by government policies, international declarations and court decisions in their interpretation of the law.

8.53As a result, the principle of free, prior and informed consent (FPIC) is not adhered to in most land matters involving Orang Asli. This was further exemplified by a document submitted to the Inquiry,

Report of the National Inquiry into the Land Rights of Indigenous Peoples 117

the Aku Janji, which was being distributed by JAKOA Pahang, requiring Orang Asli land scheme participants to sign away their rights without sufficient information or discussion.

DPTOA – Policy on the Alienation and Development of Land for Orang Asli for Agricultural and Residential Purposes

8.54JAKOA informed the Inquiry that on December 2009, the National Land Council approved the Dasar

Dasar Pemberimilikan Tanah kepada Orang Asli Untuk Kegunaan Pertanian dan Kediaman (DPTOA) or the Policy on the Alienation and Development of Land for Orang Asli for Agricultural and Residential Purposes for Agricultural and Residential Purposes, which sought to grant 29,990 Orang Asli households permanent (individual) titles to agricultural lots varying in size from 2 to 6 acres (0.8 to 2.4 hectares). Each household would also be given up to a quarter acre (0.1 hectare) for their house and orchard (dusun).

8.55Under this Policy, it is envisaged that Orang Asli would be granted titles to about 50,000 hectares of land. This appears to be close to the sum of the Orang Asli reserves and the Orang Asli areas approved for gazetting in 2010 i.e. a total of 46,959.30 hectares.

8.56Under the new policy, Orang Asli will not be allowed to take the government to court over those lands, nor will they be entitled to compensation. The new policy also stipulates that the newly acquired titled lands of the Orang Asli will have to be developed and managed by an external agency, and the development costs will be borne by the Orang Asli land owner himself or herself.

8.57Despite opposition and appeals by Orang Asli not to go ahead with the DPTOA, state PTGs have already started to implement the policy. In Kelantan, the State Executive Committee (MMKN) has already approved the policy to award land vide Circular 6(89) and according to Mr Mohamad Zainudin b Mohamed (W27) from the PTG, 78 lots have already been approved individual ownership in RPS Kuala Betis.

8.58Community witnesses expressed concerns over the absence of a guarantee that their existing individual agricultural plots will be within the customary lands of the community concerned. The state is given the option to allocate such lands as they are available for alienation. Further, the Inquiry was informed by the PTG Pahang that according to the State land policy for Orang Asli 2006, once the Orang Asli were resettled, the original settlement would revert to being state land.

8.59There is also no consistency in the land policies of the various states towards Orang Asli, especially in the granting of leasehold rather than freehold title. For instance, as the PTG Perak explained “the Orang Asli land policy in the state is to give 99 years lease. We do not have to follow the DPTOA of the National Land Council.” In Selangor, the policy is also to grant leases of 99 years, and the existing Orang Asli reserves gazette under sections 6 and 7 of the APA will be de-gazetted to make way for the granting of individual titles except for village settlements, which will be maintained under communal reserve.

8.60Additionally, Johor PTG said that any individual applications would be referred to JAKOA, and not to the individual applicants.

8.61The process of implementing the DPTOA must involve a correct understanding of the Orang Asli customary rights as well as international human rights principles by JAKOA and relevant departments. Otherwise mistakes in land allocation will have long-term repercussions. In case A29, PDT Slim River said the definition of tanah adat is not clear so the land claimed by communities of Kg Gesau, Ulu Slim, Perak was then allocated to Sime Darby. Only because of the strong protests by community, was the project subsequently cancelled.

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Plantations/Agribusiness

8.62Fifty statements recorded during the consultations in Peninsular Malaysia contained allegations against plantations/agribusinesses within the lands and territories claimed by the Orang Asli. These include private companies, government-linked companies (GLC), government agencies, and in some cases by individuals.

8.63Apart from loss of land, many community witnesses complained that the opening of plantations has resulted in destruction of graveyards and crops, and pollution of rivers and loss of livelihoods and traditional ways of life. The Department of Environment also confirmed that the Environmental Impact Assessments (EIA) done were incomplete. Compensation is usually not paid because the Orang Asli’s right to the land is not recognized.

8.64In case A181 involving the Semaq Beri people in Kg Mengkapor, Pahang, LKPP Corporation Sdn Bhd (a company of the Pahang Agricultural Development Board or Syarikat Kumpulan Lembaga Kemajuan Perusahaan Pertanian Negeri Pahang), opened up a large-scale oil palm plantation in an area regarded as state land by the government. LKPP, which was established among others to eradicate poverty, denied destruction of any graves and said it would excise 7 ha of Orang Asli land that had been planted with rubber.

8.65In case A71, the encroachment by Syarikat Sigur Ros which resulted in the destruction of farmlands and crops of the Temiar community in Pos Balar, Gua Musang, and Kelantan was unlawful according to the Department of Environment (DoE). Mr Rohimi Harun (W24) of the DoE said the EIA report was not complete and Sigur Ros had also failed to submit the report based in DoE’s guidelines and therefore the project should not have been approved.

8.66In Kelantan, the Inquiry found that in five cases involving Ladang Rakyat in Kelantan (case numbers A89, A84, A71, A116 and A81), the PTG Kelantan gave an assurance that if the ground survey of the area (for alienation for plantation development) identified an Orang Asli settlement, that area must be excised. The Environmental Impact Assessment (EIA) and Social Impact Assessment (SIA) must also be conducted to ascertain the potential impact of the plantation.

8.67In case A230 involving a company planting oil palm in land claimed by the Jakun community in Kg Bukit Pingok, Ulu Sg Tersap in Johor, W26 from PDT Mersing said that the approval given to a company was for oil exploration (carigali) and not for oil palm plantation.

8.68A majority of the cases reported to the Inquiry accused either the government or private entities of failing to adequately consult villagers prior to their operations. Consultations with the intention of reaching free, prior and informed consent are deemed to be extremely important for the Orang Asli as the opening up of plantations have various impacts on their rights and livelihood.

8.69In two cases in Kelantan, individuals have encroached into Orang Asli areas without informing the Penghulu or Batin (village headman). In case A105, Bateq communities of Kg Pasir Linggi and Kg Machang, Pos Lebir, complained that individuals have bulldozed their crops and taken over their land. In case A102, encroachment into the old Orang Asli settlement areas of Kg Kuala Yai and Kg Gemalah by some Malay individuals also happened in the same manner.

8.70From the testimonies of the agencies and/or private entities, it would appear that these agencies and/ or private entities perceive the Tok Batin as the decision-maker of the community without any need to consult other villagers further who may have clear and equal interests in the land and assets in question. Some also made the assumption that the Tok Batin would consult the villagers for them. In most cases, however, as testified by the Orang Asli witnesses, the Tok Batin made the decision without consulting or discussing with them.

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8.71Related to this issue of the need for the Tok Batin to consult his or her villagers before allowing third parties to enter their land, is the question of the election of the village heads. A number of Orang Asli witnesses objected to the manner in which the Tok Batin were appointed. In most cases, the Tok Batin were appointed by JAKOA without any say on the part of the villagers. As a result, a number of Orang Asli witnesses accused their Tok Batin of not having their interest at heart while making decisions that have proven to be detrimental to the villagers and their right to land.

8.72Orang Asli villagers who reside and live off the land which have not been gazetted face higher risks of being sidelined, or worse, not even considered to be included in any form of consultation as they are not deemed to be the rightful owners of the land. While some agencies and private entities had earlier maintained that they had consulted the affected Orang Asli communities, further examination of the witnesses revealed that the ‘consultations’ conducted were merely meetings with the community to inform them that the land in question had been awarded or leased to a third party. The meetings were not meant for the Orang Asli to negotiate the terms of use of their lands over which they claim to have traditional ownership.

8.73The size of land awarded or leased to companies and GLCs can sometimes include more than one village involving vast areas of the Orang Asli’s kawasan rayau or foraging areas. These areas are then destroyed for commercial logging, and subsequently, plantations. Many Orang Asli are then left without adequate livelihood options. In cases A246 and A253, the Mahmeri communities in Carey Island have found themselves encircled by oil palm estates operated by Yayasan Selangor and Sime Darby Bhd, and a golf course constructed by A&M Construction. Since they have lost their foraging areas, the Orang Asli also find it difficult to gather food and continue their traditional ways of life. In addition, water has become increasingly scarce as the rivers, which they depend heavily on are now severely polluted and not suitable for consumption.

8.74Whilst the Orang Asli highlighted the negative impacts of plantations on their right to land and livelihood, companies and GLCs maintained that their presence had benefitted the Orang Asli settlements, even though the Orang Asli were not seen to have any legal standing to the land they were claiming. Job opportunities were among the benefits highlighted by companies.

8.75Further inquiry, however, revealed that only a handful of Orang Asli worked with the companies, and that the majority of the workers consisted mostly of migrants. Witnesses from companies said that while priority was given to Orang Asli, they had to employ migrant workers as the Orang Asli were not interested in working for these companies. Low wages were identified by the Inquiry as the primary reason for the reluctance of the Orang Asli to take up employment with such companies.

8.76In almost all the cases heard by the Inquiry, the Orang Asli said that they have lodged complaints with both the companies operating on their land as well as agencies such as the JAKOA and the PDT/ PTG. Most of them said that their complaints went unheeded. When asked by the Inquiry, witnesses from agencies explained that they were unable to take action because the pieces of land were legally acquired by companies. In such situations, some agencies like the PDT had, on their own initiative, conducted and mediated meetings between communities affected and the company to find an amicable solution to their conflict. However, such initiatives were not formal mechanisms of the government.

Agricultural Development Schemes for Orang Asli

8.77JAKOA and some of the development agencies told the Inquiry that the Orang Asli were perceived as being not capable or ready to manage their smallholdings on their own, which perhaps explain why agricultural development schemes are structured the way they are. In case A89 involving 378 acres of land in Pos Sungai Rual, Jeli in Kelantan, Federal Land Consolidation and Rehabilitation Authority (FELCRA) said that at one time Orang Asli scheme participants were given a chance to manage their

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plots for six months but as they were not successful, FELCRA resumed its corporate management style. Many Orang Asli witnesses refuted this by giving evidence of successes by individually-held smallholdings owned by Orang Asli themselves.

8.78On the issue of providing appropriate management training for Orang Asli, Tuan Haji Mohd Zamri Bin Mustajab (W42) of JAKOA Perak said the department lacks funding and is therefore unable to provide such training. He added however, that JAKOA has requested for such allocation from the Federal government.

8.79From the Inquiry, it became apparent that the Orang Asli was not involved in the preparation of the Memorandum of Understanding (MoU) between JAKOA and FECLRA and with the Rubber Smallholders Development Authority (RISDA). None of the Orang Asli complainants has seen or been given a copy of the MoU.

8.80JAKOA and other development agencies informed the Inquiry that under the participatory or ‘peserta’ concept in agricultural development schemes for the Orang Asli, the ownership and control of the smallholdings lies with a committee or JAKOA, and not the individual who had been allocated the agricultural plot. As such, unless an individual title has been issued, the Orang Asli ‘participant’ is not really the legal owner of the agricultural plot allocated to him. The land is still controlled by the agency concerned or JAKOA as the case may be.

8.81The lack of legal ownership has serious consequences for the Orang Asli, as is evident from the testimony of JAKOA-Pahang. According to the witness, upon the death of a peserta, his lot would be given to another peserta, and not necessarily to his kin or waris. Evidently, unless there is title to the plot, the Orang Asli ’peserta’, does not have full control over the agricultural land allocated to him under the various development schemes of JAKOA. Not being the registered owner, he has no right to transmit the land to his heirs.

8.82Similarly in Kelantan, the participation of Orang Asli in the Ladang Rakyat scheme does not guarantee the recognition of the rights of Orang Asli to their traditional lands and territories. The Ladang Rakyat projects are open to any Kelantanese applicant, even though they may be located within the customary lands of the Orang Asli. Like other Kelantan citizens, the Orang Asli are expected to apply to be participants (‘peserta’) even if such schemes are on their own customary lands. The same in true for other states such as the FELCRA plantation in case A230 in Johor, where the scheme is open to all Johor citizens.

8.83Clustered Replanting or Tanaman Semula Berkelompok (TSB) and Commercial Replanting or Tanaman Semula Komersial (TSK) were introduced by the Government through agencies like FELCRA and RISDA as part of its initiatives for the purpose of smallholder empowerment and poverty reduction. While the idea of empowering smallholders is indeed commendable, the Inquiry has identified flaws in the operations of such schemes, in particular, Orang Asli villages that have yet to be gazetted as Orang Asli reserve.

8.84As in the category under plantations, Orang Asli witnesses who objected the entry or operations of agricultural development schemes on their traditional land alleged that they were not consulted. Most of the witnesses who made these allegations were from villages that were not Orang Asli reserves. Witnesses from land developers, particularly FELCRA and RISDA, explained that they developed the areas concerned at the invitation from the State Government, and consequently, as the Orang Asli were not legal owners of the land, they were not consulted.

8.85On the other hand, Orang Asli communities within gazetted reserves also highlighted similar problems. Evidence from the developers revealed that the current procedure for the development of Orang Asli

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Reserves require the developer to deal with JAKOA as the administrator of the Orang Asli, rather than directly with the community. Thus, the Orang Asli were denied of the opportunity to negotiate with the developers on various matters such as the location to be developed, the terms upon which such development could proceed as well as dividends to be paid to them.

8.86In case A245, the lack of consultation has resulted in confusion on development costs. Mr Johari b Biye (W19) of Kg Orang Asli Bukit Serdang, Banting in Selangor said FELCRA had promised monthly dividends amounting RM300 per month but these were never paid. However, Mr Hazrinor Hisham b Harun (W20) explained that dividends were paid only to those who were selected as participants of the scheme and only if they had signed an agreement with FELCRA. He also said the planting cycle was 25 years, and not 18 years as stated by W19. 110 acres of land belonging to the whole community were taken but not all were invited as participants.

8.87In case A136 in Kg Satak, Raub, Pahang, FELCRA said the selection of participants was the responsibility of JAKOA. Quarterly management meetings involving FELCRA and JAKOA are also held to iron out any issues brought up by the participants. However, given the issues brought up by Mr Basir Anak Arik (W10), it is evident that the management of the plantation is far from satisfactory.

8.88Cases related to RISDA include, among others, case A225 in Kg Orang Asli Sungai Putur, Kahang, Johor; casesTA52 in the form of a TSB in Kg Orang Asli Ulu Gerik, Hulu Perak, A60 Kg Sungai Untong, RPS Dala Gerik, A25 Kg Orang Asli Ulu Groh; and cases A140, A181 and A182 in Pahang. In case A60, Mr Musa b Mel (W13) complained about the low buying price of rubber by RISDA which created dissatisfaction among participants of the scheme. Apparently, those caught selling to other buyers were accused of stealing by RISDA.

8.89While these agricultural development schemes are meant to bring Orang Asli out of poverty, many Orang Asli complained that they were far from reaching that goal. Many Orang Asli do not receive dividends as promised. None of the cases heard at the Inquiry, including commercial plantations aimed at contributing to poverty eradication, made any positive comments about such a scheme. For case A89, RISDA admitted that the oil palm plantation in Sg Rual, Kelantan was experiencing losses.

8.90Even a cooperative established specifically to assist the Orang Asli, the Koperasi Kijang Mas, has become a subject of complaint. In case A70, Mr Samad Adu (W1) informed the Inquiry that Syarikat Ringgit Saksama (a subsidiary of Koperasi Kijang Mas) has encroached Orang Asli land in Pos Tohoi. However, the allegation was denied by a representative of the Cooperative, Mr Ira Isra bin Asra Ramlan (W3).

Logging and Forest Reserves

8.91The Forestry Department informed the Inquiry that all forest products were under the jurisdiction of the Department, including the fruit trees planted by the Orang Asli such as the durian and petai, which are important economic crops for the Orang Asli.

8.92Witnesses from the Forest Department told the Inquiry that they had not heard of the decision in Koperasi Kijang Mas v Perak State Government, in which the court ruled that, in keeping with the provisions of the Aboriginal Peoples Act, the Orang Asli had prior rights to forest produce, including, timber, in their aboriginal areas. The officers, however, held the view that there was no exception for Orang Asli under the Forestry Act and that the Forestry Act took precedence.

8.93Many Orang Asli witnesses, whose villages were included in logging concession areas within forest reserves testified that in addition to the destruction of the forest as their source of sustenance, logging licensees had destroyed their sacred areas and old grave sites that had existed for generations, thus, eliminating evidence of their continued occupation in the area.

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8.94In case A272, the Temuan community living within Hutan Simpan Angsi in Negeri Sembilan told the Inquiry that the Gemencheh Forestry Department has marked a number of their fruit and rubber trees, supposedly to be logged. They have also been asked to move from the forest reserve. Because of this and their lack of control over outsiders who come to their village, Mr Mohsin Bin Jani (W42), as a representative of his village appealed to the authorities to gazette their lands as an Orang Asli Reserve.

8.95In case A285, Orang Asli complained about their crops being cut down to make way for Acacia plantations. The land they have been subsisting on was declared a forest reserve in 1996. JAKOA only put in an application for the 160 acres of land to be gazetted in June 2011, while the remaining 330 acres are within the Rantau Panjang Forest Reserve. It appears that once an Orang Asli customary land has been declared a forest reserve, it becomes more difficult for these areas to be gazetted as Orang Asli reserves. The case of A286 where the application for Kg Orang Asli Bukit Perisak to be declared as an Orang Asli reserve has been rejected is a case in point.

8.96Loggers/foresters/administrators also declared that they were unfamiliar with or not informed of the nature of Orang Asli traditional markers (eg. graves, orchards, old village sites, sacred sites). Such a situation had resulted in the properties and sacred sites of the Orang Asli being destroyed by logging activities. However, in response, UPEN-Perak stated that Orang Asli traditional territories were neither fenced nor marked by boundaries on the ground, and hence not visible or identifiable to the loggers.

8.97Most state Forest Departments dismiss claims of Orang Asli rights to land within forest reserve, even if Orang Asli settlements are older than the forest reserve itself. In Kelantan for instance, the State Forestry Department had insisted that the Forestry Act does not recognise Orang Asli territories within Forest Reserves as stated by the witness from the Department, Mr Yusup Bin Abdul Rahaman (W19) during the Public Hearing. “Firstly, the Forestry Law does not mention or define traditional territories.

Secondly, other than Orang Asli inhabited areas, the State Forest Department does not have any record showing Orang Asli settlements within forest reserves in the State. Most of the areas inhabited by the Orang Asli are within permanent forest reserves. While the Department understands that the Orang Asli have the right to remain on areas they have long inhabited in forest reserves, the Orang Asli are still bound by the Forestry Law.”

8.98At the Inquiry, the Forestry Department of Pahang acknowledged that it did not apply the principle of free, prior and informed consent (FPIC) as stipulated by the UNDRIP when granting logging licence in areas where Orang Asli resided. He also said that he felt that the department did not need to obtain the consent of the Orang Asli, even though he was aware that failure to do so contradicted Principle 2.2 of the Malaysian Criteria and Indicators of the Malaysian Timber Certification Scheme for Natural Forests.

8.99In case A186, the claims of Mr Ramli b Harun’s (W47) – that logging within the Krau Forest Reserve has affected their livelihood, bulldozed graves and destroyed the environment and catchment areas –were simply dismissed by the Pahang Forestry Department. W47 claimed that his village of Kg Penderas in Pahang was included within the 8399.47 ha gazetted as a Forest Reserve in 1992 (GN74). In case A137, involving land claimed by the Semai community of Kg Simoi Lama, in Kuala Lipis, Pahang, the involvement of individuals with influential connections and close to the loggers can also make the Orang Asli feel powerless. In another case in Pahang, the complaints of A198 about the logging in the vicinity of Kg Jibau, Muadzam Shah were also dismissed by the Pahang Forestry Department saying that only mature trees are logged and cutting of petai, setul and other useful trees are prohibited.

8.100 In case A90, the Menriq people of Kg Kuala Lah in Gua Musang, Kelantan told the Inquiry about the significance of Batu Janggut found within their traditional territories. They also complained about the

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impact of logging on their source of livelihood and their life. However to the Forestry Department, there are no grounds for complaint since the company obtained the logging concession legally. He also said that the location of Batu Janggut is within state land, which means that everyone should have access to the area.

8.101 Many of the Forest Reserves in Peninsular Malaysia were established in early 1930s to 1960s, but the boundaries were never marked on the ground. Orang Asli who were already living in the area were not aware of the existence of the Forest Reserve. In case A29 in Kg Kuala Woh in Tapah, the witness from the Perak Forestry Department, Mr Mohd Shahril Bin Abd Rashid (W38) admitted this and thus the reason why the department has been lenient to the Orang Asli who live and forage within the forest reserve. However, collection of forest products for commercial purposes is prohibited. This was the reason why a man from Gerik was arrested while carrying one ton of rattan.

8.102 Although all states testified that they applied the Malaysian Timber Certification Council’s Criteria and Indicators (MC&I) for all their logging concessions, Orang Asli complainants asserted that the loggers and the Forestry Department did not seek their consent when entering their customary lands, which is contrary to the requirements of the MC&I.

8.103 Mr Mohd Yusof Bin Muda (W29) of the Selangor Forestry Department said “forest management is a dynamic process which adapts according to weaknesses that have been identified. Even though the laws on forest management are strict, the Forestry Department upholds humanitarian principles when it comes to issues involving local communities”. Nevertheless, it is evident that the concept of co-management of forest has not been adopted or developed in Malaysia, and that the Forest Department has yet to take a human rights approach in its dealings.

Orang Asli Land in Protected Areas

8.104 A total of 103 statements recorded by the Inquiry related to allegations of inclusion of Indigenous lands into national and state protected areas including forest reserves, national or state parks, biosphere reserves, wildlife corridors or sanctuaries and water catchments in Selangor, Perak, Pahang and Johor.

8.105 All the Orang Asli witnesses who presented their statements under this category objected to the inclusion of their land within national or state protected areas, be it forest reserves, parks, wildlife corridors and sanctuaries, biosphere reserves or water catchment areas. Orang Asli witnesses insisted that those areas were their ancestral lands with some still showing evidence of their continued occupancy such as shrines and old burial sites. As a result, while the Orang Asli can remain in the area for now, their way of life as well as livelihood are constrained by laws, particularly in relation to their foraging areas located within protected forests in which they practise hunting and gathering.

8.106 The Inquiry was concerned that Orang Asli traditional territories have also been converted into conservation and protected areas without regard to, or participation of, Orang Asli as co-managers or collaborative partners in the management of the reclassified area.

8.107 In case A178 involving Pos Iskandar in Bera, Pahang, a 50,000-acre Wetlands Conservation Area (Ramsar site) was created over much of the Orang Asli’s customary lands in 1990. However, the Orang Asli were not invited to sit in the management committee. The creation of the Ramsar site also meant that the Orang Asli were now subject to more laws and departments which further controlled and restricted their activities and access to their customary lands. These departments (and their corresponding laws) include the Forestry, Wildlife, and Environment, Fisheries and Drainage and Irrigation departments.

8.108 Another example is Case A185, Kampung Melai in Tasik Chini, Pahang. Tasik Chini was made a UNESCO biosphere reserve in 2010. However, logging and iron ore mining activities were allowed within the

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biosphere which destroyed the rubber trees of the Orang Asli and polluted the environment. No action has been taken against the companies concerned.

8.109 In case A207, about 150 acres of Temuan traditional land in Kg Air Tawas was claimed to have been included in Taman Negara Gunung Ledang that was gazetted in 2003. Park authorities said there was no record of any verbal promise by the Director of Forest Department to allow the communities 70 square miles for foraging area. However, there are no restrictions for Orang Asli to forage in the Park except for hunting and cutting of trees.

8.110 In case A62 involving the Jahai communities in RPS Banun, Gerik, Perak, a similar approach is taken by the Perak Parks Board and the Wildlife Department in managing the Royal Belum Park, and efforts have been made to engage with the two communities living within the Park. According to Mr. Mohd Tahir b Osman (W36) of PDT Gerik, a proposal has been made to excise part of the park for the Orang Asli community.

Commercial Projects

8.111 The issues under this category concern the effects of commercial development projects such as mining, dam, housing, golf courses and other urban development on Orang Asli lands. The absence of communities’ free, prior and informed consent before companies began their operations was again highlighted by Orang Asli witnesses. The typical response from the companies, which is supported by the authorities, was that the land was acquired through legal means and that the Orang Asli were not the legal owners of the land.

8.112 While companies maintained that their activities in areas were licensed in accordance with and complied with the relevant Environmental/Social Impact Assessments (EIA/SIA), Orang Asli witnesses alleged that the commercial activities carried out had polluted the rivers in the areas concerned, causing various ailments apart from losing an important source of food and water.

8.113 In case A270, the Temuan community in Kg Orang Asli Sebir, Labu in Negeri Sembilan complained about the quarry operations by Malaysian Rock Product (MRP), a subsidiary company of IJM Corporation. The quarry, which started operating in 1993 after getting approvals from the Department of Environment (DoE), caused noise, air and river pollution. The community had rejected the project before it started but JAKOA and the MRP convinced (pujuk) the community that it would not have any adverse effects. Although compensation had been given for crops that were damaged and a house built for the Batin, the community now wants to stop operations.

8.114 In case A185, Ms Yeoh Kew Moi (W11) from Kg Melai, Tasik Chini Pahang complained about mining and logging activities around Tasik Chini, which caused pollution and destruction of the land and crops of the Jakun community in the area. Witnesses from PDT Pekan told the Inquiry that although the Orang Asli have settled in the area since 1945, the area has not been gazetted as an Orang Asli reserve. Instead it was gazetted under section 62 of the National Land Code for tourism purposes in 1989. However, there is no restriction on the communities to continue living in the area. PDT Pekan added that although the Tasik Chini area is gazetted as a tourism area and a recognized UNESCO licence Biosphere Reserve, a mining license was approved to Chini Highland Mining Sdn. Bhd. PTG Pahang nevertheless said that no approval for logging in the area had been approved.

8.115 In case A226 in Kg Orang Asli Sungai Peroh in Johor, Batin Ogeh bin Gandoh representing the Jakun community, complained about serious pollution from effluents from a quarry and oil palm mills in the area. Mr Lou Sern Chern (W13) representing Syarikat Seong Thye Plantation said the levels of pollutants were being checked by the Department of Environment on a quarterly basis and they have been given a letter saying that it was within the controlled limit. The witness from the Fisheries

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Department however confirmed that the fish population in the Kahang and Semberong Rivers had declined and that a river conservation project there had been compromised. The company also denied all other allegations from the community, and claimed that it even offered jobs to Orang Asli but they were not interested.

8.116 The public consultations and public hearings heard many cases of Orang Asli customary lands being given to, or encroached upon by, commercial entities, whether individually owned or linked to influential political leaders and elites. In some instances, the commercial entities that encroached on the Orang Asli’s customary lands are purported cooperatives such as the Koperasi Kijang Mas Kelantan.

8.117 In case A221, the Jakun community in Kg Jemeri, Rompin, Pahang told the Inquiry that they were protesting against their land being taken for a pineapple plantation by the East Coast Economic Region (ECER) project. The project involves land totaling about 1,500 acres of three contiguous Orang Asli villages, including 600 acres in Kg Jemeri. Although the land has not been gazetted as an Orang Asli reserve, the communities have been living there for generations and are recognized by the authorities. The witness from ECER said that 5,000 acres of land had been allocated by the government for this project, aimed among others to improve the lives of people by providing economic opportunities and basic infrastructure. He added that compensation would be paid for crops that were destroyed in the course of opening the land.

8.118 In case A275, involving Kg Orang Asli Air Kuning, Bukit Cahaya, Shah Alam in Selangor, the witness from the Temuan community, Mr Abd Rahman Shah Bin Abdullah (W23) recounted how they had totally lost all their traditional lands. First, it was taken by the Agriculture Department for the Bukit Cahaya Sri Alam Agricultural Park in 1989. This was followed by a housing developer, Eco Asli, for the remaining 273 acres. Although as a result of their negotiations to give up their land to Eco Asli, they have been given houses worth RM25 million, the community is now asking that they be allowed access to, if not ownership of, the 73 acres of their traditional lands still within the Bukit Cerakah Agricultural Park for their daily livelihood needs. The authorities are however unclear of status and location of the 73 acres.

8.119 In A29 in Kg Gesau, Ulu Slim Perak, an ecotourism project was proposed by Sime Darby on the land belonging to the community without informing the Orang Asli. However, after persistent protests from the community, the government decided to cancel the project.

8.120 There was also apparent injustice towards the Orang Asli who used to live and forage in a large area but were moved out – some without any regard for their conditions – to make way for the rapid commercial development. The case of the Temuan from Bukit Tunggul, Dengkil (A270) who were asked to moved twice – first when the area was given to the Universiti Kebangsaan Malaysia (500 acres) and then to Bukit Unggul Resort (1378 acres). With only 20 acres of un-gazetted area for their settlement remaining, the community fear that their traditional community may soon disappear.

8.121 In a similar case (A233) in Johor, the Orang Laut/Seletar from Kg. Sungai Bulo, Pasir Gudang were forced to move to different locations because of pollution and denial of access during the construction of the Johor Port in the 1980s. They received a meagre RM1,000.00 in compensation. Some of the families who settled in Pasir Putih are now facing yet another forcible move to the Kuala Masai Orang Asli settlement. It appears from the statements from Mr Suhairy b Abd Ghani (W35) from JAKOA Johor and YM Ungku Khalsom Sofia Engku Yusoff (W9) of PTD Johor Baru, that it is expensive to accommodate the traditional ways of life of the Orang Asli, given the fast pace of development in the area. The PDT also does not have any clear procedures to reserve coastal areas for Orang Asli needs.

8.122 In case A60 where four villages in RPS Dala, Gerik, Perak were submerged during the construction of the Kendering Hydroelectric dam in 1983, the community never received any of the compensation

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that JAKOA promised. According to the privatised national electricity company, Tenaga Nasional Berhad (TNB), an EIA or SIA was not required at that time so these studies were not carried out. TNB explained that before the construction of the dam, a discussion was held with JAKOA but no complaint from the Orang Asli was ever raised.

8.123 In another dam case, A151, the proposed Ulu Jelai Hydroelectric dam would mean that the Semai from Kg Tiyat in Cameron Highlands would have to be resettled. However, the community have indicated that they do not want to move because they have to start over in the new area and that the proposed compensation is inadequate. Witnesses from TNB said all the necessary approvals have been obtained and the project will move ahead but better compensation and facilities are now being offered to the community.

8.124 Other commercial projects brought before the Inquiry are: case A54 in Kg Jeram Papan, Gerik, Perak involving FELDA where the community complained that they were not consulted before the opening of the rubber plantation and that no compensation was given on land that was taken; case A51 in Kg Orang Asli Tisong involving the Koperasi Perbadanan Pertanian Perak Berhad; and case A170 in Kg Batu Gong, Pekan, Pahang about the encroachment by Kurnia Setia.

Compensation Issues

8.125 The Aboriginal Peoples Act provides for compensation to the Orang Asli only for the loss of their crops or dwellings, not for the land. However, the Inquiry-commissioned research and expert witnesses informed the Inquiry of the decision in Sagong Tasi that decrees that Orang Asli customary lands should also be compensated in accordance with the Land Acquisition Act. Nevertheless, such compensation if paid or accounted for, is usually on the basis of negotiations and goodwill, not as of right. Also, it is noted that the recent trend appears to be compensation in the form of another piece of land but in another locality.

8.126 A majority of the Orang Asli witnesses who had lost their land to private land developers had also complained of non-payment or inadequate amount of compensation paid. After examining the relevant agencies, the Panel of Inquiry found that the non-recognition and the delay in gazetting Orang Asli land has made the Orang Asli ineligible to obtain compensation for the loss of their land. Instead, these villagers who were not regarded as the legal owners of the land in question were only paid a sum of money as consolation (wang saguhati) and as a gesture of goodwill from land developers.

8.127 Other than being ineligible for compensation because of the non-recognition and delay in gazetting Orang Asli Land, the Inquiry also found that the method used for the calculation of compensation for crops destroyed to give way for development is obsolete, giving rise to dissatisfaction amongst the Orang Asli as the quantum does not reflect the current value of crops.

8.128 In case A270 (Bukit Tunggul, Selangor), while compensation was paid, this was inadequate to ensure that the Temuans concerned could build a new life or maintain their traditional ways of life. The witness from Universiti Kebangsaan Malaysia (W14) said of the miserable relocation exercise in the 1970s: “UKM paid the compensation amounting RM810,985.25 to those who lived on the land and requested them to move.” W13, a representative of Bukit Unggul Resort, said that RM2 million was set aside to mainly build houses (within the 20-acre plot) but complained that Orang Asli are still entering the forest areas now belonging to the Resort.

8.129 In case A263 involving Kg Orang Asli Palebar, Labu, Negeri Sembilan, the Temuan community represented by Mr Temu Bin Tiot (W45) said the Negeri Sembilan Islamic Council (MAIP) has proposed to develop the area. MAIP has offered compensation which was not acceptable to the community but because MAIP started work in the area, they have reported this to the police, the Negeri Sembilan

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Menteri Besar and JAKOA, but have not received any feedback. The community is asking for just compensation and orderly relocation to a new area with adequate facilities. There was no witness from the authorities regarding this case at the hearing.

ii. CONSTRAINTS THAT IMPEDE ORANG ASLI RIGHT TO LAND

Legal constraints

8.130 Section 3(3) of the Aboriginal Peoples Act (APA) empowers the Minister having charge of Orang Asli affairs to determine any question whether a person is an Orang Asli. This is clearly a provision allowing for the unilateral regulation and control of membership in a community by the Executive. While it is to be appreciated that this provision was meant as a safeguard against infiltration by communist insurgents of the Orang Asli community at the time of passing of the APA in 1953, the fact that the Emergency and that period of communist insurgency has long passed raises the question as to whether this kind of legislation is still relevant or even legitimate. Its contemporary relevance is called into question as it goes against Orang Asli self-ascription and self-determination.

8.131 On the structure of land law in the country – where jurisdiction over land matters is vested in the individual states, this creates a number of issues, especially since the responsibility for the well-being and progress of the Orang Asli is vested in the Federal Government, in accordance with the Ninth Schedule of the Federal Constitution.

Firstly, there is no uniformity in the policies affecting Orang Asli among states.

Secondly, states are reluctant to create Orang Asli reservations under the Aboriginal Peoples Act 1954, since in so doing the state would have to assign the said land to the Director-General of the Department of Orang Asli Development, effectively losing control over the land. Instead, reservation of land for Orang Asli is usually done under section 62 of the National Land Code, as a state reserve.

Thirdly, where Orang Asli settlements are on state land or in forest reserves, there is usually no recognition of their customary rights to the land; the land continues to be treated as state land or forest reserves as the case may be. The lack of recognition creates the risk of the land being alienated to parties other than the Orang Asli. Land is a source of revenue for states and the preference is to alienate land to persons or corporations for commercial purposes, thus attracting higher premiums. There is usually no payment of compensation for the loss of ownership of the land, it not being recognised as belonging to or being owned by the Orang Asli. In some cases, there was no consultation with the OA before alienation or revocation of the forest reserve status. If there was any consultation, it was usually through JAKOA or with the Orang Asli headman (Batin).

Fourthly, whether an Orang Asli reserve is created under the Aboriginal Peoples Act or under Section 62 of the National Land Code, there is still no security of tenure for the Orang Asli. The state government can revoke the status of the land as an Orang Asli reserve with much ease, in contrast with revoking a piece of Malay Reserve land.

8.132 Government agencies are mostly concerned with implementing their respective legislation without too much regard to other laws. They are not too well-informed of developments in the law which impact on land areas within their purview.

8.133 There is also no legal definition or understanding or concept of ‘kawasan rayau’ (foraging areas) or ‘traditional territories’. Neither is there an appreciation as to why Orang Asli need large areas of customary lands.

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Policy Constraints

8.134 The government’s policy of integrating the Orang Asli with the mainstream society operates in a way that is similar to that of assimilation. The Inquiry was informed of a number of instances where a whole community of Orang Asli was simply uprooted from their traditional village and moved elsewhere without any regard for their right, safety and needs. Such a policy goes against Article 8 of the UNDRIP and is discriminatory, especially since a number of court decisions have found that rights to land among the Orang Asli are linked to the continuous occupation of the land.

8.135 The new Orang Asli Land Policy (DPTOA) also does not appear to recognise the concept of communally- held Orang Asli customary land or adat land. Instead, what is envisaged are individual land titles to be granted to Orang Asli. All other lands are labeled as kawasan rayau or ‘foraging areas’. There is no proper definition or understanding or the concept of ‘kawasan rayau’ in the new land policy, nor any discussion as to why Orang Asli need large areas of customary lands.

8.136 It would also appear that no new Orang Asli reserves will be created under this new Policy. The reluctance/refusal to consider both communal reservation and individual title goes against the Orang Asli’s practice of customary tenure.

8.137 The distribution of Orang Asli land, by way of individual titles, and according to the number of households in a community at a given time presupposes a static village population and does not provide for expansion of population or in the number of households. It is not surprising therefore that the majority of the Orang Asli are not in favour of the new policy, and have expressed this opposition vocally and openly. The policy and the design of regroupment/resettlement schemes do not accommodate for expansion of population or in the number of households as land allocation is determined on a household basis at a specific moment in time.

8.138 The policy for Orang Asli land development does not promote self-reliance, autonomy and self- development among the Orang Asli. Instead, it could reinforce dependency as the Orang Asli in most cases are just dividend-earners, and do not work on their own land. There is also inconsistency in the land policy on the granting of leasehold as opposed to freehold titles for the Orang Asli.

8.139 The regroupment and resettlement of many Orang Asli villages has not always brought economic improvement, particularly to those who have not received dividends from the project. Many have sought to return to their old villages. However, there is a lack of clarity in terms of the policies of land tenure for those communities dislocated from old areas to new settlement sites.

8.140 The current regroupment policy of the government is not necessarily in line with the perception and needs of the Orang Asli. Large Orang Asli reserves meant for a number of villages and to facilitate the provision of basic necessities have been rejected by communities for various reasons including disruption of social units, lack of information and consultations when the reserves were proposed.

Administrative Constraints

8.141 The administrative constraints of land rights of the Orang Asli in Peninsular Malaysia can be seen through the improper exercise by JAKOA of its duties under the law in governing the affairs of the Orang Asli. Submissions from the Bar Council and several experts called to give evidence at the Inquiry commented that JAKOA (and its previously-named entity, JHEOA) is not effectively fulfilling its fiduciary duty as provided for by the Federal Constitution and court rulings.

8.142 Most officers from the state Land and Mines Office, and District Officers are ignorant of the Aboriginal Peoples Act, and court decisions and precedents on Orang Asli land matters.

Report of the National Inquiry into the Land Rights of Indigenous Peoples 129

8.143 JUPEM maps are regarded by the state Lands and Mines Office as the definitive document showing the status of titled land in the state. This is a constraint for Orang Asli claiming customary rights over land which has been alienated or dealt with by the state.

8.144 Orang Asli lands approved for gazetting in the 1960s and 1970s were not gazetted as Orang Asli reserves because JAKOA, which has the authority to produce the surveyed maps did not carry out such survey. As a result, many of those areas have reverted to the state, or made Malay reserves. The Inquiry also saw the rather large difference between the area claimed by the Orang Asli and what was presented by JAKOA to the state Land and Mines Office. The requirement that only JAKOA can apply for an Orang Asli area to be gazetted as a reserve means that any failure on its part to set in motion the process would create a serious constraint impeding the full enjoyment of the Orang Asli’s right to land in accordance with their needs and requirements.

8.145 The unwritten rule followed by agencies is that all matters involving Orang Asli must go through JAKOA. Responsibilities are therefore passed to JAKOA by various other agencies (PTG, forestry, District Office, etc.) resulting more often than not in Orang Asli losing their land.

8.146 JAKOA officers who do not understand the customs and culture of indigenous communities further complicate the relationship between the two parties. Notwithstanding the efforts of the government to enhance cooperation between JAKOA and the community by increasing the number of Orang Asli serving in JAKOA (206 or 22.79%273), there is no significant improvement in the situation. With respect to the gazetting of Orang Asli Reserves, communities also rely on JAKOA to submit the application. However, according to JAKOA, the lack of human resource and insufficient funding for surveys often contribute to delays in the gazetting process.

8.147 Increasingly, the Orang Asli are losing faith in JAKOA mainly because of the failure to obtain their free, prior and informed consent before the making of decisions relating to development projects such as plantation schemes, which will drastically affect their rights. If negotiations on development projects did occur, they were limited to a top-down negotiation involving only the JAKOA and the Batin or village head.

Gaps in perceptions and understanding

8.148 The exclusion of the Orang Asli of Peninsular Malaysia as one of the groups with special positions and whose interests should be safeguarded as provided under Article 153 of the Federal Constitution can be regarded as an impediment to Orang Asli’s land rights. From the perspective of the Orang Asli, Article 8(5)(c) of the Federal Constitution does not provide the same recognition as that accorded to the natives of Sabah and Sarawak.

8.149 Many of the JAKOA staff are not well-versed with Orang Asli issues and are dependent on the experience and advice of long-serving JHEOA staff, who still take an assimilationist stance rather than understanding the evolving needs of the Orang Asli. However, most government departments are of the view that problem lies with the Orang Asli’s mindset, rather than that of JAKOA.

8.150 Many Orang Asli informed the Inquiry that they were already managing their own oil palm or rubber plantations and would be able to take over management of currently under land development schemes if they were given the control and ownership of such land and provided with management training courses.

273 Based on information provided by JAKOA at the Public Hearing

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iii. EFFECTIVENESS OF RESPONSES TO ORANG ASLI LAND CLAIMS

Legal Responses

8.151 While the efforts by the Ministry for Regional and Rural Development in approving the 2009 Policy on the Alienation and Development of Land for Orang Asli for Agricultural and Residential Purposes

(Dasar Pemberimilikan Tanah kepada Orang Asli Untuk Kegunaan Pertanian dan Kediaman), may seem like a step in the right direction, the failure to incorporate policies that are proactive and positive to Orang Asli land rights, for example the 1961 Statement of Policy Regarding the Administration of the Orang Asli, is a serious drawback.

8.152 The draft amendments to the Aboriginal Peoples Act to implement the 2009 Orang Asli Land Policy is expected to be introduced in Parliament soon, despite protests by a large majority of Orang Asli and many NGOs. These amendments are seen by the Orang Asli as a direct response by the government to curtail the gains made by their community in court decisions favouring them.

Policy Responses

8.153 The positive political efforts by various state governments which approved land to be gazetted as Orang Asli Reserves in the 1960s and 1970s have been rendered ineffective as the Inquiry saw no active move on the part of JAKOA and other government authorities to secure Orang Asli lands, or to gazette those already approved for gazetting or being applied for gazetting.

8.154 Malaysia has adopted a timber certification system under the Malaysia Timber Certification Council (MTCC) that includes in its Criteria and Indicators (MC&I), the requirement to ensure EIAs are conducted and also that indigenous peoples’ right to land is respected. However, the system is voluntary and in Peninsular Malaysia, although all the forests within the state are considered as one Forest Management Unit (FMU), the auditing process only looks at selected permanent forest estates. The Inquiry was informed that logging companies and the forestry departments did not comply fully with the MTCC C&I on the rights of the Orang Asli to FPIC and recognition of customary rights.

Administrative Responses

8.155 Although the Inquiry received commitments from JAKOA and the PTG to hasten the process to gazette lands recognized by the government as Orang Asli reserves, there are concerns that the new Orang Asli land policy when implemented may in effect, reduce the size of Orang Asli customary lands.

8.156 The effectiveness of the policy of giving individual titles to Orang Asli may also be affected if the process is not accompanied by simple and transparent land application procedures. Furthermore, the apparent preference by most Orang Asli communities for communally-owned land may render the response ineffective.