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Corporatising JHEOA: Its impact on indigenous rights

PETALING JAYA, 20 July 2010: A proposed move to corporatise the Orang Asli Affairs Department, known by its Malay acronym JHEOA, to take charge of land development for the Orang Asli will impoverish the indigenous peoples.

Centre for Orang Asli Concerns (COAC) coordinator Dr Colin Nicholas said corporatisation was likely to be among the amendments to the Aboriginal Peoples Act 1954, which will be changed to reflect the federal government’s position on Orang Asli land.

Nicholas

“Agriculture development is the most lucrative of all Orang Asli development projects. Corporatisation will allow the JHEOA to be the agency that clears and develops the land granted to the Orang Asli, rather than having to give it out to external agencies. It’s very good business. The Orang Asli will be reduced to shareholders,” Centre for Orang Asli Concerns (COAC) coordinator Dr Colin Nicholas said in a phone interview.

Nicholas said the Orang Asli fare better when they manage land by themselves. In smallholdings that they run, the Orang Asli can earn between RM1,500 and RM3,000 a month in dividends, compared with RM300 or RM400 a month through dividends from land managed by other parties.

For example, Nicholas said the village of Semoq Beri, an Orang Asli tribe in Terengganu, is able to earn RM25,000 a year in dividends, or more than RM2,000 a month after deducting costs, because they manage the land themselves.

“The JHEOA knows these figures as they have been presented to them before,” he said.

He noted that even Risda and Felcra schemes allow settlers to manage their own lands. “Why can’t the same be allowed for the Orang Asli?” he said.

A senior JHEOA official confirmed the plans to corporatise the JHEOA. “It was a cabinet decision as part of efforts to restructure and improve the JHEOA’s functions by making it a statutory body. But right now, it is too early to be talking about corporatisation as we want to settle the land policy with the state governments first,” he told The Nut Graph.

The official did not want to be named because of civil service regulations, which require him to obtain written permission from the minister before speaking to the press.

Ultra vires

The plan to corporatise the JHEOA is in addition to the federal government’s policy on developing Orang Asli land.

The federal government’s policy grants Orang Asli household heads titles to land of between two and six acres, and an additional 0.5 acres to build a home. This policy has been presented as part of poverty alleviation measures under the 10th Malaysia Plan.

Apart from the concerns over corporatising the JHEOA, if legal amendments adopt the current federal government policy as is, it will be “bad law” as it violates the Federal Constitution and is “contestable”, Nicholas said.

This is because the policy denies a person’s right to legal redress, and ignores current law recognising the Orang Asli’s proprietary rights to their land and to adequate compensation, he explained.

For example, the Orang Asli, according to the land policy, will have no say over their land. Among other things, they cannot rent or lease it out, cannot make claims to land in other areas such as their roaming grounds, and cannot file any claim or compensation in court.

Ultimately, the land in their names will be developed by external agencies for agricultural purposes, with dividends to be distributed among the Orang Asli. The cost of developing the land will also have to be borne by the Orang Asli.

“The clearest violation of the constitution is the fact that Orang Asli who accept the land grants cannot take the government to court. It’s a denial of justice [because it prevents] the right to legal redress.

“Also, the courts have already recognised the Orang Asli’s rights to their land, such as in the Sagong bin Tasi v Selangor State Government case, and in current Sabah and Sarawak laws on native land. The courts have declared Orang Asli traditional lands as theirs according to the constitution and under common law,” Nicholas added.

Overall, the federal policy deprives Orang Asli their right to life, since their livelihoods and their identity are tied to their land, he said.

Sagong Tasi at a Human Rights Day event in 2005

Sagong Tasi, a Temuan, at a Human Rights Day event in 2005 (Pic courtesy of Suaram)

The COAC and other non-governmental organisations have plans to raise their concerns again with Members of Parliament in the October sitting of the Dewan Rakyat. “There is no more point taking our case to the minister and the JHEOA,” Nicholas said.

The senior JHEOA officer, however, said the department is not yet ready to amend the law as the land policy needs to be accepted by menteris besar and chief ministers, since land is a state matter.

This process of getting approval from all states could take until the year-end, as the Rural and Regional Development Ministry is only just beginning to meet with the state governments, the official said.

He said the ministry had also noted the Orang Asli’s rejection of the policy and would consider their views when meeting with state governments. Asked if the provision disallowing legal recourse would be reviewed, he replied that this might also be discussed.

Input from the state governments and any adjustments to the existing policy will have to be referred to the National Land Council, the official added.

Mapping their own land

But as long as the policy is not law, the federal government cannot compel states to follow it. Selangor executive councillor for tourism, consumer affairs and environment, Elizabeth Wong, said consultation with Orang Asli must continue before the amendments are made.

On its part, the Pakatan Raykat-led Selangor government has gone ahead to re-map Orang Asli land boundaries in order to gazette these areas as Orang Asli reserve land.

Wong, who is also the state’s Orang Asli Land Taskforce chairperson, told The Nut Graph that the state has commissioned a new land survey using information from Orang Asli village elders to determine their land boundaries.

“We are training the Orang Asli to map their own land. We’re using GPS (Global Positioning System), but the village elders will define the boundaries. Once the physical mapping is done, we’ll look at cutting out lots to give Orang Asli land titles,” she said.

Wong said there didn’t seem to be any maps of current gazetted Orang Asli land at the Land Office or the state JHEOA. “We have to start from scratch.”

Orang Asli in Kampung Chang, Bidor, protesting for their land rights

Orang Asli in Kampung Chang, Bidor, protesting for their land rights in 2009

On the possibility of overlapping claims once the boundaries are defined, Wong said it wouldn’t be surprising if a lot of Orang Asli land had already been sold to private owners. “We’ll have to negotiate, somehow. It will be hard to undo, but we’ll have to try.”

Wong also said the federal government was mistaken in thinking that merely giving Orang Asli a new house without land to manage was the way to lift them out of poverty.

She said in her constituency, Bukit Lanjan, some Orang Asli who had been placed in resettlement schemes have actually rented out the homes given to them and gone to live in places where they can access the forest.

“I discovered some of them living in Sungai Buloh and Hulu Selangor during the recent by-election.

“The federal government fails to understand that land, and the autonomy to manage their own economic activity, is far more important for Orang Asli than giving them money or houses,” Wong said.

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