Corrected at 12.50pm, 22 April 2010
Members of the Orang Asli community in Kampung Chang, Bidor, protesting for their land rights (File pic)
“TANAH kami, maruah kami,” said banners at an Orang Asli protest in Putrajaya recently against changes to the policy affecting their land rights.
Just three months ago, Deputy Prime Minister Tan Sri Muhyiddin Yassin announced that Orang Asli household heads would be given two to six acres of land to help “take the community out of poverty”. An additional 5,000 square feet would be granted to build houses. The policy would reportedly benefit 19,990 Orang Asli households in peninsular Malaysia and involve an approximate total of 120,000 acres of land.
But as the idiom goes, “Beware the Greeks bearing gifts.” Or in this case, it may be wise for the Orang Asli to be wary of overtures from a government with a proven track record of taking land away from them, rather than awarding it.
What’s the catch?
Orang Asli say if they accept the land under the new policy, it would deprive them of a further 200,000 acres of customary land which they currently occupy.
In addition to that, further conditions seem to be attached to this “gifting” of land:
The land cannot be rented out, leased or pawned without the permission of the state.
Ownership of the land cannot be transferred until the first owner has held it for at least 15 years.
Orang Asli who accept the land grant cannot claim for any other land in that area or any other Orang Asli area. They also cannot make any claims for any “roaming area”.
The land would be developed with crops such as oil palm and rubber and these plantations would be managed by developers.
Orang Asli would have to pay for costs incurred on their land such as surveying costs, premiums, registration and “other payments advanced by developers” out of the proceeds from the land.
Existing land gazetted as Orang Asli reserves can be re-gazetted and parcelled out under this new policy.
Yogeswaran Subramaniam, currently pursuing a doctoral thesis on Orang Asli land rights, estimates that the land grants would only yield about RM400 a month for each household. He also says that Orang Asli culture and identity is “inextricably linked” to their land and a top-down policy compelling them to turn their land into plantations could be “devastating and traumatic” to them.
(Corrected.) Furthermore, the government might actually be “giving” the Orang Asli land and attaching ownership conditions on what already belongs to them under common law, as established in the 2002 Sagong bin Tasi v Selangor State Government case.
Not a fair deal for those on the receiving end
In that case, Orang Asli land had been acquired by the state to build a highway to the Kuala Lumpur International Airport. The Temuan community who had occupied the land for at least 210 years, were given a 14-days notice to evacuate with no compensation for the land. When they failed to evacuate, the police federal reserve unit, in the presence of land office, highway authority and Jabatan Hal-Ehwal Orang Asli officials, evicted them. Their trees, crops, houses, Balai Raya and Balai Adat were then destroyed.
But the landmark Sagong Tasi decision established Orang Asli proprietary rights in their customary and ancestral lands. The previous state practice of merely compensating Orang Asli for their fruit trees, crops and structures when their land was acquired, was declared insufficient. States also had to pay a fair and adequate price to the Orang Asli for the land itself.
This judgment extended protection to Orang Asli land rights, which were frequently ignored, such as in the Sagong Tasi case itself.
Circumventing the courts?
This judgment would certainly have worried state governments and developers. Paying compensation for trees, crops and building structures is very different from having to pay fair value for the land itself. Future land development could also be jeopardised, especially if it were uncertain whether or not any Orang Asli could claim common law land rights. The judgment was upheld in 2005 by the Court of Appeal and the Selangor government has withdrawn its appeal to the Federal Court.
By parcelling out land to the Orang Asli under the new land policy and then barring them statutorily from making further claims in court, the government could end up avoiding compensating the Orang Asli for land used for development. If the Orang Asli statistics are correct, the government could evade recognising and paying compensation for potentially 200,000 acres belonging to Orang Asli under common law which is excluded from this new land scheme.
A different way
How could our government react differently or handle the issue of Orang Asli land ownership better? Is it possible for both developers’ interests as well as Orang Asli cultural and land rights to be respected?
The Australian government was in a similar position following the 1992 Mabo v Queensland (No 2) decision, which was heavily relied on in the Sagong Tasi case. The landmark Australian High Court decision recognised native title under common law, prompting protests from sections of the mining and farming industries.
A period of discussion and negotiation followed with proper representation from the Australian aboriginal community. This culminated in the Native Title Act 1993, which affirmed the principles set out in Mabo No 2 and which set up a Native Title Tribunal. The tribunal deals with native title claims and acts as a mediator between the different stakeholders. As a last resort, the courts can still adjudicate on the matter.
While the Australian model is by no means perfect, it at least demonstrates a seriousness on the government’s part to recognise native land rights and give effect to the court’s decision. Which is more than can be said for the Malaysian government, if the proposed policies are passed into law unamended and without proper consultation with Orang Asli.
Trusting the government
When hearing the Selangor govenrment’s appeal on the Sagong Tasi case, then Court of Appeal judge Datuk Gopal Sri Ram had this to say about the state’s treatment of Orang Asli: “Here you have a case where the very authority — the State — that, enjoined by the law to protect aborigines, turned upon them and permitted them to be treated in a most shoddy, cruel and oppressive manner. It is my earnest hope that an episode such as this will never be repeated.”
One can only hope that any land policies eventually tabled by the government will give effect to the Sagong Tasi judgment, instead of eroding whatever little gains Orang Asli have made in having their land rights recognised.
Ding Jo-Ann believes that when the government giveth, it can also taketh away.
Read previous Holding Court columns