Orang Asli Customary Land Rights
by Alliff Benjamin Suhaimi ~ 2 May 2019
It must be understood that, for indigenous populations, land does not represent simply a possession or means of production . . . . It is also essential to understand the special and profoundly spiritual relationship of indigenous peoples with Mother Earth as basic to their existence and to all their beliefs, customs, traditions and culture.
Indigenous people or the ‘Orang Asli’ here in Malaysia, have been commonly but not necessarily rightly equated to the citizens living in rural Sabah and Sarawak. The special position of the indigenous people in Sabah and Sarawak have nonetheless, been entrenched in the Federal Constitution under the blanket provision of Article 153 but this provision does not extend to the aboriginals living in Peninsular Malaysia.
Little literature have been propounded to advocate the rights of the indigenous people in Peninsular Malaysia except for Article 8(5)(c) Of the Federal Constitution which allows for the enactment of special rights accruing to them and one such enactment is the Aboriginal Peoples Act 1954 as amended in 1974 (“APA 1954”). The article aims to provide an outline the general land rights of the Orang Asli.
The provisions of APA 1954 have to be read conjunctively with the native title founded upon customary rights in land under common law which complements the statutory rights. There are various types of native title which enables the Courts to look beyond common law. In particular, there is pre-existing titles that refer to rights created at a time prior to the existence of common law; these rights stems from ‘adat’ or customary practices that have been accepted over a long period of time through common usage, and such rights are sui generis (i.e. unique) in nature.
Under the APA 1954, the State Authority may gazette a particular area or land as an aboriginal reserve. Such gazetting, can only be revoked through clear and unambiguous words of the legislature with payment of compensation. This is a sui generis right, forming a kind by itself, exempt from the National Land Code. The use and ownership of such land is within the realm of aboriginal customary rights recognised under Art 160 of the Federal Constitution.
While this seems fair at first glance, it is clear on a deeper reading of the legislation that the land rights would only be protected if the same is gazetted. However, there is no express requirement or obligation for the State Authority to actually gazette the land. From the case of Sagong bin Tasi & Ors v Kerajaan Negeri Selangor & Ors (which was upheld by the Court of Appeal), it was observed by the Court that the Government (the State Government followed by the Federal Government) would have a fiduciary duty to gazette Orang Asli land. Even if the land is not gazetted, there is still a common law native right for things on the land. This gives the Orang Asli a right to reasonable and fair compensation for any acquisition.
Features of a Native Title
The genesis of the right can be found in Adong bin Kuwau v Kerajaan Negeri Johor which followed cases from other jurisdictions such as New Zealand and Australia. Taking into account cases such as Mabo [No.2] and Calder v A-G of British Columbia (“Calder”), the court held that native rights over the Orang Asli land does exist and will continue to exist even though there was a change in sovereignty and an adoption of the Torrens system. As Judson J in Calder notes, these rights include:
… the right to live on their land as their forefathers had lived and that right has not been lawfully extinguished …
This was affirmed in the words of Mokhtar Sidin JCA in Adong Bin Kuwau:
“in Malaysia the aborigines' common law rights include, inter alia, the right to live on their land as their forefathers had lived and this would mean that even the future generations of the aboriginal people would be entitled to this right of their forefathers.”
The extent of this native right in Malaysia was then further elaborated in the case of Sagong Tasi. Here, it was recognised that the native title is a right that is acquired in law and not based on documentary title. It is enforceable by the courts and does not depend on legislative, executive or judicial declaration. The Court further held that the radical title of the sovereign is encumbered with native rights, it is a communal title and is inalienable, and aboriginal people do not become trespassers in their own lands by establishment of a colony or sovereignty.
Occupation of the Land
In order for native right to even accrue in the first place, there has to be exclusive occupation and continuous use of the subject land by the Orang Asli. This would mean that once the traditional acknowledgment of the laws and customs ceases, the foundation of native title to the land expires and the title of the Crown becomes a full beneficial title. Actual physical occupation, however, is not necessary provided there exists sufficient measure of control to prevent strangers from interfering.
An illustration of sufficient control can be seen in Batin Kampung Bukit Rok, where the Orang Asli were told to quit their lands following upon an alienation of large tracts of their settlement lands to FELCRA to cultivate oil palm. In this case, they then claimed for the portion of land in which they settled and the forest areas used for hunting, foraging and roaming. While they were able to claim the settlement areas, the fact that they did not know the extent of the area for hunting, foraging and roaming proved fatal to them asserting their rights over the larger portion of the land as there was insufficient control over it.
Transfer of Aboriginal Lands
Section 6 of APA 1954 prohibits the alienation of aboriginal land to non-aboriginals by the Government. Equally so, it requires that any alienation or transfer of the land by the Orang Asli can only be made with the consent of the Commissioner of Aboriginal Affairs which is appointed and regulated by the Act itself.
Trespass into Aboriginal Lands
There is no trespass as against their own people but the tort may be made out for others coming into their land in particular, those that develop on their land without consent of the Orang Asli community. In Sagong Tasi, the 2nd defendant (i.e. the contractor engaged to construct the highway) and the 3rd defendant (i.e.the authority to supervise and execute the design construction and maintenance of the highway) were found liable to the Orang Asli plaintiffs for trespass.
They could not take shelter under the authority and consent of either the 1st (State Authority) or 4th (Government) defendants, because trespass is against possession but not ownership, and this is reflected by the presence of the highway on the land. The 1st and 4th defendants were only nominal owners of the radical title. The true beneficial owners were the plaintiffs and they had given no consent to the building of that highway.
Adequate compensation must be given under Article 13 Federal Constitution even if the property were to be compulsorily acquired for public use. Under common law this compensation is for Orang Asli land is not for the land itself but for dwelling and trees only.
Here it would thereby be necessary to consider the distinction between the ancillary rights and the proprietary rights of the Orang Asli. While it is normally assumed that the compensation given is only on the basis of the rights in the land, in particular, for the use and possession of the land, there is in fact no limit to the extension of the right to compensation for proprietary title where the facts of the case would suggest so.
If we consider the APA 1954, the circumstances in which compensation may be paid out would only be on a revocation of the reserved land (s.12) and for fruit and rubber trees (s.11(1)). While the Act does not refer expressly to proprietary compensation, the pre-Merdeka law ought to have been read in line with the overarching provisions under the Federal Constitution, in particular Article 13(2) which require compensation to be paid in the case of an acquisition of property.
The compensation for the acquisition of a proprietary title itself, however, is regulated by the Land Acquisition Act 1960 (“LAA 1960”) which gives the government the right to acquire Orang Asli land for a public purpose with compensation. This is in reference to s 2, where the word 'land' is defined to mean alienated land within the meaning of the state land law, land occupied under customary right and land occupied in expectation of title.
There is in fact no limit to the extension of the right to compensation for proprietary title where the facts of the case would suggest so.
In the landmark case of Adong Bin Kuwau & Ors v Kerajaan Negeri Johor & Anor  1 MLJ the courts took into account the LAA 1960 and awarded twice the sum of the market value of the land taking into account the fact that the original sum (the market value) “would involve deprivation of land use for a person for no special attachment to the land and upon which land he does not depend on for his livelihood”. The judge there valued the land based on several considerations namely, the deprivation of heritage land, deprivation of freedom of inhabitation or movement, deprivation of produce of the forest, deprivation of future living for himself and his immediate family and finally, deprivation of future living for his descendants.
Further, there could be exemplary damages awarded where the facts show a wrongful and harsh eviction of the Orang Asli community such as that in Sagong Tasi. There, the crops and building structures were demolished which then forced the community out of the area with limited compensation. Being an aboriginal community, they had to fend for themselves in the harsh weather and in the words of the court ‘very high-handed tactics were employed’. This justified the award for exemplary damages.
Extinguishing customary land rights
The customary land rights can only be extinguished where there is clear and unequivocal legislative intent for the same. Following the case of Batin Kampung Bukit Rok which applied the case of Madeli, the courts held that the declaration under the 1913 Enactment of the Bera Malay Reservation does not extinguish the customary land rights of the aboriginal peoples since it does not mention customary rights in the enactment. This is an illustration of s 10 of the APA 1954 wherein such customary rights hold precedence even over Malay Reservation rights and on a wider scope, suggests that there can be no implied extinguishing of the rights of the Orang Asli rights.
In essence, the rights of Orang Asli lie in our Federal Constitution, statutorily in the APA 1954 and in common law as an entrenched native customary right. These rights may not be as strong in protecting the rights of the Orang Asli since it can be easily extinguished with compensation especially in light of the unprecedented development in the country. However, it does provide legal recognition to the position of the Orang Asli as the original land settlers of our country.