“Orang Asli”, a pan-ethnic term for the indigenous population of Malaysia, are one of the communities at the forefront of the fight against climate change in the country. Their plight is typically framed as the “last fight” for their customary land rights and dutifully defending the rainforests that their livelihood is tied to. The National Land Code 1965, derived from the Australian Torrens system of land registration, effectively ensured that all land now belonged to the state government where the Orang Asli community would be mere tenants of the land, undermining customary traditions of intergenerational land transfer. This is as Dr. Yogeswaran Subramaniam, a lawyer who specializes in Orang Asli Land Rights, notes that “the State Authority has the statutory power to declare, vary or revoke areas as Orang Asli reservations with little legal consequences (unless the affected Orang Asli institute a court case).”
Dr. Subramaniam also explains there is little interest in legally recognizing and protecting Orang Asli as”it is perceived as an economic hindrance to: (i) the state that derives revenue from private land and resources use; and (ii) private interests that are positioned as positive contributors to the state and national economy. Of course, an affected Orang Asli community can challenge such encroachments in the courts but this route poses its own resource and process problems.”
One of the watershed moments for Orang Asli land rights was in 2002 when the state of Selangor’s High Court in Sagong Tasi v Negeri Kerajaan Selangor declared the existence of Orang Asli native land title under the Land Acquisition Act, requiring the State to pay compensation to the Orang Asli for the acquisition of their land treating Orang Asli native title as any other private registered land title. This came after Selangor state authorities forcefully evicted the Temuan Tribe at Kampung Bukit Tampoi, Selangor with only 14 days’ notice. The case would set a legal precedent that recognized the rights of the Orang Asli to their customary lands.
Since then, instances of non-violent use of blockades, mapping their ancestral land via GPS, use of social media, and legal appeals have been used. Kampung Tasik Cunex at Gerik, Perak and the Cawas, Kaleeg, Kiyeh, and Pasik blockades by the Temiar community at Gua Musang has garnered much national media attention for their use of blockades against logging companies and their operations. The latter eventually resulted in a post-Independence historic first, where the Federal government sued the Kelantan state government and private companies for violating Orang Asli land rights. On September 25, 2019, there was a High Court hearing that ruled the private entities logging and farming on Temiar ancestral lands did not have the proper licenses and consent, agreeing that they were the rightful occupants.
They would legally own 9,300 hectares of the Gua Musang forest including 1,000 hectares scheduled for clearing. However, the Temiar community has reported that logging activities have continued as well as environmental damage such as rising river levels that caused flooding of 9,300 hectares. Kelantan, according to the Forestry Department of Peninsular Malaysia, had 867,866 hectares of forest in 2008 making it the third-largest forested state in Peninsular Malaysia. Clearance of forestry for timber plantations has skyrocketed from 14,819 hectares in 2008 to 166,291 hectares in 2014. This resulted in a total of 151,472 hectares converted over this period, regularly encroaching land inhabited by the Orang Asli community.
Mustafa Along, Chairperson of the Kelantan Network of Orang Asli Villages organising blockades to prevent loggers from entering the forest, explained their continual attempts at having their voices heard in the documentary Fighting for our Home (2016): “Kami pernah berdemo, kami pernah hantar memorandum, buat itu, buat ini tapi tidak ada sebarang respons yang positif yang seperti kami harapkan. Satu-satunya cara yang paling berkesan walaupun nampak seperti agak aggressive kepada kami matlamatnya adalah satu. Bagi memastikan hutan itu terus ada, terus kekal.” [“We demonstrated, we have sent a memorandum, we have done everything we could but there has been no positive response. So, the most effective way, although it may seem aggressive, is to erect a blockade. For us there is only one objective. To ensure that the forest continues to exist permanently.”]
In another case, the villagers of Kampung Berengoi in Pahang were manipulated to sign letters to receive free houses from private company YP Olio Sdn Bhd. They were not made aware that in doing so entailed support for the company’s logging and oil palm plantation projects. The forest reserve until late 2020 where YP Olio’s project site will be, will result in a forest loss of 8,498.58 hectares (about 85 km2), the state of Pahang’s largest single forest loss for two decades.
Meanwhile, also in the state of Pahang at Kuala Lipis, the Semai community are also protesting a rare earth mining project on a permanent forest reserve, destroying their ancestral forest and their livelihoods. Managed to successfully raise funds for legal costs and disbursement. The plan will involve 660 hectares of forest mined under three leases which is equal to 924 football fields. This would not be the first time the Pos Lanai Orang Asli have experienced land-grabbing for mega-development projects and actively challenged them. Since 2012, the Pos Lanai villagers have been relocated into government housing closer to Kuala Lipis while their customary land will be flooded by the Telom Hydroelectric Dam project. The Action Committee on Orang Asli Customary Land and Territories filed for an injunction in the Kuala Lumpur High Court to prevent construction in May 2015 but Tenaga Nasional Berhad (TNB) managed to transfer the case to the Temerloh High Court in August 2016 where TNB received the green light on the project. Although they have called for a review of the environmental and social effects of the project.
Orang Asli communities have played a vital role in the conservation and sustainable use of biological diversity and have actively challenged state governments all over Malaysia in ensuring the continuity of their ancestral land. Although their communities are typically framed as people who need to change their ways and integrate themselves into modern society, Dr. Subramaniam believes that it is us who need to change such a perspective: “For the effective protection of Orang Asli communities and their rights within reserved lands, including permanent reserved forests, the overall mindset needs to change. Policymakers, administration, and the public alike would need to see the value in respecting Orang Asli connections to their customary lands. Orang Asli land policies still: (i) appear to be fraught with paternalism, possibly fuelled by feelings of economic and cultural superiority on the part of the government; and (ii) seem to be of relatively low priority given the weak political, demographic, and economic position of the Orang Asli.”