Indigenous World 2019: Malaysia

Written on 24 April 2019. Posted in Malaysia

As of 2017, the indigenous peoples of Malaysia were estimated to account for around 13.8% of the national population of 31,660,700 million.¹ They are collectively known as Orang Asal.

The Orang Asli are the indigenous peoples of Peninsular Malaysia. The 18 Orang Asli subgroups within the Negrito (Semang), Senoi and Aboriginal-Malay groups account for about 215,000 or 0.7% of the population of Peninsular Malaysia (31,005,066).

In Sarawak, the indigenous peoples are collectively known as natives (Dayak and/or Orang Ulu). They include the Iban, Bidayuh, Kenyah, Kayan, Kedayan, Lunbawang, Punan, Bisayah, Kelabit, Berawan, Kejaman, Ukit, Sekapan, Melanau and Penan. They constitute around 1,932,600 or 70.5% of Sarawak’s population of 2,707,600 people.

In Sabah, the 39 different indigenous ethnic groups are known as natives or Anak Negeri and make up about 2,233,100 or 58.6% of Sabah’s population of 3,813,200. The main groups are the Dusun, Murut, Paitan and Bajau groups. While the Malays are also indigenous to Malaysia, they are not categorised as indigenous peoples because they constitute the majority and are politically, economically and socially dominant.

In Sarawak and Sabah, laws introduced by the British during their colonial rule recognising the customary land rights and customary law of the indigenous peoples, are still in place. However, they are not properly implemented, and are even outright ignored by the government, which gives priority to large-scale resource extraction and the plantations of private companies and state agencies over the rights and interests of the indigenous communities. In Peninsular Malaysia, while there is a clear lack of reference to Orang Asli customary land rights in the National Land Code, Orang Asli customary tenure is recognised under common law. The principal Act that governs Orang Asli administration, including occupation of the land, is the Aboriginal Peoples Act 1954.

Malaysia has adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and endorsed the Outcome Document of the World Conference on Indigenous Peoples. It has not ratified ILO Convention 169. 

Change of government with a promise of change

On 9 May 2018, the coalition government, in power since 1957, lost control of power in the general elections. The incoming government, a coalition of once-opposition parties under the banner of Pakatan Harapan (Alliance of Hope) promised a “New Malaysia” where, among other progressive and development-oriented programmes and policies, the rights of the Orang Asal of Malaysia, especially to their customary lands, would be recognised and respected. The first few months of the “New Malaysia”, however, saw a chequered prospect of hope for the Orang Asal.

The Election Manifesto of the Pakatan Harapan² made 60 promises and four “Special Commitments”. At least eleven promises relate directly to the rights and needs of the Orang Asal, including the delivery of development services, economic opportunities, environmental protection and recognition of, and restitution for, customary lands. The new government pledged to recognise, uphold and protect the dignity and rights of this indigenous community.³

It also pledged to implement the proposals of the National Inquiry into the Land Rights of Indigenous Peoples. The Inquiry’s report was prepared by the Human Rights Commission of Malaysia (SUHAKAM) in 2013.⁴ This report, which included 18 recommendations to resolve the Orang Asli land problem, was never debated in parliament. Further, despite being vetted by a special task force, no known action has been taken on the Inquiry report and its recommendations. The new government has however promised to bring this report “for parliamentary debate within the first year of the Pakatan Harapan administration.”⁵

For Sabah and Sarawak, the administration promised that it would “enhance the role and functions of the Land Department to properly conduct perimeter studies, with funds being provided to carry out a complete study which can accurately identify the customary land boundaries.”⁶ From 2010 this was already being done in Selangor state under the then opposition Pakatan Rakyat coalition. The Selangor Orang Asli Land Task Force (BBTOAS), comprising indigenous Orang Asli community mappers and trainers, worked with Orang Asli communities to prepare their own perimeter maps. The intention was to secure formal recognition by the state of their customary territories. Ironically, the task force was disbanded in one of the first acts of the new government.⁷

Threats to indigenous land rights defenders

Indigenous land rights defenders continue to be targeted by operatives of corporations intent on preventing the recognition of Orang Asal rights to their customary territories. The latter’s bravado is partly due to the apparent acquiescence of the state government, the police and the state forest departments, who tend to side with the appropriators of indigenous lands. Indigenous land rights defenders, especially in Sarawak, have been verbally threatened, physically injured or had their property destroyed. Over the last decade, at least twenty indigenous land rights defenders have been threatened by “gangsters” linked to parties wanting to claim the customary lands of the native peoples.⁸ Bill Kayong, who was killed in a mafia-style shooting in 2016, was gunned down while seated in his 4WD vehicle at a traffic light.⁹ Although four persons were eventually arrested, including a politically well-connected plantation owner, all were set free except for the person who pulled the trigger (who received the death sentence in 2018).¹⁰

In Peninsular Malaysia, Orang Asli activists continue to face harassment and threats from loggers and agribusinesses. The Temiar-Orang Asli in Gua Musang have been forced to put up blockades in various locations since 2016 to protect the integrity of their forest homelands. The authorities, especially the Forestry Department, have acted several times to bring down these blockades, only to have the Temiar erect them again. Of late, operatives of logging and agribusiness companies have also worked to demolish the blockades. In one instance in 2018, shots were fired in the air, while in another a group of 50 operatives of a fruit farm company aggressively approached the blockade with chainsaws and started destroying it.¹¹ No actions were taken against these operatives by the police or other government agencies despite their extra-legal acts. 

Developments in the recognition of land rights

The 2017 Federal Court decision in Director of Forest, Sarawak v TR Sandah ak Tabau¹² (also referred to as the “TR Sandah case”) limited native customary rights recognition to those lands that are settled, cleared and cultivated (temuda lands). It held that the written laws of Sarawak did not accord the broader traditional territory (pemakai menoa) and communal forest (pulau galau) with the required “force of law” to allow the natives to stake a customary claim to them. This court ruling on the final appeal immediately placed in jeopardy more than a hundred native title cases in Sarawak.

To counter the politically damaging impact of this ruling, the Sarawak Land Code was amended in July 2018 to provide for the issuance of a title in perpetuity for communal native customary lands that fell under the category of pemakai menoa and pulau galau. However, a statutory limit of 1,000 hectares per title was set. This act was seen as “short-changing” the natives as communal customary claims in excess of 10,000 hectares are not uncommon, and in fact have been accepted by the courts in the past. The natives of Sarawak continue to protest this amendment and call for the concepts of pemakai menoa and pulau galau to be incorporated into the Land Code.

In Peninsular Malaysia, a legal compromise was seen in Kelantan – a state where rampant logging and non-recognition of Orang Asli rights to their customary lands traditionally inform the state’s position vis-à-vis the Orang Asli. After the High Court ruled in 2017 that the Temiar-Orang Asli of Pos Belatim enjoyed native title rights to 9,360 hectares of their traditional territories, the state government, on appeal, agreed to seek an amicable settlement with the Orang Asli in this matter. The Orang Asli, for their part, were also amenable to such a settlement, especially in light of the looming TR Sandah ruling that could compromise their “win” at this lower court. In a consent judgment recorded by the Court of Appeal on 13 April 2018, the Kelantan state government agreed to grant title to the settled, cultivated and occupied areas, while the remaining forest and catchment areas will continue to be recognised as forest reserves or protective forests, but with logging prohibited and allowing the Temiar inhabitants to use these forests for their traditional subsistence and cultural activities.

In Sabah, where the issuance of so-called “communal titles” by the previous government has caused much dissatisfaction and evoked anger, the new Sabah government has decided to revoke those titles already issued. About 96 communal titles were issued since 2010, involving 61,620 hectares to 13,789 native or indigenous beneficiaries (not title holders) in 15 districts in Sabah. Such communal titles are land held in trust by the district office or the assistant collector of land revenue, who have power over what crops are cultivated and whether or not land can be given to next of kin. The government has also used communal land for joint ventures with private companies or developers, often without the free, prior and informed consent (FPIC) of native communities. This has drawn much anger from the native communities, resulting in the (new) chief minister of Sabah announcing that communal land titles were to be scrapped, beginning December 2018, in order for native land rights to be better protected.

Conformity with international standards

The UN Special Rapporteur for water and sanitation, Leo Heller, visited Malaysia in November 2018. He found that although the majority of Malaysians had access to clean water and proper sanitation facilities, the same cannot be said for many of the Orang Asal. Environmental degradation brought about by deforestation, the introduction of mono-crop plantations and the construction of dams have affected the quality of, and access to, water for many Orang Asal communities.¹³

In keeping with the Pakatan Harapan’s election manifesto to remove any vestige of discrimination in the administration and the application of laws of Malaysia, the prime minister of Malaysia, in his address to the United Nations General Assembly on 28 September 2018 affirmed that “the new Malaysia will firmly espouse the principles promoted by the UN in our international engagements. These include the principles of truth, human rights, the rule of law, justice, fairness, responsibility and accountability, as well as sustainability.”¹⁴ However, his first move towards fulfilling this pledge – the ratification of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) – was politicised by the new opposition. They were able to garner considerable support among the conservative Muslim-Malay majority to oppose any attempt at ratifying the ICERD on perceived fears that it would diminish or decimate their rights as Malays and Muslims. The caving-in by the new government is seen by many as an indicator of how it is likely to be guided more by popularism than human rights when it comes to acknowledging the rights of the Orang Asal.

Positive outlook

In recent years, disputes and clashes between Orang Asal and the Forestry Department have occurred particularly where Orang Asal forage and cultivate land on forest reserves that they claim as ancestral or customary land. While the National Forestry Act 1984 provides for the creation of permanent forest reserves, they are deemed to be reserved for the purpose of timber production unless they are specifically gazetted as another type of forest (such as a water catchment reserve or wildlife sanctuary.¹⁵ Under new leadership, the Sabah Forest Department appears to be embarking on a more inclusive approach to forest management, with collaboration and respect for indigenous rights an accepted principle.¹⁶

Several Orang Asal communities continue to map out their customary territories, either to support their claims to those lands, or to use these maps as a management tool for conserving and protecting these areas. The Penan community of Sarawak, however, has taken community mapping to a higher level. For the past 15 years, the community worked hard to complete 23 detailed land-use maps of their ancestral territories totalling 10,000 sq. km. On Nov 15, 2017, Penan leaders from Baram and Limbang presented these maps to the state government with the petition that this area be protected as a rainforest park to be called the Baram Heritage Forest (formerly known as the Penan Peace Park).¹⁷ The planned park is to be managed by the local indigenous communities, with the support of the state government, which has yet to come fully onboard.

The new government has also brought some positive changes in the way indigenous leaders and institutions are given prominence and responsibility. For the first time, the Chief Justice is an Orang Asal Justice Richard Malanjun from Sabah.¹⁸ His elevation to the judiciary’s highest position has meant he is able to take proactive measures to make sure indigenous rights are internalized into the mindsets of the members of the judiciary by way of training, exposure and seminars. The Chief Justice has also called for elevating the role of the Native Court system so that it is on par with the civil courts.¹⁹

To this end, the assistant minister for Law and Native Affairs, a new ministry in the Sabah state government, who is also a prominent indigenous woman activist,²⁰ Jannie Lasimbang, has plans to elevate the role of the Native Court system and to systematically prepare the native chiefs for their new responsibilities and roles.

Notes and references

1. Data sourced from the Statistics Department on 27 January 2015 is available at: http://bit.ly/2Egr20h. The actual number of natives is considered lower than this estimate. There is no breakdown by ethnic group available. There is no current population data available for the Orang Asli, but this is sourced from the estimate of the Department for Orang Asli Development (JAKOA).
2. The manifesto, entitled Buku Harapan: Rebuilding our nation, fulfilling our hopes is available at: http://bit.ly/2Egspfr
3. cit. Promise 38 of the Pakatan Harapan manifesto, Buku Harapan: Rebuilding our nation, Fulfilling our hopes.
4. See SUHAKAM, “Report of the national inquiry into the land rights of indigenous peoples.” Available at: http://bit.ly/2Ec4Fc8
5. cit. Promise 38 of the Pakatan Harapan manifesto, Buku Harapan: Rebuilding our nation, Fulfilling our hopes.
6. cit. Promise 48 of the Pakatan Harapan manifesto, Buku Harapan: Rebuilding our nation, Fulfilling our hopes.
7. While there was no formal announcement of this discontinuation, the writer is privy to the fact as he sat on the Task Force as an independent consultant
8. Amnesty International has reported on the extent of risk faced by Indigenous peoples in Malaysia and the failures of the state to protect these human rights defenders from threats, intimidation and violence in their 2018 publication, “The Forest is Our Heartbeat”: The Struggle to Defend Indigenous Land in Malaysia. Available at: http://bit.ly/2EhQ5Qw
9. See Channel NewsAsia, “Sarawak opposition politician shot dead,” available at: http://bit.ly/2Ekb3hw
10. See The Star Online, “Man sentenced to death for murder of activist and politician Bill Kayong – Nation,” available at: http://bit.ly/2EfiSVU
11. See com, “Standoff at Temiar blockade,” available at: http://bit.ly/2EgD4XC
12. See Civil Appeal no: Q-01-463-2011, available at: http://bit.ly/2EgDcq4
13. See SDG Knowledge Hub at the IISD, “Special Rapporteur on Water and Sanitation Urges Malaysia to Focus on ‘Off Radar’ Groups,” available at: http://bit.ly/2Ekc7C2
14. See New Straits Times, “[Speech text] Dr Mahathir at 73rd UN General Assembly,” available at: http://bit.ly/2EkMQru
15. National Forestry Act 1984 (Act 313), Section 10 (1) & (4). Available at http://bit.ly/2EhjWsn
16. See WWF Malaysia, “Sabah Forest Policy 2018 A Step Forward in Sabah’s Environmental Conservation,” available at: http://bit.ly/2EnokWG
17. See BorneoPost Online, “Penans want Baram Heritage Forest to be established,” available at: http://bit.ly/2EltWkx
18. See New Straits Times “Richard Malanjum, the first Chief Justice from the Borneo states,” available at: http://bit.ly/2EjYvGZ
19. See Free Malaysia Today, “CJ: Native courts should be on par with civil and shariah courts,” available at: http://bit.ly/2EhFoxj
20. See page 350 of the Indigenous World 2017, available at: http://bit.ly/2EkcFrA

Colin Nicholas is the Founder and Coordinator of the Center for Orang Asli Concerns (COAC), which is an associate member of the Jaringan Orang Asal SeMalaysia (JOAS), the Indigenous Peoples Network of Malaysia.