• Indigenous peoples in Malaysia

    Indigenous peoples in Malaysia

    The peoples of the Orang Asli, the Orang Ulu, and the Anak Negeri groups together constitute the indigenous population of Malaysia. Although Malaysia has adopted the UN Declaration on the Rights of Indigenous Peoples, the country’s indigenous population is facing a number of challenges, especially in terms of land rights.

The Indigenous World 2022: Malaysia

As of 2019, the Indigenous Peoples of Malaysia were estimated to account for around 14% of the 33.45 million national population. They are collectively known as Orang Asal. The Orang Asli are the Indigenous Peoples of Peninsular Malaysia and they numbered 210,611 in 2019. The 18 Orang Asli subgroups within the Negrito (Semang), Senoi and Aboriginal-Malay groups account for 0.7% of the population of Peninsular Malaysia. 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 some 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 often 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 but has not ratified ILO Convention 169.


Further marginalisation under pandemic restrictions

The second year of the Covid-19 pandemic resulted in a greater toll on the Orang Asal communities of Malaysia. In the span of just one month, for example, the number of Covid cases among the Orang Asli of Peninsular Malaysia climbed more than 10-fold, from 287 on 20 July 2021 to 3,293 on 20 August 2021.[1] In Sabah, the number of Covid cases had reached 238,357 by the end of 2021, with most of them being Native peoples.[2] The coronavirus also began to sweep across Sarawak, especially through the northern countryside that is mainly populated by Native groups.[3]

The economic disruption caused by the pandemic also resulted in dire food security situations for many Orang Asal communities. This placed additional responsibility on the women as they sought to meet the nutrition and health needs of their families. It was particularly challenging for those dependent on the cash economy as they had to resort to traditional sources of subsistence and livelihood – a realm that was generally seen as the domain of Orang Asal women.

As in the previous year, many restrictions were put in place to manage the pandemic, including the closure of industries, businesses and other activities considered “non-essential”. This brought much hardship to the people and severely affected Indigenous livelihoods, with many communities having to seek food aid from outside. These restrictions did not, however, affect certain “essential” activities –logging in particular– that are destructive of the environment and ignore the rights of the Orang Asal, especially with regard to their customary lands. In fact, the revenue from timber exports in 2021 (RM23 billion, or USD5.6billion) was more than that of 2020 (RM22.01billion, or USD5.4billion).[4]

The pandemic was also used politically. At the federal level, the fragile Perikatan Nasional (National Alliance) government was able to thwart a change of government by imposing a State of Emergency early in the year, thereby suspending parliament and giving itself extraordinary powers to govern without parliamentary oversight.[5]

In Sarawak, state elections were held on 18 December 2021. The incumbent Gabungan Parti Sarawak (GPS, Sarawak Parties Alliance) used the Covid restrictions and lockdowns to secure an overwhelming victory.[6] It did this by maximising state resources, including its control of the media, to the full while the (disunited) opposition candidates, a significant number of whom were Indigenous activist-types, were put at a great disadvantage in terms of their movement and access to the electorate.

The fact that the Chief Minister has now given himself the (additional) portfolios of Finance and New Economy Minister, and Natural Resources and Urban Development Minister, as well as Energy and Environmental Sustainability Minister, does not bode well for the Natives of Sarawak as to the direction the state government plans to take with regard to exploitation of the environment and recognition of Native Customary Rights.[7]

Pitting Natives against big companies

As it is, it is already playing out in the courts that the Natives of Sarawak do not have rights to their pemakai menoa (territorial domain) and pulau galau (communal forest reserves). This was the precedent set by the apex court in the TR Sandah case (as discussed in The Indigenous World 2020). This position was recently reinforced in the case of TR Ramba Bungkong v Asco Green Sdn Bhd, where it was ruled that the Iban community’s right to their 3,500 hectares did not have the “force of law”.[8] Rather, the land now belonged to the company as it had been given a lease by the state government – a lease that is indefeasible and where the land could not be returned to the Native appellants even if it was found to be Native Customary Rights (NCR) land.[9]

It is this kind of unilateral administrative action that is pitting several Native communities in Sarawak against companies asserting the right to log or develop lands which Indigenous Peoples are claiming as their customary lands. A case in point is that of the Penan in the Upper Baram region who are protesting against a logging company –Samling– which says it has received consent from the 56 heads of households and that it has been awarded a “Permit to Enter Coupe” by the Sarawak Forestry Department to extract timber from the area. However, local Penan leaders say that the company never negotiated with them before commencing activities in the area. They therefore put up blockades to stop encroachment onto their claimed lands and submitted police reports.

The Penan have the support of the local environmental group Save Rivers, which published online articles regarding the certification of timber logged by Samling in the Baram region.[10] Samling was not happy with the articles and is suing Save Rivers for RM 5 million (USD 1.25m) for defamation. This is big money for a local NGO but loose change for a company like Samling – which, in just one of its subsidiaries, holds more than RM 500 million (USD 125 million) in assets in offshore holdings in the British Virgin Islands.[11]

Selling carbon credits on the quiet

Clearly, the customary lands of the Orang Asal –lands which they play a key part in keeping forested– are being targeted because of the potential abnormal profits they can yield. In Sabah, on 30 October 2021, the state government secretly signed a 100-year Nature Conservation Agreement with a Singapore-registered company, Hoch Standard Pte Ltd, to set up a carbon trading deal over an area of more than 2 million hectares for at least 100 years. The Singapore-registered company, with just USD 1,000 in paid-up capital, stood to rake in some RM 960 million (USD 240 million) annually just by trading in carbon credits from the state’s protected forests. Indigenous communities in Sabah knew nothing about the deal until it was exposed in an article in Mongabay.[12]

The deal is supposed to be worth around RM 3.2 billion (USD 800 million) a year, of which the company is to receive 30% in gross revenues and the state 70%. It had the active involvement of two individuals who, in a 1994 study by Price Waterhouse at the request of the then Prime Minister, found that USD 1.6 billion in Timber Rent (Stumpage Value) had disappeared from the Sabah Foundation.[13] One of the two individuals involved in this deal was the then director of Sabah Foundation and the other was the Group General Manager of a holding company for the foundation’s commercial assets.[14]

Adrian Lasimbang, an Indigenous leader in Sabah, filed a lawsuit in December 2021 to gain more transparency and to assert the Native communities’ right to free, prior and informed consent over forests for which they claim sovereign control.[15]

Still no land rights, no FPIC

This appropriation of the forested customary lands of the Orang Asal was not restricted to the Bornean states of Sabah and Sarawak in 2021. In Peninsular Malaysia, the Orang Asli realised that, when it comes to recognising Orang Asli rights to their customary lands, it makes little difference what (coalition of) political parties is in power at the state or federal level.

For example, in the case of the Kuala Langat North Forest Reserve, in 2020 the Selangor State Government – a Pakatan Harapan (Coalition of Hope) government that forms the opposition at the federal level – had intended to degazette[16] 932 hectares (or 94%) of the 992 hectares of peat swamp forest for a mixed development project. The forest was close to three Temuan-Orang Asli villages which considered it part of their traditional territory, as recognised by the British Colonial Government in 1927.[17]

The forest was more than just a resource base for the community’s subsistence, medicinal and building material needs. As 70-year-old Bonet Baba revealed, the forest was also the source of her Indigenous identity and helped give her emotional peace and stability. She valued the time she spent in the forest with her grandchildren and feared that she would no longer be able to pass on her knowledge.[18]

Opposition to the planned degazetting was widespread and across the board. Not only were there 45,423 written petitions from the public and unanimous objection from numerous stakeholders at a public hearing, there were also objections from the Federal Forestry Department, the Department of Orang Asli Development, and other government agencies. The majority of the elected representatives of the State Legislative Assembly, both from the government and opposition benches, also voted to keep the forests. And yet, in August 2021, the Chief Minister announced that the state government had already gone ahead with the degazetting – albeit for a smaller 537 hectares – three months earlier in May 2021![19] A massive, widely-represented and very public remonstration ensued which eventually forced the Chief Minister to withdraw the degazettement. This he promised to do but he has yet to act on it.[20]

In the case of the Nenggiri Dam, however, the Kelantan State Government – a member of the Perikatan Nasional (National Alliance) that was in government at the federal level – made it clear that it did not recognise Orang Asli claims to their customary lands. In March 2021, more than 3,000 Temiars from the Network of Orang Asli Villages in Kelantan (JKOAK) had signed a petition against the construction of the Nenggiri Dam in Gua Musang. Apart from losing much of their traditional territories, they were also concerned that the dam would flood sites of cultural and religious significance to them.

Commenting on the petition, the state’s Deputy Chief Minister alleged that the protest was “invalid” because the state was planning to relocate the affected Orang Asli communities.[21] Besides, he added, “We’ve told them that we can’t engage with them because they are not an official group representing the Orang Asli. To us, the JAKOA[22] is the official representative of the Orang Asli.”[23] Thus, not only are the land rights of the Orang Asli not being recognised, their right to free, prior and informed consent is also being denied.

Progressing forward?

It is evident that the pandemic and its associated lockdowns, restrictions and legislation has allowed the federal and state governments and opportunists to further control and exploit the Orang Asal and their lands, territories and resources. Recognition of Indigenous Peoples’ rights has also taken a step backward, aided by court rulings and the rise of politicians unsympathetic to Indigenous Peoples' rights and needs.

And yet Malaysia is said to be performing well in achieving the SDG goals.[24] This may be so for the country as a whole but, when the data is disaggregated, the difference is glaring. For example, in 2019 the national poverty rate stood at 5.6%.[25] The poverty rate among the Orang Asli, however was 89.4%.[26] This speaks volumes about the marginalisation of the Indigenous Orang Asal of Malaysia.

Nevertheless, one notable progress, at least for the Orang Asli community, has been the appointment of a Semai-Orang Asli woman to head the Department of Orang Asli Development as its Director-General.[27] Young Orang Asal women have also taken to social media, including through their own YouTube channels, to inform and advocate about their situation, their aspirations and their rights.[28] And, with more Orang Asal women now in leadership roles, the endeavours of the Orang Asal for recognition and self-determination can only be expected to progress.

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. This email address is being protected from spambots. You need JavaScript enabled to view it.

 

This article is part of the 36th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. Find The Indigenous World 2022 in full here

 

Notes and references

[1] “Letting the Guard Down: Orang Asli see spike in Covid cases and deaths,” Center for Orang Asli Concerns FB, 22 August 2021: https://www.facebook.com/page/144623915576639/search/?q=covid%20deaths

[2] “Covid-19: Sabah to allow house visits for Christmas, New Year, says Masidi”, The Star, 18 December 2021: https://www.thestar.com.my/news/nation/2021/12/18/covid-19-sabah-to-allow-house-visits-for-christmas-new-year-says-masidi

[3] “Penan suffering deadly threats, through no fault of their own – Stephen Then”, The Vibes, 4 July 2021: https://www.thevibes.com/articles/opinion/33425/penan-suffering-deadly-threats-through-no-fault-of-their-own-stephen-then

[4] “Eksport perkayuan negara disasar cecah RM23 bilion”, Berita Harian, 31 December 2021: https://www.bharian.com.my/bisnes/lain-lain/2021/12/906216/eksport-perkayuan-negara-disasar-cecah-rm23-bilion

[5] “Explainer: Why a state of emergency raises concerns in Malaysia”, Reuters, 12 January 2021: https://www.reuters.com/article/us-healthcare-coronavirus-malaysia-emerg-idUSKBN29H1HE

[6] “Sarawak election not level playing field; a walk in the park for GPS”, New Straits Times, 14 December 2021: https://www.nst.com.my/news/politics/2021/12/754158/sarawak-election-not-level-playing-field-walk-park-gps; “Malaysia Is Drowning Under Corruptocracy–Comment”, Sarawak Report, 3 February 2022: https://www.sarawakreport.org/2022/02/malaysia-is-drowning-under-corruptocracy-comment/

[7] “Abang Johari's new cabinet too big for Sarawak's small population”, New Straits Times, 1 January 2022: https://www.nst.com.my/news/nation/2022/01/759474/abang-joharis-new-cabinet-too-big-sarawaks-small-population

[8] “TR Ramba Vs Asco Green case: Baru describes Court’s decision to dismiss TR’s appeal as ‘disappointing and dangerous”, 26 December 2021: https://www.theborneopost.com/2021/11/26/tr-ramba-vs-asco-green-case-baru-describes-courts-decision-to-dismiss-trs-appeal-as-disappointing-and-dangerous/?fbclid=IwAR2GH-_4YpWk0YeDoj94CDPyO_IssB0YUQZDkzasjzVoPkrZePj3S1xvF_g

[9] “Sarawak natives exhaust all legal means to reclaim customary rights land from company,” Yahoo News, 26 December 2021: https://malaysia.news.yahoo.com/sarawak-natives-exhaust-legal-means-091925351.html

[10] “Threat of legal action against Indigenous Borneans protesting tim-ber company,” Mongabay, 1 June 2021: https://news.mongabay.com/2021/06/threat-of-legal-action-against-indigenous-borneans-protesting-timber-company/#:~:text=A%20timber%20company%20operating%20in,company's%20certified%2Dsustainable%20production%20plantations.

[11] “Timber firm keeps millions offshore, as Penan mount blockades to save forest”, Malaysiakini.com, 22 November 2021: https://www.malaysiakini.com/news/600154

[12] “Bornean communities locked into 2-million-hectare carbon deal they don’t know about”, by John C. Cannon, Mongabay, 9 November 2021: https://news.mongabay.com/2021/11/bornean-communities-locked-into-2-million-hectare-carbon-deal-they-dont-know-about/

[13] Sabah Foundation (or Yayasan Sabah) is a state-sanctioned organisation that was developed to promote educational and economic opportunities for its people, and control the forest reserves in Sabah. See: http://www.yayasansabahgroup.org.my/

[14] “Sabah’s Nature Conservation Agreement: A two million hectare carbon deal involving a fake director, an inequitable agreement, a history of destructive logging, massive corruption, a series of offshore companies, and a sprinkling of neocolonial racism”, by Chris Lang, REDD-Monitor, 5 December 2021: https://redd-monitor.org/2021/12/05/sabahs-nature-conservation-agreement-a-two-million-hectare-carbon-deal-involving-a-fake-director-an-inequitable-agreement-a-history-of-destructive-logging-massive-corruption-a-series-of-offshor/

[15] “Indigenous leader sues over Borneo natural capital deal”, by John C. Cannon, 17 December 2021: https://news.mongabay.com/2021/12/indigenous-leader-sues-over-borneo-natural-capital-deal/

[16] That is, to remove its official status as a forest reserve by publishing the fact in an official gazette notification.

[17] Selangor Government Gazette Notification No. 2578/27.

[18] “Food, medicine and culture – Orang Asli on what Kuala Langat forest reserve means to them”, by Annebelle Lee, Malaysiakini.com, 3 March 2020: https://annabelleleejiawen.com/2020/03/03/food-medicine-and-culture-orang-asli-on-what-kuala-langat-forest-reserve-means-to-them/.

[19] “Selangor quietly excises half of Kuala Langat forest reserve”, Malaysiakini, 30 August 2021: https://www.malaysiakini.com/news/589266; “Why the secret degazettement? - environ groups ask S'gor government”, Malaysiakini, 30 August 2021: https://www.malaysiakini.com/news/589297

[20] “MB: Kuala Langat forest to be regazetted only after ECRL impasse resolved”, Malaysiakini, 11 November 2021: https://www.malaysiakini.com/news/598802

[21] Nicholas, C. (2021), Looking Back, Looking Forward: Orang Asli Self-Governance and Democracy, AIPP-COAC, Chiangmai, p.27.

[22] Jabatan Kemajuan Orang Asli or the Department of Orang Asli Development.

[23] “Kelantan deputy MB: Nenggiri dam can reduce electricity cost,” Malaysiakini, 23 March 2021: https://www.malaysiakini.com/news/567747

[24] “Malaysia achieves good SDG performance despite Covid-19”, Malaysian Insight, 3 December 2021: https://www.themalaysianinsight.com/s/354609

[25] Department of Statistics Malaysia (2020), Household income estimates and incidence of poverty report, Malaysia, 2020. Available at: https://www.dosm.gov.my/v1/index.php?r=column/cthemeByCat&cat=493&bul_id=VTNHRkdiZkFzenBNd1Y1dmg2UUlrZz09&menu_id=amVoWU54UTl0a21NWmdhMjFMMWcyZz09

[26] Data obtained from a slide presentation of the Deputy Director General of JAKOA on 23 July 2021.

[27] “Orang Asli woman now heading JAKOA”, COAC-FB: https://www.facebook.com/centerfororangasliconcerns/photos/a.571592796213080/4425396147499373/

[28] “Amplifying the voices of young Orang Asli women”, Freedom Film Network: https://freedomfilm.my/initiatives/voices-of-orang-asli-women/; “The Orang Asli Women’s Journey”, Freedom Film Network, 22 April 2021: https://freedomfilm.my/blog/the-orang-asli-womens-journey/;

“Young Orang Asli women drive vaccination efforts in villages”, Free Malaysia Today, 23 September 2021: https://www.freemalaysiatoday.com/category/nation/2021/09/23/young-orang-asli-women-drive-vaccination-efforts-in-villages/

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