Lex; in Breve
The online supplement to our eponymous journal features concise and insightful articles penned by law students from the University of Malaya, as well as guest writers.
10/21/2016 1 Comment
On the 26th of November 2015, an application for logging permits on gazetted land allocated to Orang Asli was filed and granted by the State Executive Council in Jerantut, Pahang. However, there were allegations that the granting procedure did not incorporate the consent needed from the local Orang Asli community. Instead, pecuniary ‘gifts’ were given to each household as well as a certain sum of ‘donation’ to the local community funds.
Albeit such ‘gifts,' a few joint rallies have been organized by the affected parties such as the Malays as well as the Orang Asli communities residing around the compartment areas against the land development. This conflict between the developers and the local community is especially prominent in Kg. Sg. Kiol as due to the ongoing activities of logging, the Orang Asli living in Kg. Sg Kiol has suffered from contaminated water sources, trespass of land, loss of forest resources and threats from wild animals whose habitat had been destroyed by logging.
This case study aims to analyze the implementation of free, prior, and informed consent in regards to the land rights of Orang Asli residents in general.
II. What are the rights to land provided to the Orang Asli under Malaysian Law?
The Orang Asli’s right to land is not explicitly mentioned in any statute, but it can be derived based on the Federal Constitution, the Aboriginal Peoples Act 1954, and judicial precedences.
The Federal Constitution is the supreme law of the land. Thus it is imperative to refer to the Federal Constitution first before referring to other Acts. Under Article 8(1), all persons are equal before the law and are entitled to the equal protection of the law which includes Orang Asli as well. Article 8(5)(c) further states that this Article does not invalidate or prohibit any provision for the protection, well-being or advancement of the aboriginal peoples of the Malay Peninsula (including the reservation of land) or the reservation to aborigines of a reasonable proportion of suitable positions in the public service. This Article serves to say that any provision can be made to ensure the protection, well-being or advancement of the Orang Asli. The Ninth Schedule; List 1(16) of the Federal Constitution also provides for the welfare of the aborigines.
Aboriginal Peoples Act 1954 (APA 1954)
The Aboriginal Peoples Act 1954 is the closest thing to a statutory legal recognition of Orang Asli land rights in Malaysia. Under this Act, for the reservation of the Orang Asli’s land, the Orang Asli are effectively tenants-at-will of the Malaysian State. Section 6(1) provides for the establishment of Orang Asli areas while Section 7(1) provides for the creation of Orang Asli reserves. However, Section 6(3) and section 7(3) grants the state authority the right to revoke the order made under section 6(1) and section 7(1). To make things worse, the State is allowed to ask the Orang Asli community to leave and remain out of the land if that land is declared as a Malay Reservations land under Section 10(3). Compensation to the Orang Asli is also not obligated if the state wants to acquire their land.
After analyzing the sections, it is clear that this Act does not completely protect the Orang Asli’s rights and only recognize the right to land for the Orang Asli in theory. Historically, this Act was enacted during the British administration era, to benefit the government of that time and to prevent the Orang Asli from giving away their land to other people or foreigners. Thus there is no real protection for the Orang Asli’s right to land under the APA 1954 as they are not given a right to agency and self-determination.
Land Acquisition Act 1960 (LAA 1960)
Under Section 3 of the Land Acquisition Act 1960, the State authority may acquire any land deemed to be beneficial to the economic development of the country. No restrictions disallow the state authority from exercising this power on Orang Asli land as well. Section 68A provides that once the acquisition of land has been satisfied, the state authority or government, person or corporation on whose behalf the land was acquired, may dispose of or deal with the land in any manner for any purpose whatsoever even though it is not similar with the original purpose of its acquisition so far as it is still within the ambit of Section 3. Thus, this section essentially allows anybody who obtained the land to make use of the land for a different purpose and the government does not have to clarify the actual purpose of its acquisition nor to ascertain that the object is carried out. Many ancestral lands occupied by the Orang Asli community had been taken away to carry out purposes under this section.
National Land Code 1956 (NLC 1956)
Section 48 of the National Land Code 1956 states that no title to State land shall be acquired by possession, unlawful occupation or occupation under any license for any period whatsoever. The indigenous people have occupied their land for generations without having documentary records to indicate their ownership of their land despite them being in possession of and working on the land. Thus, their status would be illegal squatters under the NLC 1956 unless they are occupying Aboriginal reserve areas or native land. The only government authority that keeps track of the records of indigenous land is Jabatan Kemajuan Orang Asli (JAKOA). Hence, if there were to be any interference to this department, Orang Asli land will be left unprotected and subjected to monopolization by authorities.
National Forestry Act 1984 (NFA 1984)
Section 14 of the National Forestry Act 1984 states that all forest produce are the property of the state authority while section 15 provides for the prohibition on taking forest produce from the permanent reserved forest or State land unless licensed etc. These sections show the lack of recognition of customary land rights. It treats the Orang Asli harvesters of such forest produce as laborers subservient to traders who possess licenses which affect their right to life and livelihood.
Malaysian Timber Council Certification (MTCC)
According to the MTCC process, the approval of the Orang Asli must be obtained first before the certificate for logging could be given out. However, looking at the visions and missions listed under this Council, environmental concerns, as well as natives' rights, are neglected. The Council is more inclined towards granting permits and would be reluctant to do otherwise even though consent from the Orang Asli is absent as their emphasis is on growing and developing the timber industry in Malaysia.
Sagong bin Tasi & Ors v Kerajaan Negeri Selangor & Ors  2 MLJ 591
In 1995, Sagong Tasi and other Orang Asli families’ lands were taken for the construction of the Nilai-Banting highway. They were only paid a nominal amount for the destroyed crops, but there was no compensation for the land. The authorities argued that Orang Asli were mere tenants on state land and as such was not entitled to compensation under the Land Acquisition Act 1960. The Orang Asli then based their claims on rights under common law, statute, and the Federal Constitution in the courts. At common law, they claimed native title over the land based on customs because the land was customary and ancestral land occupied by them and their ancestors for generations. Under statutory law, they claimed rights under the APA 1954. Under the Federal Constitution, they claimed proprietary rights in the land and alleged that the State of Selangor had breached its fiduciary duty.
The Court held that the Orang Asli did possess native title under the common law over their lands. It is not only because of their present occupation on the land but also a traditional connection that had existed for generations. The Court also held that the APA 1954 also did not extinguish the common law rights thus the eviction of the Orang Asli from their lands was unlawful. The defendants were thus liable in trespass against the possession of the land by the Orang Asli. Compensation, therefore, needed to be paid to them as per the Land Acquisition Act 1960.
From this case, it is evident that the Orang Asli has rights to their land even though there is no clear statute stating it as their rights are recognized under common law. The state and federal authorities can not merely choose to impose their interpretation of the natural resources laws to their advantage.
III. Is the concept of Free, Prior and Informed Consent (FPIC) being practiced in the development process?
Indigenous people in Malaysia have fought for recognition from their national government, the international community and by companies of the principle of Free, Prior and Informed Consent which is their right “to give or withhold their free, prior and informed consent to actions that affect their lands, territories, and natural resources.”. Another robust framework would be the universal instrument adopted by the UN General Assembly called the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) which complements FPIC in its aim to promote the participation of indigenous people in the decision-making processes. Thus, before taking any legal or administrative measures that might affect indigenous peoples directly, the government is obligated to have open, frank and meaningful discussions with the people concerned.
However, the reality seems to depart from idealized theory.
Based on research conducted in Kg. Sg. Kiol in Jerantut, Pahang, the push for FPIC was identified to be rather ineffective. While FPIC mandates that consent has to be asked and given by the villagers, the scenario that has happened in Kg. Sg. Kiol was a total contradiction to the fundamental principle of FPIC. The villagers were not given full details about the logging activities and the reason behind the monetary compensations received by them in exchange for their consent. The principle of FPIC was not known and nor was it conveyed among the villagers, resulting in them being unaware of their rights to their forest and land. Only a few people, for example, the Jawatan Kuasa Kemajuan Kampung (JKKK), were given brief explanations on the benefits of the logging activities by the logging company. By disseminating such crucial information only to a targeted group of people surely defeats the purpose of FPIC. Furthermore, no further elaboration, especially on the disadvantages and the potential detrimental effects of the logging activities, were conveyed to the people in Kg. Sg. Kiol. The villagers did not have full information on why they were paid, why their lands were taken and the only subliminal message given was that it was for the logging process which was not even explained in full details to them.
However, in a retrospective view, it is pertinent to note the existence of Section 3 of the Land Acquisition Act 1960 which expressly states that the State Authority may acquire any land deemed to be beneficial to the economic development of the country. Based on the Forestry Department of Peninsular Malaysia, the procedures for obtaining the license to log can be linked to the said section of the Act. It is important to note that there is no mention of FPIC in any form whatsoever when it comes to the procedures for obtaining a license to log despite the fact that FPIC has been an embodied principle concerning indigenous people and the problems that have blighted them in regards to their rights to land under this Act.
The tragic reality for the Orang Asli in Kampung Sungai Kiol is that development and profiteering of their lands have taken place with relatively little regard for the rights and priorities of the indigenous peoples who have lived for generations after generations on the land and are the most rightful owners of these forests.
IV. The importance of FPIC as part of the rights of Orang Asli over their land.
The abandonment of FPIC is detrimental to the Orang Asli community. Firstly, it places the community's ability to practice their norms and customs that have been traditionally acknowledged and observed by the indigenous inhabitants of the territory at enormous risk. Such customs are often associated with the economic, spiritual and cultural longevity of the native communities and touch on very fundamental aspects of their identity
Furthermore, if their lands were to be dispossessed without proper consent, social and environmental sustainability becomes an issue. This is because supplies of natural resources used by the native communities are frequently procured from their natural surroundings. When development is underway, affected areas are usually the water catchment areas which are primary sources of drinking water and proteins (fishes) for these communities. Flora and fauna which are both crucial sources of food and economic resources will also be affected. In fact, the ingredients for traditional medicine used by these communities are also typically obtained from the jungle. The environmental impact is further compounded by issues such as soil erosion and an increase in the likelihood of floods. Moreover, spiritually, the religious practices of the Orang Asli would also be affected for lands that are reserved to honor the deceased are frequently infringed or defiled by developers.
Malaysia, being a signatory to the United Nations Declaration on the Rights of Indigenous People (UNDRIP) should uphold the spirit warranted by the declaration. Among such, is the obligation to allow indigenous people the right to self-determination which includes the right to freely determine their political status and freely pursue their economic, social and cultural development. The right to say ‘Yes’ or ‘No’ to a proposed plan shall also include the options to be conditional or the right to reconsider when there are changes to the scheme or the arrival of new circumstances. The community should be entitled to full information which allows them to consider both the short term and long terms effects so as to adequately ensure that their livelihood would not be at the losing end without proper deliberation. Regarding participation, based on the guidelines provided, the Orang Asli community would have the right to choose their representatives to participate in the decision-making process. This is an important point for it is known that agencies that represent the Orang Asli community are often not themselves Orang Asli and therefore would not be an adequate representation. Proper participation and reduction in corruption would be the consequence of practicing FPIC. As a whole, good adherence to UNDRIP in implementing FPIC would prevent marginalization of the Orang Asli community.
An example of a current issue depicting the detrimental effects of not applying FPIC is the protest against the logging issues in Sungai Kiol, Pahang. The community there is at a standstill with the developers in trying to prevent the logging activities from happening for it would pollute the water catchment areas and disturb the access to the forests among the community. The community would also lose a crucial source of income and forest supplies which support their livelihood. None of the protests would have occurred if the logging activity was properly discussed with the community beforehand in an attempt to obtain consent.
Overall, FPIC stands as an important avenue to respect the rights to self-governance, participation, representation, property, land and territories of the Orang Asli.
V. Are the relevant authorities playing their role in ensuring the application of FPIC in Malaysia?
Although forestry is a state matter, Article 94 of the Federal Constitution enables the federal government to establish departments or ministries on national concerns on forestry issues.
The Forestry Department Peninsular Malaysia is responsible for the management, planning, protection and development of the Permanent Reserved Forests (PRF) as per the National Forestry Policy (NFP) 1992 and the National Forestry Act (NFA) 1984. On the state level, the State Forestry Department is responsible for the administration and regulation of forest harvesting, forest revenue collection, and development of the state forest resources. The Department also plans and coordinates the development of wood-based industries.
However, the state and powerful private corporations and individuals often have the upper hand in decision-making and control on forests resources. In almost all contested forest areas, there is a long-running struggle by indigenous and forest-dependent peoples to defend their rights to land and forests. In its most recent annual report, SUHAKAM, the Malaysian Human Rights Commission stated that the indigenous people of Malaysia must be given the right to empower themselves to choose their course especially in the face of development. “The government should understand and recognize that decisions affecting indigenous people especially about development projects involving native customary land should be made by the indigenous people themselves and not by private companies or any government agency,” the report added.
The aboriginal people in Sungai Kiol, Jerantut have demonstrated in front of the Forest Office in Jerantut against the logging activities of the developers, and they hope that the authorities can help them resolve the problems arising from the logging activities. They have also submitted a memorandum to the government through the Forest Office in Jerantut. However, the officer of Forest Office Jerantut has denied that they have given the permit and license of legal logging for the Sg. Kiol area. This is evident enough that the concept of free, prior and informed consent was not applied by the legal authorities in obtaining resources from forests that lie on the lands of the Orang Asli. The implementation of the concept of free, prior and informed consent would not have resulted in this discomfort as the people would have been ready as to what they will face once the development activity takes place, or they can even withhold their consent to the project as it will cause significant impacts to their livelihood.
In a nutshell, free prior and informed consent (FPIC) is a principle that holds that a community has the right to give or withhold its consent to proposed projects that may affect the lands they customarily owned, occupied, or otherwise used. The challenges faced by the indigenous people of Sg Kiol in the efforts to exercise their right to FPIC is to ensure that the system of decision-making is genuinely representative and made in ways that are inclusive of, and accountable to, members of their community. It must be noted that the rights of these people to free, prior and informed consent is not a free-standing right that acts as a panacea for all the troubles that indigenous populations face. It is an expression towards the right to self-determination, intimately connected to their rights to lands and territories and self-governance according to their peoples’ priorities, customs, and systems of decision-making. It is a two-way interaction between the Orang Asli and outside interests, in which the former have the right to withhold or give consent – the right to say ‘yes’ or ‘no’- and can make decisions based on their beliefs and customary laws articulated through their chosen representatives.
This case study was written by: Amira Nur Nadia Bt Azhar, Ananthan A/L Nithya Moorthi, Choh Pui Kei, Khoo Chin Ern, Kiranraj Sekar A/L Seggaran, Hoy Jin Huey, Lim Ming Ying, Muhammad Muaz B Sazlan, Nur Farishah Islam Bt Mohd Sharif, Sam Tung Woey, Shen Yee Chang, Siew Yi Jin, Yiew Zhi Ren and Yu Shi Ying, current second year law students pursuing their Bachelor of Laws (LLB) degree in the Faculty of Law of University of Malaya. (Edited by Hanan Khaleeda)
 Aboriginal Peoples Act 1954 (Revised 1974), Act 134.
 Article 4 Federal Constitution
 Cheah, W L, ‘Sagong Tasi and Orang Asli Land Rights in Malaysia: Victory, Milestone or False Start’, 2004 (2) Law, Social Justice & Global Development Journal (LGD), Chapter 2.1.1, P.5
 Section 12, Aboriginal Peoples Act 1954, Act 134.
 Land Acquisition Act 1960 (Revised 1962), Act486
 Marcus Colchester and Maurizio Farhan Ferrari. Making FPIC Work: Challenges and Prospects for Indigenous People.
 Rohaida Nordin and Mohd Syahril Ibrahim. Exercising the Principle of Free, Prior and Informed Consent
(FPIC) in Land Development: An Appraisal with Special Reference to the Orang Asli in Peninsular Malaysia
 Land Acquisition Act 1960 (Revised 1962), Act 486
 Laman Web Rasmi Jabatan Perhutanan Semenanjung Malaysia < http://www.forestry.gov.my/> Last accessed on 10th April 2016.
 See the case of Nor Anak Nyawai v Superintendent of Lands where the customary practice of customary territorial domain was acknowledged.
 Article 3 of UNDRIP
 Article 18 of UNDRIP
 Laman Web Rasmi Jabatan Perhutanan Semenanjung Malaysia < http://www.forestry.gov.my/> Last accessed on 12th April 2016.
 Saskia Ozinga. (2003, September). Forest Certification in Malaysia. Retrieved from http://www.fern.org/sites/fern.org/files/pubs/articles/Malaysia.html
 Haris Fadilah Ahmad. (2010, May 13). Orang Asli Kemuka Memorandum. Retrieved from http://ww1.utusan.com.my/utusan/info.asp?y=2010&dt=0513&pub=Utusan_Malaysia&sec=Pahang&pg=wp_02.html