Article contributed by Najwa Hamid, Officer, Bar Council Committee on Orang Asli Rights with photos by Md Faizal b Mahat, Senior Administrative Assistant, Bar Council
The Bar Council Committee on Orang Asli Rights (“COAR”) organised a training session entitled “Training on Orang Asli Land and Territorial Rights — Issues, Claims and the Law”. The three–hour training was held on 3 Jan 2018 at the Bar Council Raja Aziz Addruse Auditorium, and was attended by 38 Members of the Bar and pupils in chambers..
The training aimed to equip the participants with the fundamentals of the law and practice on claims relating to Orang Asli customary rights, in order for them to represent the Orang Asli in disputes and cases that are pending or already in court. It also sought to encourage Members of the Bar and pupil in chambers to volunteer their services as part of the COAR’s pro bono legal team that handles these matters for the Orang Asli.
The training was a clarion call for lawyers to contribute their time, knowledge and skills to a worthy cause, by advocating for the rights of marginalised members of Malaysian society.
The event commenced with a Welcoming Address by the Co–Chairperson of COAR, Hon Kai Ping, who also introduced the speakers — Yogeswaran Subramaniam, member of COAR; and Steven Thiru, 31st President of the Malaysian Bar.
The first speaker — Yogeswaran Subramaniam — explained some aspects of the problems faced by the Orang Asli. He said that from a legal perspective, Orang Asli customary territories have been eroded due to their historical lack of security of tenure and higher priority the Government places on natural resource exploitation. He added that only a small percentage of Orang Asli lands are protected and, as at 2014, only an approximate 18 per cent are officially acknowledged as inhabited by the Orang Asli. There are other areas that do not fall within the Government statistics due to an overlap with newer creation of land interests, or are arbitrarily not regarded as Orang Asli lands, for example foraging areas and sacred sites.
Yogeswaran Subramaniam also spoke about the Aboriginal Peoples Act 1954 (“APA”). He explained that the APA is the principal statute governing the Orang Asli and their lands. He also pointed out that the APA is a paternalistic legislation passed in 1954 during the state of Emergency, and has seen minimal amendment.
The next speaker — Steven Thiru — presented on issues of procedure and evidence in litigation relating to Orang Asli rights. He explained that proof of Aboriginality, continuous occupation of the land, and maintenance of a traditional connection, are required to institute a claim.
He further explained that proof of Aboriginality can be based on public records, identity cards, Orang Asli languages, and acknowledgement and observance of aboriginal laws and customs. He cited the case of Superintendent of Land & Surveys Miri Division & Anor v Madeli bin Salleh (suing as Administrator of the Estate of the deceased, Salleh bin Kilong)  2 MLJ 677 (Federal Court) and explained that actual physical presence is not required to establish a claim of occupation, and exclusion of strangers is a sufficient measure of control.
Hon Kai Ping then opened the floor for a question–and–answer session.
Siti Zabedah Kasim, Co–Chairperson COAR, presented each speaker with a certificate of appreciation at the end of the training session.