The Malaysian Bar is perturbed by the Selangor state government’s views on Orang Asli land and resource rights in relation to the proposed excision of around 930 hectares of land located within the Kuala Langat North Forest Reserve (“KLNFR”).1
The Menteri Besar of Selangor (“MB”) reportedly stated that state government records showed that there was “only” foraging land for the Orang Asli within the KLNFR. However, a perusal of the “FMS Government Gazette Notification No 2578” dated 19 April 1927 on the creation of the KLNFR (“the KLNFR gazette”) reveals that the Selangor colonial government had expressly admitted rights and conceded privileges to the Orang Asli households of Bukit Prah, Pulau Kempas and Bukit Kemandol, in respect of their inhabitation, use and enjoyment of the KLNFR.
The official admission and concession contained in the KLNFR gazette constitutes a strong suggestion of historical Orang Asli occupation, inhabitation, enjoyment and use of the area in question. This scenario potentially gives rise to legally enforceable common law rights for the descendants of the Orang Asli households described in the KLNFR gazette who still occupy, use or enjoy the area.
It would be legally erroneous for the MB to assume that the lands located within the KLNFR claimed by the Orang Asli, are merely foraging or “roaming” lands with no legal significance. For more than two decades, the highest courts in Malaysia have recognised the right to Orang Asli foraging lands as a right to property legally protected under the common law and article 13 of the Federal Constitution (see for example, Adong Bin Kuwau v Kerajaan Negeri Johor  1 MLJ 418).
In line with the state government’s fiduciary duty owed to the Orang Asli in respect of their customary land rights (see Kerajaan Negeri Selangor v Sagong Bin Tasi  6 MLJ 289), the Malaysian Bar strongly urges the Selangor state government to consult with the relevant Orang Asli communities to determine the full extent of their rights within the KLNFR, including common law rights, before considering its power of excision. Upon such determination, the Malaysian Bar appeals to the Selangor government to reach an equitable resolution to this dispute that does not impinge upon the legal rights of the Orang Asli communities concerned. Failure to do so carries the risks of protracted litigation, expenses and damage to the state’s reputation.
Unfortunately, the KLNFR dispute is again symptomatic of the refusal of the Federal and State governments to legally recognise the rights of the Orang Asli to live on and off their ancestral lands.
Accordingly, the Malaysian Bar reiterates its repeated calls for the Federal and State governments to do the following:
(1) As an interim measure, to impose a moratorium on the creation of any land and resource interests, and the continuation of resource extraction and enforcement activities within places claimed to be Orang Asli customary areas, pending the resolution of the affected Orang Asli community’s customary territorial claims;
(2) To implement the 18 recommendations contained in the 2013 SUHAKAM Report of the National Inquiry into the Land Rights of Indigenous Peoples in Malaysia;2 and
(3) In consultation and cooperation with the Orang Asli, to take all appropriate measures, including legislative measures, to achieve the spirit and intent of the United Nations Declaration on the Rights of Indigenous Peoples 2007.
Abdul Fareed Abdul Gafoor
27 February 2020
1 “Selangor MB dismisses documents ‘proving’ Orang Asli land ownership in forest reserve”, The Malaysian Insight, 20 February 2020.
2 “Report of The National Inquiry into the Land Rights of Indigenous Peoples in Malaysia”, Suruhanjaya Hak Asasi Manusia Malaysia (“SUHAKAM”), 5 August 2013.