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The Malaysian Bar is disappointed over the action taken by the Perak State Government on 16 May 2019 to demolish the blockade set up by the Kampung Tasik Cunex Gerik Orang Asli community to protect lands claimed to be within its customary territory and to bar entry by logging trucks.
The Bar, however, welcomes the immediate statement from the Director General of the Federal Department of Orang Asli Development (Jabatan Kemajuan Orang Asli, “JAKOA”), Juli Edo, who reportedly defended the Orang Asli blockade and said that it “was not to oppose development planned by the state government”, but to “defend their ancestral land, which has been passed down for millennia”.
Regrettably, Perak Chief Minister Dato’ Seri Ahmad Faizal Bin Dato’ Azumu justified the demolition of the blockade, contending that both the blockade and logging were carried out on state land and that the loggers’ activities were in compliance with the law. Of particular concern to the Bar is his reasoning that “the government has yet to recognise the area as customary land as claimed by the villagers”.
Based on this reported statement, the Chief Minister’s legal justification appears to be misinformed, and is arguably misleading, as the Malaysian superior courts have recognised the common law rights of Orang Asli to lands that they have historically and traditionally occupied, inhabited or used for generations, without the need for a formal executive order “recognising” these rights (see Kerajaan Negeri Johor v Adong Bin Kuwau  2 MLJ 158; and Kerajaan Negeri Selangor v Sagong Bin Tasi  6 MLJ 289). The Chief Minister’s statement raises serious questions about whether the Perak State Government’s action was reasonable in the circumstances and had taken into account the relevant consideration of whether the Kampung Tasek Cunex Gerik Orang Asli community may have acquired customary land rights at common law over the lands in question.
Such common law rights can exist notwithstanding the state’s designation of an area as a reservation (see Ketua Pengarah Jabatan Hal Ehwal Orang Asli v Mohamad Bin Nohing (Batin Kampung Bukit Rok) and another appeal  6 MLJ 527) and, where these rights exist, a state government is under a fiduciary duty to protect the Orang Asli lands concerned by, amongst other methods, reservation (see Kerajaan Negeri Selangor v Sagong Bin Tasi  6 MLJ 289). It is also equally clear the state of Perak is no exception to the recognition of common law Orang Asli customary land rights (see Kong Chee Wai lwn Pengarah Tanah Dan Galian Perak  1 CLJ 605, affirmed by the Court of Appeal in Kong Chee Wai & Anor v Pengarah Tanah dan Galian Perak, Civil Appeal No. A–01–(NCVC)(A)–38S–12/2015, 24 October 2016).
On a more positive note, the Malaysian Bar welcomes the eight resolutions regarding Orang Asli customary lands adopted at the National Orang Asli Convention organised by the Federal Government in April 2019. Two of the resolutions are:
(1) to recognise Orang Asli rights over their customary lands; and(2) to guarantee and protect Orang Asli land, including gazetting the land and imposing a moratorium on any dispute pending the gazetting process.
With a potential resolution of the protracted Orang Asli land issue in sight, it is troubling that the Perak State Government continues to not consider the full spectrum of Orang Asli customary land rights as pronounced by the Malaysian courts and, perhaps more alarmingly, takes actions that run counter to the protection of remaining lands potentially subject to Orang Asli customary land rights.
The Malaysian Bar reiterates our call upon the Perak State Government — made in our press release dated 26 February 2019 — to:
(1) suspend all logging activities in areas that may potentially overlap with lands claimed to be Kampung Tasik Cunex Gerik Orang Asli customary lands; and(2) investigate and survey the claimed lands jointly with the Kampung Tasik Cunex Gerik Orang Asli and, where the Orang Asli possess customary land rights at common law, to reserve all such lands in favour of the Orang Asli community.
More broadly, the Malaysian Bar reiterates its call for the Federal and State Governments to:
(1) impose, as an interim measure, a moratorium on the creation of any land and resource interests and on 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) implement the 18 recommendations contained in the 2013 SUHAKAM Report of the National Inquiry into the Land Rights of the Indigenous Peoples in Malaysia; and(3) take all appropriate measures, including legislative measures — in consultation and cooperation with the Orang Asli — to achieve the spirit and intent of the United Nations Declaration on the Rights of Indigenous Peoples 2007.
Abdul Fareed Abdul Gafoor
25 May 2019