Skip to main content

LGD 2004 (2) - Cheah Wui Ling

Sagong Tasi and Orang Asli Land Rights in Malaysia: Victory, Milestone or False Start?

 

Cheah Wui Ling

Research Scholar,
National University of Singapore.
Cheah_WuiLing@hotmail.com


Abstract

This article explores how recent decisions from Malaysian national courts have sought to give formal recognition to Orang Asli land rights. Malaysia, home to diverse indigenous groups, has historically marginalised and failed to give formal legal protection to Orang Asli land rights.

However, in a groundbreaking 2002 decision, the Malaysian state of Selangor’s High Court in Sagong Tasi v Negeri Kerajaan Selangor declared the existence of Orang Asli native land title at common law, requiring the State to pay compensation to the Orang Asli for acquisition of their land. Pre-Sagong Tasi, the Malaysian Government considered Orang Asli as mere tenants of the land, their rights susceptible to governmental revocation at any time without the protections of the Land Acquisition Act. This was the stand advanced by the Malaysian Government in Sagong Tasi itself. The judge in Sagong Tasi dismissed the State’s argument and confirmed the existence of Orang Asli native title at common law on two grounds by drawing on international developments and creative interpretation of the Federal Constitution and parliamentary acts.

Though laudable in its granting of formal legal recognition on Orang Asli land, the Selangor High Court’s consideration of Orang Asli native title under the Land Acquisition Act treats Orang Asli native title as any other private registered land title. This fails to recognise the significant differences inherent in Orang Asli native title as compared to private registered title. Orang Asli native title is imbued with cultural, spiritual, communal and economic dimensions far beyond private registered land’s market value. This article analyses how the Selangor High Court could have taken their decision a step further to bring it in line with today’s international ethos.

Keywords: Customary Law, Indigenous Title, International Law, Land Rights, Malaysia,

Author’s Note: The issues raised in this article were brought to the author’s attention during her internship at Malaysia’s Human Rights Commission (Suhakam). The author wishes to thank Dr Thio Li-ann and Prof Tang Hang Wu for their helpful suggestions. Also warmest thanks to the staff at Suhakam. She is most indebted to Cheah Choo Kheng for his encouragement, support and confidence.


This is a refereed article published on: 28 February 2005

Citation: 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). <www.go.warwick.ac.uk/elj/lgd/2004_2/cheah>



‘Dulu gajah menyerang kita. Sekarang pembangunan yang menyerang kita’ (in the past, it was elephants that attacked us, today it is this thing called ‘development’1.

1. Introduction

In all states today, indigenous land rights are inadequately protected, if at all by formal legal systems.2 While states ride the waves of globalisation and modernisation, indigenous peoples find themselves increasingly nudged off their ancestral lands as states summarily acquire indigenous land for developmental purposes. The Orang Asli, a term which has come to refer to the diverse variety of indigenous groups residing in Peninsula Malaysia, whose societies and cultures are closely tied to their ancestral lands, have been similarly victimised as the Malaysian Government’s numerous development projects continuously encroach upon their ancestral lands. 3

The modern Malaysian state has politically marginalised the Orang Asli and failed to accord adequate legal protection to Orang Asli land rights. However, in a groundbreaking 2002 decision, the High Court of Malaysia’s Selangor state, by recognising the existence of Orang Asli land title at common law imposed on the Malaysian Government certain duties and obligations towards the Orang Asli when seeking to acquire their land.4 Pre-Sagong Tasi, the Orang Asli was considered by the Malaysian Government as mere tenants of their ancestral land which were not titled and formally belonged to the Malaysian Government. The rights of the Orang Asli were therefore susceptible to the government’s revocation at any time. This was the position advanced by the Selangor State Government in Sagong Tasi itself. The court dismissed the Selangor State Government’s argument and confirmed the existence of Orang Asli native title at common law.

The Selangor High Court’s decision is extraordinary for several reasons. Firstly, the court sought to give effect to international developments and comparative state practice in the area of indigenous land rights despite the non-binding nature of such practices and norms on the Malaysian Government.5 Second, despite the court’s benevolent intentions, this article argues that Sagong Tasi does not give full recognition to Orang Asli land rights. This is due to the court’s decision to apply to Orang Asli land, the same compensation regime governing private land rights, as set out in the Land Acquisition Act. The consequences of applying to Orang Asli land, a piece of legislation intended to apply only to private registered title, results in the partial articulation of Orang Asli land rights.

This article first examines the existing protections, or lack thereof, applying to Orang Asli land within the Malaysian legal system. It then examines why much of the recent progress in indigenous land rights protection has taken place at the international level rather than at national levels and how the international community has sought to advance indigenous land rights under various ideological frameworks. While recognising the value and contribution of these international standards in the field of indigenous land rights protection, this article argues that because most of the international community’s work has been advanced through ideological frameworks which either inadequately captures the content of indigenous land rights or which are still in an inchoate stage of development, indigenous land rights protection will still have to be largely advocated through national frameworks. International standards remain relevant and important as application and interpretation guides for national authorities when implementing indigenous land rights. This article then examines and respectfully suggests how the Sagong Tasi court could have further interpreted Malaysia’s national laws to bring it in line with international standards of indigenous land rights protection.

2. The Orang Asli of Malaysia

The Orang Asli of Peninsula Malaysia make up less than 0.5 percent of Malaysia’s multi-ethnic and multi-cultural society. The Malays, make up 50 percent of Malaysia’s population; the Chinese, another 28.1 percent; the Indians, another 7.9 percent and indigenous peoples, including those of Sabah and Sarawak make up 14 percent.6 The term Orang Asli was first coined by Malaysia’s colonial British government.7 It means ‘original people’ in Bahasa Malaysia which is the native tongue of the Malays and the official language of Malaysia. Experts have divided the Orang Asli, based on their anthropological descent, into the three general categories of ‘Negrito’, ‘Senoi’ and ‘Jakun’ (or ‘Proto-Malays’). Each of these three groups can be further differentiated into six subgroups, each with its own culture, language, religion and subsistence lifestyle.8 The kind of agricultural or subsistence activities undertaken by each tribe differ according to their traditions and geographical location. The Semar, Temiar, Chewong, Jah Hut, Semelai and Semoq Beri tribes who live in forested areas engage in the cultivation of hill rice, hunting and gathering. The Orang Kuala, Orang Laut, Orang Seletar, Mah Meri tribes who live close to the coast are active fishermen. Other tribes such as the Temuan Jakun and Semai are involved in smallholding agricultural practices.9

2.1. The Malaysian Legal System and Orang Asli Land

2.1.1. The Federal Constitution and national laws

Orang Asli land rights are not formally codified under Malaysian law. Conversely federal laws either ignore or erode the Orang Asli’s rights to their ancestral land.10 The one piece of federal legislature which has resulted in the total denial of the existence of Orang Asli land rights under the formal legal system is the National Land Code 1965.11 Under this Code, derived from the Australian Torrens system of land registration, all land belongs to the Malaysian state. Private land interests are vested in individuals only upon registration in the land registry. Orang Asli land, passed down by tradition from generation to generation, falls dismally outside the Malaysia’s land registration system and therefore technically belonging to the Malaysian state.

Also, the Malaysian Government is empowered with extensive land acquisition powers under the Land Acquisition Act, including any ‘land occupied under customary right’, for the following objectives:

(a) for any public purpose

(b) by any person or corporation for any purpose which in the opinion of the State Authority is beneficial to the economic development of Malaysia or any part thereof or to the public generally or any class of the public12

(c) for the purpose of mining or for residential agricultural commercial or industrial purposes

Malaysian courts have interpreted Article 3 of the Land Acquisition Act broadly. The government needs not specify the exact purposes that the land would be put to use. In fact the government needs not even specify which sub-limb of Art 3 pursuant to which it is acquiring the land.13 The government’s declaration that the land is to be acquired for public purposes can only be challenged on the grounds that the government has overstepped its statutory authority or has acted mala fide, both of which are very hard to prove. Whether or not the purpose to which the acquired land is eventually put to use is an Art 3 purpose is a fact not to be contested.14 The Land Acquisition Act does not provide for pre-acquisition hearings. Hearings are limited to the quantum of adequate compensation due to owners or right-holders of acquired land. Land may be acquired by the Federal Government or the individual states. Both kinds of acquisition proceed through the individual state governments and which is also bound to pay adequate compensation for land compulsorily acquired.

The closest thing to statutory legal recognition of Orang Asli land rights is to be found in the Aboriginal People’s Act.15 The provisions of this Act has to be understood against its historical context. It was enacted by the British Colonial Government when faced with a communist insurgency in pre-independence Malaya.16 Orang Asli communities were known to provide food, labour, and intelligence to communist insurgents. Some even joined the communists and took up arms against the British Government. Quickly realising the importance of winning over the Orang Asli, the British Colonial Government established a Department of Aborigines and set up ‘jungle forts’ in Orang Asli areas which served to provide welfare, health and education to the Orang Asli. The Aboriginal Peoples Ordinance was legislated in 1954 with the aim of exerting control over Orang Asli communities.

The Aboriginal People’s Act, successor to the Aboriginal Peoples Ordinance, empowers the Minister concerned to declare, via publication in the gazette, certain plots of land to be protected aboriginal reserves and areas. However the Aboriginal People’s Act does not treat the Orang Asli as legal owners of these aboriginal reserves or areas nor does it mandate compensation for the Malaysian Government’s acquisition of these reserves. While section 10 recognises that compensation ‘shall’ and must be paid by the Malaysian Government for acquisition of Orang Asli’s crops, section 11 merely states that the authorities ‘may’ pay compensation for the acquisition of aboriginal reserves or areas. This imports a degree of discretion in the compensatory process. Furthermore sections 6 and 7 allow the Minister to extinguish by declaration the status of aboriginal reserves and areas. This power in reality renders the Malaysian Government’s section 11 compensation duties, if any, ineffectual, as they can be circumvented by a simple status revocation of the acquired aboriginal reserves and areas.

Under this Act, the Orang Asli are effectively tenants-at-will of the Malaysian state. In addition, not all inhabited Orang Asli land have been declared aboriginal reserves or areas, leaving them unprotected from governmental acquisition or third party encroachment. Recently, Orang Asli communities in Pos Gedung and Kampung Sungei Bil have been forced to acquiesce to logging activities on their traditional land as these had not been declared an aboriginal reserve or area, leaving them trapped within a legal vacuum.17 Furthermore the meagre protections offered by the Aboriginal People’s Act are unreal and impractical as most of the Orang Asli do not know the existence or implications of this Act and are unable to petition the Malaysian Government for the protections owed to them under this Act.

2.1.2. The Department of Orang Asli Affairs

The Department of Orang Asli Affairs was first set up by the British Colonial Government in 1954 via the Aboriginal Peoples Ordinance No 3, 1954. The Department has functioned more as the administrative arm of the executive government rather than an independent representative organ of Orang Asli interests. Over the years, the Department has been shifted from the control of one Ministry to another to reflect changing government policies. In 1955,it was placed under the Ministry of Home Affairs; in 1956 it was renamed the Department of Museum, Archives and Orang Asli Research and placed under the Ministry of Education; in 1959, it was once again placed under the Ministry of Home Affairs; in 1964, it was placed under the Ministry of Lands and Mines; in 1971, it was moved to the Ministry of National and Rural Development, and in 1990, it was placed under the Ministry of National Unity and Social Development.18 A 1961 policy statement which remains applicable and binding today states in respect of Orang Asli land rights that ‘every effort will be made to encourage the more developed groups to adopt a settled way of life and thus to bring them economically into line with other communities in this country’.19 The Department’s positions are often contradictory. In the same section of the mentioned 1961 policy statement, the Department recognises ‘the special position of aborigines in respect of land usage and land rights’ and that they ‘will not be moved from their land without their free consent’.20 The Department’s official website further declares the Department’s vision as aiming to ensure ‘that Orang Asli community achieves a level of socio-economic well-being at par with those of other communities in this country, and imbued with ethical values while at the same time maintaining their identity’.21

In practice, the Department’s staff which consists of a majority of non-indigenous staff are perceived by the Orang Asli as being distant, unapproachable and irrelevant in representing their interests at the national level.22 Even when the Department does take positions advancing Orang Asli interests, these positions are often ignored by the Malaysian Government.23 Due to the undeclared status of most Orang Asli land and the absence of any mechanism to keep track of Orang Asli’s land, the Malaysian Government often ends up awarding the ancestral land of Orang Asli communities to private developers. These developers seldom give Orang Asli communities advance notice or warning before proceeding to clear and develop their land.24 Due to their political marginalisation, the Orang Asli are often at a loss with respect to remedies, not knowing who to petition in regards to their plight.

2.1.3. The Malaysian Courts

Recent decisions from Malaysian courts have sought to give formal legal recognition to Orang Asli land rights within a legal system which has till now excluded them. In 1997 the Johore High Court in Adong bin Kuwau declared that the common law recognised the Orang Asli’s native land rights.25 In coming to its decision, the court drew upon decisions emanating from other common law countries such as Australia and Canada whose land law is based on formal registration systems similar to that adopted by Malaysia. The court went on to state that Orang Asli native land rights are to be determined with reference to the traditions of indigenous peoples, citing the Australian High Court’s landmark Mabo decision which states that ‘[t]he nature of native title must be ascertained by reference to the traditional laws and customs of the indigenous inhabitants of the land.’26 The Adong Kuwau court then went on to recognise a customary right of the Orang Asli to gather produce from land surrounding their ancestral land.27

Then, in a 2002 groundbreaking decision, the Selangor High Court declared the existence of Orang Asli native title to ancestral lands at common law.28 The Selangor High Court’s Sagong Tasi decision ushers in a new era of aboriginal land rights in Peninsula Malaysia. Previously the Johore High Court in Adong Kuwau restricted their recognition of aboriginal land rights to the actual facts of the case before them, which concerned adequate compensation for crops grown rather than compensation for ancestral land itself. Sagong Tasi brought Adong Kuwau a step further, declaring that the establishment of ancestral ties would bestow upon the said Orang Asli community actual ownership of the land.

The Sagong Tasi court, while recognising Orang Asli’s land title’s unique characteristics, held that Orang Asli native title was to be equated with private land title in relation to governmental acquisition. This means that the government’s acquisition of indigenous land is to be governed by the same compensation regime applying to governmental acquisition of private registered land title. This fails to recognize the inherent differences between the Orang Asli ancestral land rights and a private individual’s right to land. This also goes against international legal trends and the international instruments which were cited repeatedly in both Adong Kuwau and Sagong Tasi.

The next section briefly examines why indigenous peoples have faced so much difficulty in seeking protection for their land rights from their respective States.

3. International Efforts to Protect Indigenous Land

While indigenous concepts of land may seem primitive and, at best, romantically archaic to modern societies which have embraced private land ownership, such different conceptions of land are by no means exclusive to indigenous peoples.29 The legal conceptualisation of land differs in accordance to underlying ideological values of a particular society. In Israel, over 90 percent of the land is state-owned reflecting the Jewish State’s nationalist aspirations.30 Huttite and kibbutz communes practise joint ownership of land and its produce.31 Women in strict Islamic societies do not have the legal capacity to own land. China’s communist system has produced a hybrid between state and commune owned land. The controversy surrounding indigenous land rights lies not in its difference from private land ownership but in its claim for recognition within a larger mainstream society. While the unique existence of indigenous land rights is largely uncontested by the international community today, its content and ideological justification remains unsettled, giving rise to its implementation via a variety of different frameworks on the international scene.

Such piecemeal and limited development of indigenous land rights on the international level has been caused by states’ resistance to claims of indigenous peoples to exist as a distinct group with rights and claims against the state. States are traditionally wary in granting rights to collectivities, as seen in the early days of minority rights, perceiving them as threats to a single state identity accompanied with their potential to challenge en masse the State’s authority.32 The claims and interests of indigenous peoples, articulated in the form of people’s rights or group rights, represent an even stronger challenge to state’s authority.33 The difference between a people’s right or group right and rights of collectivities such as a minority’s rights to culture, is that while the former group’s existence is itself to be guaranteed due to its inherent good and value, the latter’s right is defined in terms of the individual, whose enjoyment of that right may include a communal aspect.34 The state is obliged to take certain steps in ensuring conditions conducive to the growth of minority cultures but is not obliged to ensure the continued existence of the culture itself. Indigenous cultures and societies has a right to exist, claims that have been accompanied with calls for territorial autonomy and which threaten the State’s political and territorial integrity. 35

The resistance of states towards recogniing indigenous rights has impeded the formation of concrete, clear norms governing indigenous land rights at international law and the accompanying lack of any enforcement mechanism geared towards the specific observance and implementation of indigenous land rights. The International Labour Organisation (ILO) Convention No 169 remains the only source of conventional law specifically targeting the rights of indigenous peoples.36 The United Nations (UN) Draft Declaration on Indigenous Peoples Rights and the Organisation of American States Proposed Draft Declaration on Indigenous Peoples Rights have experienced limited progress in their negotiations due to state concerns centring around provisions that go beyond individual or collective rights such as the right to self-determination.37 While the many debates and reports generated by the UN’s Permanent Forum for Indigenous Peoples, its Working Group on Indigenous Rights and its Special Rapporteurs on Indigenous Rights, have added much understanding to indigenous peoples’ needs and interests, all this remains soft law, persuasive but non-binding in nature. 38

To meet the real and urgent claims of indigenous communities, the international community has adopted two distinctly different approaches.39 The first piggybacks on established existing rights such as basic individual rights and minority rights. The second approach draws upon newer group and third generation rights in advancing indigenous land claims, such as the right to self-determination, development and environment. While the implementation of indigenous rights within the frameworks of already existing rights has the advantage of being able to draw upon the legitimacy and existence of established institutional mechanisms, the stretching of such concepts to accommodate indigenous rights may result in the distortion of indigenous rights or the original right itself, leading to its eventual disrepute. The latter method has the advantage of using concepts which by their very nature and youth are more flexible and capable of accommodating indigenous rights. However these newer frameworks are usually considered as ‘soft law’ and unbinding in nature due to their youth.

3.1. Basic Individual Rights: The Right to Personal Integrity, Family and Movement

The dependence of indigenous communities on their land has been repeatedly emphasised by indigenous representatives in claims brought before the UN Human Rights Committee and within the framework of the OAS. Due to the spiritual, religious and social dimensions of indigenous land, the effects of indigenous land dispossession have been alleged to infringe the basic rights of indigenous peoples. Indigenous representatives have submitted evidence demonstrating the effects of land deprivation on indigenous communities’ rights to life; family; movement and health.40

The UN Human Rights Committee in Hopu and Bessert v France held that indigenous rights, in that case being the right to family, were to be interpreted by reference to the social practices and cultural traditions of the particular society.41 In their decision, the Human Rights Committee found that because the indigenous applicants’ relationship to their ancestors was of such an essential character, the gravesite of which they were dispossessed played ‘important role in the authors' history, culture and life’ and was to be restored to them.

3.2. Minority Rights: The Right to Culture

The right to culture has been broadly interpreted by the UN Human Rights Committee and European Court of Human Rights to include a minority’s ‘way of living off the land’ and applied to protect indigenous land rights.42 While limited state infringement of indigenous cultural rights was held to be permissible, any action resulting in the effective denial of such cultural rights would be illegal. In Lansmans v Finland, the Human Rights Committee held that state quarrying permits did not contravene Sami cultural practises of reindeer husbandry because the state had carried out prior consultations with the indigenous population, made efforts so as to minimise the effects of quarrying and that under the existing arrangements the Sami continued to benefit from reindeer husbandry.43

Though creative in its broad interpretation of cultural rights, the Human Rights Committee’s approach in addressing indigenous land claims in terms of cultural rights seems inadequate as it fails to capture indigenous land’s important non-cultural dimensions. Indigenous land is not only an element of their culture, but crucial in their communities’ social construct, economic livelihoods and very identity. Furthermore because cultural rights have been held by the Human Rights Committee to be purely individual rights they are unable to accommodate group right aspects of indigenous land claims.

3.3. Self-Determination

The concept of self-determination has evolved from political theory and aspiration to an international legal right of jus cogens status.44 Its intrinsic appeal and conceptual fluidity has resulted in an increasing variety of groups articulating their claims in terms of self-determination. Today, its exact content remains in flux.45 On one end of the spectrum some have denied the application of self-determination to any other situation than that of decolonisation while on the other end others have advocated a broad understanding of self-determination as the continuing process of democratic participation. 46

Self-determination was first applied to indigenous peoples in the 1994 UN Draft Declaration on the Rights of Indigenous Peoples, paraphrasing the right to self-determination of Article 1 of the International Covenant of Civil and Political Rights and the International Covenant on Social and Economic Rights.47 It has remained the UN Draft Declaration’s most controversial article in WGIP debates. Member states positions vary from defining self-determination to apply only to colonised peoples,48 to insisting that indigenous self-determination be expressly limited by reference to states’ territorial integrity,49 to those supportive of indigenous self-determination.50 Indigenous representatives see self-determination as being the conceptual basis of all other rights outlined in the UN Draft Declaration including indigenous land rights.51 The Special Rapporteur has sought to allay state fears of indigenous claims to secession based on self-determination by distinguishing between external self-determination or secession, limited only to cases of ‘alien rule’ and internal self-determination, defined as the continuing right of all peoples ‘to choose its political allegiance, to influence the political order in which it lives, and to preserve its cultural, ethnic, historical or territorial identity’52.

Indigenous people claim that due to their particular relationship with their land, certain land rights are deemed necessary for indigenous populations to exercise their rights to self-determination. Under the UN Draft Declaration and OAS Proposed Declaration both of which are conceptually based on indigenous self-determination, indigenous populations have a right to have their special relationship with their land recognised by states; a right to manage and control their land as well as participate in decisions that will affect their land.53 While States have not rejected the existence of these rights, they have protested certain aspects of its formulations that challenge the state’s political power and territorial control. Among state concerns are these rights’ retrospective effects on third party rights, their limits on states’ decisions for the benefit of the majority and the unequivocal right to certain remedies against the state. 54 In other words, states cannot and do not deny indigenous self determination as closely connected to indigenous land rights, what states do contest are the effects of such land rights on the state’s political power. 55

3.4. The Right to Environment

Though there has been an active push by interest groups towards recognizing a general right to the environment ever since the 1967 Stockholm conference, states’ consensus and commitment have only coalesced and resulted in conventions targeting specific environmental areas.56 Indeed the right to environment, first defined in the Stockholm declaration as ‘the fundamental right to freedom, equality and adequate conditions of life in an environment of a quality that permits a life of dignity and well-being’ has been subsumed under the rubric of sustainable development in the follow up Rio and Johannesburg summits.57 Indigenous land rights are recognised within the right to environment framework in two ways, first as instrumental rights towards effective environmental conservation or sustainable development and second as substantive rights in themselves granted to indigenous populations in recognition of environmental degradation’s disproportionate effect on such communities.

The 1992 Rio summit saw the adoption of various international instruments such as the Rio Declaration, Agenda 21, the Forest Principles and the Convention on Biological Diversity each of which recognised and articulated for the first time the link and contribution of indigenous peoples to environmental conservation.58 In 2002, the Johannesburg declaration and programme of action, each emphasised the importance of recognising indigenous people’s control and title over their land. 59

Aside from the above, in which indigenous land rights are seen as a means towards environmental conservation, indigenous peoples’ particular dependence on the environment has given them certain rights above that claimed by non-indigenous peoples. International indigenous rights instruments emphasise indigenous people’s right to a clean, healthy environment.60 These rights, which aim at preserving the quality and arable nature of indigenous land, elevates indigenous people’s rights to the environment into a sui generis category above the general right to environment.

3.5. The Right to Development

The right to declaration as set out in the 1986 United N Declaration on the Right to Development is non-binding in nature.61 Different aspects of this right have been used both by States and indigenous peoples in putting forth opposing arguments. It remains one of the most elusive third generation rights, criticised for putting form before content and schizophrenic in its many targeted objects and subjects.62 The right to development, as articulated in the 1986 Declaration is a multi-faceted, granting rights and imposing obligations between individuals, their communities and state as well as between states on the international plane. It is framed as an inalienable human right, and linked to the full realisation of self-determination.63 States have a right to formulate and implement national development programmes to enhance the well-being of the population with the condition that they be premised on the individual human being as beneficiary, participation of the citizenry and equal distribution of development’s benefits.64 Individuals in turn, though the subjects of this inalienable right have corresponding duties to the larger community in ensuring the promotion of development. 65

Beyond imposing general constraints on state developmental policies, the right to development has specifically impacted indigenous land rights. Its general developmental principles of participation and equal distribution have been applied to the state’s developmental relationship with indigenous peoples as reflected in the UN Draft Declaration on the Rights of Indigenous Peoples, the OAS’ Proposed Declaration on the Rights of Indigenous Peoples and the operational principles of various international financial lending institutions such as the World Bank.66 Indigenous consultation and participation rights serve as important procedural safeguards against developmental pressures on indigenous land.

3.6. State Acquisition of Indigenous Land: Identifying International Minimum Standards

Indigenous land rights at international law has been characterised by growth within different frameworks, each of which has had different implications on the content of indigenous land rights. Such piecemeal development has compromised on the certainty and coherence that a single framework would have provided. However the diversity of angles from which the question of indigenous land rights has been approached underscores not only the many substantive dimensions of the indigenous land but its important interaction and impact on other rights.

Upon careful examination of the various international frameworks certain minimum international standards in relation to the state’s acquisition of indigenous land rights can be identified. Firstly, indigenous land rights should be treated as sui generis and different from private individual land rights, the content of which is to be ascertained in accordance with indigenous perceptions. This will vary from tribe to tribe and from time to time as indigenous cultures and societies evolve. Secondly, states have to adhere to certain procedural rules when acquiring indigenous land. All frameworks whether that of culture, self-determination, environmental or development, oblige states to consult and include indigenous populations in land acquisition decisions which affect them.

Even with political will, the implementation of these minimum international norms in the domestic arena faces certain problems. The almost haphazard growth of indigenous land rights within different frameworks has caused uncertainty as to its content and binding nature. Because indigenous peoples make up marginalized minorities within States, their needs and interests are similarly seldom prioritised by majoritarian legislatures and governments. In most states, it has been the judiciary, prompted by international legal developments, that has spearheaded the recognition and implementation of indigenous land rights. Judges have been faced with the difficulty of transplanting international developments into national law, a difficulty caused by the uncertain and nonbinding nature of these developments themselves.

The Sagong Tasi case is an example in which the Malaysian judiciary, took note of international developments in indigenous land rights and attempted to incorporate such international legal developments into domestic law by progressive statutory and common law interpretation. The next part of this article shows how, though salutary in its intent, the Sagong Tasi judgment falls short of achieving minimum international standards and respectfully suggests how the court could have achieved these standards using the same judicial tools of statutory interpretation and common law development..

4. At the Crossroads of National and International Standards: Reinterpreting Sagong Tasi

4.1. Case Summary

In 1996, the plaintiffs, members of the Orang Asli Temuan tribe, were ordered by state authorities to vacate their homes at Kampung Bukit Tampoi, an area found the Selangor High Court to have been inhabited by the Temuan for at least 210 years. The state authorities sought to acquire the Temuan’s land, part of which consisted of a gazetted aboriginal reserve under the Aboriginal People’s Act, for the construction of a highway to the Kuala Lumpur International Airport. The plaintiffs were given 14 days to vacate their homes and monetary compensation for the loss of their homes and crops but not for their ancestral land. Unhappy with the lack of compensation for their ancestral land, the plaintiffs refused to relocate or accept the compensation offered by the State, resulting in their forced eviction by the police.

In Sagong Tasi, the Selangor High Court declared that the common law recognised aboriginal land ownership or Orang Asli native title separately from the aboriginal reserves and areas recognised and set up under the Aboriginal People’s Act. The Act, which explicitly does not require governmental compensation for acquired land, was held by the Selangor High Court to apply only aboriginal reserves and aboriginal areas set up under the Act and not to Orang Asli native title at common law. This restrictive interpretation of the Act coupled with liberal interpretation of the common law would require the Malaysian government to pay compensation for Orang Asli native title at common law. Such a restrictive interpretative of the Act by the court was also necessary to prevent the Aboriginal People’s Act from being inconsistent with Article 13 of the Federal Constitution which provides for compulsory governmental compensation for acquired land. The court also held that the valuation and acquisition of Orang Asli native title’s was to be determined in accordance to the Land Acquisition Act, the same regime applying to private registered title. Land as defined by section 2 of the Land Acquisition Act refers to ‘land occupied under customary right’. This was held to include the Orang Asli’s title to their ancestral land so as to achieve the purpose of the Land Acquisition Act to ensure adequate compensation for acquired land and the Federal Constitution’s guarantee of compensation for such acquisition in Article 13.67

The Sagong Tasi judgment recognised that Orang Asli land rights differed from private land rights in several ways. Orang Asli land was held to be ‘a form of native title’ based on ‘their laws and customs’, entitling them ‘to move freely about their land, without any form of disturbance or interference and also to live from the produce of the land itself, but not to the land itself (in the modern sense that the aborigines can convey, lease out, rent out the land or any produce therein)’68. And yet despite these differences, the Selangor High Court in Sagong Tasi proceeded to apply to Orang Asli native title, the same compensation regime governing private land rights. By implication, the court must have premised their decision on the fact that despite differences in content, Orang Asli native title and private title were to be considered as like goods when it came to determining compensation for the Malaysian Government’s compulsory acquisition.

This conclusion can be partially explained by Selangor High Court’s reasoning in Sagong Tasi. The court in Sagong Tasi based their finding of Orang Asli native title on the Orang Asli’s exclusive and continual occupation of their ancestral lands since time immemorial.69 Such reasoning though sufficient to ground an interest in land, unless linked to recognition of the Orang Asli as a legally distinct group, is in itself is not a ground for treating Orang Asli land interests differently from private land title. In arguing for different treatment of Orang Asli native title, the reason for treating Orang Asli land rights differently from private land rights when it comes to governmental acquisition needs to be addressed. This is because while Article 8 requires different cases to be treated differently, the case for legally recognising such differences has to be established beforehand.

The next section will show how a case for such different treatment of Orang Asli land rights can be made via national law, based on the Orang Asli’s status as a protected indigenous group. It then proceeds to outline how national legal concepts can be constructed to bring the Malaysian government’s compensation obligations in line with the substantive and procedural international legal standards outlined earlier on. Malaysian courts have explicitly recognised the need to ensure that the interpretation and application of domestic legislature is to be ‘in keeping with the worldwide recognition now being given to aboriginal rights’.70 Such an approach is consistent with recent indigenous land cases in which Malaysian courts looked to international law for guidance despite acknowledging the non-binding nature of these sources.71

4.2. The Unique Position of Orang Asli Land: Making the Case for Different Treatment

Article 8 of the Federal Constitution guarantees to Malaysian citizens the equal protection of laws. This right to equal treatment, has been broadly interpreted by the Malaysian courts in other cases as ‘a dynamic concept with many aspects and dimensions ..[which] cannot be imprisoned within traditional and doctrinaire limits’.72 Like must be treated with like and unlike with unlike. This article argues that due to its inherent differences, Orang Asli land should not be treated under the same compensation regime as private land.

The privileged position of the Orang Asli is enshrined in the Federal Constitution in three ethnic-specific provisions spelling out the Malaysian Government’s duties in relation to the Orang Asli’s welfare; namely Article 8(1) legitimising affirmative action in favour of the Orang Asli; Article 45(2) providing for the appointment of Senators ‘capable of representing the interest of the aborigines’ and Nine Schedule (List 1) vesting upon the Federal Government legislative duties for the ‘welfare of the aborigines’. Literal reading of these provisions give rise to a strong presumption that at the very least, the Orang Asli’s welfare is to be made a priority before other unmentioned ethnic groups.

Federal Constitutional provisions favouring the Malays, Orang Aslis and Orang Asals have specific historical origins.73 The Malays, as the dominant ethnic group in Malaya and the leading negotiators for Malaya’s independence from the British sought to cement their positions as Malaya’s ruling political elite due to fears of being threatened politically by more recent immigrant populations in particular, the Chinese who controlled commercial matters in British-colonial Malaya. The Orang Asal of Borneo also sought specific constitutional guarantees as pre-conditions for joining the Malaysia. The Orang Asli seem to have piggybacked on the Orang Asal’s claims, the latter’s privileges being more specifically spelt out in the Constitution than the former. Within the backdrop of Malaysia’s constitutional history, these specific constitutional guarantees with regards to the Orang Asal and the Orang Asli have to be understood in intent as guarantees against the Orang Asal and Orang Asli’s political marginalisation by what even then seemed to them as a dominant mainstream society and to preserve their unique identity within the Malaysian polity.

Pursuant to these constitutional provisions, specific legislative and administrative policies have been set up ostensibly for the benefit of Orang Aslis. Section 4 of The Aborigines Peoples Act recognises the Commissioner’s, an appointed government official, responsibility ‘for the general administration, welfare and advancement of the aborigines.’ The Charter of the Department for Orang Asli, set up under the same Act, aims to inter alia ‘reduce and subsequently eliminate poverty’, ‘improve the quality of life’ and ‘health’ of Orang Asli communities.74 The Department of Orang Asli Welfare’s 1961 policy statement, in effect today, recognize the ‘special position’ of Orang Asli and aims to ‘provide for their protection, well-being and advancement’.75

4.3. Adequate Compensation for the Different Dimensions of Indigenous Land

Blackstone in his exposition on the state’s right to compulsorily acquire land, states that the sanctity of property rights demand that they cannot be stripped in an ‘arbitrarily manner’ but must be compensated ‘by giving full indemnification and equivalent for the injury thereby sustained’.76 This emphasis on true compensation therefore requires the substantive differences between Orang Asli title and ordinary registered title to be considered when calculating the quantum of such compensation. Such substantive differences extend not only to the cultural value placed by the Orang Asli on their land but also the consequences of compulsory acquisition. This will be in line with the various international and regional pronouncements. As recognised by Special Rapporteur Jose R Martinez Cobo, the ‘relationship between indigenous peoples and their land [is] as basic to their existence as such and to all their beliefs, customs, traditions and culture’.77 This unique and fundamental relationship has been repeatedly recognized in various international forums. In 1991 the International Labour Organization recognised the ‘special importance for the cultures and spiritual values’ of indigenous peoples in their relationship with their land. 78 The Draft United Nations Declaration (hereinafter the UN Draft Declaration) on the Rights of Indigenous Peoples states the right of indigenous peoples to ‘maintain and strengthen their distinctive spiritual and material relationship with the land …’79 In 1997, the Organisation of American States’ proposed for consideration, a Declaration on the Rights of Indigenous Peoples (hereinafter the OAS Proposed Declaration) which acknowledged the ‘special relationship’ between indigenous peoples and their land that is a ‘necessary condition for their survival social organization, development and their individual and collective well-being’.80

The Selangor High Court in Sagong Tasi interpreted ‘land occupied under customary right’, as set out in the Land Acquisition Act’s Section 2, to include Orang Asli native title within its ambit.81 However even the court itself recognised that at the time of its codification, this phrase in Section 2 intended to target, not Orang Asli or Orang Asal land rights, but lands occupied under the tribal adat in Negeri Sembilan and Malacca.82 The Land Acquisition Act was never intended or drafted to accommodate within its scope the substantive compensation and procedural rights of Orang Asli native title.

Like many indigenous communities, the Orang Asli of Peninsula Malaysia depend on their ancestral land not only for their economic survival but for their cultural and social identity. The Sagong Tasi court took note of the fact that the Temuan at Kampung Bukit Tampoi have a belief system distinctly tied to their land.83 Before any activity is carried out on a specific plot of land, the ritual of ‘adat tanah’ in which certain spirits are called upon, has to be performed. The spirits of the Temuan dead, known to the community as ‘penunggu’ or spirits-in-waiting, are said to be tied to the land and guard the community. These spirits’ help and blessings are sought by the Temuan in all daily matters, from health to weather problems. Market-value compensation under the Land Acquisition Act does not give full expression to the cultural and spiritual significance of Temuan land. The Johore High Court in the case of Adong bin Kuwau v Kerajaan Negeri Johor, noted how ‘native land is a far cry from a titled land’, its spiritual and cultural value making it an unsuitable subject for the market-value test which applies in determining the compensation amount of registered.84

The incongruity of considering Orang Asli native title under the Land Acquisition Act as simply any other private registered title, lies not only in the former’s spiritual and cultural dimension but also in its collective and communal character. As defined in Sagong Tasi, Orang Asli native title consists of ‘the right to move freely about their land, without any form of disturbance or interference and also to live from the produce of the land itself, but not the land itself [in the modern sense that the aborigines can convey, lease out, rent out the land or any produce therein]’.85 This difference stems from the communal nature of Orang Asli native title. The land belongs to the community as a whole, not separately to the individuals within the community. This communal nature of native title also has a generational aspect as pointed out by Justice Chin in Nor Anak Nyawai v Borneo Pulp Plantation when he drew attention to the land value lost to future generations when indigenous land is compulsorily acquired from the community.86 This communal nature of native title varies from tribe to tribe and community to community. Justice Brennan of the Australian High Court, cited by the Selangor High Court in Sagong Tasi, recognizsd that while native title belonged to the aboriginal community as whole, individuals within the community could by its laws and customs possess proprietary individual rights over their respective parcels of land.87 The distinguishing factor between native title and modern registered title is that while native title is recognised and given effect by the common law of the modern legal system, its content is defined by the particular indigenous community’s own laws and customs.88 The legitimacy of dividing communal land into individual plots during the valuation process depends on the indigenous populations’ own value system.

Fifty percent of the Orang Asli live below the poverty line as compared to the national average of seven percent.89 There is also the prevalent problem of quitting school among Orang Asli children due to the lack of teachers and schools within or near Orang Asli settlements.90 Such marginalisation is worsened by forced displacement and encroachment of their traditional land which strips them of their heritage and cultural identity. Though there is significant out-migration of young Orang Asli into cities in search of work and a gradual embracing of more modern agricultural techniques by others, many Orang Asli communities still depend on subsistence farming and foraging as they live off their ancestral land in sharp contrast to the cash crop cultivation and high-tech farming encouraged and practised throughout the rest of the country. As recognised by Justice Chin in Nor Anak Nyawai, for the Iban tribe of Sarawak, the traditional longhouse and its ‘pemakai menoa’ [surrounding traditional land] play an especially important role in alleviating the poverty of Ibans, providing them with a home and means of subsistence, without which they would be reduced to ‘vagabonds in their own land’.91

The Johore High Court in the case of Adong Kuwau in seeking to take into consideration the cultural and social value of the Orang Asli’s land rights, doubled the market value of the land right concerned when awarding compensation to the plaintiff Orang Aslis. However the court also recognised the difficulties of giving an exact monetary valuation of the Orang Asli’s loss in interest of the land.92 Despite such difficulties, attempts to recognize the different dimensions of Orang Asli land are important as they serve as public acknowledgements and vindications of indigenous land’s unique status.93 Furthermore, other national and regional courts have in practice deemed moral compensation necessary for any mental and emotional suffering caused to indigenous peoples by the state’s illegal land dispossession.94 In line with this, the Sagong Tasi court awarded damages for trespass to the Orang Asli for the government’s summary acquisition of the Temuan’s land.

Adequate compensation should not only aim at placing an appropriate monetary value to Orang Asli land’s various dimensions but also to counter the full effects of indigenous land dispossession. As observed by the Johore High Court in Adong Kuwau: ‘An aborigine will not be in the same category as the other Malaysian citizen, for an aborigine has special attachment to his land and without any skill, education or way to live as the other communities, he would find it very difficult, if not impossible, to relocate himself and start afresh.’95 While resettlement and relocation is often necessary in large-scale developmental projects, the Malaysian government has an obligation to take into consideration not only the immediate effects of any relocation or resettlement but also the long-term sustainable development of Orang Asli communities within these settlements. Resettlement in modern plantations and estates, even when consented to by the Orang Asli, becomes meaningless without the retraining the Orang Asli in modern ways of farming. Resettlement should also seek to preserve the cultural and social framework of the Orang Asli, with sufficient land to cater to their community’s activities. As stressed in Operational Policy 4.12 of the World Bank that lays down guidelines on resettlement for donee states, resettlement land should be in ‘productive potential, locational advantages, and other factors at least equivalent to the advantages of the land taken’.96 This seeks to ameliorate the immense impact of resettlement on the lives of indigenous peoples.

4.4. Procedural Safeguards Beyond the Land Acquisition Act: Consultation and Participation

The Land Acquisition Act’s procedures fail to adequately take into consideration the needs and impact of land loss on the lives of indigenous peoples. The Land Acquisition Act only allows individuals to challenge the quantum of monetary compensation before the Land Acquisition Tribunal but not the decision of acquisition itself. This assumes that the government’s acquisition of Orang Asli land impact the Orang Asli community concerned in monetary terms alone. This assumption is based on mainstream perceptions of land as an economic factor of production. This fails to recognise that governmental acquisition of Orang Asli land has adverse consequences for indigenous peoples which go beyond that faced by non-Orang Asli citizens when their private registered titles are acquired by the government. Governmental acquisition of Orang Asli land should be carried out with special procedural safeguards that go beyond that recognised in the Land Acquisition Act.

State practice recognises the importance of carrying out consultation and negotiation with indigenous peoples when governments seek to acquire indigenous land. The 1997 Canadian Calder case stressed the importance of consultation, negotiation and adequate compensation as preconditions of acquiring indigenous land.97 This policy of mutual respect has been adopted by the Canadian State in opting for negotiated settlements of tribal claims.98 New Zealand’s Waitangi Tribunal has interpreted the Waitangi Treaty as establishing a partnership between Maoris and the state, requiring the holding of adequate consultations between state authorities and Maori communities before land use decisions can be made.99

The UN Draft Declaration’s Article 10 stresses that no indigenous peoples should be ‘forcibly removed’ from their ancestral land while relocation should take place only with ‘free and informed consent’ and ‘just and fair compensation’.100 This is repeated in Article 18.6 of the proposed Inter-American declaration which states that no relocation of indigenous peoples should be carried out without ‘the free, genuine, pubic and informed consent’, ‘prior compensation’ and ‘prompt replacement’ of land.101 These international documents require free and informed consent which can only be acquired through consultation and negotiation and proper resettlement as conditions of state acquisition of indigenous land. The UN Human Rights Committee has also emphasised the need for state consultation directly involving indigenous populations when indigenous rights to culture are to be affected by state action.102

Article 27 of the UN Draft Declaration states that ‘unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status’. Convention No 169’s Article 16.4 stresses that indigenous peoples whose land have been acquired should be ‘provided in all possible cases with lands of quality and legal status at least equal’ to the land lost. Compensation in money or in kind should only be allowed if requested by the indigenous peoples concerned. Article 16.2 of the ILO Convention No. 169 stresses that relocation is to be carried out only in ‘exceptional circumstances’ and if the ‘free and informed consent’ of the indigenous peoples concerned is not obtained, relocation procedure should ensure the ‘effective representation’ of the indigenous peoples concerned. Article 10 of the UN Draft Declaration states that ‘No relocation shall take place without the free and informed consent of the indigenous peoples concerned ...’

More explicit elaboration on the guiding principles that states are to follow during the process of acquiring indigenous land can be found in the practice of international and regional organisations. The World Bank, committed to the protection of indigenous peoples all around the world, has drawn up operational policies and procedures based on the self-determination of indigenous peoples, which donee States have to adhere to in order to qualify for its Bank loans. This signifies a welcome shift in the World Bank’s approach towards indigenous peoples, from mere protectionism to empowerment, as evidenced by Draft Operational Policy/ Bank Procedure 4.10 (hereinafter OP/BP 4.10) which seeks to replace Operational Directive 4.20.103 While OD 4.20 aimed to ‘ensure that indigenous peoples do not suffer adverse effects during the development process’, Draft OP/BP 4.10 seeks to ‘provide them a voice in design and implementation’ so as to ‘avoid adverse effects’. Draft OP/ BP 4.10 imposes on the donee State three broad undertakings: a screening stage to determine if any indigenous populations will be potentially affected by the project; a consultation stage with indigenous peoples impacted by the project; the designing of an Indigenous Peoples Plan that aims to avoid, minimise and mitigate the adverse effects on indigenous populations.104

5. Conclusion

The Sagong Tasi decision has been hailed as revolutionary with its formal recognition of Orang Asli land title at common law. However as this article shows, the court’s equating of Orang Asli land title to private registered title to be compensated pursuant to its market value and with procedures which fail to accord adequate consideration to Orang Asli interests, fails to recognise the various spiritual, religious, cultural and communal dimensions of Orang Asli land. As demonstrated in this article, the right to equality as articulated in the Federal Constitution as well as international developments in indigenous land rights require states to protect and give effect to the various dimensions of Orang Asli land by respecting certain procedural and substantive safeguards when seeking to acquire Orang Asli land. The Sagong Tasi judgment, in failing to recognise this, is at best a partial victory for Orang Asli land rights.

Endnotes

1Nicholas, Colin (2001) 'Suhakam and the Indigenous People’s Question’, Paper presented at the National Consultation on ‘Suhakam after 1 Year: Has the State of Human Rights Improved in Malaysia’, 5 May 2001, Kuala Lumpur.

2 For a description of the situation faced by indigenous peoples today, see generally Wiessner, Siegfried (1999) ‘Rights and Status of Indigenous Peoples: A Global Comparative and International Analysis’, Harvard Human Rights Journal 17, pp 58 – 126; Stavenhagen, Rodolfo (2002) ‘Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples’, E/CN.4/2002/97, 4 February 2002, pp 12 -14, 34 -91.

3 After Suhakam’s consultation exercises with Orang Asli communities, Suhakam Commissioner Datuk Asiah Abu Samah observes that among the common complaints of Orang Asli communities ‘were those concerning land, payment of compensation, the location of their new settlements and basic facilities, causing them to feel that no one cares about their rights’. She also observed that ‘they [the Orang Asli] feel that when their land is taken away, they are not paid appropriate compensation or payment is delayed. Also in their new settlement-area they are unable to do the things they usually do such as hunting for forest produce’. Bernama National News Agency (2003) ‘Suhakam Report on Orang Asli Basic Rights Ready Next Week’, 15 December 2003.

4 Sagong Tasi and Others v Kerajaan Negeri Selangor and Others [2002] 2 CLJ 543.

5 Ibid, at para 11.

6 See the Population and Housing Census of Malaysia 1991: General Report of the Population Census, Vol 1, Department of Statistics, Kuala Lumpur.

7 Prior to this the Orang Asli were not recognised by the State as a distinct ethnic group. Colonialists referred to the various tribes collectively by the derogatory term ‘sakai’ and discriminated against them. However during the community insurgency, Orang Asli tribes were wooed and sympathised with by the communists who referred to them respectfully as ‘Orang Asal’ or original peoples. The colonial government responded by adopting the term ‘Orang Asli’, whose meaning is similar to that of ‘Orang Asal’ in an attempt to win them over. Nicholas, Colin (2000). The Orang Asli and the Contest for Resources: Indigenous Politics, Development and Identity in Peninsula Malaysia. (International Work Group for Indigenous Affairs: Copenhagen), p 6.

8 For a breakdown of groups, see http://www.jheoa.govmy/e-orangasli.htm

9 Nicholas, supra note 7, pp 18 – 20.

10 The National Forestry Act 1984 declares all forest produce under the state ownership, prohibiting its removal without a license. The National Land Conservation Act 1969 prohibits the clearing of hill land or the planting of short-term crops without a permit from the Collector. The Land (Group Settlement Areas) Act 1969 empowers federal agencies such as the Federal Land Development Authority (FELDA) to acquire large tracts of undeveloped land for the purpose of rural development. While the Orang Asli are seldom beneficiaries of such plans, their land and means of livelihood are very often lost when subject to acquisition under these very plans.

11 National Land Code, Act 56 of 1965.

12 The old provision read ‘by any person or corporation undertaking a work which in the opinion of the State Authority is of public utility’ and was amended by Act A804, section 3(b) and came into force on 13 September 1991.

13 Yew Lean Finance Development (M) Sdn Bhd v Director of Lands and Penang [1977] 2 MLJ 45, p 48. Notification that acquired for residential, industrial and public purposes-argued that these purposes were ‘vague’ therefore null. Held: no need to specify purposes cause may be impractical, no need to choose which sublimb to come under despite ‘or’-p 48.

14 Buang p3 section 8(3) of LAA that says that any declaration of the state authority in Form D is ‘conclusive evidence’ that public purpose-therefore combined effect of section 3 and section 8(3) places purpose beyond challenge-only can challenge acquisition mala fide or that acquiring authority had misconstrued its statutory powers. Syed Omar bin Abdul Rahman Taha Alsagoff and Anor v Govt of Johore [1979] 1 MLJ 49 (the respondent had acquired some 5700 acres of land belonging to the appellant for which only 2,000 acres were actually needed by the respondent for its Pasir Gudant Port project whilst the remaining 3,700 acres was marked somewhat vaguely as being required for some ‘special purposes’-challenged this part arguing that will be used for purposes not allowed under LAA. It was held that ‘no obligation’ to produce evidence of what land used for, section 8(3) declaration conclusive-can challenge if misconstrued powers or mala fide but not ‘by asserting that some of the land to which it relates is not needed for the purposes state or that the land is in fact wanted for purposes other than those specified’.

15 Aboriginal Peoples Act, Act 134 of 1954.

16 Nicholas, Colin (undated) ‘The Orang Asli of Peninsula Malaysia’, Report by Centre of Orang Asli, http://www.xlibris.de/magickriver/oa.htm

17 Ibid.

18 See official website of Department of Orang Asli Affairs at www.jheoa.govmy

19 Sagong bin Tasi, supra note 4, para 14(2).

20 Ibid.

21 See official website of Department of Orang Asli Affairs, supra note 18.

22 Only 35 percent of the Department of Orang Asli Welfare’s staff are Orang Aslis. The Peninsular Malaysia Orang Asli Association (POASM), the country’s only Orang Asli political party was denied registration twice and once threatened with delisting by the state. See Yap Mun Ching (2002) ‘For A Voice the Orang Asli Can Call their Own’, Malaysiakini, 31 August 2002 http://www.malaysiakini.com

23 The Department admitted the acquired land was the ancestral land of the plaintiffs and recommended that the state pay compensation of RM 560 535 under sections 11 and 12 of the Aborigines Peoples Act, at 425.

24 Nicholas, supra note 6, pp 122-126, describing the how the Malaysian government has increasingly contracted development projects to be undertaken on Orang Asli land to private companies.

25 Adong Bin Kuwau and Others v Kerajaan Negeri Johor and Anor [1997] 1 MLJ 418.

26 Ibid at 429.

27 Ibid.

28 Sagong Tasi, see supra note 4.

29 Ellickson, Robert C (1993) ‘Property in Land’, Yale Law Journal 102, p 1315 (exploring the different conceptions in land ownership and their underlying ideologies today).

30 Black, Conrad (1992) ‘Why Israel is Still an Economic Basket Case’, Jerusalem Post, 27 August 1992, (quoting 93 percent figure); Basic Law: Israel Lands, 14 L.S.I. 48 (1960), reprinted in Blaustein, Albert P and Flanz, Gisbert H (eds) (1988) 8 Constitutions of the Countries of the World. In reality, the State of Israel commonly transfers land to collective farms and cooperative settlements by long-term renewable lease at nominal rent. See Smith, Harvey H et al (1970). Area Handbook for Israel, p 289.

31 Elllikson, supra note 29 at p 12; van den Berghe, Pierre L and Peter, Karl A (1988) Hutterites and Kibbutzniks: A Tale of Nepotistic Communism’, Man 23, p 522.

32 Anaya, James (1987) The Capacity of International Law to Advance Ethnic or Minority Claims, Iowa Law Review 75, pp 843-4.

33 The Human Rights Situation of Indigenous Peoples in the Americas, Chapter III at 6.A; Yanomani Resolution 12/85 herein and in IACHR Annual Report 1985, p. 24; ‘Report on the situation of human rights of a sector of the Nicaraguan population of Miskito origin,’ OAS/Ser.L/V/II.62. Doc 10 rev3 and doc. 26, Washington DC, 1984, pp138-9; Report on the Situation of Human rights in Ecuador. OAS/Ser. L/V/II.96.Doc.10, rev 1, April 24, 1997, p 115.

34 Anaya, supra note 32

35 This is demonstrated in states repeatedly resisting the articulation of indigenous self-determination in the UN Draft Declaration due to fears of secession, Report of the Working Group established in accordance with Commission on Human Rights Resolution 1995/32 in the Consideration of a Draft United Nations Declaration on the Rights of Indigenous Peoples, UN Doc E/CN.4/1998/106 at para 44 (d)-(g).

36 Convention concerning Indigenous and Tribal Peoples in Independent Countries, 5 September 1991, ILO Official Bulletin 72.

37 United Nations Draft Declaration on the Rights of Indigenous Peoples, UN Doc E/CN.4/Sub.2/1993/29, Annex 1.

38 Proposed American Declaration on the Rights of Indigenous Peoples, approved by the Inter-American Commission on Human Rights on February 26, 1997, at its 1333rd session, 95th Regular Session.

39 Kingsbury distinguishes and explores five difference conceptual structures which have been used by indigenous peoples to advance their claims at international law: human rights and non-discrimination claims, minority claims, self-determination claims, historic sovereignty claims, claims as indigenous peoples, including claims based on treaties or other agreements between indigenous peoples and states.

See Kingsbury, Benedict (2001) ‘Reconciling Five Competing Conceptual Structures of Indigenous Peoples’ Claims in International and Comparative Law’, in Alston, Phillip (ed) People’s Rights (Oxford: Oxford University Press), p 89.

40 Though the decisions of the Inter-American Human Rights Commission and court conventional obligations, these conventional rights are also enshrined in various universal international instruments and are arguably part of customary international customary law.

41 Hopu and Bessert v France, UN GAOR, 52d Sess, Supp No 40, at 70, UN Doc A/52/40 (1997) at 79.

42 Omniyak v Canada, UN GAOR, 45th Sess, Supp No 40, Annex 9, at 27, UN Doc A/45/40 (1990) in which the HRC found that the failure to assure to the Lubicon Lake Band a reservation to which it had a strong claim and the effect on the Band of certain recent developments including oil and timber concessions ‘threaten the way of life and culture of the Lubicon Lake Band, and constitute a violation of Article 27 so long as they continue.’; Lansman v Finland (No. 1), Commission on Civil and Political Rights, 57th Sess, pt. 1, at 74, 84, 85, UN Doc CCPR/C/57/1 (1996); G and E v Norway, Apps No 9278/81 and 9415/81, 35 European Commission on Human Rights December and Report 30, 35 (1984) in which the ECHR stated that ‘a minority group is, in principle, entitled to claim the right to respect for the particular life style it may lead’.

43 Lansman v Finland (No. 1), Commission on Civil and Political Rights, 57th Sess, pt. 1, at 74, 84, 85, UN Doc CCPR/C/57/1 (1996).

44 Barecelona traction, self-determination is jus cogens.

45 For an overview on the recent developments on the right to self-determination, see generally, Crawford, James (2001) ‘The Right to Self-Determination in International Law’, inAlston, Phillip (ed) People’s Rights (Oxford: Oxford University Press).

46 Ibid.

47 United Nations Draft Declaration on the Rights of Indigenous Peoples, supra note 37, Art 3.

48 Report of the working group established in accordance with Commission on Human Rights resolution 1995/32 (Geneva, 18-29 October 1999), E/CN.4/2000/84, 6 December 1999, see comments of the United States at para 49, Australia at para 62.

49 Ibid. See comments of Argentina at para 62, Guatemala at para. 73, New Zealand at para 78.

50 Ibid. See comments of Canada at para 50, Brazil at para 53, Ecuador at para 56, Switzerland at para. 64, Pakistan at para. 67, Finland at para. 70, Norway at para 81.

51 Ibid at para. 43, 58.

52 Explanatory note concerning the draft declaration on the rights of indigenous peoples by Erica-Irene A Daes, Chairperson of the Working Group on Indigenous Populations, E/CN.4/Sub.2/1993/26/Add.1
19 July 1993 at para 17, 19 [hereinafter Explanatory note on indigenous self-determination].

53 UN Draft Declaration supra note 47, Art 25-28; Proposed American Declaration on the Rights of Indigenous Peoples, approved by the Inter-American Commission on Human Rights on February 26, 1997, at its 1333rd session, 95th regular session, Art XXIV & XXV.

54 Report of the working group established in accordance with Commission on Human Rights resolution 1995/32 (Geneva, 2 to 13 December 2002) E/CN.4/2003/92, 6 January 2003, see para 29; 49.

55 Ibid at para 29.

56 The United Nations Conference on the Human Environment, met at Stockholm from 5 to 16 June 1972 to discuss the need on establishing a common global outlook towards preserving our environment.

57 Declaration on Environment and Development: Report of the United Nations Conference on the Human Environment, Principle 1, UN Doc A/CONF.48/14/Rev1 (1972), 11 I.L.M. 1416 (‘the Stockholm Declaration’), in contrast see Rio Declaration on Environment and Development, Principle 1, UN Doc. A/CONF.151/26/Rev1 (1992), in UN Conference on Education and Development, Agenda 21: Programme of Action for Sustainable Development 7, UN Sales No E.93.I.11 (1993) stating ‘Human beings are at the center of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature’.

58 Rio Declaration on Environment and Development, UN GAOR Preparatory Commission for the United Nations Conference on Environment and Development, 4th Sess, Principle 1, UN Doc A/CONF.151/PC/WG.III/L.33/Rev 1 (1992) (hereinafter Rio Declaration).Principle 22 affirms that: ‘Indigenous People and their communities, and other local communities, have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognise and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development’. Earth Summit Agenda 21: The United Nations Programme of Action From Rio 3, UN Sales No E.93.I.11 (1993) (hereinafter Agenda 21)., Chapters 11 and, particularly, Chapter 26. Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests, Report of the UN Conference on Environment and Development (Rio de Janeiro), Annex III, UN Doc A/CONF.151/26 (Vol III) (1992), paras 2.d, 5.a, 6.d, 8.f, 12,d.Convention on Biological Diversity, June 5, 1992, 31 I.L.M. 818, 823 (1992) (hereinafter Biodiversity Convention). Article 8 part (J).

59 Johannesburg World Summit on Sustainable Development, Declaration and Plan of Implementation http://www.johannesburgsummit.org/html/documents/summit

60 ILO Convention No 26, supra note 36, Art 4; UN Draft Declaration, supra note 37, Art 28. The Draft Declaration of Principles on Human Rights and Environment of 6 July 1994.

61 Declaration on the Right to Development, art. 6, GA Res 41/128, UN GAOR, 41st Sess, Supp No. 53, at 186, UN Doc. A/41/53 (1986).

62 Brownlie, Ian (1989) ‘The Human Right to Development’, Human Rights Unit Occasional Paper 11 Commonwealth Secretariat, November 1989 who has criticised the Declaration and predicted that it will ‘blur the conceptual profile and make the task of promulgation of the right the more difficult’; Carty (1984) ‘From the Right to Economic Self-Determination to the Right to Development: A Crisis in Legal Theory’, Third World Legal Studies 73, 75 who has criticised the right to development as the ‘a crisis in legal theory, because it encompasses a determined attempt to place material content before form and yet retain whatever advantages are supposed to attach to the use of legal language.’

63 Declaration on the Right to Development, Art 1.1.

64 Ibid, Art 2.

65 Ibid, Art 2.2.

66 UN Draft Declaration on the Rights of Indigenous Peoples, supra note 37, Art 23, 27, 30; OAS Proposed Declaration on the Rights of Indigenous Peoples, Art XX.2, XXIV7; see generally Involuntary Resettlement, The World Bank Operational Manual, OP 4.12, www.worldbank.org

67 Sagong bin Tasi, supra note 4 at para14.2

68 Ibid at para 11.

69 Ibid at para 11 (1); the origins of arguments for native title to be founded on occupation time memorial can be argued to be based on English land law concepts of possession, see Bryan, Bradley (2000) ‘Property as Ontology: On Aboriginal and English Understandings of Ownership’, Canadian Journal of Law and Jurisprudence 13, pp 10-11.

70 Sagong bin Tasi, ibid.

71 Ibid.

72 Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan and Anor [1996] 1 MLJ 261, 284.

73 Tun Mohamed Suffian (1976) Introduction to the Malaysian Constitution, 2nd Ed, 1976.

74 http://www.jheoa.govmy/index-malay.htm

75 Sagong bin Tasi, see supra note 4 at para 14.2

76 Blackstone, Commentaries on the Laws of England, 14th edition, p. 264.

77 Study of the Problem of Discrimination Against Indigenous Populations, E 86. XIV3 vol 5, paras. 196-197.

78 Convention concerning Indigenous and Tribal Peoples in Independent Countries, 5 September 1991, 72 ILO Official Bull, Art 13.

79 Draft United Nations Declaration on the Rights of Indigenous Peoples, supra note 37, Art 25.

80 Proposed American Declaration on the Rights of Indigenous Peoples, supra note 38, preamble.

81 Sagong bin Tasi, supra note 4 at para. 13 (2)

82 Ibid.

83 Ibid at para. 9-10.

84 Adong Bin Kuwau, supra note 25

85 Sagong bin Tasi, see supra note 4 at para. 11 (1).

86 Nor Anak Nyawai and Others v Borneo Pulp Plantation Sdn Bhd and Others [2001] 2 CLJ 769 at 51.

87 Sagong bin Tasi, see supra note 4 at para 11(2).

88 ‘The nature of native title must be ascertained by reference to the traditional laws and customs of the indigenous inhabitants of the land. Native title does not have the customary incidents of common law title to land, but it is recognized by the common law.Pareroultja and Ors v Tickner and Others (1993) 117 ALR 206 at 213, cited by Adong Kuwau, supra note 25.

89 New Straits Times (2003) ‘Move to Boost Orang Asli Productivity’, 22 February 2003.

90 Bernama National News Agency (2002) ‘Problem of Drop-outs Among Orang Asli Children to be Tackled’, 2 September 2002.

91 Nor Nyawai, see supra note 86 at 51-53.

92 OAS Indigenous Rights Report, supra note 33.

93 Ibid.

94 Ibid.

95 Adong bin Kuwau, see supra note 84.

96 Involuntary Resettlement, The World Bank Operational Manual, OP 4.12, available at: www.worldbank.org.

97 Calder v British Columbia [1997] SCR 313.

98 On 25 May 1993, Canadian Prime Minister Brian Mulroney and Inuit tribal leaders signed the Nunavut Land Claim Agreement, and historic indigenous land claim settlement, both in its size and in its establishment of a separate Canadian territory. See Kersey, Alexandra (1994) ‘The Nunavet Agreement: A Model for Preserving Indigenous Rights’, Arizona Journal of International and Comparative Law 11, p 429.

99 For a description on the interaction between the Waitangi Tribunal, the Treaty of Waitangi and the New Zealand government, see Havemann, Paul (1999) Indigenous peoples' rights : in Australia, Canada, and New Zealand (Auckland: Oxford University Press).

100 UN Draft Declaration, see supra note 47.

101 Inter-American proposed declaration, see supra note 53.

102 Human Rights Committee General Comment 23 on Article 27 (15th Session, 1994), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI\GEN\1\Rev1 at 38 (1994), para 8.

103 Comparison of Draft OP/ BP 4.10 (03/23/01) with OD 4.20 (9/91), available at www.worldbank.org.

104 Specific steps have been drawn up to guide Bank employees in carrying out these three stages. Id.

References

Anaya, James (1987) ‘The Capacity of International Law to Advance Ethnic or Minority Claims’, Iowa Law Review 75, p 837.

Bernama News Agency (2003) ‘Suhakam Report on Orang Asli Basic Rights Ready Next Week’, 15 December 2003.

Bernama News Agency (2003). ‘Problem of Drop-outs Among Orang Asli Children to be Tackled’, 2 September 2002.

Black, Conrad (1992) ‘Why Israel is Still an Economic Basket Case’, Jerusalem Post , 27 Auguest 1992.

Blackstone, William (1773) Commentaries on the Law of England (Oxford: Clarendon Press, 4th Eds.)

Brownlie, Ian (1989) ‘The Human Right to Development’, Human Rights Unit Occasional Paper, 11 (London: Commonwealth Secretariat).

Bryan, Bradley (2000) ‘Property as Ontology: On Aboriginal and English Understandings of Ownership’, Canadian Journal of Law and Jurisprudence 13, pp 3, 10.

Crawford, James (2001) ‘The Right to Self-determination in International Law’, in Alston, Phillip (eds) People’s Rights (Oxford: Oxford University Press).

Ellickson, Robert (1992) ‘Property in Land’, Yale Law Journal 102, p1315.

Jabatan Hal Ehwal Orang Asli (JHEOA) http://www.jheoa.govmy/e-orangasli.htm

Kersey, Alexandra (1994) ‘The Nunavet Agreement: A Model for Preserving Indigenous Rights’, Arizona Journal of International and Comparative Law 429.

Kingsbury , Benedict (2001) “Reconciling Five Competing Conceptual Structures of Indigenous Peoples’ Claims in International and Comparative Law”, New York University Journal of International Law and Politics 34, p 89.

New Straits Times (2003) ‘Move to Boost Orang Asli Productivity’, 22 February 2003.

Nicholas, Colin (2001) ‘Suhakam and the Indigenous People’s Question’, Paper presented at the National Consultation on ‘Suhakam after 1 year: Has the State of Human Rights Improved in Malaysia’, Kuala Lumpur, 5 May 2001.

Nicholas, Colin (2000) The Orang Asli and the Contest for Resources: Indigenous Politics, Development and Identity in Peninsula Malaysia (Copenhagen: International Work Group for Indigenous Affairs).

Nicholas, Colin (1997) ‘The Orang Asli of Peninsula Malaysia’, Report by Center of Orang Asli,, http://www.xlibris.de/magickriver/oa.htm

Van den Berghe, Pierre L and Peter, Karl A (1988) ‘Hutterites and Kibbutzniks: A Tale of Nepotistic Communism’, MAN 23, p 522.

Tan Sri Mohamed Suffian bin Hashim (1972) An Introduction to the Constitution of Malaysia (Kuala, Lumpur : Di-chetak di-Jabatan Chetak Kerajaan).

Wiessner, Siegfried (1999) ‘Rights and Status of Indigenous Peoples: A Global Comparative and International Analysis’, Harvard Human Rights Journal 12, p 57.

World Bank (2004). ‘Involuntary Resettlement’, Operational Policy 4.12. Available here

Yap Mun Ching (2002) “For a Voice the Orang Asli can call their own”, Malaysiakini, 312 August 2002. Available at: http://www.malaysiakini.com

Cases

Adong Bin Kuwau and Ors v Kerajaan Negeri Johor and Anor [1997] 1 MLJ 418

Calder and British Columbia [1997] SCR 313

Nor Anak Nyawai and Ors v Borneo Pulp Plantation Sdn Bhd and Ors [2001] 2 CLJ 769

Pareroultja and Ors v Tickner and Ors (1993) 117 ALR 206

Sagong Tasi and Ors v Kerajaan Negeri Selangor and Ors [2002] 2 CLJ 543.

Syed Omar bin Abdul Rahman Taha Alsagoff and Anor v Govt of Johore [1979] 1 MLJ 49

Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan and Anor [1996] 1 MLJ 261, 284.

Yew Lean Finance Development (M) Sdn Bhd v Director of Lands and Penang [1977] 2 MLJ 45

Statutes/ Executive Documents

Aboriginal Peoples Act (Act 134 of 1954)

Population and Housing Census of Malaysia 1991: General Report of the Population Census, Vol 1, Department of Statistics, Kuala Lumpur.

National Land Code (Act 56 of 1965)

The National Forestry Act 1984

The National Land Conservation Act 1969

The Land (Group Settlement Areas) Act 1969

UN Documents

Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples, E/CN.4/2002/97, 4 February 2002

Report of the Working Group established in accordance with Commission on Human Rights Resolution 1995/32 in the Consideration of a Draft United Nations Declaration on the Rights of

Indigenous Peoples, UN Doc. E/CN.4/1998/106

Convention concerning Indigenous and Tribal Peoples in Independent Countries, 5 September 1991, 72 ILO Official Bull

Proposed American Declaration on the Rights of Indigenous Peoples, approved by the Inter-American Commission on Human Rights on February 26, 1997, at its 1333rd Session, 95th regular Session

United Nations draft declaration on the rights of indigenous peoples, UN Doc. E/CN.4/Sub.2/1993/29, Annex 1

Hopu and Bessert v France, UN GAOR, 52d Sess., Supp. No. 40, at 70, UN Doc. A/52/40 (1997)

Omniyak v Canada, UN GAOR, 45th Sess., Supp. No. 40, Annex 9, at 27, UN Doc. A/45/40 (1990) Lansman v Finland (No. 1), Comm. on Civil and Political Rights, 57th Sess., pt. 1, at 74, 84, 85, UN Doc. CCPR/C/57/1 (1996)

G. and E. v Norway, Apps. No. 9278/81 and 9415/81, 35 Eur. Comm'n H.R. Dec. & Rep. 30, 35 (1984)

Report of the working group established in accordance with Commission on Human Rights resolution 1995/32 (Geneva, 18-29 October 1999), E/CN.4/2000/84

Explanatory note concerning the draft declaration on the rights of indigenous peoples by Erica-Irene A. Daes, Chairperson of the Working Group on Indigenous Populations, E/CN.4/Sub.2/1993/26/Add.1 19 July 1993

Report of the working group established in accordance with Commission on Human Rights Resolution 1995/32 (Geneva, 2 to 13 December 2002) E/CN.4/2003/92, 6 January 2003

Declaration on Environment and Development: Report of the United Nations Conference on the Human Environment, Principle 1, UN Doc. A/CONF.48/14/Rev1 (1972), 11 I.L.M. 1416 (‘the Stockholm Declaration’)

Rio Declaration on Environment and Development, UN GAOR Preparatory Commission for the United Nations Conference on Environment and Development, 4th Sess., princ. 1, UN Doc A/CONF.151/PC/WG.III/L.33/Rev 1 (1992) [hereinafter Rio Declaration]

Earth Summit Agenda 21: The United Nations Programme of Action From Rio 3, UN Sales No. E.93.I.11 (1993) [hereinafter Agenda 21].

Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests, Report of the UN Conference on Environment and Development (Rio de Janeiro), Annex III, UN Doc. A/CONF.151/26 (Vol III) (1992), (par. 2.d, 5.a, 6.d, 8.f, 12,d)

Convention on Biological Diversity, June 5, 1992, 31 I.L.M. 818, 823 (1992)

Johannesburg World Summit on Sustainable Development, Declaration and Plan of Implementation, available at http://www.johannesburgsummit.org/html/documents/summit

The Draft Declaration of Principles on Human Rights and Environment of 6 July 1994

Declaration on the Right to Development, art. 6, G.A. Res. 41/128, UN GAOR, 41st Sess., Supp. No. 53, at 186, UN Doc. A/41/53 (1986)

Study of the Problem of Discrimination Against Indigenous Populations, E. 86. XIV3 vol 5

Convention concerning Indigenous and Tribal Peoples in Independent Countries, Sept. 5, 1991, 72 ILO Official Bull

Human Rights Committee General Comment 23 on Article 27 (Fiftieth session, 1994), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI\GEN\1\Rev1 at 38 (1994), para. 8

International Documents

The Human Rights Situation of Indigenous Peoples in the Americas, Chapter III at 6.A; Yanomani Resolution 12/85 herein and in IACHR Annual Report 1985

Report on the Situation of Human Rights of a Sector of the Nicaraguan Population of Miskito Origin, OAS/Ser.L/V/II.62.doc 10 rev3 and doc. 26, Washington, DC, 1984

Report on the situation of human rights in Ecuador. OAS/Ser. L/V/II.96.Doc.10, rev 1, April 24, 1997

Proposed American Declaration on the Rights of Indigenous Peoples, approved by the Inter-American Commission on Human Rights on February 26, 1997, at its 1333rd session, 95th regular session, Art XXIV & XXV