LAND ACQUISITION OF LAND ACQUISITION OF ABORIGINAL LAND IN ABORIGINAL LAND IN MALAYSIA MALAYSIA

by Mdm Hamimah Hamzah, by Mdm Hamimah Hamzah, AIKOL. (Oct. 12, 2009)AIKOL. (Oct. 12, 2009)

Who are the ‘Aborigines’ ?Who are the ‘Aborigines’ ?

• ““communities, tribes, sub-groups, communities, tribes, sub-groups, bands or individual aborigines bands or individual aborigines

forming part of any ‘aboriginal racial forming part of any ‘aboriginal racial group’ “ as defined in s. 2 of the group’ “ as defined in s. 2 of the

Aboriginal Peoples Act 1954 (APA) Aboriginal Peoples Act 1954 (APA)

““Aboriginal racial group”Aboriginal racial group”

• Means one of the Means one of the three main three main aboriginal groups aboriginal groups in West Malaysia in West Malaysia divided racially divided racially into:into:

1) Negrito1) Negrito

2) Senoi2) Senoi

3) Proto-Malay3) Proto-Malay

‘‘Negrito-Kensiu’Negrito-Kensiu’

• KintakKintak• JahaiJahai• LanohLanoh• MendriqMendriq• BatekBatek

Negrito comprises 2.6 per Negrito comprises 2.6 per cent of the OA population, cent of the OA population, is the smallest of these is the smallest of these three categories. three categories. Traditionally they were Traditionally they were nomadic foragers, living in nomadic foragers, living in one location as long as the one location as long as the food supply was able to food supply was able to maintain the community. maintain the community. Today however, many of Today however, many of the Negrito groups live in the Negrito groups live in permanent settlements in permanent settlements in government resettlement government resettlement and regroupment and regroupment schemes. schemes.

‘‘SENOI’SENOI’

2) Senoi- Semai2) Senoi- Semai TemiarTemiar Jah HutJah Hut Che WongChe Wong Mah MeriMah Meri Semoq BeriSemoq Beri

• Senoi are the largest Senoi are the largest group with about 56 group with about 56 per cent of the OA per cent of the OA population. population.

• Were dependent on Were dependent on the forest for their the forest for their subsistence in the subsistence in the past. Today many past. Today many Senoi have taken to Senoi have taken to permanent agriculture permanent agriculture and participate in the and participate in the wage sector.wage sector.

‘‘PROTO-MALAY’PROTO-MALAY’

3) Temuan3) Temuan

SemelaiSemelai

JakunJakun

Orang KanaqOrang Kanaq

Orang KualaOrang Kuala

Orang SeletarOrang Seletar

• At about 41 per At about 41 per cent of the OA cent of the OA population, the population, the Proto-Malay are the Proto-Malay are the second largest second largest group of the OA. group of the OA. Mainly in Mainly in permanent permanent agriculture and agriculture and fishing.fishing.

Common-FeatureCommon-Feature

• Although the various OA subgroup Although the various OA subgroup differ in origins, physical features differ in origins, physical features

economic lifestyle, social organization, economic lifestyle, social organization, religion and language, they are all religion and language, they are all descendants of the earliest known descendants of the earliest known

inhabitants who occupied the inhabitants who occupied the Malaysian Peninsular before the Malaysian Peninsular before the

establishment of the Malay kingdom. establishment of the Malay kingdom.

Legal Definition of ‘Orang Legal Definition of ‘Orang Asli’Asli’

• Section 3 (1) APA - the main features identifying Section 3 (1) APA - the main features identifying an aborigine is his/her ethnicity, way of life, an aborigine is his/her ethnicity, way of life, customs and beliefs. customs and beliefs.

• Section 3 (2) APA - declares that any aborigine Section 3 (2) APA - declares that any aborigine who adopts another than his/her native religion who adopts another than his/her native religion cease to adhere to his native belief but continues cease to adhere to his native belief but continues to follow his/her native way of life or speaks to follow his/her native way of life or speaks his/her native language shall still be considered his/her native language shall still be considered an aborigine. an aborigine.

• Nevertheless, as the aborigines are undergoing Nevertheless, as the aborigines are undergoing socio-economic changes and mixed marriages socio-economic changes and mixed marriages with other races, it becomes more difficult to with other races, it becomes more difficult to determine their identity in strict term. determine their identity in strict term.

Minister under APA decides on Minister under APA decides on identity of OAidentity of OA

• S. 3 (3) APA states that any question over an S. 3 (3) APA states that any question over an aborigine’s identity is to be decided by the aborigine’s identity is to be decided by the Minister. However, the section does not lay down Minister. However, the section does not lay down any criterion to guide the Minister in coming to a any criterion to guide the Minister in coming to a decision. (Minister of Rural Development).decision. (Minister of Rural Development).

• In the case of In the case of Koperasi Kijang Mas Bhd & Ors. v. Koperasi Kijang Mas Bhd & Ors. v. Kerajaan Negeri Perak & Ors.Kerajaan Negeri Perak & Ors. [1991] 1CLJ (Rep.) [1991] 1CLJ (Rep.) 650 and Sagong Bin Tasi &Ors. V. Kerajaan 650 and Sagong Bin Tasi &Ors. V. Kerajaan Negeri Selangor & Ors. [2002] 2 MLJ 591, it was Negeri Selangor & Ors. [2002] 2 MLJ 591, it was the APA definition that ‘gave life’ to OA identity.the APA definition that ‘gave life’ to OA identity.

The nature of OA Customary The nature of OA Customary Land Land • Traditionally, a band Traditionally, a band

occupies specific territory occupies specific territory which they inherited from which they inherited from their ancestors.their ancestors.

• This territory is referred to This territory is referred to as as saka’ (saka’ (inheritance) or inheritance) or customary land.customary land.

• The boundaries are based The boundaries are based on natural geographical on natural geographical markers.markers.

• The territory comprises, inter The territory comprises, inter alia, alia,

- hamlet localities- hamlet localities - cultivated areas- cultivated areas - fishing and hunting grounds- fishing and hunting grounds - places of worship - places of worship - burial grounds- burial grounds - streams and rivers- streams and rivers - forested areas where - forested areas where

resources are found and resources are found and exploited for cultural, exploited for cultural, medical, construction, medical, construction, religious, social and religious, social and economic purposes. economic purposes.

• Land therefore is a crucial source of life for the Land therefore is a crucial source of life for the OA.OA.

• The holistic OA view of land stems from their The holistic OA view of land stems from their dependent relationship with their territory. That dependent relationship with their territory. That is, OA depend on their land for their continued is, OA depend on their land for their continued existence as a peopleexistence as a people

• The OA religion requires maintaining a The OA religion requires maintaining a harmonious relationship with the ecological space harmonious relationship with the ecological space in which they live. As such, land is important for in which they live. As such, land is important for the perpetuation of their religion. the perpetuation of their religion.

• Land stands for the OA way of life and symbolizes Land stands for the OA way of life and symbolizes the cultural vitality and continuity of their the cultural vitality and continuity of their community. It is a form of inalienable wealth, a community. It is a form of inalienable wealth, a possession which serves to define the OA possession which serves to define the OA historically and culturally. historically and culturally.

• In other word, the OA depend on In other word, the OA depend on their customary land is not only for their customary land is not only for economic survival but for their economic survival but for their spiritual, social and cultural identity.spiritual, social and cultural identity.

• In the words of Romeli Dollah, an OAIn the words of Romeli Dollah, an OA “ “Land is the lifeline of OA…To chase Land is the lifeline of OA…To chase

OA from their land means to destroy OA from their land means to destroy their identity and life.”their identity and life.”

This sentiment has been reiterated This sentiment has been reiterated in the case of in the case of Adong Bin Kuwau & Adong Bin Kuwau & Ors. v. Kerajaan Negeri Johor & Anor.Ors. v. Kerajaan Negeri Johor & Anor. [1997] 1 MLJ 419.[1997] 1 MLJ 419.

The Common Law OA Land The Common Law OA Land Rights/ The OA Native TitleRights/ The OA Native Title• In the landmark case of In the landmark case of Adong Bin Kuwau & Ors. v. Adong Bin Kuwau & Ors. v.

Kerajaan Negeri Johor & AnorKerajaan Negeri Johor & Anor [1997] 1MLJ 419 at 430. [1997] 1MLJ 419 at 430.• In order to determine the extent of OA peoples’ full rights In order to determine the extent of OA peoples’ full rights

under law, their rights under common law and statute has under law, their rights under common law and statute has to be looked at conjunctively, for both these rights are to be looked at conjunctively, for both these rights are complementary, and the Act does not distinguish the rights complementary, and the Act does not distinguish the rights enjoyed by the aboriginal people under common law. enjoyed by the aboriginal people under common law. Adong Adong Bin Kuwau & Ors. v. Kerajaan Negeri Johor & AnorBin Kuwau & Ors. v. Kerajaan Negeri Johor & Anor [1997] [1997] 1MLJ 4191MLJ 419

• “… “…in Malaysia the aborigines’ common law rights include, in Malaysia the aborigines’ common law rights include, inter aliainter alia, the right to live on their land as their forefathers , the right to live on their land as their forefathers had lived and this would mean that even the future had lived and this would mean that even the future generations of the aboriginal people would be entitled to generations of the aboriginal people would be entitled to this right of their forefathers.” this right of their forefathers.”

• In In Sagong bin Tasi & Ors. V Kerajaan Sagong bin Tasi & Ors. V Kerajaan Negeri Selangor & OrsNegeri Selangor & Ors [2002] 2 MLJ 591. [2002] 2 MLJ 591.

• Mohd Noor Ahmad J held that the land Mohd Noor Ahmad J held that the land was customary and ancestral land was customary and ancestral land belonging to the Temuan community belonging to the Temuan community and had been occupied for generations. and had been occupied for generations. There was proprietary interest There was proprietary interest inin and and toto the land. the land.

Statutory RightsStatutory Rights

• Aboriginal Peoples Act 1954 (Act 134)Aboriginal Peoples Act 1954 (Act 134)

• The preamble states that it provides for The preamble states that it provides for the protection, well-being and the protection, well-being and advancement of the aboriginal advancement of the aboriginal community.community.

• Three classifications of OA place;Three classifications of OA place;

1)1) Aboriginal inhabited place-Section 2Aboriginal inhabited place-Section 2

2)2) Aboriginal areas-Section 6(1)Aboriginal areas-Section 6(1)

3)3) Aboriginal reserves-Section7(1) Aboriginal reserves-Section7(1)

• The State Authority may revoke the The State Authority may revoke the declaration of OA areas [section 6 declaration of OA areas [section 6 (3)] or OA reserves [section7 (3)].(3)] or OA reserves [section7 (3)].

• The security of OA land tenure is not The security of OA land tenure is not permanentpermanent

• The OA has right of occupancy within The OA has right of occupancy within the OA area and OA reserve [Section the OA area and OA reserve [Section 8 (1)]8 (1)]

• The OA do not have legal title to the The OA do not have legal title to the land but mere tenant at will [section land but mere tenant at will [section 8 (2)]8 (2)]

• Compensation is given for loss of fruit or Compensation is given for loss of fruit or rubber trees (section 11)rubber trees (section 11)

• The compensation amount is based on The compensation amount is based on what is just to the State Authority.what is just to the State Authority.

• The State Authority may pay The State Authority may pay compensation if any land is excised from compensation if any land is excised from any OA area or OA reserve (section 12)any OA area or OA reserve (section 12)

• Adong KuwauAdong Kuwau case case

Land Acquisition Of OA LandLand Acquisition Of OA Land

• Sagong bin Tasi & Ors. V Kerajaan Sagong bin Tasi & Ors. V Kerajaan Negeri Selangor & OrsNegeri Selangor & Ors [2002] 2 MLJ [2002] 2 MLJ 591 and 591 and Kerajaan Negeri Selangor Kerajaan Negeri Selangor &Ors v. Sagong Tasi &Ors.&Ors v. Sagong Tasi &Ors. [2005] 4 [2005] 4 CLJ 169 CLJ 169

• The High Court declared that the common The High Court declared that the common law OA Native Title separately from OA law OA Native Title separately from OA reserves and areas recognized under the reserves and areas recognized under the APA.APA.

• The APA, which explicitly does not require The APA, which explicitly does not require governmental compensation for acquired governmental compensation for acquired land was held by the High Court to apply land was held by the High Court to apply only OA reserves and OA areas under the only OA reserves and OA areas under the Act and not to OA native title under the Act and not to OA native title under the common law. common law.

• Court also held that the valuation Court also held that the valuation and acquisition of OA native title’s and acquisition of OA native title’s was to be determined in accordance was to be determined in accordance with the LAA, the same regime with the LAA, the same regime applying to private registered title.applying to private registered title.

• The unique position of OA landThe unique position of OA land

• Adequate compensation for the Adequate compensation for the different dimensions of Indigenous different dimensions of Indigenous landland

• Procedural safeguards beyond the Procedural safeguards beyond the LAA: Consultation and Participation LAA: Consultation and Participation

ConclusionConclusion

• The court declared the existence of OA native The court declared the existence of OA native title to customary lands at common law.title to customary lands at common law.

• But the court equating Of OA native title to But the court equating Of OA native title to private registered title to be compensated private registered title to be compensated pursuant to it market value and with pursuant to it market value and with procedures which fail to accord adequate procedures which fail to accord adequate consideration to OA interests, fails to consideration to OA interests, fails to recognize the various spiritual, religious, recognize the various spiritual, religious, cultural and communal dimensions of OA landcultural and communal dimensions of OA land

• The right to equality as articulated in The right to equality as articulated in the Federal Constitution as well as the Federal Constitution as well as international developments in international developments in indigenous land rights require states to indigenous land rights require states to protect and give effect to the various protect and give effect to the various dimensions of OA land by respecting dimensions of OA land by respecting certain procedural and substantive certain procedural and substantive safeguards when seeking to acquire OA safeguards when seeking to acquire OA land.land.

• The The Sagong Tasi Sagong Tasi judgment, in failing to recognize this, is at best a partial victory for OA land right