Malaysia: Customary Land Rights Of The Orang Asli Seletar Must Be Respected

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    The Orang Asli Seletar from Johor Bahru have commenced a claim in the Johor Bahru High Court, for recognition of their customary lands and waters in southern Johore.

    As a traditional fishing community, the Orang Asli Seletar have historically occupied the coastal areas of Johore as their customary territories. For many years, these areas have been subjected to sustained and continuous encroachment by the state authorities. The Orang Asli Seletar have consistently maintained that the areas they occupy, and on which they conduct customary practices (both on land and sea), are their customary territories.

    However, the authorities have paid scant regard to these claims, as with so many other assertions of this nature throughout the country. As a result, the Orang Asli Seletar have lost much of their lands. Their unique way of life, which enriches the fabric of our multicultural society and livelihood, has been seriously diminished, if not completely eviscerated. This has, in particular, occurred through the decimation of mangrove forests, and pollution of rivers and coastal waters. The Orang Asli Seletar have consequently been unable to carry out their traditional, subsistence and economic activities, and have thus been driven to poverty, and possible extinction.

    A majority of the Orang Asli Seletar today live amidst thriving development on their lands, from which they do not benefit. There are nine Orang Asli Seletar villages in Malaysia, all of which are located along the southern coast of Johore. Seven out of these nine villages are located within the Iskandar Development Region. Only two villages — Kampung Bakar Batu, Johor Bahru and Kampung Simpang Arang, Gelang Patah — have been partly gazetted as Aboriginal Reserves under the Aboriginal Peoples Act 1954 (“Act 134”). The rest of the Orang Asli Seletar population of more than 2,000 people are regarded by the state as “tenants-at-will”, or worse, as squatters and illegal occupants, on lands that have been alienated to private entities without the free, prior and informed consent of these indigenous peoples. The customary rights of the Orang Asli Seletar in and over their lands have been simply ignored with impunity.

    The Orang Asli Seletar have repeatedly demanded that their land rights be recognised, and have explored numerous avenues with the Johore state authorities to have their demands met. However, their efforts have come to naught, and matters came to a head more recently when there was an attempt to desecrate their ancestors’ graves, which prompted them to commence the action in court. In December 2012, 188 Orang Asli Seletar filed a class action in the Johor Bahru High Court against 12 parties, including the Johore State Government and the Federal Government. In addition to a claim for customary title, the Orang Asli Seletar claim includes a claim for customary sea rights, a unique customary rights claim that has yet to be considered by our courts. The Orang Asli Seletar are represented by a team of lawyers from the Bar Council Committee on Orang Asli Rights.

    This is not the first legal action brought by the Orang Asli Seletar against the Johore state authorities. In September 2010, the Johor Bahru High Court delivered a judgment in favour of 51 Orang Asli plaintiffs. The court decided, inter alia, that the defendants — the local council and the Johore Director of Land and Mines — committed trespass of the Orang Asli Seletar plaintiffs’ land, and wrongfully demolished a chapel built by them on their customary land. The defendants appealed against the decision to the Court of Appeal, but subsequently withdrew the appeal in August 2012. This was a resounding victory for the Orang Asli Seletar, and has encouraged them to seek legal redress from the courts on their claims to customary lands.

    It is also noteworthy that, as part of the strategic framework of the Iskandar Development Comprehensive Development Plan (Chapter 2, Part 1, Section A), the Government has adopted “equitable and fair distribution among stakeholders” as one of the three foundations in developing the Iskandar Development Region. Insofar as the Orang Asli Seletar are concerned, these are merely pious platitudes. It cannot be disputed that the Orang Asli Seletar are important stakeholders; indeed, they are the primary stakeholders in the development of the Johore southern coast. It is therefore imperative that the authorities recognise their rights and treat the Orang Asli Seletar in an equitable and fair manner.

    The problems facing the Orang Asli Seletar are dire, and constitute yet another example of the reckless manner in which Orang Asli customary lands and traditional livelihoods are dealt with by the authorities. The Malaysian Bar calls on the Government to acknowledge the fact that Orang Asli communities have rights in and over their customary lands, as already recognised by the highest courts of the land, in cases such as Adong Kuwau and Sagong Tasi. The Malaysian Bar reminds the Government that the Federal Constitution guarantees all citizens, including the Orang Asli Seletar, the right to life, equality and property, and that the Government has a fiduciary duty to protect these rights. Any denial of these rights means that the Government is honouring its obligations to the Orang Asli Seletar in breach, rather than in compliance.

    Steven Thiru
    Co-Chairperson
    Bar Council Committee on Orang Asli Rights
    Source: http://indigenouspeoplesissues.com