On the day the Kelantan Forestry Department started their new round of blockade demolitions, lawyers for the Pos Belatim land rights court case made their closing arguments in the Kota Baru High Court in Kelantan.
After 5 years of legal setbacks, appeals and cross-appeals, and dealing with unhelpful state authorities (even when required by law), the Temiars in Pos Belatim will get to know whether they have rights to their customary lands.
Background to the case
The Temiars discovered in 2011 that their traditional lands have been contracted out by the Kelantan State Government to be developed by a private company as an oil palm plantation on a 99-year lease. Such a practice is already widespread in Kelantan as part of the state’s effort at land reform and agricultural development under the Ladang Rakyat concept. The majority of the Orang Asli in Kelantan however do not agree with this project as it means they will lose much of their land and even their identity as Orang Asli. Besides, all this was done without their agreement or consent. The Temiars of Pos Belatim are seeking, among other declarations, a Certiorari Order from the court to stop the Kelantan State Government from carrying out the project and from giving their land to the private corporation.
Apart from summarizing the evidentiary and legal arguments, the lawyers for the Temiars had to particularly address two significant issues.
The first was the Kelantan State Government’s position that much (98 per cent?) of Kelantan is Malay Reserve Land and that the state authorities had full say as to how to use or alienate these lands. The Temiars’ lawyers were able to provide extensive legal research to show that this is not the case.
The second issue had to do with the recent TR Sandah Federal Court decision in Sarawak, restricting Orang Asal customary rights to only the lands they settled and used, and not to their territorial domains (often called derogatively as their ‘roaming’ areas). The Orang Asli lawyers countered that the TR Sandah case was unique to the Sarawak situation as the Orang Asli do not have recourse to a codified Native Customary Rights (NCR) law in the Peninsula.
On the contrary, as ably argued by Dr. Yogeswaran, the same Federal Court panel conceded that the precedents of two important Orang Asli cases still apply. These are Adong Kuwau (which recognizes usufructuary rights to these ‘roaming’ areas) and Sagong Tasi (which recognizes land rights to settled and used lands).
The closing arguments were disposed with in a little over two hours, with the Orang Asli lawyers taking up much of that time.
The Temiar plaintiffs were not in court on Sunday due to various factors — including road conditions that have been worsened by the recent floods and a miscommunication on dates (the earlier court date had to be vacated at the last minute due to impassable roads caused by floods).
The judge has set Sunday, 26 March 2017 as the date when he will deliver his decision.
Source: CN-COAC | 7 February 2017