Communal forest land has been a bone of contention between indigenous people and the state for the longest time with the Government expected to decide on the issues soon.
IF there is one thing that the indigenous people or orang asal want to know, it is whether their communal forest land would be recognised by the Government.
The communal forest land is for hunting, finding jungle produce, doing shift cultivation and burying their dead.
The indigenous people claimed that the land belonged to them while the authorities said it was state land and only recognised dwellings and agriculture area as their territory.
Minister in the Prime Minister’s Department Datuk Paul Low said the Cabinet would decide on a task force’s recommendations on a Suhakam report on the National Inquiry into the Land Rights of Indigenous People in a week or two.
Communal forest land is known as kawasan rayau in Peninsular Malaysia. It is calledpemakai menoa and pulau galau (fallow land) in Sarawak and paun in Sabah.
Borneo Resources Institute coordinator Mark Bujang said the Sarawak government deemed pulau galau as theirs because the natives had left the land. In actual fact, the community was rotating the use of the land within the same territory.
He said the term kawasan rayau was often thought by outsiders as a place they roamed about but this was not the case.
“For all indigenous people, there are boundaries and whoever trespasses the next community’s land, they would be fined,” he said.
Mark said in Sarawak, the adat (tradition) that the indigenous people practised was incorporated in the Sarawak Land Code.
Customary laws of the Sabah natives were incorporated in the Sabah Land Ordinance while the peninsula orang asli rights to land and land use was provided for in the Aboriginal Peoples Act.
But the problem, Mark claimed, was the Government’s refusal to acknowledge the communal forest.
“Despite the pulau still being used by the natives in Sarawak, more of their land had been opened up, resulting in less land for them.”
Moreover, Sabah and Sarawak governments used to recognise native customary land (NCL) but in the last 20 years, they refused to convert the land to NCL because they maintained it was their land, he said.
The burden of proof was put on the indigenous people, he said.
“If the Government is serious, they should amend the law to recognise kawasan rayauand pemakai menoa, not just the cultivated land,” he said.
Mark was sceptical about the task force’s role.
“For me, it is just a cosmetic change as the task force is only to make changes on administrative process,” he said.
Universiti Malaya Centre for Malaysian Indigenous Studies Assoc Prof Dr Juli Edo said the orang asli in Peninsular Malaysia claimed that their land included the communal forest.
“But the hunting areas included forest reserves and water catchment areas and the Government did not want to let it go,” he said.
He said the orang asli were also not happy that they were offered 0.8ha to 2.2ha of land per household when the Felda scheme offered the Malays 4ha of land per household, he said.
“The 2.2ha of land is not economical at all and they want to be given more as they are concerned that their future generations would have little land,” he said.
Juli said that for the indigenous people, land was not just a source of economic produce but closely related to their culture, social history and sacred sites.
The Suhakam report revealed that gazetted Orang Asli Reserves in 1990 were 20,667ha and 20 years later, in 2010, it went up by only 0.02%.
Four years after the inquiry, the land gazetted had interestingly increased at a higher rate to 31,480ha.
But 77.181ha still remain in the process of application. The number had not decreased much from the 86,000ha in 2010.
The report also revealed that some of the approved Orang Asli Reserves were not gazetted from as far back as the 1960s.
The indigenous people claimed that the land recognised by the Government in the peninsula comprised only 17% of their actual land.
The orang asli had said that claims to their traditional land and territories were often “invisible” in the eyes of the District and Land Office or the Lands and Mines Office.
Their land were not marked in the cadastral maps of the Department of Survey and Mapping Malaysia.
All these had made the orang asli vulnerable to being evicted from their land when licences were given out for logging and plantation work.
Centre for Orang Asli Concerns coordinator Dr Colin Nicholas said individuals and migrant workers had also begun to move into orang asli villages.
In Hulu Langat, Indonesian migrant workers who had received bumiputra status had moved into orang asli area while in Merapoh, Kampung Bercah, Pelubi, individual Malays had applied for land and settled in the village of the orang asli Batek tribe, he said.
“Often, the orang asli will flee when others take their land but in some areas where they have nowhere else to run to and settle down, they would stand up to fight for the land,” he said.
In Perak, the Semai of Kampung Senta had gone to court to lay claim to 2,206ha of customary land by way of native title under common law after a private company started moving into their land close to their houses in 2013.
However, they were served with eviction notices from the company which claimed that they were the rightful owner of the 113.7ha of the land in dispute, and had the title deeds to show for it, and suing them for trespassing.
The Semai were counter-suing to set aside the eviction order and for a declaration that the land was theirs by way of native title under common law.
Dr Colin said that while the Federal Government might say they had no power to compel the state to gazette Orang Asli Reserves as land comes under the state jurisdiction, Felda was initiated by the federal authorities.
“It depends on the political will.”
As for the states, they generally did not give or gazette land to orang asli because they were afraid that the land would no longer be in the hands of the state but given to the Federal Government.
However, he said state governments could create orang asli reserve land under the state laws.
Indigenous rights lawyer Dr S. Yogeswaran said the Federal Government could compel states to adhere to a uniformed land policy, despite states having their own laws.
Juli urged the Government to reserve all remaining orang asli land under the Aboriginal Peoples Act.
He said areas in nearby towns and lowland areas should be given individual titles while those in the interiors should be reserved as Orang Asli Reserves.
“When the area is reserved, it’ll be marked on the map. Otherwise, people will just apply for the land because it is unmarked,” he said.
A threat to their survival
MANY indigenous people lived in the jungle with limited contact with the outside world. But in recent decades, development moved into their remote villages, with some being evicted from the land they had lived on for centuries.
Outsiders would arrive unannounced. They cut the trees and took the logs out. Then the land was cleared for plantation, mining or dam construction.
In Sarawak, indigenous people and NGOs had objected to the Baram Dam, which is expected to uproot more than 20,000 people.
Located about 200km inland from Miri, the project will affect the Penan, Kenyah, and Kayan tribes.
Saleh Joho, 45, who is of a Jehai tribe in Kampung Sg Tekam in Gerik, Perak, said they faced hardship after loggers moved into the area.
“Now, we don’t have enough to eat after loggers destroyed the jungle,” said the father of 10 who earned RM100 a month.
Village head Tami Serdang said their ancestors had lived on the land for hundreds of years and loggers went into their area in 1991 without consulting them.
“We used to be able to get food, herbs, rattan and wood without going too deep into the jungle but we now have to walk about 90km inland,” he said.
Kampung Kuala Koh village head Hamdan, 50, said that loggers moved into their village three years ago.
“I was shocked. Then, suddenly, an oil palm plantation appeared early this year,” he said of the newly planted oil palm trees on vast land surrounding the village.
He said the site used to be a forested area they relied on for food.
His son Ramli, 30, said they could go deeper into the jungle for a week and yet come out with nothing.
“We used to be able to drink the water from Sungai Lebir but it is now dirty and most fish are gone,” Hamdan said, adding that the villagers had also become more sickly.
He said the villagers, who was moved from the Kuala Koh Taman Negara Resort location to the current place years ago, wanted the Government to gazette 688ha of their land as Orang Asli Reserves.
A Temiar orang asli in Kampung Sentep Gua Musang, Alang Jambu, 43, said the authorities had given reserved land for others but not for orang asli there.
Indigenous rights lawyer Dr S. Yogeswaran said the Federal Court and Court of Appeal had ruled that orang asli had legal rights over their customary land which they had continually occupied and used even though there was no official gazette or title given by the state.
Despite court precedents, their rights were still being ignored and they continued to be evicted because no action had been taken to amend laws to give effect to the legally binding principles, he said.
Department of Orang Asli Development (Jakoa) director-general Datuk Hasnan Hassan said the gazetting of orang asli reserve land was done by each state.
He said he did not know the reason for states not gazetting some of the land, some of which were approved from the 1960s.
“Land comes under state jurisdiction and the process of gazetting is done by the various land district offices,” he said.
Jakoa statistics showed that as of May last year, 31,480.44ha of orang asli land had been gazetted and 19,774.22ha had been approved by the state executive committee but were still being processed by the states’ Land Office to be gazetted under Orang Asli Reserve land.
Another 75,181ha of land had been applied or were in the process of being applied to be orang asli reserve land.
Hasnan said Jakoa would mark the boundaries of orang asli land and hand it over to various state governments to reserve the land but not all were implemented by them. He said orang asli reserve land included their houses, plantation and grave site areas.
Asked why they did not include the kawasan rayau (foraging area), Hasnan said Deputy Prime Minister Tan Sri Muhyiddin Yassin had announced that the policy on land ownership was for each orang asli household to be allocated 2.43ha of land besides 0.16ha for their house.
He said the foraging area was not included because the definition was subjective. One person may claim 30km radius and others 50km.
About 21,000ha of the land gazetted were developed by Risda and Felcra for oil palm or rubber plantations benefiting 12,000 households with each household receiving RM450 to RM1,200 a month, he said.
