Pahang Orang Asli lose customary land case

Eighty-two Orang Asli families from the Semaq Beri tribe in Kampung Mengkapur near Maran, have lost their fight over 430.183ha of their native customary land to a state subsidiary, LKPP Corporation Sdn Bhd, which intends to use the land for a Ladang Rakyat programme.

This follows the dismissal of their originating summons by the High Court in Kuantan today, with Justice Mariana Yahya ruling that the Orang Asli failed to establish their ownership of the land.

Lawyer Yogeswaran Subramaniam who represented the Orang Asli, said the court failed to follow past precedents, such as the Sagong Tasi case, and it also did not recognise their rights to the customary land based under the Aboriginal Peoples Act 1954.

“As a result, she dismissed the originating summons and made no order as to costs,” Yogeswaran told Malaysiakini.

“We cannot apply for a stay of today’s decision as the land has already been developed through logging activities. However, the Orang Asli want to appeal the decision.”

The Sagong Tasi case involving the Temuan tribe went all the way to the Federal Court and ended in 2010 with full settlement after the Selangor Pakatan government agreed to pay compensation of RM6.5 million to 26 families whose native customary land were seized to build a highway to the KL International Airport (KLIA).

Yebet Saman and 81 other Orang Asli from the Semaq Beri tribe filed a civil claim in December 2012, and sought an injunction, declaratory orders and damages for trespass on their customary land.

Six defendants named

Yebet and the other Orang Asli families claimed an area of approximately 7,000 acres in Kampung Mengkapur and named the director of the Land and Mines Department, Pahang, the Pahang state government, the director-general of Orang Asli Development Department, LKPP Corporation, sub-contractor Foong Kwai Loong and the Malaysian government as defendants.

In their originating summons, they said they have occupied the customary lands from time immemorial but were relocated by the government, during the Malayan Emergency from 1948 to 1969, for security purposes.

Despite this, they had continuously returned to their customary lands to tend to their orchards and sacred sites during this time.

In 1970, they said, a number of them returned permanently to Kampung Mengkapur.

Despite acknowledging the Semaq Beri’s presence, occupation and use of customary land, the government had failed to gazette the land as customary land by way of land reservation.

In 2010, the Orang Asli found a notice erected on their land detailing logging activities over part of the forests on their customary lands.

They later found a portion of their lands, spanning 430.183 hectares, to have been alienated to LKPP Corporation and complained there were no consultation or notice issued on them before approval was given by the Pahang state executive council.  

They claimed the state and the federal government’s Orang Asli Department have breached their  fiduciary duties by failing to secure the reservation and protection of their customary lands.

Besides Yogeswaran, the other lawyers who appeared for the Orang Asli were Darmain Segaran and Lee Lyn Ni.