Recognise rights of Orang Asli to forest reserve, Bar tells Selangor govt

The Orang Asli protesting the intended degazetting of the Kuala Langat North Forest Reserve.

PETALING JAYA: The Malaysian Bar said the Kuala Langat North Forest Reserve dispute is symptomatic of the refusal of the federal and state governments to legally recognise the rights of the Orang Asli to live on and off their ancestral lands.

Bar president Abdul Fareed Abdul Gafoor appealed to the Selangor government to reach an equitable resolution to this dispute that does not impinge upon the legal rights of the Orang Asli communities concerned.

“Failure to do so carries the risks of protracted litigation, expenses and damage to the state’s reputation,” he warned in a statement today.

Yesterday, 250 members of the Orang Asli community living in the area surrounding the forest reserve conveyed six letters of protest to the Selangor government.

They said they were against the proposed degazetting of the 930ha forest and urged the government to reconsider the move.

Last Thursday, Selangor Menteri Besar Amirudin Shari had said that the proposed degazetting of the forest had materialised because 40% of the forest no longer had elements of a virgin forest. The state exco is expected to discuss the objections of the Orang Asli.

Fareed said the state government owed a fiduciary duty to the Orang Asli in respect of their customary land rights (see Kerajaan Negeri Selangor v Sagong Bin Tasi [2005] 6 MLJ 289).

As such, the Malaysian Bar strongly urged the Selangor government to consult with the Orang Asli communities to determine the full extent of their rights within the forest reserve, including common law rights, before considering its power of excision.

He said the MB reportedly stated that state government records showed that there was “only” foraging land for the Orang Asli within the forest reserve.

However, Fareed said the “FMS Government Gazette Notification No 2578”, dated April 19, 1927, on the creation of the forest reserve, reveals that the Selangor colonial government had expressly admitted rights and conceded privileges to the Orang Asli households of Bukit Prah, Pulau Kempas and Bukit Kemandol, in respect of their inhabitation, use and enjoyment of the forest.

He said the official admission and concession contained in this gazette constitutes a strong suggestion of historical Orang Asli occupation, inhabitation, enjoyment and use of the area in question.

“This scenario potentially gives rise to legally enforceable common law rights for the descendants of the Orang Asli households described in the forest reserve gazette who still occupy, use or enjoy the area.

“It would be legally erroneous for the MB to assume that the lands located within the reserve, claimed by the Orang Asli, are merely foraging or ‘roaming’ lands with no legal significance.”

He said for more than two decades, the highest courts in Malaysia have recognised the right to Orang Asli foraging lands as a right to property, legally protected under the common law and article 13 of the Federal Constitution (see for example, Adong Bin Kuwau v Kerajaan Negeri Johor, 1997, 1 MLJ 418).

The Malaysian Bar repeated calls for the federal and state governments to do the following:

• As an interim measure, to impose a moratorium on the creation of any land and resource interests, and the continuation of resource extraction and enforcement activities within places claimed to be Orang Asli customary areas, pending the resolution of the affected Orang Asli community’s customary territorial claims;
• To implement the 18 recommendations contained in the 2013 Suhakam Report of the National Inquiry into the Land Rights of Indigenous Peoples in Malaysia; and,
• In consultation and cooperation with the Orang Asli, to take all appropriate measures, including legislative measures, to achieve the spirit and intent of the United Nations Declaration on the Rights of Indigenous Peoples 2007. - FMT