THE recent Cameron Highlands by-election brings the advancement of Orang Asli’s 21st-century agenda to the fore.
There are several aspects that need urgent attention.
The Orang Asli Development Department (Jakoa), with the State Islamic Religion and Education and Rural Entrepreneur Development Committee, must take into account the sensitivities of the Orang Asli culture, religion and traditional norms in designing the national socio-economic development of the Orang Asli community by 2030.
This is not clearly provided for under the present economic planning policy. Commercial activities like logging, mining and oil palm cultivation by private companies that impact forested areas of the Orang Asli must be reviewed transparently in consultation with the community.
Rapid deforestation, urbanisation, hillslope development and commercial construction and development have resulted in substantial encroachment on native territories of Orang Asli.
Under the Federal Constitution, Orang Asli’s rights are enshrined in three main articles: Article 8(5)(c), which provides for their protection, wellbeing and advancement or the reservation to aborigines of a reasonable proportion of suitable positions in the public service; Article 45(2), which provides for the appointment of senators “capable of representing the interests of the aborigines”; and Article 160(2), which provides the definition of “aborigine”, supported by 9th Schedule, List 1, permitting federal government legislative authority for “welfare of the aborigines”.
Unfortunately, the constitutional implementation of these articles, especially at the state level, remains critical and outstanding issues, in particular land rights, remain unresolved.
At the state level, implementation of Orang Asli rights and interests remains elusive in view of commercial conflicts. There are many Gordian knots as seen in court decisions, raising the need for serious reconsideration by Parliament.
Precedent cases such as Adong Kuwau v Kerajaan Negeri Johor (1997)1 MLJ 418; Nor Anak Nyawai & Ors v Borneo Pulp Plantations Sdn Bhd v Superintendent of Lands and Survey & Anor (2001) 2 CLJ 297; and, Sagong Tasi & Ors v Kerajaan Negeri Selangor & Ors (2002) 2 MLJ 591, among others, underscore the need for clear and transparent legislative protection and revision to those laws that negatively impact the long-term interests of the Orang Asli community.
The objective is to ensure constitutional safeguards for Native Cultural and Customary Rights in Malaysia, an issue highlighted in 2007 by the Malaysian Bar (“Orang Asli and Our Constitution — Protecting Indigenous Customs and Cultural Rights 2007”).
Around the world, indigenous global thought and traditional local communities require governments to recognise and address issues in a fair manner, especially in land matters under customary rights.
Malaysia must undertake a review of restrictive legislative measures, policies and programmes that negatively affect indigenous people.
It is timely to study global practices in major jurisdictions as a barometer for the review and progressive implementation to uplift the socio-economic wellbeing indicator by 2030.
The Aboriginal Rights and Land Claims in New Zealand 1995, the Maori Affairs Restructuring Act 1989, the Rununga Iwi Act 1990 and the Maori Land Act 1993 regulate land matters impacting aborigines.
This is something Malaysia can look into.
Jakoa can learn from New Zealand’s Ministry of Maori Development in achieving equitable outcomes for Maoris in healthcare, education, training and economic development. Education is perhaps a golden key to socio-economic well-being.
The inclusive approach towards Maoris in New Zealand’s unique school syllabus, including in Canada and Australia, is exemplary and noteworthy for adoption in Malaysia.
In Canada, the Constitution Act 1982 upholds aboriginal rights and requires federal and provincial governments to conduct consultations with aboriginal people before proceeding with any legislation that impacts their interest.
In Australia, there are several best practices that could be adopted by Malaysia such as the Native Title Act 1993.
The South Australian government recognised in 1981 the Pitjantjatjara and Maralinga peoples’ inalienable freehold title to their lands, and fair resolution in disputes concerning mining and fair payment to aboriginal people by royalty equivalents for mining on aboriginal land (see also New South Wales Aboriginal Land Rights Act 1983).
In the US, the Maine Indian Claims Act 1980 and the Alaska Native Claims Settlement Act provide for native freehold land title, equitable compensation and legal recognition of customary rights for traditional subsistence activities.
Global recognition of Orang Asli is paramount at all levels, be it federal or state.
This year is a milestone one for aboriginal communities worldwide because it has been recognised as the International Year of Indigenous Languages by the United Nations Permanent Forum on Indigenous Issues (on the heels of the 2016 UN General Assembly adopting a resolution).
Malaysia is expected to participate in the 18th session of the Permanent Forum on Indigenous Issues 2019 (April 22 to May 3) and hopefully chart a new direction — legal and non-legal initiatives — to drive a constructive and harmonious direction for aborigines beyond the theme of “Traditional knowledge: Generation, Transmission and Protection”.
The decision by the federal government, and executed by Attorney-General Tommy Thomas, to sue Kelantan over Orang Asli land rights is undoubtedly a concrete move to reaffirm, uphold and preserve the rights of the Orang Asli.
A new National Orang Asli Policy could be framed to prepare Orang Asli to tackle the Fourth Industrial Revolution as part of the socio-economic uplifting agenda.
In this regard, the antiquated Aboriginal Peoples Act 1954 (revised 1974) can be a new 21st-century driver towards incorporation of clear rights, holistic interests and non-interference with the culture and lifestyle of the Orang Asli community as a whole.
JEONG CHUN PHUOC
Shah Alam, Selangor