Serious gaps in laws, policies and administration in recognising NCR land, seminar finds

By Simon Peter

KUCHING, Aug 9 - Despite Malaysia’s endorsement of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007, which outlines the rights that the government should respect and recognise, serious gaps in our laws, policies and administration in recognizing Orang Asal customary land continue to persist.

The finding is part of a seminar held during the national-level Perayaan Hari Orang Asal SeDunia

(PHOAS) to celebrate the achievements of the Indigenous Peoples, hosted by Jaringan Orang Asal

SeMalaysia (JOAS).

Seminar participants

The seminar attended by over 300 participants, highlights the theme this year, Territorial Domain:

Indigenous Peoples' source of life and heritage, discusses issues surrounding the recognition of

territorial domain and what bodies like the Bar Council and the Human Rights Commission of

Malaysia (SUHAKAM), who were represented as panelist by Andrew Khoo and SUHAKAM

Commissioner Francis Johen respectively, can do to support the recognition of territorial domain.

The Orang Asal of Malaysia, which make up 13.8% of the population, each have their own terms to

explain the territorial extent of their lands based on geographical features and various forms and

methods of land and resource use to refer to their communal and individual customary land.

Alau Tayan, a Kanowit tribe, speaks about lack of recognition accorded to NCR land

In Sabah, the Kadazan/Dusun people refer to it as kampung or pomogunan, the Ibans in Sarawak calls it pemakai menoa while the Semai Orang Asli from Peninsular Malaysia calls it nenggerik.

“Our biggest challenge in the recognition of “customary territorial domain” is that it is not

comprehensively expressed in Malaysian law.

"It is not defined in our Federal Constitution, nor is it clearly spelt out in our various land ordinances, forest ordinances or in our indigenous peoples legislation.

Seminar in progress

"This makes it difficult to argue in court, even though it is the basis for how land has been owned, occupied and managed by the Orang Asal for generations well before Malaysia was formed,” JOAS Secretariat Director, Jannie Lasimbang said at a press conference today.

“Although court decisions have recognised the concept of native customary land, without actual

amendments to our laws and policies the actual application of this concept will always be open to be challenged,” stressed Andrew Khoo. “Then,” she added, “we would continually have to re-litigate these issues, at great cost and expense to the indigenous peoples.”

Part of the findings from JOAS’ research on Orang Asal customary land was also presented, with the

following recommendations towards the recognition and respecting Orang Asal customary territorial

domain.

• Respect and accept Orang Asal’s rights to defend their territorial domain. Amend current law

to acknowledge Native Customary Rights (NCR)/ to Orang Asal customary territorial domain.

• Form a National Commission on Orang Asal to guide and advise the government on all

matters concerning Orang Asal including the process of recognizing Orang Asal customary

territorial domain.

• Establish a compulsory consultative process along the lines of the Misuku mechanism

(Dusun for consultation) for obtaining collective community consent for development of

Orang Asal customary lands.

• Map out Orang Asal customary territorial domain in collaboration with the Orang Asal to be

kept as official records and maps.

Suhakam commissioner Francis Johen (right) with Malaysian Bar council representative Andrew Khoo (2nd right)

PHOAS is observed on August 9 each year to promote and highlight the rights of the world’s

indigenous peoples since the United Nations General Assembly on December 23, 1994, decided

that the International Day of the World’s Indigenous Peoples should be observed annually.

The International Day also recognizes the achievements and contributions that indigenous people make to improve many of the world's issues such as environmental protection and climate change.

The Jaringan Orang Asal SeMalaysia (JOAS) has hosted the national celebration annually since

2008. 

The celebration venue rotate between the three regions of Sabah, Sarawak and Peninsular

Malaysia.

The 3-day celebration leads up to the 9th August where the celebrations will be launched by Dr

Victor Karunan from the United Nations Children’s Fund (UNICEF), in conjunction with the launch of the JOAS Children Network.