Course:FRST370/Projects/Asserting the status of Jakun-Orang Asli Community as Aboriginal People of Peninsular Malaysia and owners-by-custom of Sungai Linggiu, Johor

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The Adong bin Kuwau case, Adong bin Kuwau and Ors v Kerajaan Negeri Johor and Anor 2001[1], is a landmark rights case in the Johor State of Peninsular Malaysia, where the courts ruled against the Government State of Johor in favor of the Jakuns-Orang Asli (referred to as Jakuns).

In 1997, the Johor High Court awarded compensation to 52 Jakuns for the loss of 53,273 acres of their traditional and ancestral lands – kawasan saka. The Government of State Johor had leased parts of the Jakun’s kawasan saka forest, Linggiu Reservoir that is located in the north of the Johor River Barrage, to the Public Utilities Board of Singapore which subsequently constructed a dam (Linggiu Dam) for supply water to Johor and Singapore[2]. Justice Moktar concluded that the Jakun-Orang Asli have a common law rights to their ancestral land based on a “continuous and unbroken occupation of the land”. The Jakuns had rights over their lands, even when they have no alienable interest in the land itself; even if the Jakuns do not have to live in their traditional lands, they still possess rights to use the land for subsistence and other needs. In this instance, the court ruled that while certain lands are reserved for aboriginal peoples, they also have recognized rights to hunt and gather over additional lands – the “right” to continue to live on their lands, as their forefathers had lived. Such proprietary rights were protected by Article 13(25) of the Federal Constitution[3], which required the payment of “adequate compensation” for the taking of any property. 

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Background

The area circled in red indicates the location of the Jakun people in southern Peninsular Malaysia

Orang Asli ("orang" meaning people, and "asli" meaning original) are the aboriginal people of Peninsular Malaysia and are classified as Bumiputras, an indigenous status carrying certain social, economic and political rights[4]. Despite having an indigenity identity, the status is generally not mentioned in the constitution. The Orang Aslis culture and spirituality lies in their long-standing ownership and use of their traditional homelands. Yet, there is a continuous destruction of their ecological niches through reclamation of their land by the state[5].

There are 3 groups of Orang Asli population: Negrito, Senoi, and Proto Malay. Of which, the Jakuns are identified as a subgroup of the Proto Malay and is the second largest indigenous group, making up a third of the Orang Asli population. The Jakuns are also known as the Orang Hulu (meaning people of the upstream) and they reside in the southern half of the Peninsular in South Pahang and North Johor, along the Johor River[5]. The

In the past, sustenance was maintained through hunting and gathering. Fish and other wild animals such as boars and indigenous deer species, monkeys and other small animals were hunted with a blowgun, sampit, with darts that are pre-dipped in poison.[6]

In certain areas, Jakun also practiced primitive agriculture. They had small plots in the jungle to cultivate rice and tuber-based crops such as sweet potatoes. After two seasons of harvest, they would move on to other plots of lands to plant new batches of crops[7]. However, the majority of Jakuns relied on the exchange of foods from the Malay and Chinese population with non-timber forest produce (NTFP) such as dammar gum, gaharu, kemeyan, and rattan[8][9].

Land demarcation among Jakuns were undefined and unwritten, but were land use were respected between the different Jakun communities.

Currently, Jakuns do not practice bush hunting and do not rely on NTFP trades for their livelihoods. Instead, most Jakun communities are adopting a more modernised lifestyle and live in permanent villages practicing agriculture such as rubber and oil palm plantation[10].

Tenure arrangements

There are conflicting definitions of traditional and ancestral land ownership, but generally, Malaysia’s laws did not formally recognize the Orang Asli land rights.

State Land

According to the 1965 National Land Code, all land in Malaysia belongs to the respective states, or in the case of federal territories, the federal government[11]. Private property rights are recognized when ownership is registered, but since Orang Asli’s lands are traditionally passed down through generations, their land ownership tends to be unregistered and hence unrecognized.

Additionally, the Malaysia’s Land Acquisition Act 1960[12] reinforces that the State has the eminent domain on the decisions made.

Section 3, Clause 1: “The State Authority may acquire any land which is needed (a) for any public purpose; (by any person or corporation for any purpose which in the opinion of the State Authority is beneficial to the economic development of Malaysia or any part thereof or to the public generally or any class of the public”.

Private Land

An alienated land is a private land ownership that has been registered, whether for a term of years or in perpetuity [11]. However, Orang Asli land rights tend to not be registered since lands are traditionally passed down over generations. Moreover, all alienated land are subjected to an annual rent that is determined by the State authorities. The failure to pay may result the forfeit of the land[13].

Inherent Indigenous Rights

There is, however, an inherent Indigenous People’s rights that has been in place prior to the independence of Malaysia[4]. The Aboriginal People’s Act 1954 have legislation in place to protect the Orang Aslis.

Section 6, Aboriginal Area

Clause 1: “The State Authority may, by notification in Gazette, declare any area predominantly or exclusively inhabited by origins, which has not been declared an aboriginal reserve under section 7, to be an aboriginal area and may declare the area to be divided into one or more aboriginal cantons.”[4]

Clause 2: “Within and aboriginal area,

(1)   No land shall be declared a Malay Reservation under any written law relating to Malay reservation

(2)   No land shall be alienated, granted, leased or otherwise disposed of to persons not being aborigines normally resident in that aboriginal area or to any commercial undertaking without consulting the Deputy General”[4]

Clause 3: “The State Authority may in like manner revoke wholly or in part or vary any declaration of an aboriginal area made under subsection (1).”[4]

Section 7, Aboriginal reserves

Clause 1: "The State Authority may declare any area exclusively inhabited by aborigines to be an aboriginal reserve provided (i) When it appears unlikely that the aborigines will remain permanently in that place it shall not be declared an aboriginal reserve but shall form part of an aboriginal area."[4]

Clauses 2 & 3 similar the same in Section 6.

Section 12, Compensation

“If any land is excised from any aboriginal area or aboriginal reserve… or if any right or privilege… is revoked…  the State Authority may grant compensation therefor…”[4]

While the Aboriginal People’s Act allows political authorities to gazette certain plots of land as protected aboriginal reserves, the State has the authority to change the status of the formerly gazette areas, removing any long-standing legal protection. Furthermore, Orang Asli lands which are not gazette are even less protected (cite).

Affected Stakeholders

Jakun-Orang Asli, one of the many tribes of the aboriginal people in Malaysia. In constitution, Orang Aslis have legal rights to land, but their rights tend to be unregistered.

Interested Outside Stakeholders

  • The Public Utilities Board of Singapore to lease Jakun’s traditional and ancestral land to build a dam to store Singapore’s water supply [14][15].
  • The Government State of Johor to benefit from the compensation given by the Republic of Singapore on top of annual rent[14][15].

Timeline

1990: Singapore signed a new water agreement with the Malaysian State of Johor

Under the 1962 Water Agreement between Singapore and Malaysia, Singapore can draw up to 250 million gallons of water a day from the Johor River, and Singapore is obliged to provide Johor with treated water[16]. (https://www.pub.gov.sg/watersupply/fournationaltaps/importedwater).

On 24th November 1990, Singapore signed a new water agreement with the Malaysian state of Johor. The agreement between the Government State of Johor and the Public Utilities Board of the Republic of Singapore allowed Singapore to build the Linggiu Dam across Sungei Linggiu (Linggiu Reservoir), a tributary located upstream of the Johor River, that releases water into the Johor River to supplement its flow[14].

In exchange for the Linggiu Dam, Singapore compensated Johor RM$320 million (approximately CAD$100 million) on top of a premium of RM$18,000 per hectare of land required to build the dam and its surrounding, with an annual rent of RM30 for each square foot of land[14].

1993: Completion of Linggiu dam in the Linggiu Reservoir

Construction works ended. Singapore took over the Linggiu Dam.

1995: Jakun-Orang Asli sued the Government State of Johor for leasing their ancestral land 

The case was fought under Judge Moktar Sidin.

The plaintiffs were represented by Adong bin Kuwau (whose name is also used to refer to this case), who were among the 52 family heads from Kota Tinggi, Johor.

The defendants were the Government State of Johor.

1997: Courts ruled against the State of Johor in favour of the Jakuns

Judge Moktar Sidin demanded compensation for the Jakuns loss of livelihood since the construction of the dam prevents “hunting of animals in the jungle and the collection of jungle produce”[1], but not the land since “it is clear that the land belongs to the state”.  

However, the compensation does not extinguish the Jakuns rights to enjoy the land therein.

What and what as court evidence

In the Adong’s case, the judge approached the case unconventionally method as elaborated below. Since it was the first time in the History of Malaysia that and aboriginal group had sued a government state, the judge

  1. took into consideration facts of history “whether past or contemporaneous” and placed great stress that the court was “entitled to rely on its own historical knowledge and research”. It was taken into account that the “sources of materials… were not produced directly as evidence in the proceedings” before the judge and evidence were selected by the judge. ‘“[I] rely on my own research on these issues.” (Adong’s case, at 424)’.[17]
  2. referred to and considered “international common law” on native title and their rights over land from various jurisdiction to come to conclusion. It is difficult to weigh how the different the contexts between the different countries aboriginal context and apply it to Malaysia.
  3. drew the conclusion of compensation based on the loss of use of what is on the land on the context of the Aboriginal People’s Act. The National Land Code which has its own rules were not prescribed in this case.
  4. In calculating the compensation, the judge assessed the per capita income figure for the poverty line in Malaysia and the sum paid per acre by the Singapore Government. The judge also ordered that compensation be made directly to the plaintiffs.

1998: The State legal advisor and Federal counsel appealed the case but was rejected

In 1998, the State Legal Advisor and Federal Counsel appealed the case.

Appellants: State Legal Advisor and Federal Counsel

Respondents: Jakuns-Orang Asli

The appeal was dismissed on the principle that:

  1. Aboriginal people’s common law rights over the land. Aboriginal people have legal rights to own land and that includes the rights of movement on the land and the rights to live off the produce just as their forefather had. This stance was crossed-referenced to the British Columbia’s Calder et al. v. Attorney-General (1973) case and the Mabo & Ors v State of Queensland & Anor (1986)[18].
  2. Infringement of freedom of land as guaranteed by Article 9(2). Even though the Jakuns were not living in the area, the building of the Linggiu Dam violated their rights to access the forest freely to source for food and the continuation of “traditional connection with the land for their livelihoods”[18].
  3. “Deprivation of livelihood may be amount to deprivation of life itself”. When the State had unfairly deprived citizens of their livelihood, adequate compensation was one method of remedying the wrongdoing[18].
  4. “The Act serves to complement their common law rights and not limit the rights of the Orang Asli.” Under Section 11 of the Act, “the State cannot take away these rights without compensation. Compensation should be made for the loss of respondents’ livelihood and hunting ground but not for the land itself, over which the respondents did not have an inalienable right.”[18] 

Discussion

Significant political shift

The Adong case establishes the Orang Asli’s status in Peninsular Malaysia and has helped many other Orang Asli tribes validate their rights to their ancestral lands. The following are landmark rights cases in Malaysia

30 May 2016: The case of Pos Belatim in the Gua Musang, district of Kelantan

7 villages of Temiar-Orang Asli living in Pos Belatim discovered that their traditional lands have been contracted out by the Kelantan State Government to be developed into an oil palm plantation by the state-owned Ladang Rakyat Development Corporations a 99-year lease[19].

30 September 2015: The case of Semai-Orang Asli of Kamoung Senta in Bidor, Perak

They were guaranteed their native title rights and use rights to their customary lands, known as tanah adat. Bionest Corporation Sdn Bhd (Bionest) sued the Semais for encroaching on their lands to which the Semais counter-challenged their customary rights[20]. While they were awarded their use rights, they lost a portion of their ancestral lands to the Chinese farmers[20].

26 May 2010: The case of the Temuan-Orang Asli in Kampung Bukit Sampoi, Selangor

The Attorney-General’s Chambers ruled in favour of Temuan-Orang Alsi in a land rights case in Kampung Bukit Sampoi, Selangor, against the Federal Government and the Malaysian Highway Authority (LLM) for forcefully evicting the Temuans from their ancestral land to develop the land. A monetary compensation of RM5.6 million was made to the 26 affected Temuan families based on the size of land taken from them to gauge how much crop they lost[21]. Similar to this case, compensation was made only for the lost of crops and not for the land.

The political economy of Malaysia holds a key position in determining the use of the land. Even though the Orang Asli have rights to land[4], their rights of land ownership are generally not recognized, Lands are generally seized for the betterment of the Malaysian economy and then monetarily compensated thereafter when the Orang Aslis challenge rights to landownership [1][21].

Dr. Nicholas Colins, an expert of Orang Asli issues mentions that "perhaps, it was with this foresight in mind that the authors of the Malaysian Constitution did not expressly accord the Orang Asli the special status enjoyed by the other Bumiputera communities viz. the Malays and the Natives of Sabah and Sarawak. Again, it seems, others are deciding how the Orang Asli are to be categorized and identified."[5]

Even though not all cases are successful, there is an increasing cases of the Orang Asli challenging their land rights.

Assessment and Recommendations

Following the Adong case, the Sagong Tasi[21] case received much media attention. The media attention may have increased the Orang Asli’s awareness to ownership rights of their ancestral lands and the increased. This heightened public awareness has encouraged other Orang Asli to challenge their ownership of their ancestral land which explains the burgeoning of landmarks rights cases in Malaysia. Most of these conflicts are managed by monetary compensation but there are limitations to how much the legislation can protect the Orang Asli. While monetary compensation can be given, the loss of tradition and culture as well as the degradation of forests cannot be restored. This right can be neglected so long as potential interested stakeholders can afford the compensation.

From the time that the agreement was signed (1990) to when the Jakun-Orang Asli sued the Government State of Johor (1995), it is uncanny that the Jakuns-Orang Aslis received no shares from the RM$320 million compensation from Singapore[2][14], neglecting the premium of the land even though the land is a kawasa saka that belonged to the Jakun-Orang Asli.

Perhaps prior to this, there have been a general lack of understanding of aboriginal issues and rights. This case was moreover the first time in which an Aboriginal rights in Malaysia were challenged[1]. Judge Moktar, in attempt to be impartial, had to consider similar international cases on aboriginal land rights to ensure that Malaysia was fair to the Jakuns. Nonetheless, despite the Aboriginal Land Act [4] which serves to protect the Orang Aslis, the State has the eminent domain over decisions made on the land for all land in Malaysia may be revoked by the Government.

There are limited resolutions to this problem. In this particular case, the kawasan saka was taken away before the Jakuns responded. The construction of the Linggiu Dam was completed before the case had begun. Despite the outcome from court, the ecosystem of the Jakun's kawasan saka had already been altered. Moreover, there is an international contract that governs the lease of the space. In the water agreement, neither Malaysia nor Singapore can individually alter the contract; a separate document was signed to guarantee the adherence of the contract[16]. It would not be possible to restore the ecosystem at that point. I addition, there are also issues with co-managing the forests and ecosystems by the Linggiu Dam. Being the "second national tap" of Singapore and having to supply up to 250 million gallons of water to Singapore each day[22], it is difficult to regulate the dam to ensure that the ecosystem is well-maintained since there is no way about cutting the water supply to Singapore in order to work on improving the surrounding. Concerns mostly revolve getting "sufficient water supply from the Johor River to Johor and Singapore"[23] [24]. There is also little information regarding the Jakun's willingness to manage the area. There was a buffer time of two years from completion of the dam to the when they sued the Government for using their ancestral territory. Approximately four years since the dam was constructed, it becomes plausible to assume that the Jakuns have managed a lifestyles without relying on the area being leased out. Nonetheless, it is crucial to have their ancestral lands acknowledged by the State.

However, it should be noted that the Malaysia Government is undertaking measure to improve the quality of life of the Jakuns. One such measure is awarding the Jakuns with oil palm plantation plots to be cultivated as a source of income[25].

References

  1. 1.0 1.1 1.2 1.3 Adong bin Kuwau and Ors v Kerajaan Negeri Johor and Anor. (2001). Australian Indigenous Law Reporter, 6(4), 82-89.
  2. 2.0 2.1 Singapore Parliament. (2003, January 25). Parliamentary Debates: Official Report. Annex D: The Agreement between the Government of the State of Johore and the Public Utilities Board of the Republic of Singapore signed on 24 November 1990, (Vol. 75, cols 2665–2730). 
  3. Malaysia Federal Constitution: May, 1977. (1978). Kuala Lumpur, Malaysia. Retrieved from http://www.agc.gov.my/agcportal/uploads/files/Publications/FC/Federal%20Consti%20(BI%20text).pdf 
  4. 4.0 4.1 4.2 4.3 4.4 4.5 4.6 4.7 4.8 Aboriginal People’s Act, Act 134, Malaysia (1954). Retrieved from http://www.kptg.gov.my/sites/default/files/article/Act%20134-Oboriginal%20Peoples%20Act.pdf on 7 October 2018
  5. 5.0 5.1 5.2 Colin, Nicholas (20 August 2012). "Origins, Identity and Classification". Center for Orang Asli Concerns. 
  6. Rambo, A. T. (1984). Orang Alsi Interations with the Malaysian Tropical Rain Forest Ecocsystem. In A. T. Rambo (Trans.), An Introduction to Human Ecology Research on Agricultural Systems in Southeast Asia. Laguna, Phillippines: University of the Philippines at Los Banos. Retrieved from https://scholarspace.manoa.hawaii.edu/bitstream/10125/30618/3/IntroductionToHumanEcologyResearchOnAgriculturalSystemsInSoutheastAsiaPartIII1984%5Bpdfa%5D.PDF
  7. Hill, R. D., Muse, P., & Project Muse University Press eBooks. (2013). Agriculture in the Malaysian Region (2nd ed.) NUS Press.
  8. Sysling, F. (2016). Taming the wild; aborigines and racial knowledge in colonial malaya, written by Sandra Khor manickam. Bijdragen Tot De Taal-, Land- En Volkenkunde / Journal of the Humanities and Social Sciences of Southeast Asia, 172(2-3), 391-393. doi:10.1163/22134379-17202011
  9. Danda, A. K. (2003). Page 793 Asia, land and people. Kolkata: Asiatic Society.
  10. Iankova, K., Hassan, A., & L’Abbé, R. (2016). Poverty Alleviation and Indigenous Communities in Peninsular Malaysia. In Indigenous People and Economic Development : An International Perspective. Abingdon: Routledge.
  11. 11.0 11.1 National Land Code, Act 56, Malaysia (1965). Retrieved from http://www.kptg.gov.my/sites/default/files/article/NLC1956DIGITAL-VER1.pdf
  12. Land Acquisition Act, Act 486, Malaysia (1960). Retrieved from http://www.kptg.gov.my/sites/ default/files/article/Act%20486-PENGAMBILAN.pdf on 7 October 2018
  13. "Gender and Land Rights Database - Malaysia". Food and Agriculture Organisation of the United Nations. 
  14. 14.0 14.1 14.2 14.3 14.4 Singapore Parliament. (2003, January 25). Parliamentary Debates: Official Report. Annex D: The Agreement between the Government of the State of Johore and the Public Utilities Board of the Republic of Singapore signed on 24 November 1990, (Vol. 75, cols 2665–2730).
  15. 15.0 15.1 "Singapore signs a new water agreement with Johor". National Library Board, Singapore. 
  16. 16.0 16.1 "Singapore-Malaysia water agreements". National Library Board, Singapore. 
  17. Case note: 'Native Title' in Malaysia: Adong's case. (2001). Australian Journal of Asian Law, 3(2), 198-212. [cited 09 Nov 18].
  18. 18.0 18.1 18.2 18.3 Kerajaan Negeri Johor & Anor v Adong bin Kuwau & Ors (High Court (Johor Barhu) February 24, 1998). 1998 Malaysia Interights Commonwealth Human Rights Law, MLJ 158. Retrieved from http://www.worldlii.org/cgi-bin/sinodisp/int/cases/ICHRL/1998/28.html?query=%221998%202%20MLJ%20158%22%20or%20%221998%202%20CHRLD%20281%22
  19. "Temiars in court for their land". Center for Orang Asli Concerns. 29 May 2016. 
  20. 20.0 20.1 "The Semai of Kampung Senta win their land rights case". Center for Orang Asli Concerns. 30 September 2015. 
  21. 21.0 21.1 21.2 The Malaysian Bar - Sagong Tasi & Ors v. Kerajaan Negeri Selangor & Ors 2002 (High Court). (2002). Retrieved October 7, 2018, from http://www.malaysianbar.org.my/selected_judgements/sagong_tasi_ors_v._kerajaan_negeri_selangor_ors_2002_high_court.html
  22. "Imported Water". Public Utility Board, Singapore. 
  23. "Singapore, Malaysia to conduct joint study of Johor River to conserve Linggiu Reservoir stock". Channel Newsasia. 16 January 2018. 
  24. "Enough water in Linggiu dam, Johor assures Singapore". The Straits Times. 27 January 2017. 
  25. SYARIFAH HUNAINI SYED ISMAIL (5 October 2009). "Pembalakan ancam kehidupan moden orang asli Sungai Rual". 


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