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The Sultan of Pahang has called for greater clarity over the use of the term “tanah adat”, saying Orang Asli land claims must be assessed according to the legal status of the land, including its gazettement, boundaries, and history of occupation. However, for Orang Asli communities, the issue goes beyond what is written on a land title. So, where does customary land sit within Malaysian law? And what happens when customary claims meet the state’s process of gazettement? On this episode of #ConsiderThis Melisa Idris speaks with Bah Tony, Deputy Chairperson of the Bar Council’s Committee on Orang Asli Rights.
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00:10Hello and good evening, I'm Melissa Idris. Welcome to Consider This. This is the show where we want
00:15you to consider and then reconsider what you know of the news of the day. The Sultan of Pahang has
00:20called for greater clarity over the use of the term tanah adat, saying orang asli land claims
00:27must be assessed according to the legal status of the land, including its gazetment, boundaries
00:33and history of occupation. However, for orang asli communities, the issue goes beyond what is
00:39written on a land title. So, where does customary land sit within Malaysian law and what happens when
00:47customary claims meet the state process of gazetment? Well, joining me on the show now is
00:53Bartoni, who is the Deputy Chairperson of the Bar Council's Committee on Orang Asli Rights. Bartoni,
01:00thank you so much for being on the show with me today. Let's talk about this tanah adat or customary
01:04land. Talk to me a little bit about this. Is it a term or a category that is recognised under
01:11law under
01:11the Aboriginal People's Act of 1954? I'm curious to know when orang asli communities refer to tanah
01:20adat. What exactly are they referring to and is it recognised under Malaysian law?
01:26Okay. Thank you, Melissa. Thank you for inviting me. Okay. Under the Aboriginal People Act, or in short,
01:34Act 134, it's stated three categories of land. There are places where orang asli reside or tempat
01:45demand and then orang asli area and orang asli reserve. Yeah. According to the law, I mean,
01:55according to Act 134, there's no mention about customary land, you know, of the orang asli,
02:01you know. Yeah. But, you know, the court have recognised that orang asli have rights, you know,
02:07over their customary land, you know, under common law, you know. As we all know, common law is also
02:15defined as law, you know, under the constitution, under the fact, under Article 1602, you know, under the
02:24definition. Yeah. So, while it is not stated, you know, specifically in Act 134, you know, but the court
02:33have recognised, you know, according to common law and common law, as I said earlier, is part of law,
02:40you know, as defined in the constitution. When orang asli refers to Tanah Hadan, you know,
02:47customary land, you know, it is just, it is not just occupation, you know, a particular area, you know,
02:57it covers, you know, encompasses, you know, more than that, you know. It shows it, the main thing is
03:04connection, you know, to a particular area, you know, that the orang asli, a particular orang asli community
03:10is connected to this particular area of land, you know. So, in that particular area, you know, you have the
03:18village side, you have the orchards, you know, you have the oil pump or rubber plantations or small buildings,
03:27you know, you have the spiritual places, you know, where they offer rituals, you know, to their ancestors,
03:34you know, the place where they hang, you know. And this area, you know, it's just, it's not arbitrarily
03:40marketed, you know, it's done through customs, you know, through Agat, you know. And this,
03:46their connection to the local community, a connection, you know, to their customary land,
03:52you know, extends, you know, to time immemorial, you know. So, we do not know, like, there is a
03:59traditional connection, you know. So, it does not, sort of, really, it's not in sync
04:08in what is stated, you know, in, say, Kawasan, yeah, in Act 134, because Kawasan in Act 134, you know,
04:17seems to emphasize more on occupation, but, you know, for Tanah Haddad, you know, it's more of
04:22connection, you know, that this particular community, you know, has this connection, you know, with the
04:27area, yeah. So, Batadi, help me understand how currently the customary land claims are dealt with.
04:36So, how does the state approach and deal with Orang Asli land claims?
04:42Well, you know, as far as I know what they do, you know, the state, you know, they will,
04:49if there's an application by the Orang Asli or on the initiative of JAKO, for instance, you know,
04:54they would make an application to the state government, you know, for a particular area to be
04:59considered as either Orang Asli reserve or Orang Asli area, you know, depending on the situation
05:08of the occupation of the land, you know, of the particular land, you know, but
05:14as far as I know, you know, the state, you know, is very reluctant, you know, to recognize Orang Asli
05:19rights over their customary land, you know. So, Orang Asli have no choice, you know, they have to take it
05:24to the
05:24courts, you know, and the court, you know, has, you know, as I said earlier, you know, has recognized
05:30Orang Asli rights over the customary land, you know, just not the High Court or Court of Appeal,
05:36you know, and recently, you know, the Federal Court, you know, the highest court in the land.
05:39That's right. So, there was a really an important decision by the Federal Court this year,
05:45involving Orang Asli from Kampung Batu 20 from Pekan. So, can you talk to me a little bit about
05:51that? What exactly did that Federal Court judgment establish about customary land rights?
05:58Yeah. Well, I mean, they reaffirm, you know, you know, that Orang Asli has rights over their customary
06:05land, you know, as in the decision of Adung Koaw, Sabung Tasi and other Orang Asli cases before.
06:12Yeah. And that this right, you know, also, it is just not about connection to the land, you know,
06:18I mean, they related, you know, to right to life, you know, under Article 5, you know, that Orang Asli
06:24rights to the land, connection to the land, you know, has also, it covers also rights to life, you know,
06:31because honestly, as you are well known, you know, they are so much dependent on the land, you know,
06:35for their livelihood, yeah, and also for their spiritual and cultural aspect of their life, you know,
06:42significance, you know, yeah. Right. So then, having had that Federal Court judgment, does that change the
06:52way we should understand the Sultan's statement, the Titah Sultan that Sultan Pahang made a few months ago?
07:02Yes, absolutely, you know, because that Orang Asli has rights over the customary land, it's not a new
07:08thing, you know, it has been, I think, some 30 years ago, you know, it started with Adung Koaw and
07:13Sabung Tasi
07:14and now, you know, the Apex Court, you know, has affirmed it, you know, yeah. Orang Asli rights, you know,
07:20over the customary land has always existed, you know, and what I understand, you know, from
07:25what the Sultan said, you know, that Tanah Adha, you know, only existed, you know, once a land is
07:32guested, that is not true, you know, yeah. Orang Asli rights over their customary land, you know,
07:36does not, does not arise from any statutory written law or statutory law or executive order, it arises
07:47before that, you know, it arises from traditional law, customs and the precise nature of such rights
07:52are determined by the practices and usage of each individual community, yeah. So, it's not, you get
07:58that first, then you get Tanah Adha. No, it pre-exists, you know. Okay, so then how do, how would
08:06that be determined? Maybe you can help us think through. So, I believe that the idea of the state is
08:13that for land claims to be assessed according to the legal status of the land, gazette, boundaries,
08:18history of occupation. What is missing from that formulation, Bhatoni? How do you determine,
08:24as you mentioned earlier, the connection to an area? What is, what do the courts use to determine that?
08:31Well, you know, the tests, you know, normally, I mean, apart from the other tests, like, you know,
08:36the claimant has to be Orangasli, you know, they have to show that they have prior occupation and all
08:43that, you know. But what is important is connection to the land itself, you know, yeah. So, they have to
08:48show proof to the court, you know, and the court will evaluate, you know, whether it's true that they
08:54have connection to the land, you know. And, you know, for an Orangasli community, they have their well
09:00demarketed area, you know. They don't simply claim, you know, as they like, you know. They don't simply
09:04go to any area and say, ah, this is my tanah adat. No, you know, they only do that, you
09:09know,
09:09if they have connection with the land, you know. Like, among my people, my mother's people, you know,
09:14we call it Nenri, you know, our tanah adat. We call it Nenri. It's so well demarketed. It's not,
09:28encroached into our land, you know, because they know it's our land. Yeah. So, have there been
09:35success stories of Orangasli, customary land being recognised and by the courts? Have there been more
09:45wins than losses or would you say vice versa? Yes, in fact, more wins, almost all wins, you know.
09:52So, what the state should do, you know, is to take a reason of this, you know, you know. That's
09:57why,
09:57you know, one of the demands of, as I understand, by the NGOs, you know, to the government, you know,
10:03is to put into effect, you know, this land, the principles, you know, of the ruling made by the
10:12courts, you know, that this ruling must be qualified and, you know, included that in Act 134,
10:18you know, the government is in the process of amending it now. Yeah. Yes. Well, that's,
10:25it's a long time coming and I'm very hopeful that this is going to see the light of day. What
10:30would
10:31you consider, what would you like to see in terms of a fairer or maybe a clearer system for resolving
10:39Orangasli
10:39land claims? What would that look like to you, Pak Dhoni? Well, again, you know, I think, you know,
10:44this is important that, you know, Orangasli customary land rights, you know, be incorporated in Act 134
10:51and then, Orangasli, there must be a serious engagement with Orangasli, you know, when determining,
10:57you know, which area or which land to be gathered, you know, to be recognized. Orangasli land must be
11:02recognized, you know, for them to, you know, make sure their land are protected, you know, and then when
11:09the land is protected, you know, they don't, they won't be accused of pencerobohan, you know, as
11:14what is happening now. And then they also can use the land, you know, for their livelihood, you know,
11:19again, as, you know, as decided in Orangasli, you know, land, just not got, I mean, not just connection
11:25to the land itself, you know, but connection to life, cultural survival and spirituality, you know,
11:31yeah. It's actually the very existence of the community itself, you know, yeah. Definitely. Can I, can I ask you
11:37to maybe clear up one misperception? There's, there's this perception and it's been said, I think even
11:43the, the Sultan Afpahang may have mentioned it dalam kita dia, to say that there are pihak luar
11:49yang cuba mengelirukan Orangasli tentang isu tanah adat. This perception that there's, there's, there are
11:56outsiders who try to confuse Orangasli about the issue of customary rights. Can you maybe talk a little bit
12:05about that? Well, how do you see this perception? Well, I, I'm very sure, you know, they know,
12:11Orangasli know, you know, where are the tanah adat, you know, yeah. Yeah. So if there are people who say
12:17Orangasli are confused, you know, about the tanah adat, it's definitely not true, you know, yeah. So
12:24whatever it is, there must be proper engagement, you know, if there are people as, you know,
12:28alleged, you know, in the, in the, in the news, in the media, you know, that there are third parties
12:33using Orangasli, you know, I don't think, I mean, investigate that if that is true, you know, yeah.
12:39But don't, you know, put a blanket, you know, blame or allegation that Orangasli being used by
12:44that party, you know, for purposes and, what do you call, to confuse Orangasli about tanah adat. No,
12:51they know where is your tanah adat, you know, as I said earlier, they don't simply go anywhere as
12:56they like, you know, like, like I, you know, SMI, you know, I can't go to Johor and open up
13:00land there
13:01and claim as my tanah adat, you know, no, no way. Yeah. Definitely. Thank you so much,
13:07Bahtoni, for being on the show with me. I appreciate you sharing your, your insights and your work with
13:12us. That was Bahtoni, the Deputy Chairperson of the Bar Council's Committee on Orangasli Rights.
13:16And we're going to take a quick break here on Consider This. After this, we'll speak to someone
13:20from the Pahang representative from the Jaringan Kampung Orang Asli, Semenanjung Malaysia.
13:26So stay tuned to Consider This. We'll be right back.
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