How Selangor won over the Orang Asli
Published: 23 September 2010
Colin Nicholas Sep 23, 10
COMMENT Below is an excerpt from The Road to Reform: Pakatan Rakyat in Selangor. The book, to be launched on Sept 27, is a collation of articles written by 22 authors on the achievements and difficulties of the Pakatan state government since taking power 18 months ago.
“I am the politician here,” came the Selangor menteri besar's words firmly across the dinner table, followed by a kick under it from Eli. “You leave the politics to me.” It was one month after the Pakatan Rakyat coalition got hold of the reins of power in Selangor and PKR, one of the parties in the coalition government, was having their retreat at a hotel in Shah Alam.
Elizabeth Wong, the newly-appointed state executive council member, had arranged for me to sit with the new menteri besar at dinner. The opportunity was for me to try to persuade him to get the state government to withdraw as one of the appellants in the Orang Asli land rights case that was coming up for hearing the next day in the Federal Court.
Also at the same table was the state legal adviser who was trying to convince the menteri besar to go ahead with the appeal. The menteri besar himself was inclined to this view as he wanted to see the court process to its completion. “Whatever the outcome,” he assured me, “I would treat the Orang Asli fairly. All the Orang Asli in the state.”
Somewhere in my line of argument I had suggested to the menteri besar that the PKR would look bad, and also come across as being deceitful, if it were to go ahead with the Federal Court appeal. In the eyes of the Orang Asli, the Pakatan-led government would seem no different from the previous Barisan Nasional state government.
Besides, I argued in my normal disrespectful way, PKR adviser Anwar Ibrahim had been telling the Dayaks in Sarawak that if the Pakatan came to power there, their land rights would be recognised.
I also argued that to make such a promise and not to withdraw the appeal in the Sagong Tasi case would be a major moral contradiction, besides being politically destructive to PKR's chancesthere. This was what prompted the menteri besar's “leave the politics to me” retort.
The kick reminded me that I was dealing with a menteri besar who was coming from the corporate world and who just wanted the facts in order to make a decision. The supporting comments from lawyer friends Edmund Bon and Sivarasa Rasiah, who were also at the table, surely prevented me from being asked to finish my meal fast.
Thinking it over
The menteri besar said he needed more time to study the matter. In the meantime, he would not withdraw from the case but would instruct the state legal adviser to ask for a postponement when she appeared in court the next day. This was done, and the news got some good coverage, including in the local papers in Sarawak.
The Orang Asli legal team was also impressed (and happy) that the state government actually took such a stand, and at such short notice. But the critical objective remained: to eventually get the state government to withdraw its appeal in the Federal Court altogether. And in so doing, make a clear stand on Orang Asli land rights.
To this end, Wong was instrumental in bringing Orang Asli issues and resolutions to the fore in the state. Despite already being the executive council member responsible for tourism, environment and consumer matters in the state, she also added the Orang Asli to her responsibilities. The first step was the appointment of a special officer to assist her in Orang Asli matters. This was another first for any state government.
Despite not having a proper budget for the new portfolio, Jenita Engi, a Temuan woman then attached to the Centre for Orang Asli Concerns, was employed and set about putting the Orang Asli on the state's agenda. With Wong giving directions while she was on self-imposed leave of absence, Jenita set about arranging for the first-ever full dialogue between a sitting menteri besar and the Orang Asli community.
This was held in the Bukit Lanjan settlement - now called Desa Temuan in Damansara Perdana - on March 1, 2009. The menteri besar and several state assembly people and MPs listened to the Orang Asli and their situation until the end, further impressing the Orang Asli who were used to invited guests leaving soon after they gave their speeches (and so never got to hear what the Orang Asli had to say).
But the menteri besar and a number of his executive council members were still not willing to withdraw from the Sagong Tasi case. One (unsupported) fear was that if the state did so it would have to pay millions in compensation to the Orang Asli plaintiffs.
This was not so, in reality, because it was the federal government that wanted the land for a federal project, so it was the federal government, not the state government, that would have to cough up the compensation for the land.
Also, it appeared that some councillors were wary that if the state government supported the Orang Asli in their claim to native title rights, the Orang Asli would soon be claiming Petaling Jaya and Shah Alam, amongst other towns, as theirs. The fact is the Orang Asliare already residing in their own respective customary lands, and while these have been greatly reduced in size over the years, it is these lands that they are seeking recognition to.
The absence of the Orang Asli ally Wong during this period was a setback, but the Orang Asli also had other supporters on their side. Just three weeks after the first Menteri Besar-Orang Asli dialogue, the menteri besar's research officer, Tricia Yeoh (right), put together a meeting of legal minds to brief the menteri besar on both the pros and cons of pulling out of the Sagong Tasi case.
Lawyers Bon, Augustine Anthony and Orang Asli activist Bah Tony argued for the Orang Asli side, after I had given the background of the case.
The state legal adviser still took the line of her employer, the federal government, and urged the menteri besar to go ahead with the appeal. However, I think it was the eminent lawyer, Sulaiman Abdullah, who hit the nail on the head for the menteri besar.
“Tan Sri,” Sulaiman said with his usual measured confidence, “you know very well that you can easily find the legal arguments to support either contention. The first thing Tan Sri needs to do is to decide what is the morally right thing to do.”
It is good to note that in the month that followed the menteri besar did the morally right thing and got his executive council to accept the state government's withdrawal from the Sagong Tasi case. The Federal Court was formally informed of the decision on April 23, 2009, putting the other appellants in a fix. After all, their whole case was premised on the assumption that the land concerned belonged to the state and not the Orang Asli.
The Selangor state government's withdrawal from the Sagong Tasi case made good copy for the newspapers, and certainly made the PKR look good in the eyes of the public, especially the Orang Asli public. It also became easier to convince the indigenous community in Malaysia that the years of uncertainty, expense and suspense that such court cases normally involve could be a thing of the past by virtue of a simple change of government.
The menteri besar had kept his word. He took the trouble to study the matter and made a decision in the end. This was perhaps the best of the corporate trait in him.
In the end, a consent judgment was reached on March 26, 2010 where the federal government, LLM and UEM agreed to withdraw their appeal and pay the Orang Asli plaintiffs a total of RM6.5 million in compensation.
More pro-Orang Asli moves
The state government's commitment to improving the situation of the Orang Asli did not stop at the Sagong Tasi case. With Wong back holding the helm of the Orang Asli portfolio in the state government, there was more to come. For one, taking the lead from the (albeit) short-lived Pakatan Rakyat government in Perak, Selangor, too, established a special committee to look into the Orang Asli land problems in the state.
The Badan Bertindak Tanah Orang Asli Selangor (BBTOAS, Selangor Orang Asli Land Task Force) was launched on May 4, 2009. It comprises Orang Asli from all the eight districts and is also headed by an Orang Asli. Its task is to document the land status as well as the socio-economic situation of all the Orang Asli villages in the state and to come up with a plan of action to resolve all issues pertaining to them.
In March 2010 Kampung Gerachi in Kuala Kubu Baru district became the first Orang Asli village in Selangor whose residents received individual titles to their plots of land. This is another first for the state government with regard to the Orang Asli.
The target has now been set to get at least 30 percent of all Orang Asli villages in the state to be given land titles before April 2011. Quite a tall order in my opinion, but no doubt an indication of the commitment and eagerness of the state towards making good its promise to recognise Orang Asli land rights.
The state government's approach towards this goal has been multifold. Apart from getting BBTOAS to identify the land issues, the state is also sponsoring the training of several Orang Asli representatives in community mapping.
With help from indigenous experts in this field from Sabah, the Orang Asli community mappers are learning to use the global positioning system (GPS) and basic geographic information system (GIS) techniques to map out their traditional lands.
The maps they produce will be important for determining the claim to their customary lands, as well as being a useful tool in the management and conservation of their traditional lands, especially for those communities living close to the forest fringe.
Getting consent first
Furthermore, a policy of transparency and inclusiveness practiced by the menteri besar and his government has helped prevent more of the traditional lands of the Orang Asli being lost to unscrupulous developers and land fraudsters.
During the reign of the BN-led state government, no less than 8,400 hectares of government-recognised Orang Asli traditional lands had been degazetted or derecognised as Orang Asli land and the properties given to outside individuals, developers, corporations and institutions.
Often, all this happened without the Orang Asli knowing about the deals until they were asked to vacate their land. Now, however, any claim or application for development or acquisition of Orang Asli lands in Selangor requires the Orang Asli's free, prior and informed consent.
This is yet another first for the Orang Asli in the country. I know of at least one case of an attempted deception that was thwarted because of this policy. Had the state still been under the previous administration, I have no doubt the developer's application would have sailed through the executive council process without an eyelid being batted.
Land issues are not the only focus of the state as far as the Orang Asli are concerned. Realising that some of the Orang Asli villages do not have electricity because they are too far from the main grid, or because they were forgotten by the Department of Orang Asli Affairs(JHEOA), the state is working towards resolving this omission.
Mini-hydro projects are now being suggested for these villages, the implementation of which will involve NGO support and the full participation and involvement of the community. In the end, the project will be owned and managed by the community, who will be given the necessary capacity training to make sure they can successfully do it.
Two pilot mini-hydro projects are under way now. They also have a conservation component built into the project as the Orang Asli communities are required to be the guardians of the forests in their vicinity. After all, the success of the mini-hydro project is dependent on the forest producing a regular flow of water into its streams.
In fact, forest conservation has been another strong feature of the Pakatan-led government in Selangor. A moratorium on logging in the state was enforced as soon as the new government took over the reins. But because some Orang Asli lands are in forest or forest fringe areas there is a fine line between recognising Orang Asli rights to land and protecting the forests.
The problem is that some Orang Asli are bent on converting their land, especially forest land, to oil palm or rubber holdings - and so become no different than the non-Orang Asli smallholders in their outlook and their perception of the forest.
On the contrary, alternative uses of the forest are required in such areas if the state is to keep the forests while recognising the rights of the Orang Asli to use and manage them, if not to own them. In this regard, dealing with opportunistic elites among the Orang Asli, or ensuring genuine community representation, poses another challenge for the state.
Getting the support and working together with the JHEOA - a federal government department - is also a challenge facing the state.
The state however is willing to go it alone if personalities and policies do not agree or match.
Rectifying the numerous cases of fraudulent transfers of Orang Asli lands to other parties is another area the state needs to look into. And these lands must be returned. Participatory development initiatives should be the method by which the Orang Asli are to progress. And for this to be realised, the capacity of the Orang Asli needs to be increased.
Only then will they be able to participate more fully and with more competence in all matters concerning themselves.
So when the state government formally celebrated World Indigenous Day on Aug 9, 2009 - another first in the history of any government in Malaysia - I felt it was a case of the Pakatan-led Selangor state government genuinely wanting to empower the Orang Asli who have been marginalised and exploited throughout the previous administrations.
Thus, for example, at a time when the federal government is introducing a new land policy and amending the law to further deny the rights of the Orang Asli to their traditional lands,the Selangor state government is looking at means by which such lands can be protected under state laws and other provisions and kept in the hands of the Orang Asli.
In fact, the Pakatan-led Selangor state government had from the beginning clearly stated its good intentions for the Orang Asli in the state - and it has followed through by walking the talk.
The new politics has come with the required political will to see Orang Asli aspirations realised. Still, more should be done such that this philosophy and development thinking become ingrained and habitual among politicians and administrators irrespective of who isrunning the state in the future.
COLIN NICHOLAS has been the coordinator of the Centre for Orang Asli Concerns since its founding in 1989. He has written and spoken widely on Orang Asli and indigenous issues and continues to be active in Orang Asli advocacy and empowerment efforts. He was also an expert witness for the Orang Asli in the precedent-setting Sagong Tasi land rights case.