Regarding the dynamics of the Government notion of “consultation” when it comes to the Orang Asli and post 17 March 2010 (the protest) developments on the continuing Orang Asli struggle against the proposed government amendments to the OA land policy.
Tuesday, 13 July 2010
It is high time that the government thinks “out-of the box” and explores the notion that Orang Asli progress lies in empowering Orang Asli over their customary lands.
Events since the 17 March Orang Asli protest against the proposed Orang Asli land titles policy indicate that their land woes are far from being resolved and have the potential of spiralling out of control. If not handled with due care by the government, this situation could escalate into an embarrassing legal tussle over the policy.
Under the proposed policy, each Orang Asli head of household would be granted between two and six acres of plantation lands and up to a quarter of an acre for housing but at the cost of losing their customary lands. It has been estimated that Orang Asli would lose almost 80% of their customary lands if the policy is fully implemented.
In addition, Orang Asli households would have to reimburse the development costs of these lands to a government-sanctioned developer. The external management of agricultural development projects in all new Orang Asli development schemes proposed in the 10th Malaysia Plan would further function to deprive Orang Asli of de facto control over these plantation lands and leave them at the mercy of the managers.
The Constitutional Law Comittee – MyConstitution brings their rights awareness programme to Kampung Bertang Lama, Raub, Pahang.Video courtesy of GV Shan, Malaysiakini.
Orang Asli dissatisfaction with the proposed policy finally manifested itself in the 17 March protest and a lengthy objection memo to the government setting out Orang Asli demands.
Since then, the government has not yet to revert with any proposal in response to these demands. Instead, sources indicate that the Department of Orang Asli Affairs has merely intensified efforts to explain the rationale of the proposed policy and its purported benefits to the Orang Asli.
On 20 May, the Peninsular Malaysia Orang Asli Village Network, fearing that the proposed land policy may be implemented without meaningful consultation with Orang Asli, decided to act. It delivered a letter to the Rural and Regional Development Minister, who is ultimately responsible for Orang Asli affairs, reiterating its objection to the proposed policy.
In a recent interview over Malaysiakini.TV, Bob Manolan, a representative of the Orang Asli Graduates Association, lamented that Orang Asli had not yet received a final draft of the proposed policy and proposed amendments to the Aboriginal Peoples Act 1954 (APA) for their consultation, consideration and feedback.
His concern is not unfounded. If one were to wait until the relevant bill is presented to Parliament, it may be too late. Amendments to legislation similar to the APA can be bulldozed with a simple majority, a feat that is well within the power of the Federal government.
Such is the apprehension over the lack of Orang Asli consultation in respect of the proposed policy and its effects on the entire 147,000 strong Orang Asli community that the Bar Council has stepped into the picture. In a press release dated 24 June 2010, the Bar called upon the government to “make public the proposed amendments” and “allow for a comprehensive and frank discussion with all the relevant stakeholders before the proposals are tabled in Parliament”.
On a sterner note, the Bar Council opposed “any attempt to hasten” the amendments to the APA “through Parliament without the benefit of feedback from all concerned parties after they have been given an opportunity to fully consider the proposals”. At the time of writing, the relevant documents in relation to the policy are not publically available.
Recent public responses regarding the policy from Rural and Regional Development Minister Shafie Apdal raise cause for concern. In the Star on 5 July 2010, the Minister said that the “conclusion from the meetings would be presented to the National Land Council”.
What “conclusion” and “meetings” was he referring to?
Admittedly, there may well be Orang Asli who agree to the proposed policy. However, under what circumstances did they agree? Conversely, there are also many Orang Asli who oppose the policy but have not been represented at these “meetings.”
In a report in Utusan Malaysia on 5 July 2010, the Minister was quoted as saying that he would consult with state governments on the Orang Asli land ownership issue. Will Orang Asli be adequately represented in these consultations?
In response to this statement, Gerakan’s Central Bureau on Unity called upon the federal government to consult Orang Asli in its deliberations and during these meetings. Experience, however, suggests that this call may be wishful thinking on the part of Gerakan and other like-minded Orang Asli.
Raja Nazrin Shah could not have been more lucid when urging the government to consider the views of Orang Asli before implementing development programmes affecting them recently. He said “their culture and ways of thinking should serve as guidance”.
This is not an idealistic plea. “Free prior and informed consent” of Orang Asli on matters affecting their lands and consultations in good faith are principles contained in the United Nations Declarations on the Rights of Indigenous Peoples 2007. Malaysia voted in favour of this declaration twice without any reservations. From a purely legal perspective, such principles should also not be disregarded in view of the fiduciary duty that the government owes Orang Asli.
In this regard, it should be understood that a genuine consultation process for a proposed policy does not involve the promotion of the policy, but a readiness to amend policy proposals in the light of information received. This is common knowledge and there is a growing number of Orang Asli who are aware of these rights.
In order to start on the right foot, the consultation process must take into account the particularity of Orang Asli political associations. As a result of a long history of government paternalism and Orang Asli political, economic and numerical inferiority, Orang Asli methods of association and collaboration when confronting the government are fluid with fine lines being drawn between dissent and agreement.
As one Orang Asli explained to me, “It is not easy to tell the government they are wrong when you are reliant on them for assistance. One has got to be smart about these matters and wait for the right time to voice out matters.” To illustrate, thunderous applause for a politician who visits a village does not necessarily translate to satisfaction with government policies.
By the same token, Batins (heads of a settlement or village) who receive financial assistance from the government to make ends meet may not be so candid about their settlement’s grouses. The membership of an individual in an Orang Asli association whose representatives have a particular view about a government policy does not mean that the individual supports the association’s view. In many an instance, the contrary is true.
These complexities should not be deemed as confusion or a lack of understanding on the part of the Orang Asli, but more of a conciliatory way of putting views forward to a government that possesses extraordinary powers over them.
Bona fide consultations should therefore go far beyond pigeon-holing Orang Asli into associations and securing their participation. They would engage all stakeholders (including human rights-based NGOs) in a meaningful way.
In its rush to achieve poverty eradication targets, cultural sensitivities and particularities of the Orang Asli community should not be ignored. General assumptions and formulae likening them to other marginalised communities may well produce adverse results.
It is high time that the government thinks out-of-the-box and explores the notion that Orang Asli progress lies in empowering Orang Asli over their customary lands.
As it stands now, this concept has failed to find acceptance with the federal policy-makers. In the end, it must be appreciated that continued persistence with this mindset may fuel the political-awakening of Orang Asli who thus far have been termed as a “fixed deposit” for Barisan Nasional votes.
Justice was never won without personal sacrifice – whether measured in time volunteered, energy devoted to a cause, or financial support generously given. Your contribution no matter how small will be like a droplet that builds up into a wave of change. Click here if you would like to contribute financially to Aliran.
LB: The author is an Aliran member, currently pursing a doctoral thesis in the Reform of Orang Asli Land rights at the Faculty of Law, University of New South Wales, Sydney. This article was originally published here.