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Compensation for Orang Ash Native Land in Malaysia: the Perceptions and Challenges in Its Quantification

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Compensation for Orang Ash Native Land in Malaysia: the Perceptions and Challenges in Its Quantification Compensation for Orang AsH native land in Malaysia: The perceptions and challenges in its quantification Anuar Alias and Md Nasir Daud Centre for Studies of Urban and Reg iona l Real Estate Faculty of Built Environment University of Malaya Abstract This paper describes the results of an investigation on the challenges confronting valuers in dealing with the assessmen t of compensation for Orang AsH native land (OANL). In Malaysia, valuers are often ambivalent about assessing the worth of Orang AsH property rights; this is because the conventional valuation toolkits are 'ill-equipped' to cope with the multi-faceted issues involved in valuing such lands. Orang AsH view the worth of their lands from a multitud e of dimensions (spiritual, cultural, communa l and economic), and this often takes the value consideration far beyond that contemplated by private registered land owners. The study also looks into the compensation for native titles in o ther countries and draw s local parallel to the problem. The key issu es that have been identified include the valuation approaches; land rights; monetary and non­ monetary co mpensa tion; legal framework and; negotiatio n for compensation. These lead to the recommendation that the compensa tion issue for Orang AsH native land is need of a legislative reform . Keywords: Acquisition, Orang Asli landrights, compensation, chaliet/gesl valuatioll approaches Introduction interests conferred to a group settlement The purpose of this paper is to report gran tby the Land (Group SettlementAreas) the results of a preliminary survey that Act 1960 in which the rights, although has been undertaken to elicit perceptions imp aired, are not totally extinguished . amo ng the va rious groups involved Neither do these interests exist under the in determining the compensation for traditional laws and customs (Nik Yusof, Orang Asli native land . The valua tion 1996; ]afry, 1996). There fore, it is necessary of compensation for the partial or total to establish the Orang Asli land righ ts as extinguishment of Ora ng Asli (the high ligh ted in Adong Kuwau (1997) and Malay term for the ind igeno us peoples Sagong Tasi (2002) as well as native title in Peninsular Malays ia) property right s rights as emphasised in The Wik Peoples represents a grey area in valuation practice v The State of Queensland & Ors; The in Malaysia. Thayorre Peop le v The State of Queensland The issues with regard to the & Ors (Wik, 1993). assessmentofcompensation for OrangAsli The re are precedents relating to native land concern the interests of such the compulsory acquisition of, and land, which confer differing level of rights compensation for, lesser interests in land. from the ones enjoyed by a titled land. The Spencer principle remains app licable These interests are even lesser than the whereby compe nsation is assessed on 63 ]ollmalof Desigll alld tlie BuiltEnoironment the basis of the amount a willing buyer How is the extent of compensation to would pay a willing seller for the interest be measured? (Spencer v Commonwealth (1907) 5 Is there a need for legislative reform CLR 418). There are examples of courts to address the problems? assessing compensation involving loss of leases, easements, licences, riparian rights, Opinions have been expressed fishing rights and even the right to dig for by various quarters on the issues and worms for bait (Cobbo, 1993). Similarly, proposed solutions mostly come from the courts developed methods for valuing legal and land valuation discourses, which lesser native title interests under the Native are often pursued within highly charged Title Act 1993 (Australia) (Smith, 2001). contexts of resource development or court These would provide useful references for litigation' (Gardner, 1998; Sheehan, 1997, valuing Orang Asli native land in Malaysia 1998; Nicholas, 1997). Not surprisingly, for compensation purpose. many parties are looking for the elusive This paper is divided into three parts. formula or standardised procedure for the In Part I, we review the rights and interests calculation of compensation. attached to Orang Asli of their native land. In Part II, we look at existing frameworks Rights and Interests of Orang AsH Native in the compensation of Orang Asli native Lands land together with a review of the current Precisely what rights and interests do framework for the valuation of OANL. Orang Asli have over their native lands? In Part III, we present the results of a The position differs between what is given preliminary survey. in statute and what exists under common law . The Key Issues Current laws in Malaysia leave many Land Ownership issues open when it comes to assessing the Orang Asli regard saka or traditional rights worth of Orang Asli property rights. The to specific ecological niches as owned specific details remain to be worked out communally by them from the time of between parties involved in negotiation', their ancestors, and these rights will With regard to the compensationfor Orang continue to the following generations (Nik Asli native land affected by an acquisition, Yusof, 1996). Historically, their claims there is considerable uncertainty to these areas were to a large extent not surrounding the following key issues: contested by other communities because these areas were invariably regarded as What are the Orang Asli land rights uninhabitable, remote and backward (in and interests that have been, or might fact, it was not so much the lands that were be affected by an acquisition exercise coveted by others but rather the resources by the state authority? found therein). Given that the exploitation What is the nature of the impact on of forest resources (such as galzaru, resins, Orang Asli land rights and interests? rattan, and petal) had formed the means How are losses, impairments or extinguishments to be determined? Who is entitled to compensation and 1 Parties involved are: Department of Aboriginal Af~ on what basis? fairs (JHEOA), the State Authority, the Acquiring How to distribute the compensation Body and valuers for Orang Asli Reserves or Areas? 2 See also Sagong Tasi v The Selangor State Covem­ ment [2002] 2 MLJ591; Adong bin Kuwau and Nors v Kcrajaan Negeri [ohor and Anor I1997] 1 MLJ 418 64 Compeneation for OrallgAsli Native Laud ill Malaysia by which they sustained their livelihood, init, including timber, vest with the Orang the Orang Asli had since 1400s found Asli community there. themselves being exploited by outsiders Six years later, in Adong Kuwau for the extraction of the forest produce (1997) case the court rul ed that the state (Nicholas, 2003). authority must compensate the Orang Asli This scenario however changed when for the loss of income if, as a result of the Malay Rulers arrived to stake claim and acquisition! the Orang AsH were no longer assume ownership of all lands lying within able to subsist on the bounty of their their claimed domain, thereby 'colonising' traditional resource. In this particular case, the territories of the Orang Asli. The the Orang Asli community was awarded introduction of the Torrens System of land for a 25-year period loss of income ownership during British colonial rule amounting to a total of RM38 million in later on exacerbated this situation (Nik monetary compensation. Yusof, 1996; Awang, 1996). Nonetheless, Five years later (in 2002)in yet another the Orang Asli did not lose thei r traditional landmark decision, the court in Sagollg lands entirely during these periods. In fact, Tasi & Ors v. Se/allgor State Gouernmen! & some territories gained official recognition Ors (2002), the court ruled that although during the later part of the British colonial the affected lands were not gazetted as rule (particularly in the 1930s and 1950s) an Orang AsH reserve or were untitled, when they were gazetted as Orang Asli those traditional territories where the reserves; some others were recognised as community had lived and worked upon in Orang Asli areas or Orang Asli 'sanctuary', accordance with their 'adat' or custom are None of these were conferred legal to be considered as having been accorded territorial ownership to the Orang Asli. the same rights as that of a titled land and, Even the more recent Aboriginal Peoples as such, the law that applies elsewhere for Act (Act 134, 1954 revised 1974) fell short acquisition should equally apply to the of granting the full recognition to land holders of the traditional lands. rights with its declaration of Orang Asli merely as tenants-at-will. Tenant-at-Will Recent years have seen several The extent of the Orang Asli rights established Orang Asli settlements having overtheir traditionallandsisspeltoutin the to make way for major development Aboriginal Peoples Act, 1954. In essence, projects such as the Kuala Lumpur the Act provides for the establishment of International Airport (KLIA), highways, Orang Asli areas and Orang Asli reserves. private university, dams, golf courses, and Previously, the view of the government for private housing and industrial projects. was that under the Aboriginal Peoples In standing for their rights, the Orang Asli Act, 1954 the best interest the Orang Asli resorted to various means for remedies, may obtain from their traditional lands is including to the courts of law. They met as a tenant-at-will. This was due to the withsome measureofsuccess in forcing the perception that the traditional lands of State to recognise their traditional or sak« the Orang Asli in principle are state lands rights. In Koperasi Kijang Mas v Kerajaan (Endicott&Dentan,2004;Jama luddin,1997; Negeri Perak & Ors (1991), for example, Salleh, 1990; Idris, 1983). The Orang Asli the High Court ruled that irrespective of was considered to occupy their traditional whether or not an area had been gazetted lands as 'guests' of the government. As as an Orang AsH reserve, as long as that such, when the land is needed for any reasons, the governnlent would just area was identified as an Orang AsH area Of an Orang AsH inhabited area, all resources revoke the status of these traditional lands 65 !Olmwl ofDesignand the Built Environment and issue to the affected Orang Asli a short experience of them under the Aboriginal notice to vacate their traditional lands; this Peoples Act, 1954.
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