KELANTAN has been taking land originally earmarked for the Orang Asli on the sly since Merdeka, lawyers said, resulting in disputes and blockades.

Rights lawyer Siti Kasim said this also occurred in other areas throughout the country.

Kelantan was ruled by Islamist party PAS from 1959 to 1978. Barisan Nasional took over in 1974 and PAS recaptured Kelantan in the 1990 elections.

Siti, who heads the Malaysian Bar’s Orang Asli committee, said similar land claims in other areas of Gua Musang have been acknowledged by the courts.

These claims are based on old maps by the British colonial government given to Orang Asli tok batin (village chiefs) to demarcate their territories.  

“The areas were marked as the domain of the sakai, which refers to the Orang Asli,” Siti Kassim told The Malaysian Insight.

“Those lands, however, were silently converted to government land and gazetted as Malay reserve (land) by the state government.”

She has challenged the stand of the PAS-controlled state government, which has refused to recognise claims by the Temiar tribe to customary land in a forest in Ulu Kelantan, Gua Musang.  

The Temiar in the Balah forest reserve have clashed with loggers and planters whom they accuse of trespassing and destroying forests, they said, are part of their customary land.

They have set up blockades on logging roads in the Balah and Perias forests since February to stop loggers and planters from entering the area.

But former Kelantan senior executive councillor Takiyuddin Hassan said those businesses have approval, as the land belongs to the state.

Takiyuddin also said that the concept of customary land or “tanah adat” for Orang Asli does not exist in the state’s constitution.

Takiyuddin, who is now Kota Baru MP, said Kelantan has set aside acres of roaming lands for the Orang Asli for them to farm and build their kampung.

Last week, the federal government said it will begin talks with the state and Orang Asli to resolve the conflicting claims.

Takiyuddin’s statements concerning the land in the Balah and Perias forests conflicted with the fact that Orang Asli land claims have been recognised in Pos Belatim and Pos Balar by the courts, Siti said.

“In the Pos Balar case, the state had asked for the claims not to be argued in court and the community agreed to accept three-fourths of their claims,” she said.

This showed that Orang Asli were tolerant and willing to reach a compromise when it came to overlapping claims with the state government. 

Siti wants the Putrajaya to order a stop-work order for all logging and plantation activities in the affected territories while the negotiation process is ongoing.

Courts decide, not state

Another Orang Asli rights expert, Hon Kai Ping, said the Temiar can claim customary land despite it not being recognised or gazetted by the state government.

Only the courts have the final say over customary land, said Hon, a former chairman of the Orang Asli committee.

“They must prove they have lived on that land for generations dating to before Merdeka. Some of the proof that can be tendered include grave sites, farms and even hills or rivers that have been given names by their ancestors,” Hon told The Malaysian Insight.

Orang Asli domains are first demarcated through communal mapping using GPS and these are then submitted to the court when they submit their claims. 

Deputy Rural and Regional Development Minister Sivarasa Rasiah has also said the community’s rights to customary land are non-negotiable, as they have been determined by previous court cases.

What remained, he said, was to map out and negotiate the boundaries of their territories and to gazette them so that they can be enforced. – August 16, 2018.