The Indigenous World 2023: Malaysia
The 2020 Census shows that the Indigenous Peoples of Malaysia were estimated to account for around 11 % of the 32.4 million national population. They are collectively known as Orang Asal. The Orang Asli are the Indigenous Peoples of Peninsular Malaysia and they numbered 206,777 in 2020.
The 18 Orang Asli subgroups within the Negrito (Semang), Senoi and Aboriginal-Malay groups account for 0.8 % of the population of Peninsular Malaysia. In Sarawak, the Indigenous Peoples are collectively known as Natives (Dayak and/or Orang Ulu). They include the Iban, Bidayuh, Kenyah, Kayan, Kedayan, Lunbawang, Punan, Bisayah, Kelabit, Berawan, Kejaman, Ukit, Sekapan, Melanau and Penan (and 12 new ethnic groups which are discussed below). They constitute around 1.2 million or almost 50 % of Sarawak’s population of 2.45 million people. In Sabah, the 39 different Indigenous ethnic groups are known as natives or Anak Negeri and make up some 2.1 million or 62 % of Sabah’s population of 3.4 million. The main groups are the Dusun, Murut, Paitan and Bajau groups. While the Malays are also Indigenous to Malaysia, they are not categorized as Indigenous Peoples because they constitute the majority and are politically, economically and socially dominant.
In Sarawak and Sabah, laws introduced by the British during their colonial rule recognizing the customary land rights and customary law of the Indigenous Peoples are still in place. However, they are not properly implemented, and are even outright ignored by the government, which gives priority to large-scale resource extraction and the plantations of private companies and State agencies over the rights and interests of the Indigenous communities. In Peninsular Malaysia, while there is a clear lack of reference to Orang Asli customary land rights in the National Land Code, Orang Asli customary tenure is recognized under common law. The principal act that governs Orang Asli administration, including occupation of the land, is the Aboriginal Peoples Act 1954.
Malaysia has adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and endorsed the Outcome Document of the World Conference on Indigenous Peoples but has not ratified ILO Convention 169.
Fishing for votes
Malaysian politics has never been as unstable as the last four years. Having had two changes of government since 2018, there was talk throughout 2022 of another general election towards the end of the year.[1]
With a very fractured and polarized electorate, there was much uncertainty among the three main political coalitions as to their chances of forming the next federal government. This meant that every vote counted. As such, the run-up to the elections saw little flashes of government largesse in recognizing Orang Asal rights, or at least addressing their concerns and demands.
For example, the Department of Orang Asli Development (JAKOA) announced that it would undertake a two-year study to consider amendments to the existing Aboriginal Peoples Act, which was enacted in 1954. This was to ensure, it said, that there were appropriate sections in the act to address current issues and provide better protection for the Orang Asli community.[2]
In the Bornean state of Sarawak, measures were taken to give autonomy and independence to the Native Courts and to elevate them to the same level as the Civil and Syariah (Islamic) courts.[3] Furthermore, in response to growing calls from the Indigenous community, the Sarawak State Assembly also unanimously passed the Interpretation (Amendment) Bill 2022 which, among other things, now considers a child from a mixed marriage as a Native even if only one of the parents is. There is no longer a requirement that both parents must be a Native of Sarawak. The amendment also recognized an additional 12 “races” in the Constitution as being the Indigenous races of Sarawak. These are the Bagatan, Bakong, Bemali, Berawan, Dali, Lakiput, Jatti Miriek, Narom, Sa’ban, Tatau, Tring and Vaie.[4]
In another positive development for native rights, the Sarawak government revoked an oil palm concession involving 4,400 hectares of native customary lands. While this may not be a blanket recognition of native customary rights in Sarawak – as the revocation came just before the Penan, Berawan, and Tering communities in Mulu were headed to court to seek the nullification of the concession and it was also an “election year” – the natives concerned were grateful to the State Premier for revoking the concession and hoped that he would follow through and abandon the planned township in that region.[5]
Asserting Indigenous/State rights
That the Chief Minister of the State of Sarawak is now to be referred to as the “Premier” is yet another positive development – as it reasserts Sarawak’s status as a self-governing territory.[6] This is in line with the acknowledgement of both Sabah and Sarawak as two distinct regions in the Federation of Malaysia rather than just two of its 13 states. It was these two regions that merged with Malaya (now called Peninsular Malaysia) to give rise to the formation of the new nation state, Malaysia, in 1963.
Nevertheless, while the Bornean regions of Sabah and Sarawak, with their majority Indigenous population and their Indigenous-led regional governments, share the same rights and protections as Malays in Peninsular Malaysia under Article 153 of the Federal Constitution, the reality is that these rights have been curtailed or ignored. In terms of the higher echelons of government and senior government positions, for example, Sabah and Sarawak are seriously under-represented and largely discounted.[7]
Natives of Sabah and Sarawak each make up a mere 5% of the civil service, respectively, followed even less by the Orang Asli from Peninsular Malaysia. More disturbing is the revelation that there are no natives from East Malaysia nor Orang Asli holding “Turus” grade, which is the highest attainable civil service position.[8]
The native “non-Islamic” character of Sabah and Sarawak has also been diluted over the years. The move towards forming an Islamic state, the plan to introduce hudud (Islamic) laws, and the attempt to export Peninsular Malaysia’s hard-line Islamic trend have aroused discomfort among the people of Sabah and Sarawak.[9]
In Peninsular Malaysia, there appears to be a trend towards greater control over the lives and lands of the Orang Asli. A case in point was when the Department of Orang Asli Development (JAKOA), through its Gua Musang District office, issued a directive in October 2022 barring outsiders, including those from welfare NGOs, from entering Orang Asli areas without the prior written approval of JAKOA, the Forestry Department and the Gua Musang Land Office.[10] That the Orang Asli themselves are not being asked for approval indicates how they are seen as “wards of the State”. Although supposedly done for better “disaster management” in view of the anticipated year-end floods, this move was seen by some Orang Asli as both illegal and a directive that was politically motivated.[11] The latter was particularly so as the order was issued when the country was going into its 15th general election and in a district where the Orang Asli vote was crucial. As it turned out, the 12-term Member of Parliament lost at least 1,566 Orang Asli votes, losing his seat by a mere 163 votes.[12]
Community vs corporate conservation
Environmental and conservation issues have continued to affect the Orang Asal both positively and negatively. On the occasion of the 2nd Asia Parks Congress, held from 24-29 May in Sabah, 247 Indigenous and local community representatives sought respectful and equitable partnerships with governments, industry and other stakeholders for a rights-based approach to conservation.[13]
To this end, of the three regions in Malaysia, Sabah has the best record of engaging the community in the State’s forestry management.[14] The Forestry Department’s commitment to “social” conservation and forestry is also reflected in its official denunciation and rejection of the controversial Nature Conservation Agreement (NCA), supposedly signed between the Sabah government and a little-known Singaporean firm.[15] The Sabah Attorney-General declared that the proposed NCA was rendered non-binding and unenforceable because, among other things, the designated area (some 1,000,000 hectares), which includes a sizeable number of native customary lands, had not been ascertained or identified.[16]
Sarawak also appeared to be moving in this direction when it passed a bill to amend the State’s Forests Ordinance with the intention of improving the management of forests and their natural resources by creating, among other things, protected and communal forests.[17] This legislative action appears timely, especially since the natives still face many threats to their Native Customary Rights (NCR) lands from various parties. For example, a complaint was lodged by five Sarawak-centred NGOs against timber giant Samling, which was accused of logging natural forests in the traditional territories of the Penans in the Baram and Limbang watersheds, in violation of Indigenous rights and without Free, Prior and Informed Consent (FPIC), resulting in the destruction of high conservation value forest.[18]
New threats from deforestation
From 2000 to 2020, Malaysia experienced a net loss of 1.12 million hectares (-3.8 %) of tree cover.[19] It should be noted however that “tree cover” includes forest plantations where “degraded forests” (which includes the shifting cultivation lands of the Orang Asal) are cleared to grow fast-growing trees to sell as pulp and timber.[20],[21] In Peninsular Malaysia alone, 256,769 hectares of forest reserves have been licensed to be cleared for plantations.[22] The Rimba Disclosure Project (RDP) also discovered that a total of 43,539 hectares of forest lands – including those officially earmarked for conservation – were being offered for sale online.[23] The decline in “tree cover” coupled with increased forest plantations can only mean a reduction in the area under natural forest, i.e. actual deforestation.
The increased rate of deforestation has resulted in a new threat to the Orang Asli in Peninsular Malaysia: an increase in human-wildlife conflict incidents. Wild elephants are now increasingly encroaching onto Orang Asli lands. The decreasing size of their habitat has caused them to encroach closer to the Orang Asli settlements, destroying their food and cash crops. Tiger sightings close to Orang Asli settlements have also increased, causing fear and preventing the Orang Asli from entering their farms and forests, thus affecting their subsistence and livelihoods.[24],[25] The beginning and close of 2022 also saw two tragic consequences in this regard for the Orang Asli: the mauling to death of an Orang Asli man by a tiger,[26] and the trampling to death of an Orang Asli woman by an elephant.[27]
The Deputy Chief Minister of Kelantan state, where both deaths happened, denied that the tiger attacks were due to deforestation or a loss of habitat. He added that logging could not be blamed as “logging only causes a little bit of flooding”.[28] The Director of the Kelantan State Wildlife Department also commented that “areas that have been deforested are actually good for the tiger population.”[29] With such mindsets, it appears that there is very little hope for the forests or the forest communities.
Nevertheless, the end of 2022 saw the Pakatan Harapan (Pact of Hope) coalition take the reins of a unity government at federal level. Its election manifesto promised to protect Orang Asal rights and to protect the environment.[30] The hope is that the new government will bring about changes in the mindset of the people responsible for the well-being of the forests and the Orang Asal.
Colin Nicholas is the Founder and Coordinator of the Center for Orang Asli Concerns (COAC), which is an associate member of the Jaringan Orang Asal SeMalaysia (JOAS), the Indigenous Peoples Network of Malaysia. colin.coac@gmail.com
This article is part of the 37th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. Find The Indigenous World 2023 in full here.