ARI Working Paper Series

All over the world today, indigenous peoples still face acute discrimination on their own native soils. While South-east Asian States ride the waves of globalisation and modernisation, indigenous peoples are increasingly nudged onto the periphery of modern society as they are stripped of their land by the advance of State developmental policies. The international community’s approach to indigenous land rights have been varied and confused, resulting in a lack of international consensus, with no effective implementation mechanisms.

Malaysia, home to diverse indigenous groups, has historically marginalised and failed to give formal legal protection to Orang Asli land rights. In a groundbreaking 2002 decision, the Malaysian High Court in Sagong Tasi v Negeri Kerajaan Selangor declared the existence of Native land title at common law, requiring the State to pay compensation to the Orang Asli for acquisition of their land. Pre-Sagong Tasi, the Malaysian State considered Orang Asli as mere tenants of the land, their rights susceptible to government revocation at any time without the protections of the Land Acquisition Act. This was the stand advanced by the State in Sagong Tasi itself. The court dismissed the State’s argument and confirmed the existence of native title at common law on two grounds, based on the Federal Constitution’s Article 13 which protects the Malaysian citizen’s property against State acquisition unless accompanied with adequate compensation and on the State’s fiduciary duty to the Orang Asli as outlined in several constitutional provisions.

Though laudable in its granting of formal legal recognition to indigenous land rights, the Malaysian High Court’s consideration of native title under the Land Acquisition Act treats native title as any other private registered land title. This fails to recognise the significant differences inherent in native title as compared to private registered title. Native title is imbued with cultural, spiritual, communal and economic dimensions far beyond private registered land’s market value. The Federal Constitution should be interpreted in tune with international ethos, with due respect given to the Orang Asli’s rights to have their very real concerns and interests protected by the modern legal system.