In ancestral land suit, the rights of Pahang’s Orang Asli at risk
The rights of 82 Orang Asli over their ancestral land will be determined today when the Court of Appeal decides if the 7,000 acres of Kampung Mengkapur belongs to them or the Pahang government.
Yebet Saman and 81 others from the Semaq Beri tribe are challenging a ruling by the Kuantan High Court that favoured the state government over matters concerning ancestral land.
Yogeswaran Subramaniam, who is a member of the legal team representing the natives, believes the outcome should be favourable towards the Semaq Beri tribe.
He said the court of appeal ruled in favour of the Orang Asli in two similar cases and recognised that these communities had rights beyond what was provided in written law.
"In the first case, the decision by the court of appeal in 1998 was upheld by the Federal Court, but unfortunately there are no written grounds," he told The Malaysian Insider.
In that case, an Orang Asli named Adong Kuwau had brought an action against the Johor government for encroaching on ancestral land. The federal court upheld Adong’s right to the land although he did not possess any land title.
In the second, Sagong Tasi and 26 other families from the Temuan tribe mounted a legal challenge in 2002 after their ancestral land in Kampung Tampoi in Sepang, Selangor, was marked out to build the Nilai-KLIA expressway.
In 2005, the appellate court affirmed a high court ruling that the families had native titles to the land based on common law and the Federal Constitution.
Yogeswaran said the appellate court also ruled that the Temuan tribespeople had to prove that they were aborigines; that they had continuously occupied the land; and had maintained the traditional connection with the property in order to be accorded customary rights.
In the case involving Yebet and the Semaq Beri 81, the Kuantan high court did not follow principles established by the court of appeal and dismissed their claim, said Yogeswaran.
Judge Datuk Marina Yahya ruled that the Pahang government had power over land maters and did not recognise the rights sought by the Orang Asli community.
"This appeal is significant as the court of appeal could affirm the two previous ruling or depart from them.
“If the court rules against Yebet and the others, then there will be two sets of ruling from a court of the same status. The high courts in similar cases in future can decide to opt for either one," he said.
The Semaq Beri tribe is also seeking a declaration that 7,000 acres located between Maran and Kuantan be declared as customary land.
The tribe filed their suit in 2012 against Putrajaya, the Pahang government, director-general of Orang Asli Development Department, a developer and a sub-contractor.
They said they had occupied the customary land since time immemorial, but like many other Orang Asli groups, they were temporarily relocated by the government during the Emergency (1948 to 1960) for security reasons.
But, they had continuously returned to their customary land to tend their orchards, forage for jungle products and visit sacred sites during this period.
In 1970 a number of them returned permanently to Kampung Mengkapur.
Despite acknowledging the tribe's presence, occupation and use of the customary land, the Pahang government failed to gazette the areas as Orange Asli settlements.
In 2010, the 82 Orang Asli found a notice detailing logging activities over part of the forests on their customary lands and about 1,000 acres had been alienated for oil palm plantation. – November 28, 2014.