Monday, July 29, 2013

On amendment to the APA 1954

To share our thought about this matter:

Amendment to Aboriginal Peoples Act: Is free and informed consent justifiable? — Izawati Wook

JULY 15 — The Aboriginal Peoples Act 1954 (APA) is a specific legislation addressing the affairs of the Orang Asli including land matters. Following the Orang Asli Land Ownership and Development Policy approved in 2009, an amendment to the APA is being considered.
Recently the Rural and Regional Development Minister, Shafie Apdal, said that the amendment Bill would be tabled during the current parliamentary session. It was also reported that consultations have been made with the state governments, NGOs and Suhakam. 
It is learnt that the main aim of the policy is to alienate land to individual Orang Asli household. Up to six acres of land for an orchard and approximately one-quarter acre would be given to each Orang Asli family to reside, and land titles for the land will be issued. This may benefit the Orang Asli by having clear ownership of land so that the land may be used for development and agriculture.
Nevertheless many Orang Asli representatives object against the move. They request that any amendment to the Act that affects their rights must be made with their free and informed consent. There is fear that such amendments will prejudice their existing rights.
The director of the Centre for Orang Asli Concerns, Colin Nicholas, suggests that the Orang Asli stand to lose their traditional land upon the passing of the proposed amendment. He also observes that many Orang Asli people were not in favour of the policy mainly because of the reduced size of land compared to the land that they alleged as their traditional or ancestral land on the basis of their customary laws.
We have also to take note that the Orang Asli have legal rights to their customary land and this is affirmed by the courts of law in the country. The land rights are legal rights enforceable by the court.
The rights of indigenous peoples to land and resources are also specifically affirmed by international law i.e. the United Nations’ Declaration on the Rights of Indigenous Peoples and the International Labour Organisation’s (ILO) Convention concerning Indigenous and Tribal Peoples in Independent Countries in 1989. At a minimum, international standards call for consultation of the affected peoples before any project such as extractive activities are conducted within this land or territories of the indigenous peoples; and other project capable to affect the resources that they traditionally used. The Declaration specifically requires ‘free, prior and informed consent’ (FPIC). The Convention merely requires consultation, but it must be undertaken in good faith with the goal of obtaining consent. However consent is required if a project involves relocation of people.
Following court recognition of the land rights of indigenous peoples, many countries have taken steps to address the issue. They include the Commonwealth countries: Australia, New Zealand, Canada, and the United States. Developing countries such as Philippines and India also have specific legislation to recognise the land rights of their indigenous peoples and establish mechanisms to address the claims. There has been a growing recognition towards the need for securing land for the indigenous peoples in any action to address the matter. Approaches adopted have been focusing on making agreement, which require full consent of the communities in the use of the indigenous land.
Therefore it is significant to ensure that any action to be done to address the land rights issue of the Orang Asli is by respect to the indigenous communities as well as their perspectives towards their communal land. This entails acknowledgement and recognition of the rights, individual and collective. Any action proposed should ensure the security of land to the communities. It has happened in many countries that individualisation of communal land of indigenous peoples exposed the indigenous communities to great risk of land loss. The well-being of these land-based indigenous communities depends on the preservation of their land to the communities. We need to find suitable mechanism to co-exist agreeable to the parties involved rather than take all or nothing.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malay Mail Online.
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