Judicial Commissioner Noor Ruwena Nurdin, however, said there must be some demarcation of the land as they could not claim all areas in which they had been planting, foraging and hunting in the past.
She said the correct position of law regarding the size and boundary of the customary land which might be claimed by the community was confined and limited to the area that formed their settlement.
Ruwena said the defendants – the Perak government, the Hulu Perak district and land administrator, the state land and mines department director and the state forestry department director – were tasked with protecting the rights and interests of the plaintiffs’ customary land.
She said a provision in the Aboriginal Peoples Act 1954 stated that the Orang Asli could continue to live within a reservation regardless of contrary provisions in the relevant legislation.
“This provision is a ‘red-flag’ of sorts that should indicate to the government agencies that the Orang Asli have a right to remain in such reserves, although these are not Orang Asli reserves,” she said in her 44-page judgment released last week.
Ruwena said the Orang Asli who remained in the reserves naturally would have a legitimate expectation to have their way of life, customs, traditions and mode of life accepted and recognised by the state and its agencies.
The plaintiffs, Pam Yeek and 127 others from Kampung Tasik Asal Cunex in Perak, filed a suit in 2019 against the four state authorities and Sediavisi Jaya Sdn Bhd, a company granted a licence to carry out logging activities in the disputed area.
The plaintiffs said the state authorities had a fiduciary duty towards them.
In claiming customary rights, they alleged that the company had trespassed on about 12,000ha and sued it for trespass.
The company, however, claimed that a 80ha land approved by the state was not owned by the Orang Asli as the area fell under the jurisdiction of the forestry department.
However, Ruwena ruled that no trespass was committed by the company or any of the other defendants despite the court finding that the plaintiffs had customary rights to the land.
“Moreover, the logging sites where the company worked to extract the timber were 8km away from the plaintiffs’ settlement,” she added.
No breach of duties by state authorities
In their collective defence, the first four defendants averred that the land claimed to be the “tanah adat” was not located in and had never been gazetted as an Orang Asli reserve and neither had there been any demarcation of boundaries.
Ruwena said state authorities had already allocated a parcel of land and gazetted it as an Orang Asli reserve when a settlement, RPS Dala, was established.
She also pointed out that the plaintiffs had moved to another settlement which was not very far from RPS Dala.
Therefore, she said, the state authorities had not breached their duties by not gazetting the Kampung Asal Tasik Cunex as an Orang Asli reserve and allowing the company to carry on logging activities.
All the defendants, save for Sediavisi Jaya, have filed an appeal at the Court of Appeal.
Lawyers G Nadaraja and Hanita Ramachandran represented the Orang Asli, while federal counsel Sharifah Izura Syed Mansor acted for the state authorities. Fitri Asmuni and Nur Adnen Yahya appeared for the company.