To a discerning reader, the ostensibly ‘good’ news reported recently that more than two-thirds of Orang Asli families are to be given between 0.8 and 2.4 hectares of planted palm oil or rubber raises two basic questions.

First, do each of the settlements have a choice of whether to accept this scheme? Second, do they stand to lose their existing customary lands as a result of this scheme?

One does not have to be a mathematical genius to realise that the reported 49,000 hectares involved in the proposed scheme is much less than the estimated 127,500 hectares currently occupied by the Orang Asli. It is unfortunate that there is no explanation as to how this disparity would be managed by the government.

As lamented many a time, loss of traditional land by the Orang Asli is not merely economic but also involves the loss of culture and identity. In line with the law and international standards and in the spirit of multi-culturalism that is the pride of our nation, recognition and respect should be afforded to Orang Asli customary lands.

It would also be surprising if all the 870 Orang Asli settlements consented to a scheme that would not only result in the loss of their customary land but be subject to a condition that the land offered be planted with only either rubber or palm oil. Loss of ancestral land and land used for traditional activities would consequently seem inevitable.

On the reasonable assumption that the answer to these questions is ‘yes’, the proposed scheme cannot be said to be just to the Orang Asli from both a legal and moral standpoint.

The local cases of Sagong bin Tasi v Selangor and Adong bin Kuwau v Johor that now form a part of our common law clearly provide for the recognition of Orang Asli customary lands and adequate compensation for the loss of such lands as guaranteed under the Federal Constitution.

Further, the existing 1961 Government Policy on the Administration of the Orang Asli explicitly provides for the Orang Asli not to be moved from their traditional areas without their consent.

From an international perspective, a lack of choice and informed consent by the Orang Asli before the formulation of any policy affecting them clearly goes against a number of provisions of the 2007 United Nations Declaration on the Rights Indigenous Peoples.

Although not legally binding, Malaysia’s resounding votes in favour of the declaration both at the United Nations Human Rights Council and General Assembly creates at least a moral obligation for the government to obtain the ‘free and prior informed consent’ of the Orang Asli before any relocation and provide ‘just and fair compensation’ or even restitution for loss of lands.

Subject to clarification by the federal government, the proposed ‘new deal’ for the Orang Asli reeks of the failed and outdated policies of forced indigenous self-sustenance and disrespect for indigenous culture and dignity previously observed decades ago in countries like the United States and Australia.

Further, the fixed allocation of land homogenises the 18 sub-groups of Orang Asli treating them rather indiscriminately as one culture when the converse is true.

Ultimately, current international standards demand that the Orang Asli determine their own economic, social and cultural development. The government’s discretion to legislate for the ‘welfare’ of the Orang Asli under the federal constitution should accordingly be exercised in a manner befitting of a country aspiring towards the status of a developed nation by 2020 rather than in an than in an antiquated top-down and paternalistic manner.