62 Chapter 4 | LEGAL FRAMEWORK OF INDIGENOUS PEOPLES’ RIGHTS TO LAND (a) an aboriginal reserve,179 (b) an aboriginal area,180 or (c) an aboriginal inhabited area.181 4.114 An area to be declared an aboriginal reserve is any area exclusively inhabited by aborigines and where the aborigines are likely to remain permanently. Such an area is to be gazetted. Within an aboriginal reserve, no land may be declared a Malay Reserve land, a sanctuary for wild animals, or reserved forests, neither shall lands be alienated, granted or leased except to Orang Asli who are resident there, and no temporary occupation of the land is permitted. 4.115 An aboriginal area may be declared in an area predominantly or exclusively inhabited by aborigines, which has not been declared as a reserve. Within an aboriginal area, no land shall be declared as Malay Reserve land, as a sanctuary for protection of animals or birds, or as forest reserve, or be alienated, granted or leased except to aborigines normally resident in the area. Furthermore, no licence for collection of forest produce shall be issued in an aboriginal area to a person not being aborigines normally resident in that aboriginal area, or for any commercial undertaking, without consulting the Director General.182 4.116 Any place that is inhabited by Orang Asli which has not been declared to be an aboriginal area or reserve is called an aboriginal inhabited area. The relevant State Authority may grant rights of occupancy, free of rent or subject to conditions in a grant, within any aboriginal area or reserve to Orang Asli individually, to members of any family of aborigines, or to members of the community but such rights would not confer on any person “any better right than that of a tenant at will”.183 In each case, the State Authority may revoke wholly or in part or vary any declaration of an aboriginal area or aboriginal reserve. There appears to be no provision of any obligation imposed on the State Authority to replace any land taken or de-gazetted as such.184 4.117 According to figures released by Department of Orang Asli Development (JAKOA), as of 31 December 2010, there are 145,379.67 hectares of lands that are held for or by Orang Asli. Of this number, lands gazetted under sections 6 and 7 of APA amount to 20,670.83 hectares or 14.21 per cent. Lands approved for aboriginal reserve but yet to be reserved are 26,288.47 or 18.08 per cent, and lands that are under application and awaiting approval by State Governments are 85,987.34 hectares or comprising 59.14 per cent.185 Lands held under individual titles make up 1,424.31 hectares which comprise 147.42 hectares under housing and 1,276.89 hectares under agriculture.186 It is to be noted that computation of 179 APA, s 7(1). 180 APA. s 6 181 Any place inhabited by an aboriginal community 182 Now referred to as the “Director General of the Department of Orang Asli Affairs (JHEOA).” The Department of Orang Asli Affairs is a Federal department set up to manage all the affairs of Orang Asli. Previously it was placed under the Ministry of Home Affairs, but it is now under the Ministry of Rural Development. Orang Asli are the only people in Malaysia solely managed by a Government department. 183 APA. S 8. 184 Colin Nicholas maintains that this is the only plausible explanation for the decline in acreage of gazetted Orang Asli reserves from 20,666,96 ha. to 17,963,00 ha. between 1990-1994. 185 According to Nicholas, approval for gazettement has been withdrawn from 7,443.8 hectares out of 36,076 hectares originally approved before 1990. See Colin Nicholas, “The Law on Natural Resource Management As It Affects the Orang Asli” paper presented at the UNDP-RIPP/PACOS workshop on Indigenous peoples and Natural Resource Management Laws, 10 November 2005, Donggongon, Sabah. http://www.coac.org.my cited on 12 November 2009. 186 Pelan Strategik Kemajuan Orang Asli, 2011-2015, Jabatan Kemajuan Orang Asli, 2011 at p 56. chapter 4_a4.indd 62 7/5/13 6:46 PM