Report of the National Inquiry into the Land Rights of Indigenous Peoples 63 figures for Orang Asli Lands always include the category of lands that have been applied for but yet to be approved. Statement of Policy Regarding the Administration of the Orang Asli of Peninsula Malaysia of 1961 (“Policy Statement”) 4.118 The Policy Statement187 was issued by the Jabatan Hal Ehwal Orang Asli (the Department of Aboriginal Affairs) for the administration of Orang Asli in 1961. With regard to their land rights, the Policy States: (d) The special position of the Orang Asli in respect of land usage and land rights shall be recognised. Thus, every effort will be made to encourage the more developed groups to adopt a settled life and this is to bring them economically into line with other communities in the country. Aborigines are not to be moved from their traditional areas without their full consent. 4.119 Recognising the nomadic lifestyle of some of the groups, the Policy Statement relaxes forest policies in favour of Orang Asli. Nonetheless, the ultimate aim of the Policy is for settled agriculture and that entails providing “the necessary land … where they are willing to settle.” If the Policy was taken as a guiding principle, it is ironical that Orang Asli communities have for a long time been excluded from the government’s development schemes. These schemes include the Federal Land Development Authority (FELDA) schemes188 for the development of oil palm under the Land (Group Settlement Areas) Act 1960. This will be dealt with later. National Forestry Act 1984 4.120 One of the questions that arise in Orang Asli land claims concerns the extent to which they may claim rights under the National Forestry Act. In the case of Adong bin Kuwau v Kerajaan Negeri Johor189 the courts recognized Orang Asli usufructuary rights and right to things on the land. Compensation was given based on their kawasan saka or foraging lands in aboriginal inhabited lands. When rights are established through traditional occupation, they are proprietary rights protected under the Federal Constitution, which according to the courts, must be compensated for, if taken or extinguished. 4.121 The general rule is that customary rights or titles are not extinguished unless there is clear and unambiguous intention to extinguish. In Peninsular Malaysia, sections 14-15 of the National Forestry Act 1984 vest the entire property of all forests produce, within a permanent reserved forest or State land, in the State Authority and no person can take forest produce from State land or permanent reserved forest. This is a vesting provision and not an extinguishment provision. It makes an exception where rights have already been disposed of by any written law which could involve the grant of licenses. 4.122 The State Authority or the executive may under section 40(3) grant privileges to Orang Asli in respect of removal of forest produce and these are for limited purposes. Section 62(2) gives the Director of Forestry discretion to waive or exempt Orang Asli from any payment of royalty for forest produce that is taken for maintenance of fishing stakes and landing places, fuelwood for domestic purposes, or construction or maintenance of any work for common 187 Jabatan Hal Ehwal Orang Asli (1961). 188 This is a resettlement scheme which received funding from the World Bank and other institutions, where participants were given ten acres of land with housing and all the amenities, to encourage landless peasants to settle down. The Government prepared the settlement sites, ploughed the lands, constructed houses, and planted the crops which were almost ready by the time the settlers arrived. The settlers would pay back the costs of development as their revenue grew. 189 [1997] 1 MLJ 418 chapter 4_a4.indd 63 7/5/13 6:46 PM