Part 2: Federal constitution and landmark judicial decisions
Around the world, the indigenous customary land rights have been a source of confusion for the modern nation state. Does the modern legal system acknowledge land and property rights that are based on customs instead of documents? Can customs bestow the rights to land and properties for communities, just as how documents can? What are the nature, features and extent of such rights from the perspective of the modern legal system? This is the second article of a seven-part series on the indigenous customary land rights.
In brief, one can describe the indigenous customary land rights or titles as rights that have been obtained from the authority of traditional customs and customary laws and are commonly acknowledged and enforced by members of a community. They are different from the documentary land rights and titles, which are obtained from documents issued by the state under a legislation. Although both are equal in legal status as a right to property, the indigenous customary land rights extend further as a right to life, as the life and livelihoods of indigenous peoples are intrinsically woven with their land as a territory, as guided by their customs and laws. Customary law meanwhile is a matter of proof, as it is a practice by the habit of a community and not the dictate of the modern written law.
An important concept of the indigenous customary rights is territoriality. An indigenous customary territory is where rights to land and the natural resources found on them, as well as the occupation rights associated with them, have been acquired by a group of pioneering ancestors, whose members are typically made up by several closely related kin groups. The rights would subsequently be passed down the inheritance line to succeeding generations in an unbroken and continuous fashion, right to the present-day descendants.
Such a territory is often delineated based upon naturally occurring landmarks such as mountains, ridges, rivers, streams, confluences and other available geographical features of an area. The customs of the community would serve to regulate the rights and obligations involved in the access, claim, maintenance, inheritance and abandonment of the territory and its natural resources, including the management of land and natural resources that are communally shared as part of the village commons, and those held under individual ownership, which tend to be largely made up of cultivation areas worked by individual families.
For communities who engage in agriculture, an indigenous customary territory will include both agricultural areas and in many cases, modest size of forests that are under the ownership of families; as well as the commons that are under collective rights of all community members, traversing across forests and other terrestrial ecosystems, rivers and other water bodies, sacred sites and burial grounds. Territories of hunter gatherers meanwhile will consist of entirely forested areas.
Indigenous customary land rights in Peninsular Malaysia, Sarawak and Sabah
While the indigenous communities that have been legally termed the ‘Natives’ of Sabah and Sarawak in Borneo form the majority population in those two states, the Orang Asli community is a very small ethnic minority, forming only around 0.7 per cent of the population in Peninsular Malaysia. This difference in demography means that the legal structure governing indigenous peoples in Sabah and Sarawak is dissimilar to that operating in the Peninsula.
Consequently, native customary land rights in Sabah and Sarawak are largely under the authority of their respective land legislation and departments. In the Peninsula, matters relating to the Orang Asli customary land rights, although still under the jurisdiction of the states, are exempt from the National Land Code 1965. Instead, all affairs affecting the Orang Asli community, including their customary land rights, have been interpreted to fall entirely under the jurisdiction of the Aboriginal Peoples Act 1954 that is regulated by the Department of Orang Asli Development (JAKOA), a federal department under the Ministry of Rural and Regional Development.
Further, laws on land, forestry as well as conservation areas in Sabah and Sarawak also have specific provisions to address the regulation of the indigenous customary land rights. This does not occur in the Peninsula. For instance, the term native customary rights (NCR) is an official term utilised by the Sabah and Sarawak legal systems. Both the Land Code 1958 in Sarawak and the Land Ordinance 1930 in Sabah have provisions which stipulate the manner in which NCR can be acquired and extinguished by the state. Likewise, legislation on forestry and conservation in Sabah and Sarawak also provides for the manner in which the extinguishment of NCR and the subsequent payment of compensation must be carried out, when a forested or a high conservation value area is gazetted by the states, either as a production forest or conservation area.
Basically, in Peninsular Malaysia, the Orang Asli customary land rights are not mentioned at all by any of the land, forestry and conservation legislation. Even though there are brief provisions on the taking of forest produce by the Orang Asli community in the National Forestry Act 1984 and on their hunting activities in the Wildlife Conservation Act 2010, these provisions only address such rights as a severely limited form of usufructuary right, instead of a form of land ownership and proprietary rights in the land. In fact, sub-section 4(2)(a) of the National Land Code 1965 clearly states that it does not have any effect on any legal provisions that are in force on customary land rights, which in this case is the Aboriginal Peoples Act 1954.
In all, these governance conditions have resulted in an interpretation that the Aboriginal Peoples Act 1954 is the sole law to regulate affairs pertaining to the Orang Asli community, including their indigenous customary land rights. This includes matters relating to land acquisition and the impacts of the gazetting of forests found on indigenous territories that are undertaken through various other statutes. Consequently, JAKOA ends up playing a central role in regulating a variety of affairs related to the Orang Asli community.
In Sabah and Sarawak, there is no such parallel law which regulates the lives of the natives so thoroughly to the extent the Aboriginal Peoples Act 1954 does. Likewise, in those two states, there is no government department with the same level of authority as JAKOA in the governance of the affairs of its indigenous communities.
Nevertheless, despite the differences in the manner of how the governance and regulatory framework on indigenous customary land rights are organised in Peninsular Malaysia and the Bornean states, the impacts of the content of these different legal structures on indigenous customary land rights are similar, which include their failure to provide adequate protection to the rights.
Erroneous interpretation as merely usufructuary land rights
In Malaysia, judicial developments since the 1990s have affirmed that the indigenous customary land rights are fully protected by the Federal Constitution under the provisions on fundamental liberties, which include the right to life, equality and property, as well as those on affirmative actions and the definition of law i.e., the fact that the law also includes customs and usage having the force of law.
Unfortunately however, by executive convention, the indigenous customary land rights that are without any document of title or status as an indigenous communal reserve in Malaysia, tend to be erroneously interpreted as a very limited form of usufructuary rights by the state i.e. the right to use and benefit from the land, but not the right to ownership of the land itself.
In Sarawak, its Land Code 1958 deems such land rights as a form of land licence, but free from any land rental charges. In Sabah, where there are more efforts at documentation, its Land Ordinance 1930 stipulates that certain registered customary rights may be subjected to minimum land rental charges. Otherwise, their status may be just as precarious. In Peninsular Malaysia, under the Aboriginal Peoples Act 1954, they are interpreted as no better than the rights of a tenant at will.
The concept of usufructuary rights explains why the rights to indigenous customary land, in most cases, are either not taxable or minimally taxed. The indigenous customary land may also not be freely entered into sale, purchase, exchange, mortgage and other commercial transactions. In the limited instances when such transactions are explicitly permitted by statutory law, as in the case in Sabah and Sarawak, they can only be conducted between parties who are legally recognised to be members of indigenous communities themselves.
Holders of usufructuary land rights may have the right to enjoy and benefit from the land and the resources found on the land, but with or without a documentary title or a reservation status, from the perspective of the state, the land is still its property. Consequently, the state will class such territories as state land. For the state, such rights are limited only to the crops and built structures found on the land, and do not include the proprietary interest in the land itself.
In many cases, large parts of indigenous territories have also been gazetted as timber production forests or conservation areas under the regional forestry or conservation laws, where such right may be fully extinguished, severely reduced or heavily regulated, without a fair notification process and adequate compensation.
In all, while most indigenous communities may remain within their ancestral territories (unless a forced resettlement exercise and land acquisition exercise are undertaken), at the same time, territories that are without a documentary land title or a reservation status, will continue to be vulnerable to land acquisition exercises, being gazetted as production forests and conservation areas and encroachments by various licensed operations, without the free, prior and informed consent from and the payment of adequate compensation to affected communities.
There are of course legal provisions that can be used to strengthen these rights, with varying degrees of protection, through land, forestry or a specific law on indigenous peoples, depending on the region. These legal provisions may issue private land titles for cultivation and housing areas, or a communal title in the form of an indigenous reserve. However, these provisions are seldom utilised, despite multiple requests from indigenous communities since the formation of Malaysia.
In the rare instances when they are utilised, they may be used against the interests of the community. For example, the size of the area granted with some form of state recognition may be much smaller than the real size of the territories, typically limited to cultivation and housing sites. While states may concede individual family rights over cultivation and housing areas, the most contested aspect of the rights as far as the state is concerned, has the eye on the prize i.e., the tropical rainforest which policy tends to either open for logging and other resource extractive activities, or protected from human activities, including ironically, indigenous communities themselves.
Consequently, such a legal perspective has led to the systemic loss and deprivation of the indigenous customary land rights ,without the free, prior and informed consent of affected communities and the payment of adequate compensation. Such land rights violations typically occur through three major ways.
First, they can occur through the issuance of licences for operations such as logging, monoculture plantations, mining and other resource extractive operations on indigenous customary territories. Second, they can be permanently lost, significantly reduced or heavily regulated when parts of indigenous territories are gazetted as production forests or conservation areas. Third they can also be permanently lost through land acquisition exercises under the pretext of a public purpose, for example for the construction of large dams.
However, such a legal perspective is in conflict with the Federal Constitution and the various landmark judicial decisions. In 2005, Malaysia’s Court of Appeal rightly affirmed through Sagong Tasi that such rights are a form of proprietary interest in the land itself, protected by Article 13 of the Federal Constitution. Earlier in 1997, the same court also affirmed through Kajing Tubek that the deprivation of the indigenous customary land rights amounted to a deprivation of life itself, protected under Article 5. This is due to the fact that the same court had ruled a year earlier in Tan Tek Seng that the word ‘life’ in Article 5 must be interpreted broadly i.e., it would include all those facets that are an integral part of life itself and those matters which go to form the quality of life, including the right to livelihood.
Consequently existing policies and laws on indigenous peoples, land, forests, conservation and other natural resource laws in Malaysia today are in need of urgent reforms to ensure their alignment with judicial decisions and the Federal Constitution.
Federal Constitution: Fundamental protection
The rights of the indigenous peoples in Malaysia, including their customary land rights are protected under various provisions of the Federal Constitution. These have allowed indigenous communities to win several landmark decisions in the courts since the 1990s. The following are the constitutional provisions that provide protection to the communities:
(i) Article 5 protects the rights as part of fundamental liberties, including the right to life and personal liberty, save in accordance with the law.
(ii) Article 8 guarantees the equality of all citizens before the law wherein every citizen is entitled to equal protection of the law, effectively prohibiting the discrimination on the grounds of ethnicity.
(iii) Article 8(5)(c) emphasises that the provisions on the equality principle do not prevent the undertaking of systematic affirmative actions for the purpose of the protection, well-being and advancement of the Orang Asli community, including through the reservation of land and positions within the civil service for community members. This provision has the same legal effect for the Orang Asli community as that of Article 153 on the indigenous peoples of Sabah and Sarawak, as discussed below.
(iv) Article 13 guarantees the right to property. The judiciary has affirmed that indigenous customary land rights are a form of a proprietary interest in the land itself, even in cases where such rights do not possess any documentary title or reservation status. To this effect, indigenous peoples cannot be deprived of this right, except in accordance with the law. The loss of the customary land rights must be adequately compensated, in the same manner and quantum as the loss of the documentary land rights.
(v) Article 45 provides for the senate to include members of Orang Asli communities who are capable of representing the interests the community.
(vi) Article 153 bestows a special position on the natives of Sarawak and Sabah, along with the Malay community and the legitimate interests of other communities. This allows the reasonable proportion of positions in the public service, scholarship, exhibitions, education, training facilities as well as trade or business permits to be reserved for Sarawak and Sabah natives and the Malay community.
(vi) Article 160 elaborates that the definition of law includes any customs or usage having the force of law.
Judicial decisions: Precedent-setting legal principles and concepts
The failure of the executive and legislation to fully understand and protect the indigenous customary land rights in Malaysia has led numerous indigenous communities to seek judicial interventions in an effort to restore their violated rights, in particular since the 1990s. Consequently, between 1997 and 2017, the Malaysian judiciary continually produced several landmark decisions that have clarified in greater detail on the nature, features and extent of the indigenous customary land rights, from the perspective of the modern legal system.
These legal actions, each taking many years to go through the judicial system, often reaching up to the court of appeal or the federal court, include Adong Kuwau and Sangka Chuka from Johor; Sagong Tasi from Selangor; Kajing Tubek, Nor Nyawai, Madeli Salleh and Bato’ Bagi from Sarawak; and Rambilin Ambit from Sabah.
Although they were produced as a result of legal actions initiated by indigenous communities from different tribes and states, affected by various types of land rights violations, their legal principles and concepts apply to the entire country. As discussed in part 1 of this series, despite the diversity of indigenous tribes and languages in the country, the creation and continuous exercise of the indigenous customary land rights are also based on the same legal principles and concepts. In fact, the decisions from the Malaysian courts had also referred to landmark judicial decisions from other common law jurisdictions, most notably from Australia, Canada, Nigeria and the United States of America, which have garnered international attention for their clarity and progressiveness.
Out of these decisions, there are three fundamental legal concepts that have been universally accepted by our courts, which then gave rise to other crucial legal consequences. First, the common law respects the pre-existence of such rights under native laws or customs, as ruled by the federal court through Madeli Salleh in 2007. Second, the indigenous customary land rights are a right to property that is protected under Article 13 of the Federal Constitution, as ruled by Sagong Tasi in 2005 at the court of appeal, and later referenced by the federal court in Madelli Salleh and affirmed more directly in Bato Bagi in 2011. Third, the state owes a fiduciary duty to indigenous customary land rights, which was first ruled in Sagong Tasi and reiterated strongly by Sangka Chuka. From these three concepts, the courts were able to determine the features and other aspects of the rights with greater clarity.
Below is a summary of these precedent-setting judicial rulings:
- Indigenous customary land rights are a form of a proprietary interest in the land, protected as a right to property under Article 13 of the Federal Constitution. The rights go beyond usufructuary rights i.e., the right to merely useand benefit from the resources found on the land.
- The common law respects the principle that the indigenous customary land rights are pre-existing rights. These rights derive their authority from customary laws that are recognised and enforced by members of an indigenous community, as opposed to documentary land rights, which are rights derived from documents issued under the authority of a legislation. Therefore, their lawfulness does not depend on any executive, legislative or judicial proclamation.
To determine the lawfulness of an indigenous customary land rights claim, that which must be referred to are the customary law of the community itself, and not modern legislation. Legislation is only relevant to determine if such rights have ever been successfully extinguished successfully at any point of time. Consequently, the continued existence of an indigenous customary territory that is without any documentary tile or reservation status is still lawful.
- Indigenous territories may include family-owned cultivation areas as well communally shared forested areas and other common areas. The communal forests used for hunting and gathering activities cannot be automatically excluded from being deemed to constitute a part of the indigenous and ancestral and customary lands.
- The extent of an indigenous customary territory is a question of fact for each case. When determining the question on the contents and extent of the customary land rights under common law, in situations concerning both settlement sites and the surrounding forests, the fundamental and pivotal question is decidedly one of evidence of continuous occupation, which could but need not be physical in nature, and that of the continuous traditional connection to the land.
- The indigenous customary land rights may only be extinguished through clear and unambiguous written notification, in accordance with the law and with the payment of adequate compensation as specified under Article 13 of the Federal Constitution. Without the issuance of a clearly worded notification on the extinguishment of such rights and the payment of adequate compensation, any denial of subsisting rights can still be legally challenged.
- The payment of adequate compensation must include the payment for the loss of heritage land, the loss of the freedom of inhabitation and movement, the loss of forest resources, the loss of future living for oneself and other family members and the loss of future living for one’s descendants.
- The assessment on the payment of adequate compensation for the loss of the indigenous customary land rights must be based on the same law that is used to calculate the quantum to be paid for the loss of the documentary land title, be they in Peninsular Malaysia, Sabah and Sarawak.
- Entry into an indigenous customary territory without the permission of its inhabitants and in an unlawful manner, including causing destruction to the area, is considered as a trespass that can be subjected to a legal action.
- The government owes fiduciary duties to indigenous peoples i.e., a duty based on the trust between a trustee i.e, the government, and a beneficiary i.e., the indigenous peoples. These include the duty to protect the customary land rights and welfare of indigenous peoples and to not act in a manner that is inconsistent with those rights and that which may affect their well-being.
If the documentary land title as a form of property rights cannot be freely encroached upon or unlawfully acquired by the state without the payment of adequate compensation, the same legal principle must also apply to indigenous customary land rights. Therefore, the failure to introduce policy and legislative reforms at both the federal and state levels in order to align the statutes on forests, land, conservation areas and other natural resources with landmark judicial decisions, may have implications on the legal impeccability of natural resources harvested from indigenous customary territories without the free, prior and informed consent of the affected communities, which include timber products and other commodities.
Conclusion: Reforms are urgently needed
As can be seen from the above, today, there is growing protection from the Federal Constitution and the judiciary on the indigenous customary land rights, as a result of various precedent setting judicial decisions from the 1990s onwards up until 2017. Unfortunately, policies and statutory laws in Peninsular Malaysia, Sabah and Sarawak have thus far failed to be updated.
Consequently, the violations of the rights continue to be prevalent throughout the country. This failure also has implications on the legal impeccability of commodities such as timber and pulp and paper products as well as palm oil, produced within indigenous customary territories.Therefore, reforms on our policies and statutory laws must be pursued to bring them into alignment with these precedent-setting judiciary decisions and the Federal Constitution itself, strengthen the protection on the indigenous customary land rights and ensures that our commodities are produced without violating the rights of our first communities.