Part 3: Systemic violations require system change
Around the world, the indigenous customary land rights have been a source of confusion for the modern nation state. However, this confusion does not stop the systemic violations of the rights and encroachments on indigenous customary territories; in fact the ignorance on the nature, features and extent of the rights has contributed towards the continued exploitation of indigenous customary territories, as it becomes part of the system. This is the third article of a seven-part series on the indigenous customary land rights.
The violations of the indigenous customary land rights in Malaysia are systemic in nature. This view is not only supported by two comprehensive studies that we have published on indigenous communities in Peninsular Malaysia in 2016 and in Sarawak in 2019; it also shared by the Report of the National Inquiry into the Land Rights of Indigenous Peoplespublished by the Commission of Human Rights of Malaysia (SUHAKAM) in 2013.
This renders that indigenous peoples in Malaysia, as a general rule, has poor land tenure security. Over the years, community experience has shown that these land rights violations are not an exception to the rule, caused by isolated failures of law enforcement; rather, their incidence is prevalent and widespread, brought about by systemic governance conditions within the country.
The following section will discuss these systemic governance conditions.
How the system fails indigenous peoples
The following are a summary of how systemic governance conditions in Peninsular Malaysia, Sabah and Sarawak, contribute towards the systemic violations of indigenous customary land rights.
- Erroneous interpretation of the states on the indigenous customary land rights
By executive convention, the indigenous customary land rights that are without any document of title or status as an indigenous communal reserve are erroneously interpreted as a very limited form of usufructuary rights by the states i.e. the right to only use and benefit from the land. Such rights are limited to the crops and built structures found on the land, instead of a form of proprietary interest in the land.
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.
This is in conflict with judicial decision on the matter, in which the indigenous customary land rights have been ruled as a form of proprietary interest in the land itself, protected under Article 8 of the Federal Constitution which protects the right to property.
- Unilateral interpretation on the size and boundaries of indigenous territories by the states
States have generally failed to take proactive steps to introduce participatory mapping and demarcation of the boundaries of indigenous customary territories. The determination on the extent and size of indigenous customary territories is thus generally conducted unilaterally by the states.
Even with this unilateral process, there is no policy or law which compels the dissemination of official documents and cartographic information on indigenous territories for the communities and the implementation of their boundary demarcation. As such, most communities are not even certain how state governments have arrived at their interpretation on the size and boundaries of their customary territories.
In Sarawak, in their unilateral mapping of indigenous customary land areas, where rights tend to be conceded only on the cultivation and housing areas but largely curtailed on the communally shared higher forests, the state government relies primarily on aerial photographs taken during the colonial period to determine ground conditions prior to 1958. This information gleaned from the photographs could then be used to reject land rights claims to cultivation areas that appear to be established only after 1958, or to forested areas generally. (After 1958, the creation of new customary land rights can only be done with a state permit.) This technique however is woefully inadequate and puts the people at a great disadvantage.
First, what appear to be forested areas from an aerial view may in fact still be land belonging to individual families. Indigenous communities do not conduct total land clearing for all agricultural activities. Land-clearing for the purpose of agriculture is only necessary in particular for rice and some cash crop cultivation. Meanwhile, some family farms or orchards may well still be left largely forested, if the land already contains abundant valuable and long-living wood, fruit, medicinal and other multi-purpose trees like rattan and bamboo. Though they may appear as forests, especially from an aerial view, such land can in fact be under the ownership of families who have the sole rights to harvest the resources found on them.
Second, such photographs are also unable to show the subtle differences between virgin forests and partially disturbed forests that have regenerated extensively, as the people are able to tell with much ease. This is an important fact as indigenous agriculture, especially for rice cultivation, also involves the practice of fallowing for the purpose of restoring soil fertility. Further, an entire community may also relocate their housing facility and farms within the same territory over the course of decades for various reasons.
Third, aerial photographs alone are clearly insufficient to determine the extent of the territories without corroboration from joint ground surveys, adjacent villages and historical, administrative and anthropological records.
Finally, as a matter of administrative policy, the aerial photographs themselves are not made accessible to the villages and the public. The state does not appear to have a policy to encourage the voluntary dissemination of information on its version of the peoples’ territorial boundaries outside of a land rights termination process, perhaps out of fear of inviting disputes.
- Limiting indigenous customary land rights to active cultivation and housing sites and reluctance to recognise rights on forested areas.
While states tend to concede the existence of indigenous customary land rights on active cultivation areas and housing sites, claims to the communally shared forests tend to be treated with much more cautiously. Compounding the matter for indigenous peoples, a large size of these forests has also been gazetted either as production forests or conservation areas; resulting in the termination, reduction or regulation of their rights by the state, without their free, prior and informed consent and the payment of adequate compensation.
The Sarawak state government in particular has always openly stated its policy of limiting its recognition of the NCR to active cultivation areas, consistently disputing the existence of communal rights to forested areas.
Finally, the aerial photographs themselves are not made widely accessible to the public.
- Absence of a comprehensive definition of the indigenous customary land rights in legislation, in accordance with community perspective and judicial decisions
Despite the differences of the legislative structures on indigenous affairs between Peninsular Malaysia and the Bornean states, the legal impacts of the contents of these different laws on the indigenous customary land rights are similar. There is not one statute in this country that has defined the indigenous customary land rights in a comprehensive manner, in accordance with how the communities have developed them and in full compliance with landmark judicial decisions.
Sabah and Sarawak may fare slightly better in this regard, but only slightly, by explicitly recognising the term ‘native customary rights’ (NCR) in its legal system. No such parallel legal term exists in any legislation enforced in Peninsular Malaysia. However, even the laws of Sabah and Sarawak have failed to fully capture the principles and essence of the rights as developed and practised by the communities in their entirety and in alignment with judicial rulings. The nature, features and extent of these territories, including the integral components of territoriality and communally shared forests, remain unclear in statutory law.
- Laws that can be used to strengthen the rights are not actively being used, or used against community interests
While there are laws that can be used to strengthen the recognition of the states on the indigenous customary land rights, these legal provisions are not being actively utilised by them. Depending on the region and law, such a recognition can be granted either through the issuance of private land titles or communal land titles; or some form of a communal land reservation process. Further, many state efforts at recognition may also neglect the concept of the territoriality of the indigenous customary rights and fail to include the entirety of the territory.
In Peninsular Malaysia, the Aboriginal Peoples Act 1954 recognises three classes of Orang Asli customary territories:
(a) Aboriginal Inhabited Place
(b) Aboriginal Areas
(c) Aboriginal Reserves
Out of these, Aboriginal Areas and Aboriginal Reserves must be gazetted, with the latter receiving the stronger legal protection. Some states are also more inclined to utilise section 60 of the National Land Code to gazette an Aboriginal Reserve. In their view, this will allow them greater control over the reserves, in comparison to utilising section 7 of the Aboriginal Peoples’ Act 1954, which is a federal law that is regulated by a federal agency, the Department of Orang Asli Development (JAKOA). Additionally, the land law may also be used to issue private land titles to individual families.
Based on data from 2012, our publication in 2016 estimated that out of the 151,141 hectares of indigenous territories conceded by JAKOA, only 20 per cent or 30,883 hectares have either been gazetted or issued with private documentary titles; the size of Aboriginal Reserves was merely 13,512 hectares or around 9 per cent of the customary territories estimated by the government. Although seeking the publication of more recent data on this has been futile, it is unlikely that much has changed.
In Sarawak, the Land Code 1958 can be used to strengthen state recognition on these rights, as the case is with the Land Ordinance 1930 in Sabah.
In Sarawak, state recognition on indigenous territories can be granted under its land law through the following sections:
- Section 6, which establishes the Native Communal Reserve;
- Section 10, which issues a special permit on Interior Area Land for rights created after 1958; and
- Section 18, which issues the Native Title in the form of a grant in perpetuity; and
- Section 6A, which after the enforcement of the 2018 amendments in August 2019, the contentious Native Territorial Domain was introduced, which may confer the registration of the Native Communal Title on an indigenous territory, but limited to 1,000 hectares of land only.
Depending on how it is calculated, including whether or not communal forests are included, the size of indigenous customary land in Sarawak is stated between 1.5 million hectares and 3.7 million hectares.
In Sabah, state recognition on indigenous territories can be granted under its land law through the following sections:
(a) Section 9, which permits the issuance of private documentary titles on land, including for indigenous land;
(b) section 67, which allows for the registration of the Native Title in the Native Title Register; or if in cases where demarcation of such customary land resources is not possible, the relevant claims may be registered in a Field Register instead, as stipulated by section 68;
(c) section 70, which allows for indigenous persons in Sabah to apply for up to twenty hectares of farming lands, which upon its approval must be immediately and continuously cultivated by the owner;
(d) section 76, which permits the issuance of the Communal Title that can be subdivided to individual landowners; and
- Section 78, which can establish the Native Reserves.
The most comprehensive information we could find on the size of indigenous territories that have received some form of state recognition was published in 2012, which gave the figure of 925,579 hectares.
Additionally, Sarawak’s Forests Ordinance 2015 and Sabah’s Forest Enactment 1968 also have provisions to establish the Communal Forest Reserves and Domestic Forests for their native communities, respectively. In 2020, Sabah was recorded to possess 4,634 hectares of such forests, a decline from 7,355 hectares in 2006. We have never been able to find the parallel data from Sarawak in the public domain.
In order to preserve the integrity of their customary territories, indigenous communities would naturally prefer that state recognition is issued communally, provided the size of the territories and their access and control to the land remain intact. States however, have shown their preference for the issuance of recognition to individual indigenous persons, often limited to their cultivation areas and housing sites; or the issuance of communal titles in a way that may compromise on the integrity of the rights and territories, which may even grant commercial parties an easier access to such territories under the pretext of land development. Such a perverse recognition has often been repeatedly criticised by indigenous communities, as experiences in Peninsular Malaysia, Sabah and Sarawak have shown.
- The gazetting of the production and conservation forests without the free, prior and informed consent of impacted communities
While indigenous communities may be granted special privileges to remain within their territories despite their reservation as production forests or conservation areas, their customary land rights may still be entirely or substantially extinguished or reduced. The listing of the different classes of protected species also creates the same disruption for affected communities. Basically, various prohibitions may be enforced in such areas that will interfere with the traditional way of life and the sustainable livelihood strategies of affected indigenous communities.
In Peninsular Malaysia, the Aboriginal People’s Act 1954 does not specify on notification procedures to affected communities. Any compensation payments to them will be based on the discretion of the states.
In Sarawak, its land, forestry and conservation laws only require for the notification to be published in the state gazette and a newspaper and displayed in the local district office. Subsequently, the people are required to submit their claims in 60 days. Duration for appeal submission is set at 21 days under the land legislation and 30 days under the forestry and conservation laws.
In Sabah, the forestry and conservation laws require the notification to be published in the state gazette and in suitable areas within the land in Malay and English languages, and other appropriate local languages, if necessary. The people are required to submit their claims or objections in three months. An enquiry process will follow to determine on all matters related to the people’s submissions. Duration for appeals submission varies, depending on the legislation.
- Issuance of logging, monoculture plantation, mining and other resource-extractive licences and land development permits on indigenous territories
As a result of the erroneous interpretation that the indigenous customary land rights are a form of usufructuary land rights; licences for logging, monoculture plantations, mining and other resource-extractive operations are freely issued by the state on indigenous territories. These licences may be issued on gazetted production forests or state land forests.
- Inadequate compensation for the loss of indigenous customary land rights.
The relevant statutory laws in Peninsular Malaysia, Sabah and Sarawak do not have provisions to guarantee the payment of adequate compensation for the loss and deprivation of the indigenous customary land rights, despite the fact that the Malaysian judiciary has already ruled that the rights are a right to property, protected under the Federal Constitution. Therefore, the mode of computing assessment for the loss of the indigenous customary land rights must be the same with mode used for the loss of the documentary land titles and rights.
- Lack of governance transparency, information access and participatory decision making
There is not one statutory provision in Malaysia that requires the free, prior and informed consent of indigenous communities in respect of matters that may have impacts on their rights and live. Equally important, Malaysia also still lacks a national law on the freedom of information.
As a result, indigenous communities tend not to have an easy access to information on matters such as the boundaries of their customary territories as unilaterally interpreted by the states; the gazetting of production forests and conservation areas; and the computing mode of compensation payment when their rights are taken away from them, among others. Further, the notification and compensation process for the loss or deprivation of their rights can be very prejudicial to communities who live away from administrative centres and are not fluent in the national language or English.
- Progressive circumscription of the indigenous customary land rights
Throughout the years, many changes to policies and laws on land, forests and indigenous peoples in Peninsular Malaysia, Sarawak and Sabah had been introduced, which have resulted in the progressive circumscription of their customary land rights. Of these, Sarawak appears to have the worst record.
- Unsustainable forestry management
The failure to ensure the sustainable management of forests greatly threatens the rights, livelihoods and well-being of indigenous communities, since forests are an integral component of the indigenous customary territories. Industrial logging began to intensify in Peninsular Malaysia and Sabah in the late 1960s, before the industry turned to Sarawak in the 1980s. Such operations by and large take place on indigenous customary territories.
The overharvesting of natural timber throughout the 1980s and 1990s eventually caused a serious depletion in natural timber resources by the late 1990s, resulting in the conversions of forests, especially in Sarawak and Sabah, into oil palm and pulp and paper plantations, although the trend also exists in Peninsular Malaysia. Consequently, the land grabs of indigenous territories became even more devastating, as plantations require the clear felling of entire forested areas and the land clearing of productive agricultural areas.
As can be seen from the above, the only way to correct such systemic conditions is to change the system itself. System change requires that our policies and statutory laws, as well as politicians and the civil service, must be made to fully understand the indigenous customary land rights.