Part 4: Resolve, remedy, reforms
Around the world, the indigenous customary land rights have been a source of confusion for the modern nation state. When the violations of such rights have become systemic, how do we move forward to resolve the situation? What are the most effective remedies to end the violations? This article will discuss the kind of reforms needed to provide solutions to our existing poor governance conditions. We contend that the only way to resolve and remedy the situation is to reform. This is the fourth article of a seven-part series on the indigenous customary land rights.
In attempting to halt the continued violations of the indigenous customary land rights, beginning from the 1990s, market-based solutions such as commodity certification, have been popularised by the timber and plantation sectors. However, as we have argued in our various publications and documents in the past, while a certification standard may look very comprehensive on paper, in reality, its successful implementation is largely dependent on the robustness and efficiency of the existing policy, legal and governance framework.
When the very source of the numerous land rights conflicts involving indigenous communities and deforestation has its origins in this existing framework, how can a mere certification system be expected to ensure that the indigenous customary land rights are respected and forests are protected from unsustainable logging and even, conversions? Although a certification system, on paper, can demand a standard that appears to be higher than that required by existing policies and laws, the fact remains that they are merely technical instructions that may not be able to fully overcome the limitations of structural governance conditions.
Equally important, certification of commodities concerns only, well, the commodities being certified. Around the world, indigenous customary land rights violations occur in contexts wider than the production of commodities. Indigenous territories could be acquired for infrastructure projects; dictatorships may militarise such territories; ethnic discrimination and marginalisation may result in other forms of hardships and suffering, from poverty to poor health. These are only a few examples on how things could go wrong for the communities, beyond the narrow concerns of industries on how they could continue to access, market and profit from the natural resources found within indigenous territories.
Therefore, we believe in order to resolve and remedy current conditions, policy and law reforms are a fundamental way forward. The following section will discuss our recommendations on these reforms.
The way forward: Ensuring land tenure security and governance transparency
The following are a summary of recommendations on policy, law and governance reforms that can help to end the systemic violations of the indigenous customary land rights in Peninsular Malaysia, Sabah and Sarawak. Many of these recommendations aim to strengthen land tenure security for our indigenous peoples and overall governance transparency:
- Reviewing existing executive interpretation and practices on the indigenous customary land rights
Steps must be taken at a policy level to correct erroneous interpretations on the indigenous customary land rights that are in conflict with the Federal Constitution and precedent-setting judicial decisions on the indigenous customary land rights. In particular, the rights must be treated as a proprietary interest in the land itself, protected under the Federal Constitution and must cease to be seen solely as a form of usufructuary right. In view of the various landmark judicial decisions as explained in part two of this series, it is legally inappropriate for the states to continue the following practices:
- The unilateral determination of the size and territorial boundaries of the indigenous customary land rights.
- Limiting the rights only to cultivation areas and housing sites and the refusal to recognise their existence as a collective right, including but not limited to, to communally shared forests.
- The action of extinguishing or reducing the indigenous customary land rights without the free, prior and informed consent (FPIC) process and the payment of adequate compensation to affected communities. This applies to both the land acquisition process and the gazetting of indigenous customary territories into production forests or conservation areas.
Further, such a process can no longer be carried out through a non-transparent notification process, which does not take into account the language of the notice, the manner in which the notice is displayed and the duration for which affected communities can put forward objections and claims for adequate compensation.
- The issuance of logging, plantation, mining or other resource-extractive licences on indigenous customary territories, without the FPIC from affected communities, even if the territories are without documentary land titles and have not been reserved for them through a gazetting process.
In fact, such licences must not even be issued within production forests with the presumption that any subsisting indigenous customary land rights have successfully been extinguished under the law, without actually taking the action to do so in clearly written language, especially if such forests are still claimed as part of an indigenous customary territory with continuous community occupation.
- The refusal to gazette indigenous territories based on the size claimed by the communities, as this will be in breach of the fiduciary duty of states.
- Policy and legal reforms to align policies and laws with landmark judicial decisions and the Federal Constitution
The reforms must be extended to the relevant policies and laws in order to bring them into alignment with landmark judicial decisions on the indigenous customary land rights and the Federal Constitutions. The laws involved will include but not limited to those on land, forests, conservation, mining, natural resources and indigenous peoples. For more information on the list of these relevant laws, please see tables 2, 3 and 4.
In particular, a clearer definition of the indigenous customary land rights in accordance with the perspectives of indigenous peoples, landmark judicial decisions and the Federal Constitution, must be introduced in legislation in Peninsular Malaysia, Sarawak and Sabah.
The reforms must also result in the halting of practices described in (1). These include the unilateral determination of indigenous customary territories by the states; the recognition of rights that is only limited to cultivation areas and housing sites while excluding the communal forests; extinguishment and reduction of rights without the FPIC process and adequate compensation; issuance of logging, plantation, mining and other resource-extractive licences on indigenous customary territories without the FPIC process; and the refusal to gazette indigenous customary territories based on their original size.
Additionally, there are also parties who advocate for the enactment of a new legislation solely dedicated to address the Orang Asli customary land rights in Peninsular Malaysia, which among others, is envisioned to address the granting of the indigenous land title to Orang Asli customary territories. We are not opposed to such as a proposal, provided that the development of the law involves comprehensive and meaningful consultations, especially with the Orang Asli communities and that the proposed law is widely supported by them and other civil society organisations.
- Issuance of indigenous land titles and the gazetting of communal land gazetting that respects the concept of territoriality
The issuance of indigenous land titles and the gazetting of communal land, including forested areas must be undertaken for indigenous customary territories in their entirety, within an FPIC process. This process must be preceded by a participatory mapping and boundary demarcation process with the concerned communities and finalised through the dissemination of official and cartographical documents amongst the communities.
A list of legal provisions that can be used to give such a recognition is listed in table 1. However, it must be noted that these existing provisions, such as that on the Native Title Domain in Sarawak, are not without their critiques and may not be fully supported by indigenous communities and civil society organisations.
- Ensuring governance transparency
Information on the boundaries of gazetted production forests and conservation areas must be in the public domain. High-quality and visually friendly maps of such areas must be published on the websites of the relevant government agencies, while clear participatory boundary demarcation must also be carried out in the field.
States must also provide the public with free access to information on matters such as logging, plantation, mining and other resource extractive licences on an annual basis. Such information must include at the very least maps of the licensed areas, duration for operations, license numbers and the names of the licence holders and their contractors.
- Ensuring the sustainable management of forests
For forestry management to be truly sustainable, policy steps must be taken to ensure that operations such as logging and other resource extractive operations do not encroach on or adversely affect indigenous customary territories. Forest conversions, including those for the purpose of developing monoculture plantations must be halted.
- Implementation of the recommendations proposed by SUHAKAM’s Report of the National Inquiry into the Land Rights of Indigenous Peoples
This report, published in 2013, contains 18 important recommendations to be undertaken by the federal and state governments, including specific policy and legal reforms and the establishment of new institutions and processes, including an independent National Commission on Indigenous Peoples. In fact, many of the recommendations above are not dissimilar to those proposed by the report.