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Indigenous customary land rights and the modern legal system

  • Publication Date | November 22, 2021
  • Document Type | Articles & Stories
  • Programmes | Forests & Biodiversity
  • Issues | Indigenous Peoples, Land Rights
  • Tags | native customary rights
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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:

  1. 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.
  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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.

Table 2: Laws that may affect the Orang Asli customary land rights in Peninsular Malaysia
Table 2: Laws that may affect the Orang Asli customary land rights in Peninsular Malaysia
Table 3: Laws that may affect the NCR in Sarawak
Table 3: Laws that may affect the NCR in Sarawak
Table 3: Laws that may affect the NCR in Sarawak
Table 4: Laws that may affect the NCR in Sabah

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Sahabat Alam Malaysia adalah satu badan bukan kerajaan (NGO) yang telah sekian lama berjuang mempertahan kelestarian alam. Ia juga mendidik masyarakat tentang pentingnya kebersamaan dalam pemikiran dan tindakan agar alam ini dapat kita wariskan kepada generasi hadapan dalam keadaan yang elok dan terpelihara. Dalam pada itu juga SAM giat membantu golongan nelayan pantai dalam memperjuangkan hak-hak mereka sehinggalah tertubuhnya Persatuan Pendidikan dan Kebajikan Nelayan Pantai Malaysia (JARING). Nelayan pantai sepenuh masa ini dididik oleh SAM sehingga mereka mampu memainkan peranan sebagai pemimpin nelayan yang meneruskan kesinambungan memperjuangkan hak-hak nelayan pantai lainnya. Sebagai contoh SAM telah berjaya menyedarkan masyarakat nelayan keperluan menjaga hutan paya bakau untuk kebaikan hasil tangkapan nelayan itu sendiri.
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Jamaluddin Mohamad BualikPersatuan Pendidikan dan Kebajikan Jaringan Nelayan Pantai Malaysia (JARING)
During the 1980s, I used to read about the Consumers’ Association of Penang (CAP) in the news. After retirement, some time in 2001, while lazing around, I read news about the construction of a carbon in leach plant using sodium cyanide to extract gold in Bukit Koman. My friends and I visited CAP and we were introduced to SAM and her legal team. We discussed the details of filing a case against the gold mining company and the department of environment with Ms Meenakshi Raman and her legal team. That was the beginning of a beautiful friendship between lawyers from SAM and many of us from Bukit Koman. We had many ups and downs in our struggle to shut down the gold mine that was causing a nuisance in our village. But, as a community we never gave up because SAM had our backs.
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Hue Fui HowSecretary, Bukit Koman Ban Cyanide in Goldmining Action Committee (BCAC)
Sahabat Alam Malaysia adalah sebuah NGO yang memperjuangkan nasib masyarakat luar bandar khasnya. SAM menerima aduan-aduan masyarakat dan menyelesaikan masalah yang dihadapi. SAM telah mewujudkan ramai aktivis-aktivis sosial dan alam sekitar. Pada era 1980 dan 90an SAM sangat dihormati oleh masyarakat dan agensi kerajaan. Apabila media sosial menguasai maklumat maka SAM pun terkesan dan masalah masyarakat terus disalurkan dengan pelbagai cara. SAM perlu mewujudkan aktivis-aktivis pelapis yang muda untuk terus membantu masyarakat. SAM juga perlu membuat perubahan supaya banyak turun kelapangan dan jangan mengharapkan laporan media sahaja. Tingkatkan prestasi sebagaimana pada zaman kegemilangan SAM di era 80-90an.
Che Ani Mt Zain
Che Ani Mt Zain
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Jessica BinwaniPublic/Private Interest Lawyer
Semenjak kami kenal SAM, banyak pengalaman dan pengetahuan yg kami dapat. Kami telah belajar cara membuat baja asli daripada SAM. Semenjak itu, bermulalah minat kami dalam aktiviti pertanian. Dengan memperolehi kemahiran dalam membuat baja asli dan penanaman lestari, kami juga telah dapat menambahkan pendapatan sampingan kami. Ini lebih baik daripada tanah kami terbiar dan tidak diusahakan. Terima kasih SAM kerana sudi memberi bantuan dan tunjuk ajar kepada Persatuan kami.
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My journey with SAM started when her community organisers took me to the meet the paddy farmers of Kedah, connecting my growing interest in environmental law with our people who struggle to work the land in the face of pollution, replacement of traditional seeds with commercial hybrids and their accompanying chemical package of fertilisers and weedicides. I then had the honour to work with SAM in the struggle for the rights of the native communities of Sarawak, in defence of their forests from massive logging and destructive mega-projects. In every issue that SAM takes up, she combines rigorous research with the realities and voices of the communities to advocate for policies and laws that care for people and nature. From the courts to the elected legislators to policy makers and implementers and to the United Nations, SAM walks side by side with the communities in Malaysia. How can I not be inspired by the vision and passion of the generations of women and men who coalesce to form SAM?
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Sahabat Alam Malaysia (Headquarters)
No. 1, Jalan Joki, 11400 Penang,
Malaysia
Tel: +604 827 6930
Fax: +604 827 6932

Sahabat Alam Malaysia (Marudi Office)
129A, First Floor,
Jalan Tuanku Taha,
P.O.Box 216,
98058 Marudi, Baram, Sarawak,
Malaysia
Tel & Fax: +6085 758 973

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