Constructing Rights: Indigenous Peoples at the Public Hearings of the National Inquiry into Customary Rights to Land in Sabah, Malaysia (original) (raw)
Related papers
i-WIN LIBRARY, 2021
State life always develops over time. Likewise, the social life of its people continues to develop and forces the state to carry out development. This does not always have a positive impact because there are various problems that must be faced. One of these problems is the existence of indigenous peoples' rights were violated. Indonesia and Malaysia as cognate countries have similar problems in their efforts to protect the rights of indigenous peoples. The method used in this study is a formal review method with a comparative approach. Data collection was carried out through literature study with reference to secondary data which was analyzed qualitatively. The rights of indigenous peoples that are often violated are changing the function of customary lands carried out by the state or by companies that have cultivation rights. The existing legal instruments seem unable to protect the rights of indigenous peoples. In addition, the existence of certain indigenous peoples and their traditional culture is possibly extinct. It takes the seriousness of the government to be able to solve this problem. Improvement of the rule of law is a mandatory step to be taken so that legal certainty can be guaranteed. Data collection on indigenous groups, the area of customary land, and their traditional culture must also be carried out immediately to protect its existence. The state as an authority organization that oversees indigenous peoples must be justice for them by protecting every right owned by indigenous peoples
An Overview of the Land Development Issues Related to Indigenous Peoples in Malaysia
Journal of Tourism, Hospitality and Environment Management, 2021
Given that the way of life of indigenous peoples is usually associated with low living standards, the government has an important role to play in ensuring that the gap between indigenous and non-indigenous communities is narrowed. Unfortunately, as the program to improve the quality of life of indigenous communities has been widely implemented across the country, tension has begun to escalate among the indigenous community on the real motive of the program. Government policy objectives to assimilate indigenous communities into mainstream society leave little scope for indigenous groups to pursue their own life projects. Several studies have reported that the development of the government within traditional indigenous lands has caused conflict between the developer and the indigenous community. This situation has caused the indigenous people to bear the consequences of losing their traditional land, which is very important to reflect their identity. The aim of this paper is therefore...
2007
I. Introduction An Indian Chief was quoted in Calder v British Columbia as saying: What we don't like about the government is their saying this: "We will give you this much land" How can they give it when it is our own? We cannot understand it. They have never bought itfrom us or our forefathers. They have never fought and conquered our people and taken the land in that way, and yet they say now that they will give us so much land-our own land ... [Our] forefathers for generations and generations past had their land here all around us; chiefs had had their hunting grounds, their salmon streams, and places where they got their berries; it has always been so.J This statement could have been made by any indigenous person from any part of the world, whether it be a settler state in the Americas, Canada, Australia, New Zealand or a former British colony in Africa or Asia. It is echoed by Orang Asli leaders in Peninsula Malaysia, and native chiefs in Sarawak or Sabah. It could have been made yesterday, a decade or a century ago. In fact that statement was made in 1888 by one David Mackay of the Nishga'a nation of British Columbia, while addressing the Royal Commission visiting the Nishga territory, at the time when the land rights of the British colonies was being considered in the Privy Council;' the final Court of Appeal for Canada as well as the British Colonies. It embodies the sentiment and the bewilderment of indigenous peoples the world over, where they find that their rights and ownership to the ancestral land that they occupy is measured by a criterion other than their own, and is often trivialised to extinction. The customary rights to land and the value attached to it has long been a matter considered in the common law courts. Against this backdrop, Lord Haldane cautioned against 'a tendency ... to render [customary] title conceptually in terms which are appropriate only to systems which have grown up under English law' .3This underscored the need to ascertain rights possessed by indigenous peoples through their own laws, customs and usages instead of merely importing the preconceived notions of property rights under the common law." The paper compares the idea of property from the indigenous and 'the western' perspective and looks at the nature of usufructuary right to show that 'proprietary' rights should not be seen from only one perspective, that is the western perspective. This entails an understanding of ways of 'seeing' ,'knowing' and conceptualization that may be different from the systems that have grown under common law. The paper focuses on Sarawak, the largest state in Malaysia which has a majority native population and whose interests in land are largely held under native customary tenure, often referred to as usufruct. 'Usufructuary' right is often said to be a personal right of use-a nomenclature that disregards the possibility of possession and ownership. Terms like 'licensee' and 'permit holder' that are associated with 'usufruct' have negative consequences on the quantum of payable compensations. The paper juxtaposes the restrictive provisions of the Sarawak Land Code 1958 against the actual system of native land use system and examines such land use in the light of 'property' and 'adequate compensation' under Art 13 of the Federal Constitution. It explains how a usufructuary interest amounts to a full beneficial ownership which must be compensated in the event of extinguishment or deprivation. Apart from market value, adequate compensation should take into account the communal elements and the traditional livelihood of the community which gives it its unique value as property .
Australian Indigenous Law Review, 2013
In Malaysia, constitutional and attendant statutory protection for its Indigenous minority, Orang Asli (‘OA’), which place extensive power over OA and their lands in the state have not translated to the effective recognition of OA rights or substantial equality for OA. This situation persists notwithstanding positive jurisprudential developments in the Malaysian courts and Malaysia’s support for the 2007 United Nations Declaration on the Rights of Indigenous Peoples. Instead, the Federal and State governments continue to use their extensive legal powers to determine state priorities for land and resource utilization. The exercise of these powers appears to leave OA with land ownership, use and development priorities foisted upon them by the state. These priorities tend to deprioritize OA land interests. A combination of prejudices against the numerically inferior OA, hierarchical, differentiated and contested definitions of indigeneity in Malaysia and the subsequent push for economic progress which is linked to ethnic Malay-centric affirmative action have also contributed to the lack of legislative and executive will to effectively recognise OA customary land rights. Consequently, any initiative towards the legal recognition OA customary land rights is likely to be a product of state-driven compromise, the extent of which may again serve to shortchange OA.
Native Customary Rights: Does It Hold the Future of Sarawak's Natives
This article presents an overview of the Native Customary Rights to forests and its role in protecting the future of native people of Sarawak, Malaysia. The native people have had a long history and strong relationship with their forests. Existing documents and studies have been critically reviewed and analyzed in order to elaborate the Native Customary Rights which are critical to the native people of this region. To have a better understanding on Native Customary Rights, it is important to answer three related questions: (i) Who is a native of Sarawak, (ii) What is 'custom', and (iii) What is the nature of 'rights'? The roles of Native Customary Rights for economic, political or social reasons, operate through informal rules embedded in the natives' customs and traditions. These rules have never been codified into formal laws because the adat system merely functions to manage the human relations which are tied to culture thus making it difficult to codify the culture into laws. It is evident that there are several issues underlying the development of Native Customary Rights: (i) Native Customary Rights are considered as inferiority to those of the State, (ii) the issue of overshadowing of traditional laws by the colonial rule and the current statutory laws and, (iii) projects and land schemes involving the Native Land. It is understood that the challenges of promoting Native Customary Rights are daunting task; however, the constitutional laws need to carefully revise to provide a better future for the natives.
From Wards to Citizens: Indigenous Rights and Citizenship in Malaysia
In recent years, indigenous peoples in Malaysia have begun to pursue a new strategy in claiming property rights: they are turning to the legal system, using lawsuits to make their claims. In this article, I suggest that this changed approach marks an important turning point in the Orang Asli-Malaysian state relationship. The legal arena reframes the narrative of struggle from one of " development failure " to one of rights and entitlement. I explore a landmark case, Sagong Tasi and Ors. v. State of Selangor and Ors., in which Orang Asli plaintiffs argued for their rights based on their position as wards of the state, as citizens of the nation, and as indigenous people with worldwide recognition. While the explicit focus of this court case (and others like it) is on property rights, the process involved has raised important questions concerning Orang Asli citizenship rights. In drawing on multiple kinds of positioning and demanding that the state fulfill an obligation to them, the Orang Asli are using the legal space to reconfigure and redefine their relationship to the Malaysian State.
The Courts and the Restitution of Indigenous Territories in Malaysia
Erasmus Law Review, 2018
Despite enjoying distinct and privileged constitutional statuses , the Indigenous minorities of Malaysia, namely, the natives of Sabah, natives of Sarawak and the Peninsular Malaysia Orang Asli continue to endure dispossession from their customary lands, territories and resources. In response, these groups have resorted to seeking justice in the domestic courts to some degree of success. Over the last two decades , the Malaysian judiciary has applied the constitutional provisions and developed the common law to recognise and protect Indigenous land and resource rights beyond the literal confines of the written law. This article focuses on the effectiveness of the Malaysian courts in delivering the preferred remedy of Indigenous communities for land and resource issues, specifically, the restitution or return of traditional areas to these communities. Despite the Courts' recognition and to a limited extent, return of Indigenous lands and resources beyond that conferred upon by the executive and legislative arms of government, it is contended that the utilisation of the judicial process is a potentially slow, costly, incongruous and unpredictable process that may also not necessarily be free from the influence of the domestic political and policy debates surrounding the return of Indigenous lands, territories and resources.