SUHAKAM National Inquiry into the Land Rights of Indigenous Peoples A report submitted to the Human Rights Commission of Malaysia, Kuala Lumpur (original) (raw)
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 .
Encyclopedia of Global Justice, Deen Chatterjee, ed., 2011
Indigenous rights to land are collective human rights, the recognition and realization of which are inextricably bound up with the rights of indigenous peoples to self-determination. These rights are held and exercised collectively by indigenous peoples as peoples in virtue of indigenous persons' basic and universal interests as human beings. As human rights, indigenous rights to land are inalienable and have moral, political, and legal priority over the interests of states. The relationships to land that ground indigenous peoples’ rights are ongoing, and they establish interests in access, use, and disposition of land that are of obvious importance from both a moral point of view and for the smooth functioning of social relations.
Analysis of ways to codify customary communal shifting cultivation land in Myanmar Kirsten Ewers Andersen Stating the Problem Research into the Commons can contribute to the struggle for land rights of indigenous communities, if the research can suggest the means for the indigenous communities to articulate their claims and seek ways to have their land protected under statutory law in a way that does not distort their traditional tenure arrangements. The present research looks at this struggle for land rights in Myanmar to show how the application of the Theory of the Commons and its guiding principles can prepare a stepping stone for the preparation of procedures that eventually could become embedded in a legal and regulatory framework for land registration of customary communal agricultural land of upland ethnic groups. The argument is that in S. E Asia it is better for indigenous communities to try to find a way to register their customary communal agricultural lands despite the possible loss of original indigenous notions of the wider landscapes and territory in which their agricultural land use is embedded. If land is not protected by some legal means, the land may be lost to land concessions in agribusiness. Control of land is the basis of communities' livelihood as well as power and influence today. Present day governments in S. E. Asia wish to retain as much land as possible under their control based on the eminent domain of the state with the aim to promote agribusiness for export production turning land into capital. 1 Land grabbing in the 21st century of any untitled land by the State and commercial interests is a risk that communities today can counter primarily through protests, if they dare. They cannot go to court, because their land is not titled. In Myanmar, as elsewhere, there had been an acceleration of business and corporate interest in mineral and natural resources and agricultural land for business in rubber, oil palm, corn and cassava, not to mention tropical timber, and once the timber is gone the land can be planted with palm oil as has happened all over Indonesia. In S. E. Asia, this has led, as said, to comprehensive loss of untitled land for upland indigenous peoples in Myanmar, in Lao PDR and in Cambodia. The aim of the research was as advocacy research to influence the military government of the Union Solidarity and Development Party (USDP) during the reform process that started 2012. The goal was to protect the customary tenure arrangements of indigenous communities in the uplands through a possible customary communal land registration based on an idea that a codification of customary communal tenure under an overall statutory framework would protect the land against the ongoing land grabbing by agribusiness and the military. The intermittent research during 2013-16 therefore focused on recording the customary tenure arrangements of pilot communities in Chin
LAND RIGHTS: NATIONAL AND INTERNATIONAL LAND POLICY FRAMEWORK, TREATIES AND GRASSROOTS REALITIES
International Journal of Multidisciplinary Research and Technology, 2023
Ownership of land and allied resources is an emerging reason for dispute all over the globe. These disputes affect the perspective of rural growth, human rights, indigenous culture, ecological conversation, and attempt to combat changes in climate conditions. Traditionally, most of the land resources are governed and owned by the local and indigenous communities through their customary tenure system. In the last several decades due to various reasons, the perspective towards land resources is changed and land became a commodity. The landowners have also changed their perspective and used it as a commodity to get financial resources. The land is a primary source of developing livelihood assets of humans and the life cycle of biodiversity. Recent trends in land markets and emerging land conflicts are indications of future societal and administrative problems. To minimize further impacts proper policies and protection measures are important. Protection of the traditional rights of indigenous people is a primary duty of governance and society. The appropriate policies and conflict resolution mechanism is important to secure the livelihood of forest dwellers. This paper is intended to address the emerging challenges and land rights issues from a wider perspective.
2018
This report reveals endemic challenges facing communities across 15 countries. Procedures to register and document their customary land rights are complex, difficult, and costly, requiring communities to sacrifice time, finances, and customary land and resources.
Journal of Human Rights, Culture and Legal System
In customary law communities, established land has a deep meaning and is integral to cultural identity and social life. However, customary land rights often face serious problems. This study aims to analyze the protection of customary land rights in Indonesia and Thailand, identify the factors causing the problem, and describe the latest developments in efforts to protect these rights. This study focuses more on normative legal research. The normative juridical method is intended to explain various laws and regulations related to the mechanism for recognizing customary law communities with a statutory approach. The result of this research is a list of factors that influence the problem of protecting customary land rights in Indonesia and Thailand, such as the existence of legal dualism in land management, conflicts of interest between indigenous peoples and the state, and unclear boundaries of customary land territories. Then, the impact of the problematic protection of customary la...
Land Rights as Human Rights: The Case for a Specific Right to Land
SSRN Electronic Journal, 2013
is a Reader in Law at the University of East London (United Kingdom). He has published various articles and book chapters on the rights of indigenous peoples, looking in particular at territorial rights. Jérémie often works with indigenous communities and representatives of NGOs on cases involving land rights. He is a board member of the International Work Group on Indigenous Affairs (IWGIA), a member of Minority Rights Group International's Advisory Board on their Legal Cases Programme, and also regularly works with the Forest Peoples' Programme and the Rainforest Foundation UK. His current work focuses on the protection of nomadic peoples under international law, indigenous peoples' land rights, and the interaction between business and human rights law.
M. Nazir Salim, Diah Retno Wulan, Sukmo Pinuji; Forest and Society; doi.org/10.24259/fs.v5i1.10552, 2021
Longstanding land tenure claims in state forest by communities continues to pose a challenge to government institutions in Indonesia. Such conditions require institutions to develop mechanisms to assure communities of their rights in the state ideals of manifest justice and welfare. One government policy to reconcile these goals is the mechanism on Land Tenure Settlement Reconciliation in State Forests (Penyelesaian Penguasaan Tanah dalam Kawasan Hutan/PPTKH). This study aims to describe this policy in the context of fieldwork experience related to fundamental problems in the process of identification and settlement of land tenure claimed by communities in state forests. Data collection was obtained through participant observation conducted with communities in Ogan Kemoring Ulu Regency by identifying and verifying community lands in state forests. This method allowed for a more nuanced understanding of settlement challenges and afforded the opportunity to develop a formula for addressing conflicts. The results of the study show that the main problems are a lack of access to information related to the PPTKH policy emergent from ineffective dissemination of information combined with an underdeveloped capacity of processes that support the community to convene and discuss with government actors, academics/researchers, and activists/scholars. The participative learning process conducted by the authors helped the community effectively prepare documents to propose to an Inventory and Verification (Inver) team of Land Tenure in State Forests. Therefore, going forward more collaborative work is needed within the framework of community assistance and capacity building so that the communities have the means and resources to able to understand the challenges of land tenure recognition and be empowered to propose such mechanisms independently. Communities who claim land in state forests depend upon formalized legality, without which can potentially harm their access and assets.
Journal of Law, Policy and Globalization, 2018
The nature of indigenous peoples' lives on land and forests (natural resources) is based on the concept of customary law namely "cosmic", meaning the balance relations among fellow individuals or groups of indigenous people, both internally and externally, their natural environments, and God as the creator with the universe, in the atmosphere of communal and democratic life. However, by the development of time, lives of indigenous people who own the lands and forests (natural resources) in accordance with culture and customary law have started to face problems, causing a potential conflict or prolonged dispute due to differences in the perception of the right to control land over natural resources by indigenous peoples with the Basic Agrarian Law (BAL), Bureaucrats (government), and companies, especially in "mastering and possessing words" which are occupied in Article 18B paragraph (2) and Article 28I paragraph (3) and Article 33 paragraph (3) of the 1945 Co...
Customary land title and Indigenous rights
2018
In a recent report on Papua New Guinea (PNG), the United Nations Human Rights Commission (UNHRC) noted its concern at the alienation of land held under customary title through the granting of Special Agricultural Business Leases (SABLs). Its concern centres on the impact of SABLs on human rights, with the UNHRC citing that the granting of these leases “had negatively affected the ability of indigenous communities to maintain customary land use patterns and sustain their traditional way of living” (UNHRC, 2016:12). Yet, I contend, such an Indigenous rights-based approach to the issue is problematic on two levels. First, it is not clear which groups in Papua New Guinea should be considered ‘Indigenous’ given the country’s universal franchise and the lack of a politically or economically dominant identity group. Second, such an approach does not account for the widespread commodification of land held under customary title. The majority of land in PNG is held under customary title and i...
American Journal of International Law
On November 25, 2015, the Inter-American Court of Human Rights (Court) held that the state of Suriname had violated the rights of two indigenous groups by denying recognition of their juridical personality and their entitlement to collective property and judicial protection. In Kaliña and Lokono Peoples v. Suriname, the Court also considered the impact of nature reserves on indigenous land rights, as well as the legitimacy of private titling of property that encroaches on land for which collective title has not been attained. The decision pushes the Court's previous jurisprudence significantly—and somewhat controversially—by asserting that under the American Convention on Human Rights, indigenous peoples are entitled, as collective entities, to recognition of their legal personality. In so doing, the Court challenged ordinary assumptions about the individualized character of most adjudication regarding international human rights and made the possibility of enforcing collective r...
Indigenous Peoples’ Right to Land
Max Planck Yearbook of United Nations Law Online, 2004
The author would like to thank Ann-Gøril Johansen † (who passed away far too young) and Martin Scheinin for sharing their views on indigenous rights. Hans Petter Graver deserves special thanks for cooperation in our joint study on the Finnmark Bill for the Norwegian Ministry of Justice, and for allowing me to use our report as a basis for this article.
Indigenous Communities, Property Rights, and Environmental Management
2022
“Communities in Africa recognize that property is more than just an economic concept. For indigenous communities, their entire life is defined based on property rights. Identify the school of thought that best describes this approach to property rights and discuss how it has been applied to conceptualize and protect community land rights in Africa. Based on your answer demonstrate the importance of property rights to environmental management”. Building on that assignment, Gum & Souza (2022) researched works and updated legislation to discuss land ownership rights in Africa, with an emphasis on Kenya, and the result is the following paper.
This essay examines the most recent justifications for a people's (or state's) exclusive right to resources as part of a territorial right. Divided into eight parts, the discussion covers contemporary philosophical discussion regarding: the conception of natural resources, the conception of resource rights, the general form of arguments supporting resource rights, arguments from self-determination, objections to arguments from self-determination, arguments from residence, arguments from improvement, and new directions for research in the future.
Claiming Indigenous Land Rights from the Bottom Up
2008
Chapter 2 Conceptualising Indigenous Rights and How They are Mobilised 2.1 Indigenous People Defined 2.2 Indigenous Peoples and the Human Rights Framework 2.3 National Laws that Administer Land in Kenya 2.4 International Laws on Indigenous Peoples 2.4.1 Indigenous and Tribal Peoples Convention 169 and the International Labour Organisation 2.4.2 The United Nations Declaration on the Rights of Indigenous Peoples 2.4.3 Indigenous Peoples' Land Rights and the International Covenant on Civil and Political Rights 2.4.4 International Covenant on the Elimination on the Elimination of All Forms of Racial Discrimination and Indigenous Peoples 2.4.5 The African Charter on Human and Peoples' Rights 2.5 Socio-Legal Perspectives and Indigenous Rights 2.5.1 Vernacularisation of Human Rights 2.5.2 The Human Rights Spiral 2.6 Summary Chapter 3 Dispossession of the Ogiek in the Mau Forest Complex 3.1 Who are the Ogiek? 3.2 Dynamics behind Dispossession of the Ogiek of their Indigenous Land 3.3 Recent Encroachment of Ogiek Land 3.4 Effect of the Loss of Land on the Ogiek 3.5 Summary Chapter 4: Claiming Indigenous Land Rights at the National Level 4.1 Advancing Indigenous Land Claims through the Courts 4.2 Community Mobilisation around Land Rights 4.3 Land and the Legal Framework in Kenya 4.4 Indigenous People and the Constitution 4.5 Summary