SUHAKAM National Inquiry into the Land Rights of Indigenous Peoples A report submitted to the Human Rights Commission of Malaysia, Kuala Lumpur (original) (raw)
Related papers
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.
On Land Rights for Indigenous Peoples
1991
This paper from 1991 aims at: (a) examining some of the connections between indigenous peoples and land rights and (b) presenting some elements of a framework within which to understand and analyze concrete cases of indigenous peoples' land rights. Land rights is however only one aspect of indigenous cultures, and this limited overview cannot do justice to these often exceedingly complex cultures. The emphasis seems, however, justified since land in a very deep emotional and spiritual sense is viewed as synonymous with the very life of indigenous peoples. The logic of the argument is built up around the following key terms: sustainable development, self-determination, land rights, and organization and action. But first it is necessary to focus on who the indigenous peoples are and what their current situation is.
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.