Report of the National Inquiry into the Land Rights of Indigenous
Peoples
NATIONAL HUMAN RIGHTS COMMISSION OF MALAYSIA (SUHAKAM)
APRIL,2013
* Below the General Recomendations (without footnotes), looking at the 18 RECOMMENDATIONS - see the full report at the SUHAKAM Website
The Malaysian Bar 2017 Resolution referred to these recommendations and urged the government to
Strongly calls upon the Federal and State Governments to immediately implement the 18 recommendations contained in the 2013 SUHAKAM Report of the National Inquiry into the Land Rights of Indigenous Peoples in Malaysia, in respect of Orang Asli and the natives of Sabah and Sarawak and, as an interim measure, to impose an immediate moratorium on the creation of any land and/or resource interests and the continuation of resource extraction and enforcement activities within places claimed to be Orang Asli or native customary areas, pending the resolution of the customary land rights and resource claims of the affected Orang Asli or native communities;
GENERAL RECOMMENDATIONS
RECOGNISE INDIGENOUS CUSTOMARY RIGHTS TO LAND
10.4 The Inquiry finds that the
recognition of indigenous customary rights to land is critical in protecting
and promoting these rights as an indivisible and integral part of the
protection and promotion of their other
human rights. Successive amendments to land laws since the British colonial
period have eroded indigenous peoples’ customary rights to land. But while some
positive statutory provisions do exist, much more needs to be done to enhance
protection so that these are aligned with indigenous peoples’ own perspectives,
court decisions and international laws.
10.5 The Sabah Land Use Policy
2010, for example, refers to a need for the policy to be sensitive to ‘the
traditions and needs of native communities’, which could help ensure full recognition
of customary rights to land.
Recommendation
1: Address Security of Tenure
10.6 The displacement of communities
mainly through the implementation of development projects, poverty eradication
programmes, encroachments on indigenous peoples’ lands by plantation and other
companies, and inappropriate dealings through powers of attorney, mostly by
outsiders or by community leaders themselves, have occurred because of absence of
land tenure security. It is therefore imperative that the government address
land tenure security of indigenous peoples.
10.7 To ensure that security of
tenure and customary rights as perceived by indigenous peoples are not
compromised, it is recommended that before any alienation, reservation or licence
in respect of any land is made, created or issued, the authorities concerned
investigate fully the status of the land by reference to relevant documentary
as well as actual evidence on the ground. Relevant notices must be posted in
conspicuous places to ensure actual notification. Signed receipts of notices to
call for testimonies of customary land rights claimants, particularly rural
indigenous peoples, must be obtained and returned.
10.8 Recommendations for changes
to laws and policies to address land tenure security, which have already been
studied and/or adopted by the government, should be instituted immediately
through legal and policy decisions.
10.9 Court decisions which have
recognised the concept of indigenous/native customary rights to land should be
instituted promptly through administrative orders, if not amendments to
existing laws.
Recommendation
2: Clarity of Concepts on Customary Tenure
10.10 Proper studies to clarify
concepts such as rayau and traditional territories (pemakai menoa, wilayah adat)
are urgently needed. The study should also recommend the reasonable land size
to enable indigenous peoples to support a sustainable livelihood and cultural
life, particularly those who still rely fully on the land to make a decent
living and for traditional cultural survival.
10.11 For other issues that still
require further studies, discussions to clarify and review relevant laws and
policies should be made and recommendations from the study should be subsequently
implemented to enhance protection of indigenous peoples’ rights to land.
10.12 Review current definitions
and criteria for the establishment of native customary rights to land in the
Sabah Land Ordinance (section 15) and the Sarawak Land Code (section 10) to include
other important aspects of customary land use. The National Land Code should be
amended to include clear provisions recognising Orang Asli customary land use.
10.13 To review current adopted
policy provisions that are not evidence -based, legal or are problematic,
including but not limited to the policy giving priority to the issuance of Communal
Titles in Sabah, issuing Provisional Leases in Sarawak before NCR lands are excised,
and the giving of individual land titles to the Orang Asli.
10.14 It would also be pertinent
to study examples in other countries on how security of tenure for indigenous
peoples can contribute to the nation’s economy and to draw parallels with the contribution
of indigenous peoples of Malaysia to the economy of the state. Some examples
are the Waitangi Tribunal process in New Zealand and the flexible land titling
adopted by Canada for its indigenous peoples, which have already shown positive
economic, political and reconciliatory results.
Recommendation
3: Restitution for Non-Recognition of Customary Lands
10.15 Legal provision for the
restitution of land needs to be put in place. Where the possibility of
returning indigenous customary lands that have been acquired in the past is not
possible or feasible, alternative land or compensation should be considered.
10.16 The Federal Constitution
guarantees the right to property in Article 13 and a person’s property cannot
be taken away unless the law allows it.
10.17 Deprivation of indigenous
peoples’ right to land in order to carry out poverty eradication schemes,
economic development and conservation efforts, or by fraudulent means through
the use of powers of attorney and other forms of illegal land transfers, has
occurred without adequate mechanisms for complaints and redress. Remedying past
wrongs and instituting redress mechanisms will not only restore faith in the
government and reconcile conflicts, but also ensure justice and fairness to
those whose land has been taken.
10.18 Reconciliatory approaches
that engage with actors in the justice and administrative systems and treat
indigenous communities in a respectful manner could mitigate conflicts that may
arise where there is a heightened level of frustration. The role of legal
practitioners and mediators who understand the concepts of indigenous customary
rights is important and can be strengthened through enhanced interaction with
the communities.
Recommendation
4: Redress Mechanisms
10.19 The Inquiry strongly
recommends the establishment of an Indigenous Land Tribunal or Commission
composed of retired judges and experts on indigenous customary rights to resolve
issues and complaints related to indigenous peoples’ land claims that are
brought before it. The Tribunal or Commission should be empowered to decide on
these complaints and issues, including appropriate settlements or redress
related to a case.
10.20 In view of the high number
of cases currently filed in court, the Inquiry also recommends the
establishment of a Native Title Court or a special court to deal with the backlog
of cases in the civil court. Depending on the powers of the proposed Indigenous
Land Tribunal/Commission, its recommendations can be subsequently brought before
the Native Title Court to decide on these cases. These processes will
significantly reduce the time to decide on land conflicts.
10.21 Create an independent
mediation mechanism eg. Ombudsman to provide assistance in land disputes
involving indigenous peoples’ land claims. This mechanism can link with current
efforts by the judiciary to encourage mediation for cases brought before the
court. Mediation using the adat of the indigenous peoples should also be
considered, thereby reflecting government recognition of their cultural
traditions.
10.22 Establish a mechanism to
monitor the land rights situation of indigenous peoples that works closely with
relevant government departments and indigenous organisations dealing with land, and the proposed Indigenous Land
Tribunal/Commission and Ombudsman.
10.23 Legal aid and other forms
of support for communities wanting to use strategic litigation and targeted
advocacy to seek redress through the courts should also be provided. Where free
legal aid is not available especially in Sabah and Sarawak, special
arrangements for counsel from the Bar Council Legal Aid Service could be
extended to these states. In addition, the Sabah Law Association and the
Sarawak Bar should consider extending services similar to those provided by the
Bar Council Orang Asli Committee.
Recommendation
5: Address Past Policies & Programmes
10.24 Review policies related to
poverty eradication programmes, ensuring that acquisition of land for such
programmes does not infringe on indigenous customary land rights and that independent
and periodic evaluation processes are built into the programme.
10.25 Review indigenous land
development schemes and other commercial development programmes affecting
indigenous peoples including the term “beneficiaries”, conditions to be imposed
and the way in which Memoranda of Understanding or Agreements are explained to the
indigenous peoples before the signing of such MoU or Agreement. A mechanism to obtain
Free, Prior and Informed Consent from affected communities must be built in.
10.26 A policy decision should
also be made to ensure inclusion in all agreements and licences, both new and
those which are being renewed, among others, express conditions requiring NCR
lands to be excised before the commencement of any project, a timeframe within
which such requirements are to be fulfilled, and a penalty if such and any
conditions and timeframe are not complied with. These conditions should also be
incorporated into agreements signed between the state government or government
departments (such as the JHEOA/FELCRA and JHEOA/RISDA agreements) as well as
private and government-linked companies.
10.27 All areas which have been
gazetted without proper survey and demarcation should be resurveyed. Areas
already inhabited by people should be excluded.
10.28 There should be no eviction
of communities with established customary rights, including from areas that
have been gazetted as forest reserves and other protected areas.
Recommendation
6: Review Compensation
10.29 Review compensation
provisions and regulations in laws relating to acquisition of land, including
the rate of compensation for lands and crops. The review should take into
account the livelihood and other needs of communities in the transitional
period after land is taken from them until they are fully resettled.
10.30 Where possible, they should
be given alternative land which is of the same value as the land acquired from
them, and adequate basic facilities should be guaranteed.
ADDRESS LAND DEVELOPMENT
ISSUES/IMBALANCES
10.31 The current aggressive
pursuit of development in Malaysia has resulted in imbalances and negative
impacts on indigenous rights. The numerous land development issues such as desecration
of graves; destruction of agricultural land, crops, catchment areas and
important cultural and sacred sites; water, air and noise pollution as well as
unsustainable income that the Inquiry has elaborated have to be addressed to ensure
development really benefits all peoples.
10.32 Government and development
partners must reconcile economic growth priorities with security of tenure.
Reviewing land concessions approved in the past, linking security of tenure to
investment promotion,and wealth-sharing agreements are important practical measures
to be considered.
10.33 The findings of this
Inquiry also show that indigenous peoples are not against development or its
process but their interests and concerns should be protected through their participation
in development. Central to this concern is the commitment “to improving the livelihoods
of the people and communities by creating the conditions needed for them to sustainably
manage forest”.
Recommendation
7: Adopt HRBA to Development and FPIC Law
10.34 The Federal Constitution in
Article 5 guarantees the right to life, which the courts have elaborated to
include a right to livelihood and quality of life. The Declaration on Right to Development,
the UNDRIP, ILO C169, CRC, CEDAW and ICESCR all contain provisions and legal
measures that promote the right of participation in various forms. The report
of the UN Expert Mechanism on the Rights of Indigenous Peoples on “indigenous
peoples and the right to participate in decision-making” stressed the
importance of State parties in ensuring that corporations respect the rights of
indigenous peoples to give or withhold their free, prior and informed consent
to operations that may affect their rights.
These aspirations are clearly articulated under Articles 193 to 196 of
the UN Conference -Rio+20 outcome document. Malaysia participated at two UN
Conferences on Sustainable Development better known as “Rio gatherings” and
endorsed the Agenda 21 document emerging from the first gathering and ‘The
Future We Want’ document in June 2012 Rio+20 gathering. In both there are clear
global commitments towards sustainable development.
10.35 The UNDP recommended that
States adopt a human rights based approach (HRBA) to development so as to
ensure such development will benefit both the state and its citizens. The UNDRIP
and ILOC169 also recommend the adoption of an FPIC law in order to obtain consent
from indigenous peoples and ensure that they would also benefit from
development programmes.
10.36 In line with international
standards, the State and Federal governments must adopt such a human rights
based approach to development and adopt an FPIC law outlining consent-making
processes that ensure effective participation of affected indigenous
communities.
Recommendation
8: Ensure Land Development Does Not Adversely Impact Indigenous Peoples
10.37 Prevailing development in
Malaysia leans towards the development of large-scale projects (mainly
plantations) by private sector investment or government linked companies. Studies
(Cramb 2007, Majid Cooke 2012, and Li 2011) have shown that implementing large-scale
development projects has compounded land conflicts rather than improving land matters,
and poverty among indigenous peoples has not been reduced significantly.
10.38 The Special Rapporteur on
the Right to Food in his report to the UN General Assembly (A/65/281)
highlighted the threat to the right to food from large-scale land investments
and recommended that land development schemes must be designed in ways that do
not lead to evictions, disruptive shifts in land rights and increased land
concentration.
10.39 The findings of the Inquiry
indicate that when management objectives of business or government agencies
change because of changes of parties in power, the effects on the ground are
felt directly by indigenous peoples through the scaling down of the project. Scaling
down are done through reductions in the anticipated number of participants, the
cutting down of promised entitlements which means non-delivery of promised
(usually unsigned) entitlements. Worst case scenarios are in the form of
abandonment of projects; government relinquishing authority over the projects
to other organisations or business entities; or outright sale of assets to
other organisations.
10.40 To ensure land development
does not adversely impact indigenous peoples, indigenous peoples’ land and land
claimed by indigenous peoples which is acquired for development and poverty
eradication programmes need to be reviewed with the full and effective
participation of affected communities.
10.41 The government also needs
to institute more stringent guidelines for poverty eradication programmes and built-in
evaluation processes to ensure that they meet the targets and do not infringe
on the rights of others.
10.42 A review process on the
calculation and disbursement of dividends and other entitlements, and the
timeframe for transfer of land ownership to participants should also be conducted
for indigenous land development schemes.
Recommendation
9: Promote Successful Development Models
10.43 Adopt small scale land
development models where indigenous landowners can be fully involved. Such
models should ensure land ownership and management remain in the hands of indigenous
peoples, but at the same time, training opportunities to enhance skills and management
should be given.
10.44 Ensure better governance of
land and tenure, as well as “best practices” by companies to make certification
systems perform as they should. Better governance to improve conditions of
timber and palm oil certification, housing and urban development as well as
extractive industries must include the necessity to acquire free and prior informed
consent from all those affected especially indigenous peoples with customary
rights.
10.45 Businesses should also be
made more accountable and required to respect human rights of indigenous
peoples. International standards regulating timber industries to comply with
the international timber certification and trade regulations should be adopted
such as the signing of Voluntary Partnership Agreements to trace where timber
was harvested to ensure legality of its source and to curb illegal timber trade
with particular emphasis on respecting customary land and human rights.
10.46 Timber industries should
also ensure timber extraction is respectful of the rights of the indigenous
peoples. International standards regulating timber industry to comply with the international
timber certification and trade regulations should be adopted such as the
signing of voluntary partnership agreement (VPA) to trace where timber was
harvested to ensure legality of its source and to curb illegal timber trade
with particular emphasis on respecting NCR land and human rights.
Recommendation 10: Policy Towards People-Centred Inclusive-Sustainable
Development
10.47 The agenda for sustainable
development with a balanced policy agenda for economic, social and environment
agenda must be the cornerstone of public policy towards indigenous people and
the forest. It must have a very firm commitment for inclusive development which
is sustainable, equitable and empowering.
10.48 The Federal and State
governments must also adopt sustainable forest and oil palm management in
mainstreaming economic and environment policies. This necessitates the establishment
of a national action taskforce comprising all the stakeholders and indigenous representatives,
human rights and civil society organisations to ensure the effective realisation
of the sustainable development agenda.
PREVENT FUTURE LOSS OF NCR LAND
10.49 To ensure lasting solutions,
any potential loss of land as a result of prevailing factors has to be expeditiously
addressed since protecting and promoting the Indigenous Peoples’ right to land
is an indivisible and integral part of the protection and promotion of their other
human rights.
10.50 An important strategy that
the Inquiry recommends is the respect for principles of free, prior and informed consent. Various
international instruments and guidelines can be useful references such as the
UN Development Group Guidelines on Indigenous Peoples’ Issues, the UNDRIP, ILO
169 and CBD/Akwe Kon Guidelines, EMRIP and PFII studies, UN Human Settlements
Programme –Guidance Notes for Practitioners on Land & Conflict. Other guidelines
referred to earlier which relate to business and human rights are also
important to recommend to both companies and government agencies to arrest
future loss of indigenous customary land.
Recommendation 11: Settlement Exercise on Indigenous Customary
Lands
10.51 The recommendation made in
10.7 above to investigate fully the status of any land claim or application by
referring to relevant documentary as well as actual evidence on the ground is
also relevant here.
10.52 Customary land claims must
be settled prior to the granting of new provisional leases, licenses, projects
or other land alienation.
10.53 Review and amend relevant
laws to align them to universally accepted norms. It is important to mention
here that the UN Guiding Principles on Business and Human Rights “Protect,
Respect and Remedy” Framework developed for transnational corporations and
business enterprises place the obligation on the corporate sector to include
rights-based practices in their operations. Businesses are obliged to do so
even in countries where laws and policies are in place to protect human rights
of citizens.
10.54 Hold regular fora between
indigenous peoples, government and
parliamentarians, and other stakeholders to bridge gaps in perception and
understanding. Such fora could also be used by the government and
parliamentarians to clear other issues and questions relating to indigenous
lands before proposing policy changes or passing any bills that would affect indigenous
peoples’ customary land.
Recommendation
12: Recognition of Indigenous Lands in Protected Areas
10.55 The Inquiry found that
customary lands claimed by indigenous peoples were included in protected areas
for conservation purposes (parks, wildlife sanctuaries, water catchment etc).
Where indigenous communities have acceded to such inclusion into protected
areas for the enjoyment of the wider society, the government should recognise
the historical ownership of land prior to gazetting such land as a protected
area, and credit the community for conserving and contributing their land.
Where possible, they should be allowed access to continue activities that would
not jeopardise the area.
10.56 Remedies for failing to
give affected communities adequate information and notices required by law
prior to the gazetting of protected areas and forest reserves should be found such
as the excision of the community lands, granting of an alternative area or
exemplary joint management agreements for areas where communities can continue
to stay.
Recommendation 13: Indigenous Peoples ́ Active Involvement in
Forest Management
10.57 The information shared by
relevant forest-based agencies at the Inquiry revealed that the involvement of indigenous
peoples in forest management is very limited. Hence, a new policy directive is
needed for enhanced and active involvement of indigenous communities in forest
management programmes, especially in forest reserves. Proactive efforts to
encourage community-based forest management, where clear structures, functions
and decision-making processes for
indigenous peoples, are recommended. This effort, which had been tested and proven
successful in Nepal, will prompt indigenous communities to take the lead and manage
resources, while the government plays the role of supporter or facilitator.
ADDRESS LAND ADMINISTRATION
ISSUES
10.58 Land administration plays a
key role in ensuring indigenous peoples’ right to land is implemented.
Currently, an enabling environment including clear structures, functions and decision-making
processes related to land administration that can contribute to resolving much
of the indigenous peoples’ land rights issues, are absent and need to be put in
place.
10.59 From the findings and
analyses of the Inquiry, three key recommendations to address the myriad land
administration issues are set forth below i.e. capacity enhancement of land department
staff, reviewing current responses to indigenous land issues, and immediate implementation
of corrective measures.
Recommendation
14: Conduct Comprehensive Review of JAKOA
10.60 In view of the seriousness of complaints and apparent
weaknesses of the Orang Asli Development Department (JAKOA) in protecting Orang
Asli land rights as provided by the Aboriginal Peoples Act to protect and
ensure the well-being and advancement of the Orang Asli, the Inquiry recommends
that an independent and comprehensive review of JAKOA be undertaken at an early
date. The comprehensive review should, among others, clarify whether Orang Asli
land matters should remain within the purview of JAKOA or go directly to Orang Asli
communities themselves.
10.61 While such is review is underway, the Inquiry
recommends that JAKOA be more proactive in resolving existing Orang Asli land
issues.
Recommendation
15: Capacity Enhancement of Land Departments
10.62 The Lands and Surveys
Department (Sabah & Sarawak) and the Department of Land and Mines
(Peninsular Malaysia), including the delegated authorities at the district
level, represent the authorities dealing with land claims of indigenous
peoples. Staff of these departments would benefit from capacity enhancement to
ensure effectiveness in dealing with indigenous peoples’ land rights. Various
human resource training courses can be conducted, including on:
•skills to engage in a respectful
manner with indigenous peoples
•necessary legal understanding
with regards to indigenous customary rights,
•common law and indigenous
customary rights
• different models of development
• free and prior informed consent
and the mechanism to obtain consent before undertaking any development
programme/project
• international instruments
relating to rights of indigenous peoples
10.63 A network of consultants
from universities, non-government organisations, the legal fraternity,
government departments and knowledgeable indigenous individuals can be established
to act as resources for the training as well as to provide expertise for mediation
and conflict resolution processes.
10.64 For projects that involve
indigenous peoples’ land through joint-ventures, relevant authorities should
provide training to their enforcement units to be efficient and proactive in ensuring
that companies and government agencies are carrying out proper demarcation on
the ground and observing other requirements according to the terms and
conditions in the licence. A fund should be set up to acquire the services of
legal experts in this area to represent the indigenous peoples during
negotiations and to ensure that FPIC is properly attained.
Recommendation
16: Review Responses to Land Issues
10.65 The Findings chapters dealt
with reviews of constraints and administrative responses for each of the
regions. Responses that have negatively impacted indigenous peoples’ right to land
should be examined closely by relevant authorities, and improvements and
changes should be promptly adopted.
10.66 Gaps and weaknesses in
administrative procedures and practices designed to facilitate the recognition
of indigenous peoples’ rights to land should be reviewed by relevant authorities
to ensure more efficient implementation, taking into consideration past recommendations
and studies.
Recommendation
17: Immediate Implementation of Corrective Measures
10.67 Land development projects,
whether part of a poverty eradication programme, commercial development of
indigenous and or projects on land contested by indigenous peoples, often
involve several departments. When conflicts occur, these departments and other
private corporations often do not want to take the responsibility for resolving
such conflicts. Left unresolved, such conflicts have led to more serious
confrontations. The Inquiry recommends that where a number of state departments
are involved, inter-departmental coordination should be immediately mobilised
to address these issues. Projects that do not have such a mechanism should
include this in their administrative procedures.
10.68 Adequate financial
allocations should be made for the settlement of land claims, the processing of
land applications and requests for surveying reserves, including computerisation
of land databases. Land offices and other relevant departments should make
budget requests for adequate funding based on the demands for land settlement
they receive annually from indigenous peoples.
10.69 Suspicions and allegations
of corruption and conflict of interest by staff of the land offices give a
detrimental name to these departments, especially if proven in court. Land offices
should adopt and practise zero tolerance for corruption, and ensure their
processes are accountable and transparent.
10.70 Relevant authorities,
particularly the land offices and forestry departments need to enhance in-house
complaints handling. This could include establishing a complaints desk in each
district, having proper record books for oral complaints, and establishing
standards to respond to complaints. Officers who are proactive and oriented to
respect indigenous peoples should be equipped with proper training to handle
complaints.
10.71 Regular awareness
programmes and information dissemination should be organised by Lands and
Surveys/Land and Mines Department, its delegated authorities at the district
level, and other relevant agencies to explain to the public their roles and
functions, and the processes and procedures involved in securing ownership and
the recognition of indigenous customary rights land.
10.72 Land offices need to set up
a unit to address issues related to indigenous peoples’ right to land,
including the implementation of guidelines and principles of free and prior
informed consent, community consultations prior to project approval and
implementation, and Environmental and Social Impact Assessments. Establishing
monitoring units to ensure land agreements between developers and communities
are complied with is also necessary.
10.73 The opinion of the Ketua
Kampung, Penghulu and Batin, and the native/district chiefs (of the native courts
of Sabah and Sarawak) should be sought when verifying historical evidence and
the demography of an area claimed under customary rights. However, in view of
the negative perception about some of these leaders, alternative ways to get
historical and demographic information should also be considered.
RECOGNISE LAND AS CENTRAL TO
INDIGENOUS PEOPLES’ IDENTITY
10.74 Indigenous peoples’ close
relationship to their customary lands and territories means that these are
significant not only as a means of livelihood but also as part of their
spiritual and cultural life, and form part of their identity as peoples. The
centrality of indigenous peoples’ customary lands is vital for their
development and cultural survival. Effective recognition, as well as the
promotion and protection of rights to land and identity would thus require time-bound,
broad-based affirmative action that encompasses issues related to indigenous
peoples’ development and well-being.
Recommendation 18: Establish an Independent National Commission
on Indigenous Peoples
10.75 The Inquiry calls for the
establishment of an independent National Commission on Indigenous Peoples. The
functions of the Commission, among others, should be to advise the government
on laws and policies related to indigenous peoples; propose and monitor sustainable
development programmes on indigenous peoples’ land; promote participation of indigenous
peoples at all levels; and conduct research on issues related to the well-being
of indigenous peoples. The Commission members should be composed mainly of
indigenous peoples’ representatives that receive the support from, and
acceptance by, indigenous peoples of Malaysia.
END.
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