Political and Legal Threats to Community Land Rights in Malaysia

In the early twentieth century, Malaya was an important global exporter of rubber and tin. Between the 1980s and 1990s, the country transitioned into being the world’s leading exporter of tropical logs. Initially, industrial logging began to intensify in Peninsular Malaysia and Sabah in the late 1960s, before the industry turned to Sarawak in the 1980s. These operations predominately took place on indigenous customary territories. The overharvesting of natural timber throughout the 1980s and 1990s eventually caused a serious depletion in natural timber resources. This resulted in the conversion of forests to plantations, for the purpose of developing oil palm, pulp and paper. This consequently lead to land grabbing of indigenous territories. Today, Malaysia, along with Indonesia, are two of the largest exporters of palm oil in the world.

Legislative Frameworks

Malaysia is a federation of three members, Peninsular Malaysia, Sarawak and Sabah. Sarawak and Sabah are located on the Borneo Island, where indigenous communities form the majority.  The legislative framework of Malaysia sufficiently recognises the customary land rights of its indigenous communities, although this recognition is often limited by the interpretation of such rights. Indigenous customary land rights are constitutionally protected by the provisions on the rights to fundamental liberties, equality and property. However, in all the three regions, indigenous customary land rights, without any documentary title or a communal reservation status, are interpreted by the state as a limited form of rights and the land essentially still belongs to the state. Depending on the region, such land rights may be interpreted as a form of tax-free land licence on state land or as a right, no better than that of a tenant. As such, the state tends to interpret that indigenous peoples have limited ownership rights to the crops and built structures found on their land.

Although there are provisions which can serve to protect the indigenous customary territories, they have not been utilised actively, or in a manner that may cause the size of the territories to decline. Therefore, until the indigenous customary territories are given the highest form of executive protection by the states, they will always remain vulnerable to land grabs.

Free, Prior and Informed Consent (FPIC)

There are currently no provision in any existing laws to compel a mandatory free, prior and informed consent process on matters affecting the affairs of indigenous peoples. Their consent is not required for matters related to land acquisition, the reservation of production forests and conservation areas and the issuance of logging, plantation, mining and other resource-extractive permits. This includes determining the size and boundaries of their territories through participatory mapping and ground documentation process. There are also no statutory provisions to mandate consultations to be undertaken, whether before or after key decisions have been made. 

Agroecology and Community-Based Forest Management

Sahabat Alam Malaysia (SAM) is involved in facilitating the establishment of residents associations, specifically in the state of Sarawak, to support the protection of community land rights and the carrying out of agroecology activities as part of a community land rights defence strategy. These activities have been able to produce following positive outcomes for participating communities:

• Strengthened the protection of community land rights by way of demonstrating the communities’ sustained and active control over their land, even when the land had previously been subjected to logging and plantation encroachments,
• Strengthened the capacity of participating communities and further enriched their agricultural skills,
• Improved the health of local ecosystems that had been adversely impacted by logging activities, in particular through reforestation efforts of logged over areas, 
• Provided additional income to participating communities, through a combination of lower crop production costs and increased productivity.
  
  

Malaysian Recommendations

The following transformative political and legislative measures can ensure greater protection of community land rights, the prevention of land grabs and human rights violations and the sustainable management of natural resources in Malaysia: 

1. The introduction of a definition of indigenous customary land rights in the statutes regulating on land and indigenous people, in accordance with how such rights have been structured and developed by the customs and laws of the community. There must be a detailed definition of the features of such land rights that are consistent with community perspective and its traditional systems of land use management, respecting the concept of communal territoriality.
   
   
2. Amendments to all the relevant laws to confirm that indigenous customary land rights, with or without any documentary land title or a reservation status, are a form of proprietary interest in the land itself, which comprises both communal and familial rights.
   
   
3. The introduction of the free, prior and informed consent process for all matters that affect the rights, livelihood and well-being of indigenous peoples, including but not limited to, those on land, forests, conservation areas and strategies, mining and other resource-extractive operations.
   
   
4. The utilisation of existing legislative provisions which can provide stronger executive recognition and protection on indigenous customary territories, in their entirety, either through a land or forest reservation process or the issuance of communal titles. The state must halt its practice of unilaterally interpreting the boundaries of indigenous customary territories, without community consultations and the dissemination of information, documents, maps and boundary demarcation.
   
   
5. The introduction of the legislation on the right to information and other policy directives to guarantee that indigenous communities are able to freely obtain information that may affect their rights, livelihood and well-being. 
   
   

Read more about land grabbing across the Asia Pacific in our new publication.

For more information contact:
Shamila Ariffin,
Sahabat Alam Malaysia – SAM
Email: shaffincre@gmail.com

Emma Harvey,
Friends of the Earth Asia Pacific,
Communications Coordinator
Email: emma.harvey@foe.org.au