Indigenous Land Rights in Malaysia: Nor Nyawai & 3 Ors v Borneo Pulp Plantation Sdn Bhd & 2 Ors Justice Datuk Ian HC Chin Malaysia High Court of Sabah and Sarawak, Kuching, Sarawak Suit No 22-28-99-I 12 May 2001 by Professor Douglas Sanders The pre-existing rights of Indigenous people that arise as a result of native law or custom are now respected by the common law in Malaysia. However, such rights may be removed by unambiguous words in legislation. This concept was borrowed from Mabo v State of Queensland (No 2)[1] (‘Mabo’) by the leading Malaysian case of Adong bin Kuwau & 51 Ors v The Government of Jahore[2] (‘Adong’). In the Adong case, which involved Indigenous Orang Asli in peninsular Malaysia, the courts upheld traditional land rights in a compensation suit. In coming to their decision the Malaysian courts relied on the leading aboriginal title cases from Australia, Canada and the United States. Nyawai v Borneo Pulp Plantation Sdn Bhd (‘Nyawai’) also involves the issue of native customary land rights. It focuses on the rights held by Indigenous Iban over land in Sarawak, the largest of the Malaysian states located in northern Borneo. Both of the Malaysian states in Borneo - Sarawak and Sabah - have Indigenous majorities and greater autonomy than the states in peninsular Malaysia. While there is uniform land law for the peninsular states, separate land laws exist in Sarawak and Sabah, enacted by the local legislatures. The land law in Sarawak has provisions which recognise native customary land rights. These provisions allow title to customary lands to be granted to the native owners. This recognition of customary ownership goes back to the period of the first Rajah, James Brooke. Justice Chin commented on this early recognition in the Nyawai case: [...] In fact James Brooke had referred to native customary rights as “the indefeasible rights of the Aborigines”... [and] was “acutely aware of the prior presence of native communities, whose own laws in relation to ownership and development of land have been consistently honoured”.[3] In reality, however, Indigenous peoples have not been granted titles under Sarawak land legislation for much of their lands. The Indigenous majority of Sarawak, divided along tribal lines, has not been able to control the State government and its development agenda. The government is based on an alliance of Malays, Chinese and coastal tribal peoples, while the issues of land rights, logging and plantations affect the interior tribes. Sarawak is prosperous. Its wealth is primarily based on massive logging operations, and the logging companies are usually controlled by ethnic Chinese businesspeople. Many Indigenous people work in the harvesting operations. In this process, native customary land rights are largely ignored. Where titles have been granted to native tribes, they can be appropriated without consent under amendments passed a few years ago designed to facilitate the establishment of pulpwood and palm oil plantations. Source : austlii.edu.au/au/journals/ILB/2002/8.html
Posted on: Tue, 09 Dec 2014 07:19:04 +0000
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