Cultural Performance & Forum: “Native Title Rights – the Issues, Claims and the Law”

Dec 10, 2014

Distinguished ladies and gentlemen,

Selamat Petang and a very good afternoon to all of you!

It is my great pleasure to be here with you to close this Cultural Performance and Forum on “Native Title Rights – the Issues, Claims and the Law”; a topic of utmost importance.  I‘m very pleased that the United Nations Development Programme in Malaysia was able to support this initiative, and I do regret not having been able to participate in the interesting programme throughout the day.  However, I know that this rich and enticing programme has covered a number of important issues and allowed for reflection and valuable exchange.

Today we’re celebrating the United Nations Human Rights Day with the theme of ‘Human Rights 365’. This theme was chosen by the United Nations Office of High Commissioner for Human Rights to remind us that every day is indeed human rights day.  Human Rights Day also encourages us to work harder to ensure the full and substantive realisation of human rights for all.  Human rights belong to all of us, irrespective of who we are.  They are universal, interrelated and indivisible in character. They are fundamental rights, inherent in all human beings regardless of location, language, religion, ethnic origin or any other status.

It is good that during this week of activities, and on Human Rights Day itself, we are highlighting Indigenous Peoples’ issues, and in particular native land rights.  We must shine a spotlight because this year, 2014, we conclude the Second International Decade with regard to Indigenous Communities, where UN member states pledged to make 2005-2014 "A Decade for Action and Dignity."  It was a decade built around five key objectives, among them “Promoting non-discrimination and inclusion of indigenous peoples in the design, implementation and evaluation of international, regional and national processes regarding laws, policies, resources, programmes and projects” and “Promoting full and effective participation of indigenous peoples in decisions that directly or indirectly affect their lifestyles, traditional lands and territories(...)”

As we’re coming to the end of the decade and look beyond to the post 2015 development agenda, we must ask ourselves, did we meet our objectives?  What remains to be done to build a better future for the Orang Asli  and indigenous communities in Sabah and Sarawak? I first wish to look into the issue through a national lens.

Native title arises from the traditional customs and laws of native communities, which are recognised as part of the law of Malaysia under the Federal Constitution. The Federal Constitution protects rights critical to maintaining the special relationship between native communities and their lands. This relationship underlies the spiritual, cultural, economic, and social existence of native communities. The constitutional right to property, livelihood, and equality before the law, safeguards for native interests, the fiduciary obligation of government officials; and the recognition of customs are essential to the recognition and protection of land rights. In addition to customary laws, the English common law, the Land Code 1958 and protections under the Federal Constitution are relevant in defining the content and scope of land rights of the indigenous communities in Malaysia.

Nonetheless, the lack of rights to customary land remains a major point of concern. Based on the findings in the recent Malaysia Human Development Report 2013, the land gazetted as Orang Asli reserves in accordance with the Aboriginal Peoples Act has only increased very minimally over the past 20 years (0.02 %). Data also shows that a total of 9787 hectare of orang Asli land approved for gazetting by state authorities never became Orang Asli land. The report underlines, through a number of cases, that the recognition and security of traditional Orang Asli lands and territories are being jeopardized by three main administrative shortcomings, identified as under-gazetting (full extent of customary land not taken into account), non-gazetting (lands not gazetted due to administrative shortcomings, often due to shortcomings in surveyed mapping) and de-gazetting (land reverts to state or is given to another entity). These practices, or ill-practices, severely threaten livelihoods; break up living patterns and social continuity of the communities concerned.

Similarly, the independent National Inquiry into the Land Rights of Indigenous Peoples undertaken by SUHAKAM in 2013 concluded: “Despite having provisions which recognize their land rights in the Federal Constitution, domestic and international laws, systemic issues have denied them the full enjoyment of their legal and human rights. These systemic issues evolved mainly from the successive amendments of land laws that do not recognize indigenous peoples’ perspectives of land ownership and management and therefore eroded customary rights to land. They also affected administrative decisions with respect to indigenous peoples’ land claims. The issues also evolved from the adoption of policies that give priority to approving lands for large-scale development projects over indigenous subsistence economy.”

The SUHAKAM Report goes on to highlight the “high degree of frustration and anger among indigenous communities for the inadequate response and ongoing violation of the rights conferred on them. As injustices in access and control of land are often central to the genesis of conflict that could be costly for the country as a whole if not addressed effectively, the Inquiry sees it as critical that such injustices are dealt with in an expeditious and holistic manner.” These conclusions certainly call for attention.

The UNDP and UNICEF in Malaysia have engaged with the Economic Planning Unit towards a framework for  a National Development Plan for Orang Asli. The process has highlighted that land issues should be increasingly addressed in two dimensions, one as an economic asset and another as a crucial part of the Orang Asli cultural identity. UNDP and UNICEF recommend that other options for recognising the indigenous ties to the lands should be explored. These may include, for instance, recognising use rights, historical ties or engaging in co-managementin handling customary land issues.

Furthermore, more extensive community mapping of customary lands need to be conducted to form the basis for future negotiations and discussions. In line with a participatory approach, this is an area of work where the government possibly could explore partnerships with the communities and also with civil society, especially given that some NGOs already are closely involved in such initiatives. This should be followed by verification by legal means and/or by social scientists and included in official maps to ensure that planners or administrators know of the existence of Orang Asli and other indigenous communities in Sabah and Sarawak and their specific activities on these lands.

Ladies and Gentlemen,

The significant gap in the human development achievements of the Orang Asli and the indigenous communities in Sabah and Sarawak with the rest of Malaysia, calls for these communities to have a central place in Vision 2020, and hence, in government’s efforts to improve the well-being of the bottom 40 percent, including through better access to education, health and other social services, as well as to economic opportunity.  This includes recognition and protection of native title rights, and respect for the principle of free, prior and informed consent. Like the Orang Asli, many indigenous peoples globally have expressed that there is an urgent need to shape a Development Framework that includes the particular perspectives, concerns, experiences and world views of indigenous peoples.

The United Nations system will continue to advocate for the issues of the Orang Asli and Orang Asal to be given priority attention in the 11th Malaysia Plan, as well as in the global post-2015 development framework, in line with the UN Declaration on the Rights of Indigenous Peoples (UNDRIP).  In fact, one of the key issues raised by the UN Secretary-General’s High Level Panel on the Post-2015 Development Agenda in its 2013 report entitled, “A New Global Partnership: Eradicate Poverty and Transform Economies through Sustainable Development”, was that mechanisms to recognize and protect the collective right of indigenous peoples to land, territories, resources and other rights under the UN Declaration on the Rights of Indigenous Peoples must be ensured.

We must do a better job as Malaysia looks towards 2020  to protect indigenous cultures, including  their lands (Article 8) and specifically spell out a right to customary lands (Article 26).  The humand evelopment indicators for this community clearly shows the need for a shift in strategy and an increase in investment to improve their quality of life. These efforts must be consistent with Malaysia’s constitutional and international commitment to respect and promote the inherent rights of indigenous peoples.

While Malaysia accepted none of the six UPR recommendations relating to Indigenous Peoples, we urge government to consider taking advantage of the UN Special Procedures and invite the United Nations Special Rapporteur on the Rights of Indigenous Peoples as a means of getting independent expert advice on how to move forward on a constructive path, just as it invited the Special Rapporteurs on the Right to Food and the Right to Health in the past year.  We note the establishment by Government of the Task Force to look into land rights following the report on the independent National Inquiry.  A visit of the Special Rapporteur on Indigenous People’s Rights would make a valuable contribution to the further analysis of the Task Force and to solutions to address the significant lags in human development achievements of the indigenous community.

Ladies and Gentlemen,

Indigenous peoples represent remarkable diversity – globally and nationally, and are a strength and asset in the rich heritage of Malaysia. This gathering gives us a wonderful opportunity to honour the achievements, and the culture, and lend support to the tireless efforts taken by communities, their leaders and their organizations to assert their rights.  I offer continued support of the UN Country Team for your efforts to fully realise your rights under the UN Declaration on the Rights of Indigenous Peoples. I wish to thank the Bar Council Committee on Orang Asli Rights (COAR) for bringing together stakeholders around discussions on this important topic; experts from the communities as well as lawyers and civil society working on these issues, which is crucial for raising awareness, reminding of the unresolved issues and for looking ahead toward achieving sustainable progress. These discussions will need to inform the way forward.

Thank you. Terima kasih.

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