Indigenous Land Rights in Malaysia
Abstract:Malaysia has a large indigenous population consisting of Malays, Aboriginal people (Orang Asli) and the natives of Sabah and Sarawak. Although the government has a strong indigenous base, with the political power in the hands of the Malays, the outworking of its obligation to the different indigenous groups, governed by different land laws, presents a particular challenge for the government.
The existence of a government policy of positive discrimination in favor of indigenous peoples, has not insulated certain parts of indigenous communities from blatant inequalities, partly as a result of laws inherited from the British colonial administration. While protection measures have been put in place for Malay land rights other sections of the indigenous population, particularly the Orang Asli remain exposed to certain vulnerability, exploitation and domination. This paper discusses the issue of indigenous identity in Malaysia and its relevance to land rights with a particular emphasis on the situation on peninsula Malaysia. It compares the relevant statutes that provide for the creation and extinguishment of aboriginal land rights and Malay reservation lands, highlighting some of the disparities in the legal provisions. It then looks at landmark judicial decisions that have pushed the frontiers of aboriginal land rights at common law.
The Federation of Malaysia is made up of thirteen states, eleven states of which are in the Malay Peninsula, and two states, Sabah and Sarawak are part of the island of Borneo. The ninth schedule of the Federal Constitution, divides the executive and legislative powers between the federal and state governments. The states’ exclusive powers of any significance are Islamic law, Malay and native customs, forestry, land, including land tenure, Malay reservations and native reservations, cadastral land survey, agriculture, local government and the constitution and procedure of native courts. Sabah and Sarawak are especially concerned with the preservation of native law and customs, which relate to safeguards of the special interests of their indigenous peoples.
Document Type: Research Article
Publication date: January 1, 2010