Orang Asli land rights by UNDRIP standards in Peninsular Malaysia: an evaluation and possible reform

Abstract

This thesis makes an original contribution to knowledge by evaluating Malaysian laws on Orang Asli ( OA ) land and resource rights and suggesting an alternative legal framework for better recognition and protection of these rights: (1) by reference to standards derived from the 2007 United Nations Declaration on the Rights of Indigenous Peoples ( UNDRIP ); and (2) having regard to the Malaysian Constitution.

Malaysia s vote supporting the UNDRIP and its courts recognition of common law Indigenous customary land rights have not induced state action that effectively recognises the customary lands of its Indigenous minority, the OA people. Instead, state land policies focus on the advancement of OA, a marginalised community, through development of OA lands for productive economic use. Such policies may have some positive features but they also continue to erode OA customary lands. Existing protectionist laws affecting OA facilitate these policies and provide limited protection for OA customary lands. Resulting objections from the OA community have prompted calls to honour the UNDRIP. These tensions and concerns raise legal questions regarding the adequacy of the existing legal framework governing OA customary lands and the extent to which constitutional arrangements can accommodate UNDRIP standards.

The special constitutional position of OA that has enabled extensive state control of OA land and lives equally permits legal recognition of OA customary lands compatible with the UNDRIP. However, existing statutory laws affecting OA and placing ultimate power in the state are at odds with UNDRIP standards. These laws have worked to the detriment of OA. Despite the potential of common law Indigenous title, domestic experiences and experiences drawn from Australia and Canada suggest that ordinary common law development of OA customary land rights without state intervention may also fall short of UNDRIP standards. This thesis concludes that statutory recognition of autonomous OA communal ownership of land and resources with necessary legal safeguards provides a viable alternative for reform. However, a formidable challenge to effective reform remains the lack of political will to recognise OA as a distinct community deserving of UNDRIP rights.