Native Customary Rights : Does It Hold the Future of Sarawak’s Natives?

다국어 초록 (Multilingual Abstract)

This article presents an overview of the Native Customary Rights to forests and its role in protecting the future of native people of Sarawak, Malaysia. The native people have had a long history and strong relationship with their forests. Existing documents and studies have been critically reviewed and analyzed in order to elaborate the Native Customary Rights which are critical to the native people of this region. To have a better understanding on Native Customary Rights, it is important to answer three related questions: (i) Who is a native of Sarawak, (ii) What is ‘custom’, and (iii) What is the nature of ‘rights’? The roles of Native Customary Rights for economic, political or social reasons, operate through informal rules embedded in the natives’ customs and traditions. These rules have never been codified into formal laws because the adat system merely functions to manage the human relations which are tied to culture thus making it difficult to codify the culture into laws. It is evident that there are several issues underlying the development of Native Customary Rights: (i) Native Customary Rights are considered as inferiority to those of the State, (ii) the issue of over-shadowing of traditional laws by the colonial rule and the current statutory laws and, (iii) projects and land schemes involving the Native Land. It is understood that the challenges of promoting Native Customary Rights are daunting task; however, the constitutional laws need to carefully revise to provide a better future for the natives.

목차 (Table of Contents)

• Abstract
• Introduction
• Literature Review
• Historical Perspectives
• Definition of Native Customary Rights to Land
• The Study Area
• Research Method
• Results and Discussions
• Roles of Native Customary Rights to the Natives
• Issues in Developing Native Customary Rights
• Conclusion
• Acknowledgements
• References

참고문헌 (Reference)

1 RRI (Rights and Resources Initiative), "Tropical forest tenure assessment: trends, challenges and opportunities" 2009

2 Department of Statistics, "Total population in Sarawak" 2010

3 Cramb RA, "The role of traditional institutions in rural development: community-based land tenure and government land policy in Sarawak, Malaysia" 18 : 347-360, 1990

4 Joireman SF, "The mystery of capital formation of sub- Saharan Africa: women, property rights and customary law" 36 : 1233-1246, 2008

5 Mason R, "The Bumiputera policy and ‘Dayakism’: an interpretation" 21 : 177-195, 2003

6 Cheah BK., "The Bumiputera policy and nation-building" 21 : 399-408, 2003

7 Cotula L, "Tenure in REDD - Start-point or Afterthought? Natural Resource Issues, No. 15" International Institute for Environment and Development 2009

8 Rachagan SS, "Sustainable Forest Management in Malaysia - Guidelines for Conflict Resolution" 2009

9 Suhakam, "Suhakam’s national inquiry into the land rights of indigenous peoples in Malaysia. Background Paper" 1-16, 2011

10 "State Planning Unit"

11 Griffiths T, "Seeing ‘REDD’? Forests, climate change mitigation and the rights of indigenous peoples and local communities" Forest Peoples Programme 2008

12 Lynch OJ., "Securing community-based tenurial rights in the tropical forests of Asia: An overview of current and prospective strategies" Report from World Resources Institute’s Center for International Development and Environment 2006

13 Timberland JM., "Sarawak map [retrieved March 12, 2014]"

14 Friends of the Earth, "Sarawak indigenous communities: Background situation and challenges" 2007

15 State Planning Unit, "Sarawak facts and figures [cited March 12, 2014]"

16 Corbera E, "Rights to land, forests and carbon in REDD+: insights from Mexico, Brazil and Costa Rica" 2 : 301-342, 2011

17 Bulan R, "Report produced for Human Rights Commission of Malaysia (SUHAKAM)" Alkauthar Press Sdn 2008

18 Chao S., "Report produced for Forest Peoples Programme" Stratford Road 2012

19 Cramb RA., "Reinventing dualism: Policy narratives and modes of oil palm expansion in Sarawak" Laval University 2007

20 Fox J, "Policies, political-economy, and Swidden in Southeast Asia" 37 : 305-322, 2009

21 Colchester M, "Perkumpulan Sawit Watch Forest Peoples Programme" 2007

22 Baer AS., "People to People, The Peace Corps in Sarawak" Oregon State University 2012

23 Egay K, "Matter of access, not rights: indigenous peoples, external institutions and their squabbles in mid-Tinjar river, Sarawak" UNIMAS 2007

24 Fong JC, "Law on Native Customary Land in Sarawak" Thomson Reuters Malaysia Sdn Bhd, Sweet and Maxwell Asia 2011

25 Long B, "Land tenure in relation to Crocker Range National Park" 2003

26 Xanthaki A, "Land rights of indigenous peoples in South-east Asia" 4 : 467-496, 2003

27 Sarawak, "Land Law of Sarawak"

28 Sanggin SE, "Indigenous people’s participation in land development project in selected areas in Sarawak" 3 : 67-80, 2012

29 Moran M, "Indigenous home ownership and community title land: A preliminary household survey" 20 : 357-370, 2002

30 Jalong T., "Indigenous Peoples and Forest Governance in Sarawak: Current Issues and Challenges" 2012

31 Haarlov-Johnsen P, "Impact of land use changes on communities’ livelihood strategies and environment in Kampung Empayang, Sarawak" 2008

32 Abdullah MHR, "Human rights in Malaysia: challenges and constraints in the Malaysian context" UNIMAS 2006

33 Daes EIA, "Human Rights of Indigenous Peoples: Indigenous Peoples and Their Relationship to Land. Final working paper, Commission on Human Rights, Sub-commission on the promotion and protection of human rights" Economic and Social Council 2000

34 Peluso NL, "Genealogies of the political forest and customary rights in Indonesia, Malaysia and Thailand" 60 : 761-812, 2001

35 Donnelly GJ, "Fundamentals of land ownership, land boundaries and surveying" Intergovernmental Committee on Surveying and Mapping

36 Rubis J., "Frameworks for and implementation of FPIC over land and knowledge in Sarawak [cited March 12, 2014]"

37 Dahal GR, "Forest tenure in Asia: status and trends" EU FLEGT Facility 2011

38 Yong C., "Forest governance in Malaysia: an NGO perspective" JOANGO Hutan 2010

39 Jayasooria D., "Forest based communities and their struggles for survival in modern Malaysia" 2008

40 Ichikawa M, "Degradation and loss of forest land and land-use changes in Sarawak, East Malaysia: A study of native land use by the Iban" 22 : 403-413, 2007

41 Ngidang D, "Deconstruction and reconstruction of native customary land tenure in Sarawak" 43 : 47-75, 2005

42 Cramb RA, "Custom and capital: A financial appraisal of alternative arrangements for large-scale oil palm development on customary land in Sarawak, Malaysia" 49 : 49-69, 2012

43 Campbell JG, "Creating community tenure: Policies and institutions for community-based management" 2 : 91-96, 2006

44 Yong C., "Community consultations in the FSC-NTCC Malaysia Collaboration-Development of FSC-Compatible Malaysian Criteria, Indicators, Activities and Standards of Performance (MC and I) for Forest Management Certification" 2001

45 Toh SM, "Case study: Sabah forest ownership. Report produced for Food and Agriculture Organization of the United Nations" Global Forestry Services Inc 2005

46 Basnet R, "Carbon ownership in community managed forests" 8 : 88-83, 2009

47 Gyamtsho P, "Capitalisation and sharing of experiences on the interaction between forest policies and land use patterns in Asia: linking people with resources" International Centre for Integrated Mountain Development 2006

48 Bulan R., "Asia-Pacific Environment Monograph 1, State, Communities and Forests in Contemporary Borneo" ANU E Press 2005

49 Cooke FM, "Asia-Pacific Environment Monograph 1 State, Communities and Forests in Contemporary Borneo" ANU E Press 2005

50 Cooke FM., "Asia-Pacific Environment Monograph 1 State, Communities and Forests in Contemporary Borneo" ANU E Press 2005

51 Howard PL, "Are there customary rights to plants? An inquiry among the Baganda (Uganda), with special attention to gender" 35 : 1542-1563, 2005

52 "Appendix 1 - Sarawak NCR Land Dispute Cases involving logging and other issues"

53 Vaz J., "An analysis of international law, national legislation, judgments and institutions as they interrelate with territories and areas covered by indigenous peoples and local communities" Natural Justice in Bangalore and Kalpavriksh in Pune and Delhi 2012

54 De Man R, "Agricultural commodities that respect land rights and food security: how to include land governance issues in sustainable commodity standards?" The World Bank 2012

55 Kershaw R, "Against odds: A thirty-year struggle to save the forests of Sarawak" 42 : 430-446, 2011

56 MacKay F., "Addressing Past Wrongs - Indigenous Peoples and Protected Areas: The Right to Restitution of Lands and Resources" 2002

57 Kaur A, "A history of forestry in Sarawak" 32 : 117-147, 1998