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Legal Analysis to Assess the Impact of Laws, Policies and In LEGAL ANALYSIS TO ASSESS THE IM PACT OF LAWS, POLICIES AND INSTITUTIONAL FRAMEWORKS ON INDIGENOUS PEOPLE AND COMMUNITY CONSERVED TERRITORIES AND AREAS (ICCAS) IN MALAYSIA T h e G l o b a l S u p p o r t I n i t i a t i v e t o I n d i g e n o u s P e o p l e s a n d C o m m u n i t y - C o n s e r v e d T e r r i t o r i e s a n d A r e a s ( I C C A - G S I ) i s f u n d e d b y t h e G o v e r n m e n t o f G e r m a n y , t h r o u g h i t s F e d e r a l M i n i s t r y f o r t h e E n v i r o n m e n t , N a t u r e C o n s e r v a t i o n a n d N u c l e a r S a f e t y ( B M U ) , i m p l e m e n t e d b y t h e U n i t e d N a t i o n s D e v e l o p m e n t P r o g r a m m e ( U N D P ) a n d d e l i v e r e d b y t h e G E F S m a l l G r a n t s P r o g r a m m e ( S G P ) . K e y p a r t n e r s i n c l u d e t h e S e c r e t a r i a t o f t h e C o n v e n t i o n o f B i o l o g i c a l D i v e r s i t y ( C B D ) , t h e I C C A C o n s o r t i u m , t h e I n t e r n a t i o n a l U n i o n f o r t h e C o n s e r v a t i o n o f N a t u r e ’ s G l o b a l P r o g r a m m e o n P r o t e c t e d A r e a s ( I U C N G P A P ) a n d t h e U n i t e d N a t i o n s E n v i r o n m e n t P r o g r a m m e ’ s W o r l d C o n s e r v a t i o n M o n i t o r i n g C e n t r e ( U N E P W C M C ) . P r o j e c t N u m b e r : M A L / I C C A - G S I / 2 0 1 8 / 0 1 M a r c h 2 0 2 0 BY RAMY BULAN & RUTH GARNET MARAN [1] LEGAL ANALYSIS TO ASSESS THE IMPACT OF LAWS, POLICIES AND INSTITUTIONAL FRAMEWORKS ON INDIGENOUS PEOPLES AND COMMUNITY CONSERVED TERRITORIES AND AREAS (ICCAs) IN MALAYSIA TABLE OF CONTENTS INTRODUCTION 2 PART 1: COUNTRY, INDIGENOUS PEOPLES AND LOCAL COMMUNITIES 4 1.1 Country background and legal system 4 1.2 Indigenous communities in Malaysia 6 1.3 Environmental change and challenges to indigenous peoples 8 1.4 Indigenous peoples and Community Conserved Territories and Areas (ICCAs) 11 PART 2: HUMAN RIGHTS AND THE LAW IN CONTEXT 19 2.1 International treaties and conventions 19 2.2 International human rights law, customary international law and Malaysian common law 21 2.3 Constitutional protection for indigenous peoples under Malaysian law 22 2.4 Traditional leadership hierarchy and decision making, native courts and local government 23 2.5 Recommendations: Legislative and institutional reforms 24 PART 3: LAND, FRESHWATER AND MARINE 26 3.1 Land, freshwater and marine legislation in Sabah 26 3.2 Land, freshwater and marine legislation in Sarawak 32 3.3 Land, freshwater and marine legislation in Peninsular Malaysia 38 3.4 Recommendations: Legislative and institutional reforms 41 PART 4: NATURAL RESOURCES, ENVIRONMENT AND CULTURE 42 4.1 Natural resources and environment 42 4.2 Traditional knowledge, intangible heritage and culture 50 4.3 Access and benefit sharing 53 4.4 Recommendations: Legislative and institutional reforms 56 PART 5: NATURAL RESOURCE EXPLORATION AND EXTRACTION, LARGE-SCALE 57 INFRASTRUCTURE/DEVELOPMENT PROJECTS AND AGRICULTURE 5.1 Natural resource extraction and large-scale infrastructure and development projects 57 5.2 Recommendations: Legislative and institutional reforms 58 PART 6: PROTECTED AREAS, ICCAs AND SACRED NATURAL SITES 60 6.1 Protected Areas 60 6.2 Sacred and heritage natural sites as a specific type of ICCA 73 6.3 Other protected area-related designations 74 6.4 Recommendations: Legislative and institutional reforms 74 PART 7: JUDICIAL DECISIONS 76 7.1 Landmark judicial decisions in Peninsular Malaysia 77 7.2 Landmark judicial decisions in Sarawak 81 7.3 Landmark judicial decisions in Sabah 87 7.4 Recommendations: Legislative and institutional reforms 89 PART 8: IMPLEMENTATION 90 8.1 Key factors that contribute to or undermine effective implementation of supportive provisions 90 8.2 Specific Recommendations to the relevant agencies and other actors 90 PART 9: RESISTANCE AND ENGAGEMENT 93 PART 10: LEGAL AND POLICY REFORM 94 PART 11: CASE STUDIES ON ESTABLISHED COMMUNITY CONSERVED AREAS 96 CONCLUDING REMARKS 102 BIBLIOGRAPHY 103 [2] INTRODUCTION The term “ICCA” is an abbreviation for “territories and areas conserved by indigenous peoples and local communities” – or simply known as “territories of life”. The International Union for Conservation of Nature (IUCN) defines ICCAs as “natural and/or modified ecosystems containing significant biodiversity values, ecological services and cultural values, voluntarily conserved by indigenous peoples and local communities through customary laws or other effective means’’.1 Broadly, ICCAs refer to collectively governed lands.2 Throughout history, indigenous peoples and local communities have depended on the natural environment and its resources for their livelihoods and cultural and spiritual purposes. Their long association and reliance upon the resources available to them have resulted in the accumulation of local and traditional knowledge and development of practices, institutions and strategies to ensure the continuity of these resources. The territories and areas of indigenous peoples which cover about 22% of the world’s land surface, is estimated to contain 80% of the world’s biodiversity. It is almost trite now that the inextricable link between indigenous peoples’ communities and their territories and their dependence on the natural resources on their lands. Many communities continue to be dependent on the forests, and the increased loss in biodiversity through various extractive industries undermines their existence, independence, cultural cohesion and survival. ICCAs are a global phenomenon – they are exceptionally diverse, span all types of ecosystems and cultures, and have thousands of local names. However, they have in common three main defining characteristics: ▪ A community with a close and profound connection with a territory, area or species’ habitat (due to historical and cultural reasons and/or because of survival and dependence for livelihood). ▪ That community is a major player in decision-making and implementation of decisions (governance and management) regarding that territory, area or habitat. It has a community institution with the capacity and de facto power to develop and enforce regulations. ▪ The community’s governance decisions and management efforts lead to the conservation of nature in the territory, area or habitat, and the conservation of cultural values and community well-being, even when the main objective may not be conservation per se. For example, their primary motivation may relate to livelihoods, water security, and safeguarding cultural and spiritual places. Over the past few decades, indigenous people’s contribution to the protection and conservation of biodiversity has been increasingly recognised. The International Union for Conservation of Nature (IUCN) for instance, has recognised ICCAs as fundamental to conservation and has sought to promote the participation of indigenous peoples in decision-making processes as well as the recognition of their rights over land and natural resources. In 2003, participants at the 5th World Parks Congress in Durban stated national and international recognition of ICCAs as an urgent necessity. The Durban Accord and Action Plan was adopted, which further “urged commitment to recognise, strengthen, protect and support community conserved areas”. Furthermore, the United Nations Convention on Biological Diversity, a legally binding treaty established in 1992 and to which Malaysia is a signatory, called for the recognition of ICCAs as one governance type of protected areas in its Programme of Work on Protected Areas (PoWPA) agreed in 2004. 1 Warf, B. 2014. Indigenous and Community Conserved Areas. Encyclopedia of Geography. 2 Kothari, A. 2006. Community conserved areas: towards ecological and livelihood Security. PARKS. The International Journal of Protected Areas and Conservation, Vol. 16 No. 1, pp. 3–13. [3] In 2015, the UNDP GEF-Small Grants Programme (SGP) as part of its OP6 strategic initiatives launched the Global Support Initiative to Indigenous Peoples and Community Conserved Territories and Areas (ICCA- GSI) in partnership with the Federal Ministry for the Environment, Nature Conservation and Nuclear Safety (BMU), Germany.
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