ORANG ASLI LAND RIGHTS BY UNDRIP STANDARDS IN PENINSULAR MALAYSIA: AN EVALUATION AND POSSIBLE REFORM YOGESWARAN SUBRAMANIAM A thesis in fulfilment of the requirements for the degree of Doctor of Philosophy University of New South Wales Faculty of Law August 2012 THE UNIVERSITY OF NEW SOUTH WALES Thesis/Dissertation Sheet Surname or Family name: Subramaniam First name: Yogeswaran Other name/s: NIL Abbreviation for degree as given in the University calendar: PhD School: Law Faculty: Law Title: Orang Asli land rights by UNDRIP standards in Peninsular Malaysia: an evaluation and possible reform Abstract 350 words maximum: (PLEASE TYPE) 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. Declaration relating to disposition of project thesis/dissertation I hereby grant to the University of New South Wales or its agents the right to archive and to make available my thesis or dissertation in whole or in part in the University libraries in all forms of media, now or here after known, subject to the provisions of the Copyright Act 1968. I retain all property rights, such as patent rights. I also retain the right to use in future works (such as articles or books) all or part of this thesis or dissertation. I also authorise University Microfilms to use the 350 word abstract of my thesis in Dissertation Abstracts International (this is applicable to doctoral theses only). …………………………………………………………… ……………………………………..……………… …………….…...…….… Signature Witness Date The University recognises that there may be exceptional circumstances requiring restrictions on copying or conditions on use. Requests for restriction for a period of up to 2 years must be made in writing. Requests for a longer period of restriction may be considered in exceptional circumstances and require the approval of the Dean of Graduate Research. FOR OFFICE USE ONLY Date of completion of requirements for Award: THIS SHEET IS TO BE GLUED TO THE INSIDE FRIONT COVER OF THE THESIS 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 i 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. ii ORIGINALITY STATEMENT ‘I hereby declare that this submission is my own work and to the best of my knowledge it contains no materials previously published or written by another person, or substantial proportions of material which have been accepted for the award of any other degree or diploma at UNSW or any other educational institution, except where due acknowledgement is made in the thesis. Any contribution made to the research by others, with whom I have worked at UNSW or elsewhere, is explicitly acknowledged in the thesis. I also declare that the intellectual content of this thesis is the product of my own work, except to the extent that assistance from others in the project's design and conception or in style, presentation and linguistic expression is acknowledged.’ Signed ………………………………………........................... Date ……………………………………………................... iii COPYRIGHT STATEMENT I hereby grant the University of New South Wales or its agents the right to archive and to make available my thesis or dissertation in whole or part in the University libraries in all forms of media, now or here after known, subject to the provisions of the Copyright Act 1968. I retain all proprietary rights, such as patent rights. I also retain the right to use in future works (such as articles or books) all or part of this thesis or dissertation. I also authorise University Microfilms to use the 350 word abstract of my thesis in Dissertation Abstract International (this is applicable to doctoral theses only). I have either used no substantial portions of copyright material in my thesis or I have obtained permission to use copyright material; where permission has not been granted I have applied/will apply for a partial restriction of the digital copy of my thesis or dissertation. Signed ………………………………………........................... Date ……………………………………………................... AUTHENTICITY STATEMENT I certify that the Library deposit digital copy is a direct equivalent of the final officially approved version of my thesis. No emendation of content has occurred and if there are any minor variations in formatting, they are the result of the conversion to digital format. Signed ……………………………………………........................... Date ……………………………………………........................... iv ACKNOWLEDGMENTS Human inspiration, motivation and support for this wonderful yet challenging experience are innumerable and, in many ways, immeasurable. With this caveat in mind, I would like to acknowledge some of the key individuals, organisations and institutions which assisted me in the completion of this thesis. I would have not completed this thesis but for my supervisors, Janice Gray and Sean Brennan. Their insights, hard work and patience have played an integral part in the evolution of this thesis from its relatively humble beginnings in 2008. Specifically, I must thank Janice Gray for graciously agreeing to supervise this research endeavour and painstakingly sharing her experience on property law and legal academic writing. I am equally grateful to Sean Brennan for his meticulous technical and analytical feedback when combing