CASOS EXAMINADOS POR EL RELATOR ESPECIAL (AGOSTO 2010 – JULIO 2011)
A/HRC/18/35/Add.1, 22 Agosto 2011
Malaysia: Situation of the Long Teran Kanan village and native customary rights in Sarawak
1. In a communication of 18 February 2011, the Special Rapporteur on the rights of indigenous peoples, James Anaya, together with the Special Rapporteur on the Right to Food, Olivier de Schutter, transmitted to the Government of Malaysia information they received related to the situation of the Long Teran Kanan community and the alleged failure of the Government to recognize and respect native customary rights in Sarawak and, consequently, the infringement of a range of human rights.
2. This communication took place alongside the Special Rapporteur’s ongoing communications with the Government of Malaysia regarding a potential visit to the country. On 4 February 2011, the Special Rapporteur wrote the Government expressing his interest in carrying out a visit to the country. On 24 May 2011, he sent a follow-up letter describing the specific issues he would be interested in examining during such a visit. As the Special Rapporteur noted in that letter, he would be interested in looking at issues related to land and development affecting indigenous peoples, and examine potential ways for harmonizing competing interests in this connection, in accordance with relevant international human rights standards related to indigenous peoples.
3. Although as of time this report was finalized the Special Rapporteur had not received a definitive response to his request for a visit, the Government did respond to the communication of 18 February 2011. The Government submitted its response by a note dated 15 July 2011. The full text of this note and the Special Rapporteur’s communication to which it responds can be accessed from the electronic version of the joint communications report (A/HRC/18/51), which is available on the web site of the Human Rights Council.
4. Prior to receiving the response of the Government of Malaysia of 15 July 2011, and in the absence of a response to his communication of 18 February 2011 within 60 days as requested, the Special Rapporteur developed observations on the situation, which he transmitted to the Government on 29 June 2011. In its response of 15 July 2011 the Government did not specifically address the observations transmitted on 29 June 2011, but rather directed its comments at the Special Rapporteur’s earlier communication of 18 February 2011. The Special Rapporteur would like to thank the Government of Malaysia for its response and for the clarifications it made, especially in relation to the case of the Long Teran Kanan community. Nonetheless, the Special Rapporteur notes that the observations he transmitted to the Government on 29 June 2011 continue to be relevant, and he reiterates those observations below, with some modifications made in light of the Government’s response. By way of background, the Special Rapporteur first provides summaries of the information and allegations received in this matter and of the Government’s response.
Summary of information received and transmitted to the Government on 18 February 2011
5. According to the information received, the Kayan indigenous community of the Long Teran Kanan village in Tinjar, Miri, in the state of Sarawak, has been involved in a legal dispute over its land for the past 12 years, which resulted in the Miri High Court ruling in favour of the community on 31 March 2010. The Special Rapporteur understands that, in its decision, the Court affirmed the village’s “native customary rights over their native customary lands” and held that the provisional leases issued within the area by the Sarawak Government to the Land Custody Development Authority and IOI Pelita Plantation Sdn. Bhd., all of whom were named as defendants in the case, were null and void. The Court further found that the rights of the Long Teran Kanan community under Article 5 (right to life) and Article 13 (right to property) of the Federal Constitution of Malaysia had been violated.
6. Nevertheless, IOI Pelita Plantation Sdn. Bhd. has reportedly appealed the judgment and has allegedly not respected the Court order in the interim, continuing palm oil operations in the Long Teran Kanan community. As a result of the continued presence of IOI Pelita Plantation in the area, community members reportedly have limited to no access to the lands that they traditional have used for agriculture and other subsistence activities. Allegedly, the village’s crops have been bulldozed and planted with oil palms, destroying the Kayan people’s traditional livelihoods and forcing them to purchase food, medicine and wood that they previously collected from their community lands. Moreover, most of the communitiy’s former water catchment area has been cleared and planted with oil palms by the company, thereby depleting available water sources.
7. Allegations have also been raised regarding the implementation of the Government’s “New Concept” policy announced in 1994, under which native customary communities are to receive 30 per cent of equity in development projects in exchange for a 60-year lease on their lands. Reportedly, native customary communities in Sarawak have not received the benefits to which they are entitled. Moreover, the manner in which communities’ consent has been obtained for the transfer of land for various development activies in Sarawak has reportedly been problematic. For example, in a number of cases, agreement for surrender of land and native customary rights has allegedly been obtained by only the village chief signing an agreement with companies, without the knowedge of the broader community.
8. The Special Rapporteur has been informed that the case of the Kayan indigenous community of the Long Teran Kanan village is emblematic of the over 200 cases currently before the Sarawak courts relating to indigenous communities’ ability to exercise their native customary right over their lands, upon which they depend for fishing, hunting or farming, and which are essential to their cultural survival. Despite the fact that the courts of Malaysia have upheld native peoples’ customary right to land under the Constitution of Malaysia and the common law on several occasions, the Government of Sarawak has allegedly failed to implement these decisions and has failed to respect indigenous communities’ customary rights to land in other cases.
Summary of response of the Government of Malaysia of 15 July 2011
9. With respect to the Long Teran Kenan community, the Government noted that the information received by the Special Rapporteurs was not entirely accurate. The Government reported that, while the High Court of Miri did affirm that the Long Teran Kanan community has native customary rights over the area in dispute, it also held that it would not be practical to ask the government of the state of Sarawak to cancel the leases that have been issued to IOI Pelita Plantation. Thus, the court granted the Long Teran Kanan damages instead. The Government reported that on 28 April 2010, both IOI Pelita Plantation and the state of Sarawak appealed the case to the court of appeal. The court of appeal had not yet heard the matter. Furthermore, on 22 March 2011 the High Court of Miri granted an injunction against the Long Teran Kanan community, restraining it from preventing the IOI Pelita Plantation from entering the concession area and from carrying out its palm oil activities.
10. The Government response also addressed issues related to consultation and consent regarding development activities within native customary lands in Sarawak and issues related to the sharing of benefits derived from those activities. Malaysia refuted the allegation that a native customary community’s rights could be relinquished by the signature of one member of the community. The Government also clarified that only those native customary communities wishing to participate in the New Concept scheme in Sarawak are required to do so. Further, the Government refuted the allegation that indigenous peoples have been denied benefits under the New Concept scheme. Native customary landowners participating in the New Concept scheme have derived both financial benefits and benefits such as improved roads and heightened access to hospitals and schools.
11. Malaysia reported that both the Federal Constitution and the laws of Sarawak prohibit the compulsory acquisition or use of the land without compensation. Finally, the Government concluded by affirming that it has taken measures to give due respect to the judicial judgments in court cases involving indigenous communities and their native customary rights over land under the Federal Constitution of Malaysia, the laws of the state of Sarawak and other laws.
Observations of the Special Rapporteur
12. Malaysia should be recognized for its longstanding legal protection of native customary rights to land, both by statute, including the Sarawak Land Code, and in jurisprudence of Malaysia courts.
In the view of the Special Rapporteur, this legal framework, in particular the jurisprudence of Malaysia courts, is to a large extent in line with Article 26 of the United Nations Declaration on the Rights of Indigenous Peoples, which was adopted by the General Assembly in September 2007, with an affirmative vote by Malaysia, and which states:
1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.
13. Yet, from the information the Special Rapporteur has received regarding the situation of the Long Teran Kanan community and in the state of Sarawak in general, the Special Rapporteur observes that it is not uncommon for the protection of native customary rights to give way to competing interests over those same lands, including in relation to natural resourse extraction projects, especially forestry and palm oil activities. Further, it appears that, too often, political forces seek to undermine protections of native customary lands, in many cases for personal or political motives.
14. In general, the information that the Special Rapporteur has received also indicates that there is not an adequate mechanism of consultation with indigenous peoples affected by major development projects. According to numerous reports, with regard to many such projects, consultations have not taken place directly with the affected indigenous peoples through their own representative institutions, prior to approval of the projects and with the objective of achieving informed consent, as required the Declaration on the Rights of Indigenous Peoples (Arts. 19, 32.2).
15. As highlighted in the case of the Long Teran Kanan village, adding to these challenges with respect to native customary rights in Sarawak is the apparent absence of adequate mechanism of participation of indigenous peoples in the design and implementation of the development initiatives, the absence of adequate mitigation measures that take into account indigenous environmental and cultural concerns, and the absence of equitable sharing in the benefits of the development projects. The Special Rapporteur would like to note that Article 32 of the Declaration, with its call for the free prior and informed consent of indigenous peoples and measures of redress, provides an important template for avoiding these problems and for the possibility of such economic and infrastructure development projects to not just avoid harm to indigenous peoples but to advance their own development interests along with those of the larger society.
16. The Special Rappoteur understands that an in-depth inquiry into the situation of native customary rights to land, including the situation in Sarawak, is currently being undertaken by the Human Rights Commission of Malaysia (SUHAKAM). The Special Rapporteur expects that this study will also include a concerted investigation of the practices of government entities at all levels in issuing concessions for natural resource extraction projects in lands over which indigenous communities have native customary rights, with a view towards documenting potential irregularities in these practices and analyzing their compliance with national and international standards.
17. The Special Rapporteur welcomes this initiative by SUHAKAM and belives that it will be an important point of reference for the future task of fully harmonizing government laws, policies and initiatives for economic development with those that provide recognition and protection of the land and resource rights, and related rights, of indigenous peoples. The Special Rapporteur looks forward to examining the results of SUHAKAM’s inquiry, and would like to offer assistance to the Government of Malaysia in connection with this process and future processes, if it would be deemed useful.
 See, e.g., Adong bin Kuwau v. Kerajaan Negeri Johor  1 MLJ 418; Kerajaan Negri Johor & Anor v Adong bin Kuwau & Ors  2 MLJ 158; and Sagong bin Tasi & Ors v Kerajaan Negeri Selangor & Ors  2 MLJ 591.