Judicial Decisions on Indigenous Peoples’ Land Rights: An Appraisal of Its Effect

Abstract

This paper highlights the impact of selected judicial decisions on the claims to land rights by the indigenous peoples in Malaysia. A judicial impact study is important because court decisions can alter the status of law that controls social and political behaviour and/or elicit responses from other political actors, thus influencing policy and political outcomes. The Malaysian Courts have played a significant role in developing law that acknowledges indigenous customary rights in Malaysia. For example, the case of Nor Anak Nyawai and Others v Borneo Pulp Plantation Sdn Bhd [2001] 6 MLJ 241 not only clarified the legal position of native customary rights but also had a profound impact in the Malaysian legal system. The judgment had aided in the reoccupation of the Iban’s territories. Sagong bin Tasi & Ors v. Kerajaan Negeri Selangor [2002] 2 CLJ 591 recognised that indigenous customary land rights were of equal legal status to full ownership or title to the land in Peninsular Malaysia. By applying doctrinal legal research, the three cases selected are, first, the landmark case of Director of Forest, Sarawak & Anor v. TR Sandah Tabau & Ors and Other Appeals [2017] 2 MLRA 91 which led to the amendment of the Sarawak Land Code 1958. The second and third cases are claims by the Orang Asli in Pos Dakoh and Pos Belatim against the government of Kelantan and in which consent judgments were entered. This study would be significant in emphasizing the impact of judicial decisions and the need for courts to ensure that the decision is carried out as well. Regardless of the courts’ findings, the government’s implementation of such decisions is still insufficient. Nonetheless, certain indigenous groups have re-occupied their territory without the state’s consent. As a result, the court decisions have provided people with a significant motivation to physically reclaim their land.