Malaysian Bar Resolution on indigenous peoples' rights

Malaysian Bar Resolution on indigenous peoples' rights, passed on 14th March 2009 at the 63rd Annual General Meeting of the Malaysian Bar held at the Grand Ballroom, Legend Hotel, Kuala Lumpur

The Malaysian Bar,

taking note that Malaysia is a member of the United Nations Human Rights Council and is obliged to uphold the underlying values of international human rights laws and norms set out in, inter alia, the Universal Declaration of Human Rights 1948, the International Covenant on Civil and Political Rights 1966 and the International Covenant on Economic, Social and Cultural Rights 1966;

taking note that Malaysia has ratified the Convention on the Elimination of All Forms of Discrimination Against Women 1979 and the Convention on the Rights of the Child 1989, and signed the Convention on the Rights of Persons with Disabilities 2006 which, inter alia, accords protection for vulnerable groups such as women, children and the disabled in Malaysia;

taking note that Malaysia voted, at both the United Nations Human Rights Council and the United Nations General Assembly, in favour of adopting the United Nations Declaration on the Rights of Indigenous Peoples 2007 that, inter alia, reiterates the right of indigenous peoples to self-determination;

encouraged by the decision of the Court of Appeal in Kerajaan Negeri Selangor & Ors v Sagong Tasi & Ors [2005] 4 CLJ 169, which recognises the right of indigenous peoples in and over their ancestral lands at common law;

encouraged by the recent introduction and establishment by the Perak State Government (under Pakatan Rakyat) of an “Orang Asli Land Rights Task Force”;

deeply concerned that the ancestral lands of indigenous peoples are under constant threat in the name of “development” (as unilaterally defined and understood by the Federal and State Governments without consultation with, nor consent of, indigenous peoples);

deeply concerned that notwithstanding the fiduciary duty of the Federal and State Governments to promote and protect the welfare and rights of indigenous peoples, the latter are instead often coerced into relinquishing their ancestral lands to Government-linked or private enterprises, or under the pretext of integration;

deeply concerned that the Department of Orang Asli Affairs has failed to perform its fiduciary duty to empower indigenous peoples and assist with their welfare, but is instead complicit in the violation of the rights of indigenous peoples;

deeply concerned that the implementation of integration policies causing coerced resettlement of indigenous peoples removes them from their source of livelihood, their physical and spiritual way of life and their economic, social and cultural heritage which have been practised, and have evolved, over centuries;

deeply concerned that the majority of indigenous peoples are not able to fully enjoy their fundamental human rights as their traditions, customs and values are being eroded;

deeply concerned that the relevant authorities, in an attempt to justify their “development” policies and actions to resettle and integrate indigenous peoples, seek to portray indigenous peoples as resistant towards changes that are purportedly for their benefit;

deeply concerned that despite numerous requests and appeals to the relevant authorities, the ancestral lands of indigenous peoples have yet to be fully recognised and protected;

taking note that there is no simple nor single solution to the formal recognition and protection of these ancestral lands, as the problems encountered vary according to place and community;

taking note however that various options are available for the formal recognition and protection of these ancestral lands depending on the needs of the respective indigenous communities, inter alia:

(a)	the issuance of individual land titles to every indigenous family;
(b)	the gazetting of communal land parcels by the State Governments under Section 62 of the National Land Code 1965;
(c)	the gazetting of communal land parcels under the Aboriginal Peoples Act 1954 with perpetual and unlimited foraging rights extending beyond the gazetted communal land parcels; and
(d)	in exceptional cases of certain semi-nomadic indigenous communities, who are the most vulnerable of indigenous peoples, perpetual and unlimited foraging rights (with concomitant and greater opportunities for education and vocational training towards sustaining their livelihood);

deeply concerned that many indigenous communities still live without basic needs, amenities and infrastructure;

recognising that indigenous peoples are invaluable yet vulnerable communities whose livelihoods, cultures and lands are deserving of our protection;

1.	Strongly calls upon the Federal and State Governments, the Department of Orang Asli Affairs and all public and private enterprises and individuals to respect the rights of indigenous peoples pursuant to the United Nations Declaration on the Rights of Indigenous Peoples 2007, and not to act in any manner inconsistent with those rights.
2.	Strongly calls upon the Federal and State Governments and the Department of Orang Asli Affairs, in consultation and cooperation with indigenous peoples, to take all appropriate measures, including legislative measures, to achieve the spirit and intent of the United Nations Declaration on the Rights of Indigenous Peoples 2007.
3.	Strongly calls upon the Federal and State Governments, the Department of Orang Asli Affairs and all public and private enterprises and individuals to discontinue any “development” (as unilaterally defined and understood by the Federal and State Governments without consultation with, nor consent of, indigenous peoples), deforestation and logging activities on indigenous peoples’ ancestral lands until a process of consultation is conducted with the affected communities, and their free, prior and informed consent and cooperation are obtained.
4.	Strongly calls upon the Federal and State Governments, and the Department of Orang Asli Affairs, to formally recognise, protect and guarantee the right of indigenous in and over their ancestral lands throughout the country and to gazette such ancestral lands as reserved areas for them, and if necessary to amend our land laws to achieve the same. In cases of doubt, a mapping exercise in consultation and cooperation with indigenous peoples must be carried out.
5.	Strongly calls upon the Federal Government to organise and host a nationwide consultation with indigenous peoples, relevant bodies and interested parties to discuss, design and adopt a holistic programme of action to better the lives of indigenous peoples, including according every indigenous person the full extent of all rights guaranteed under international human rights laws and norms.
6.	Strongly calls for the establishment of an independent “High-Level Task Force on Orang Asli Affairs”, comprising representatives of indigenous communities, the Federal and State Governments, the Department of Orang Asli Affairs, the Human Rights Commission of Malaysia, the Attorney-General, non-governmental organisations, human rights groups and the Bar Council, to, inter alia, consider making amendments to the Aboriginal Peoples Act 1954 consistent with principles of international human rights laws and norms, and to formulate policies and co-ordinate initiatives to better protect the rights of indigenous peoples.
7.	Mandates the Bar Council to take and continue all appropriate and necessary action to implement, assist and empower indigenous peoples in their struggle to promote and protect their rights under international human rights laws and norms.

The motion was unanimously carried.