POLICY REPORT ON PROTECTING THE LAND RIGHTS OF INDIGENOUS PEOPLE IN ASIA
Introduction
Asia region has the highest population of the indigenous people, with an estimate of 260 million people. The native people are distinct in various ways, such as economic activities practices, religion, culture, and language. Despite forming the majority of the Asian demographic, the indigenous people have in the past suffered immensely due to poverty, land displacement, non-inclusion in decision making, weak healthcare systems, lack of education, and deprived of the economic exploitation of the resources they own. The most crucial issue that has seen the development of many policies by various governments is land. The governments in the Asian region have formulated policies concerning the rights of the native people on cultural, economic, governance, and social issues.
The United Nations Declaration on the Rights of Indigenous People (UNDRIP) calls for recognition of the native people in Asia in self- determination, maintaining and strengthening their unique legal, political, social, cultural, and economic institutions. Besides, owning, using, and control over resources such as land and preserving and protecting their cultural heritage, knowledge, and expression[1]. This report aims to provide an overview of the land rights policies the governments in the Asian region have put in place concerning the rights of the indigenous people in ensuring sustainable development equally with other non-native communities in the area.
The box below indicates the various policies different countries have put in place and the judicial or civil interventions in the implementation of the systems. Indigenous people worldwide own 65% of the land; however, these people have been denied tenure to the use of the area and are often displaced from their traditional lands. It is worth noting that if indigenous people are given full rights on the ownership of land, they will protect the property and other resources, as it is the source of their livelihoods.
| Country | Protection Policies of the Indigenous People | Judicial or Civil Society Interventions |
| Thailand | Thailand has more or less 700,000 people of the hill tribe There are policies on ownership of property by the indigenous people, which are recognized in the constitution. However, those who lacked identification cards were denied the right to owning property.
| The “green NGOs” instigated violent protests and riots by the farmers in the lowland areas to limit the application of the law in the upland regions following the indictment of the Community Forest Act of 1997. |
| Indonesia | Indonesia has 1.2 to 6 million people who are classified as isolated and alien tribes. Some policies have recognized the community forest tenures in protecting the rights of the indigenous people. | |
| Malaysia: Peninsular Malaysia
Saba
Sarawak | This region has 100,000 aboriginal people A policy requires seeking of the indigenous people’s consent before resettling them. Before then, the indigenous people suffered as their lands were eroded, force resettlement to pave for state projects, and logging activities. Saba has 1.35 million indigenous people. A policy helps in registering the private ownership of indigenous people participating in plantation farming. Sarawak has a population of 800,000 indigenous people. There are policies on the community leasing the land in NCRs. However, the government has accorded the non-native companies identity of natives to help them access the native land and carry out their economic activities such as palm oil agriculture and paper pulp.
| A court case instituted by orang asli in 1997 claiming dispossession to pave the way for a dam project challenged the interpretation of the law by the administrator. The court, in its decision, upheld the traditional rights of the Aboriginal people and land use.
In Kuching’s high court case, it decided by the judge, the Iban communities, the court against Borneo Paper and Pulp Company to stop its extractive activities in the native land. |
Analysis of Compliance on the Government Policies
Various policies have been established to ensure that the indigenous people have customary rights over the ownership and use of land. The exploitation of the forest resources was aimed at fighting poverty among the indigenous people. In so doing, different countries have inculcated the rights to land ownership and forest protection initiatives in managing forest resources. However, the native communities continue languishing in poverty, as there are no policies that limit the exploitation of forests to deplorable levels without being beneficial to the local community. For example, in Uplands of Southeast Asia, Community-Based Natural Resource Management has been adopted in ensuring social organization in managing the resources[2]. The community-based policies on managing the resources seek to ensure that the native people’s rights over the ownership and use of land resources are done in sustainable ways of involving the traditional practices of the people in conserving the resources[3]. Another land policy is in the Asia region is the forest program. The indigenous people depend on the forests as the source of their livelihoods and use it for conservatively to ensure its sustainability. The native people have been involved in conservation of the forests. However, the growing increase in demand for agricultural products has increased the requirement of vast lands to carry out farming of palm oil, such as in Indonesia and Malaysia have carried used the land without the consent of the native people. This causes conflicts and can lead to war between the indigenous people and the industrialists or the institutions managing and controlling the forest resources[4].
The governments have formed policies on the rehabilitation of the depleted forest resources through community participation. The rehabilitation policies require that the indigenous people plant timber trees in areas they have been destroyed and use the land for their economic activities. However, native communities are not accorded any rights to benefit from the timber trees. This proves to be unfair policies that favor the companies and the government instead of the native communities[5]. There is also another policy on traditional natural forest management program policy, which directs that the indigenous people have customary rights on using the forest resources and managing them to enhance its sustainability[6].
Moreover, various Asian governments have policies in place for identifying indigenous people. The identification of the tribal communities helps the governments in formulating specific legislations for the tribal communities[7]. Many countries have recognized the existence of the traditional governing institutions for the people and solving the land-related issues. Others have been provided with specific processes in ensuring they participate in public affairs and are consulted in crucial national matters that affect them[8]. Some countries have reserved special seats in the elective positions in parliament and municipalities. However, the legislations are not adhered to as the traditional governance institutions’ decisions are not recognized by the state hence limiting the right for self-determination and governance of the tribal communities.
There are also policies on involving the indigenous people of the management of parks. The communities living around the protected areas need to be involved in the management of parks. Failure to include them will lead to conflicts with the administration and the wildlife in the parks[9]. The indigenous people should also be engaged in consultations when marking certain areas on their land as world heritage sites. This helps in determining ways in which the heritage sites will be beneficial to the indigenous people in preserving their cultural identity and heritage, for instance, REDD program policies that contribute to the conservation of forest and funding of various communities programs[10].
Protecting the land rights of the indigenous people and their territories has been noted as the best way of dealing with climatic changes. Allowing the tribal communities to own and utilize land with the traditional methods such as shift cultivation conserves the environment, unlike the modern scientific methods [11]. Many countries have realized that, according to the indigenous people, right over the land has positive impacts on the people. The legislations the governments have put in place in protecting the rights of indigenous people have not been effective, as the same governments have used the legislation in protecting the organizations in exploiting the tribal communities[12]. The companies that carry out extractive activities do not play a role in the reduction of poverty of the indigenous people. They continue living below the poverty lines compared to the other demographics in the Asian region. In many cases, the tribal have taken organizations and administrators concerning land acts and their interpretation to secure their customary rights over occupation and use of their ancestral land.
Despite laws and policy formulation, its implementation is far from being implemented, which has led to continuous conflicts over land. The deprivation of the rights of ownership of land to the indigenous people stirs aggression among the people and designs other strategies of getting the rights. Companies should take the corporate social responsibility policies seriously and ensure that the communities around their factories or plants gain benefits over the use of their resources. There should be due procedures and processes of involving and consulting with the native populations in deciding on concessions, compensation and proper resettlement of the native people in paving the way for development projects[13]. The critical lesson derived from the report is that proper policy making and implementation will help to go a long way in dealing with the land issues in the Asian region and any other part of the world.
Bibliography
Disko, Stefan, and Helen Tugendhat, eds. World Heritage Sites and Indigenous Peoples’ Rights. Vol. 551. Copenhagen: IWGIA, 2014.
Erni, Christian. “Shifting the blame.” In Southeast Asia’s indigenous peoples and shifting cultivation in the age of climate change. Paper presented at the seminar on Adivasi/ST Communities in India: Development and Change, Delhi. 2009.
Fox, Jefferson, Yayoi Fujita, Dimbab Ngidang, Nancy Peluso, Lesley Potter, Niken Sakuntaladewi, Janet Sturgeon, and David Thomas. “Policies, political-economy, and swidden in Southeast Asia.” Human Ecology 37, no. 3 (2009): 305-322.
Ghai, Yash. “Human rights and governance: The Asia debate.” The Australian Year Book of International Law Online 15, no. 1 (1994): 1-34.
Griffiths, Tom. “Seeing ‘REDD’.” Avoided deforestation and the rights of Indigenous Peoples and local communities’, Forest Peoples Programme (2007): 26.
Li, Tania Murray. “Engaging simplifications: community-based resource management, market processes, and state agendas in upland Southeast Asia.” World Development 30, no. 2 (2002): 265-283.
Kusumanto, Yanti, and Martua T. Sirait. “Community participation in forest resource management in Indonesia: Policies, practices, constraints, and opportunities.” Southeast Asia Policy Research Working Paper 28 (2002): 1-28.
Nepal, Sanjay Kumar, and K. W. Weber. “Managing resources and resolving conflicts: national parks and local people.” International Journal of Sustainable Development & World Ecology 2, no. 1 (1995): 11-25.
Perera, Jayantha, ed. Land and cultural survival: The communal rights of indigenous peoples in Asia. Asian Development Bank, 2009.
United Nations. General Assembly. United Nations declaration on the rights of indigenous peoples. 2007.
[1] United Nations. General Assembly. United Nations declaration on the rights of indigenous peoples. 2007.
[2] Li, Tania Murray. “Engaging simplifications: community-based resource management, market processes, and state agendas in upland Southeast Asia.” World Development 30, no. 2 (2002): 265-283.
[3] Kusumanto, Yanti, and Martua T. Sirait. “Community participation in forest resource management in Indonesia: Policies, practices, constraints, and opportunities.” Southeast Asia Policy Research Working Paper 28 (2002): 1-28.
[4] Ibid.
[5] Perera, Jayantha, ed. Land and cultural survival: The communal rights of indigenous peoples in Asia. Asian Development Bank, 2009.
[6] Ibid.
[7] Ghai, Yash. “Human rights and governance: The Asia debate.” The Australian Year Book of International Law Online 15, no. 1 (1994): 1-34.
[8] Disko, Stefan, and Helen Tugendhat, eds. World Heritage Sites and Indigenous Peoples’ Rights. Vol. 551. Copenhagen: IWGIA, 2014.
[9] Nepal, Sanjay Kumar, and K. W. Weber. “Managing resources and resolving conflicts: national parks and local people.” International Journal of Sustainable Development & World Ecology 2, no. 1 (1995): 11-25.
[10]Griffiths, Tom. “Seeing ‘REDD.” Avoided deforestation and the rights of Indigenous Peoples and local communities’, Forest Peoples Programme (2007): 26.
[11] Erni, Christian. “Shifting the blame.” In Southeast Asia’s indigenous peoples and shifting cultivation in the age of climate change. Paper presented at the seminar on Adivasi/ST Communities in India: Development and Change, Delhi. 2009.
[12] Xanthaki, Alexandra. “Land rights of indigenous peoples in South-East Asia.” Melb. J. Int’l L. 4 (2003): 467.
[13] Fox, Jefferson, Yayoi Fujita, Dimbab Ngidang, Nancy Peluso, Lesley Potter, Niken Sakuntaladewi, Janet Sturgeon, and David Thomas. “Policies, political-economy, and swidden in Southeast Asia.” Human Ecology 37, no. 3 (2009): 305-322.