INDIGENOUS PEOPLES AND
AUTHOR: JANNIE LASIMBANG PARTNERS OF COMMUNITY ORGANIZATIONS (PACOS) TRUST
OPEN ENDED AD-HOC WORKING GROUP ON PROTECTED AREAS UNITED NATIONS CONVENTION ON BIOLOGICAL DIVERSITY
Protected Areas in Malaysia
ccording to a 2003 report by Earth Trends, 30.6 percent (10,101,000 ha) of Malaysia’s total land area of 32,975,000 hectares is classified as protected areas under the six IUCN categories. Another 1,352,000 hectares has been designated as marine and littoral protected areas. One area covering 38,000 hectares is designated as a Ramsar Site.
Peninsular Malaysia has 40 protected areas distributed in all eleven states with a total area of 751,413 ha. Taman Negara National Park is the largest, with 453,037 has located in three states, namely Pahang, Kelantan and Terengganu. It was gazetted by each of the states under separate state enactments between 1938 to 1939. The designated protected areas system in Sarawak covers about 1 million hectares of forests, or 8 percent of Sarawakʹs total area. These forest lands are classified as National Parks, Wildlife Sanctuaries, Wildlife Rehabilitation Centres, Nature Reserves and Marine Parks. National parks and nature reserves are open to the public for recreation, but the wildlife sanctuaries have limited public access and are strictly for conservation and research. In Sabah, six marine and terrestrial parks cover a total area of 263,794 ha, the largest being the Crocker Range Park (139,919 ha). Parks in Sabah are governed by the Parks Enactment 1984, under the purview of the Sabah Parks. Other laws govern the management of other totally protected areas such as, the Wildlife Conservation Enactment 1997 governing wildlife sanctuaries and the Forest Enactment 1968 governing other types of protected areas.
Indigenous Peoples and Parks
Some indigenous communities continue to live in many of the parks in Malaysia. In Bako National Park in Sarawak, established before Malaysia even existed, the Park Ordinance allows indigenous peoples to continue collecting mangrove poles. The Penan and Dayak continue to live within the Mulu National Park and Batang Ai National Park and are
depending directly on the natural resources within. In Sabah, the Crocker Range National Park has been home for generations to indigenous communities, in particular the Dusun and Murut. In Peninsular Malaysia, the Orang Asli continues living in the Tasek Bera Park.
Numerous conflicts exist with respect to indigenous peoples and protected areas, most importantly the legal recognition of their traditional land and their way of life. In both Sabah and Sarawak, customary
2. Protected Areas: Issues and Opportunities
Status/Recognition of NCR Land in the Protected Areas
Despite their limitations, the Sabah Land Ordinance 1930 and Sarawak Land Code recognize Native Customary Rights (NCR) land. Although some Park Master Plans also recognise indigenous peoples’ rights to land, the legitimacy of NCR lands that were included in protected areas are still being questioned by Park authorities. As long as ambiguities continue to be attached to the legal status of customary rights land, pressure or policies to reduce the size of traditional land of communities and restriction on land use will continue to dominate discussions and exacerbate conflicts between Park authorities and the communities.
Indigenous land rights, as recognised under existing and emerging international laws, such as the ILO Convention 169 concerning indigenous and tribal peoples in independent countries and the draft Declaration on the Rights of Indigenous Peoples (dDRIP), has to be taken into consideration. In addition, the World Conservation Union (IUCN), which provides guidelines to States on protected areas globally, clearly calls for the recognition of the rights of indigenous peoples with regard to their lands or territories and resources that fall within protected area (IUCN World Conservation Congress Resolution 1.53).
Malaysia is a Party to the Convention on Biological Diversity (CBD). The recent decision by the Seventh Conference of Parties (COP7) to the CBD on Protected Areas stressed on the obligation of Parties to ensure that the establishment, management and monitoring of protected areas takes place with full respect for the rights of indigenous communities. Parties at COP7 elaborated that this includes indigenous peoples’ rights to their traditional lands.
Loss of Lands in PAs, a Consequence of Past Mistakes
Many of the existing parks in Malaysia were once forest reserves and were governed by forestry laws. Laws governing forests in Sabah and Sarawak provide for the District Officer or Collector of the District to put a notice on or in the vicinity of the proposed Forest Reserve in a language that would ensure the local inhabitants are aware of the intention to declare the area as a forest reserve. Any objections would be considered in the process of establishing any protected areas. However, many elders from the communities in and around protected areas indicated that they never knew of such notice and thus lost their rights to their traditional land. In some cases, years of protests by the local residents over the declaration of a number forest reserves (which were converted into parks) were met with fierce resistance by the authorities, until the protests were eventually quashed.
The posting of the notice and public inquiry is highly significant because once a Forest Reserve, was established, the communities in the area would either restrain from applying for native titles or their land applications would immediately be rejected by the land office. When the forest reserve is subsequently converted into parks, no such enquiries are carried out and communities lose out on claims to their traditional territories. The Sabah Parks Enactment 1984 or National Parks and Nature Reserves Ordinance 1998 are much stricter with regards to access, often taking a
Review of Buffer Zone Areas
There is a need to review the idea of buffer zones as a way of preventing encroachment in protected areas, especially where land has to be alienated or there are NCR claims or there is a proposal to gazette the area for other purposes such as watershed area. Indigenous communities directly affected by buffer zones should be involved in deciding on the demarcation of such zones and in the management of such buffer zone areas. For example, the highland forest ecosystems buffer zone in Ulu Bundu Apin‐apin, an area adjacent to the Crocker Range Park in Sabah, has also been proposed to be gazetted as Sg. Apin‐apin Water Protection Area. Communities in that area have expressed concern on limited access to resources in the area under the buffer zone management system and even more as a buffer zone. As a water protection or conservation area under the Water Resources Enactment 1998, communities are allowed to utilize non‐forest timber forest products for subsistence livelihood but limitations would be imposed and authorization of the Director of Water Resource would be needed to enter the area. Community involvement in the identification and management of the buffer zone is thus crucial for effective management.
Social and Cultural Implications
In a number of Park Master Plans in the country, it is often implied that poverty reduction is more relevant than land tenure issues. To confirm this assumption, it would be important to conduct a study on the possible long‐term social, economic and political implications of the proposed land utilization, zoning and management on communities within and around a protected area.
Resettlement and PIC of Indigenous Peoples in Protected Areas
Although not usually an option in Malaysia, the creation of protected areas could lead to resettlement of indigenous communities. It has to be noted that in emerging and established international laws, specific mention is made preventing resettlement of indigenous peoples (COP7 Programme of Work on Protected Areas, dDRIP and ILO 169). Resettlement should only occur with the prior, informed consent1 of the affected indigenous peoples.
1 A definition of the principle of free prior and informed consent from the international arena is still forthcoming. However, in July 2004, the United Nations Working Group on Indigenous Populations, attached to the UN Sub-Commission on the Promotion and Protection of Human Rights, noted: [s]ubstantively, the principle of free, prior and informed consent recognizes indigenous peoples’ inherent and prior rights to their lands and resources and respects their legitimate authority to require that third parties enter into an equal and respectful relationship with them based on the principle of informed consent. Procedurally, free, prior and informed consent requires processes that allow and support meaningful
choices by indigenous peoples about their development path”. Preliminary working paper on the principle of free, prior and informed consent of indigenous peoples in relation to development affecting their lands and natural resources that would serve as a framework for the drafting of a legal commentary by the Working Group in this concept.
rotected areas in Malaysia have been declared by state decree, without much involvement of
local communities and indigenous peoples, or attention to their need for subsistence.
Decision‐making is vested on the park authority which prohibits or severely restricts human settlements and use of habitats and resources. This has generated long‐term conflicts. An alternative to such a model is community‐based conservation and co‐management of certain areas. Community‐based conservation in protected areas is a powerful force, which can be harnessed for the benefit of protected areas and communities. There are many experiences of collaborative management approaches that have reconciled the capacities and interests of both indigenous communities and government and allowed more effective and sustainable management processes and practices.
The idea of Traditional Use Zone (TUZ) in the Crocker Range Park Master Plan or the Declaration under the Sarawak National Parks and Nature Reserves Ordinance 1998 and the Sarawak Wildlife Protection Ordinance 1998, which provide opportunities for community‐based conservation and collaborative management are thus welcomed. However, these are often limited to paddy cultivation or collection of allowed resources that may not be sufficient to meet the stated objectives of providing subsistence resources and to maintain the culture and traditional knowledge of communities. Several studies by NGO’s in Malaysia observed that activities such as gathering of medicinal plants, forest products, hunting and fishing are not only part of the communities’ livelihood strategy but also an inherent part of their culture and transmission of indigenous knowledge on resource management. As such, it is crucial to recognize all these relevant community activities in management plans or laws.
In accordance with the COP7 Programme of Work on Protected Areas, it is recommended that effective participation of affected communities is enhanced and secured. Participation would ideally include community representatives in the Management Committee and the Buffer Zone Management Committee. It is also recommended that representatives from villages and NGO’s are included in Park Management Advisory Committee. Participation of communities in monitoring activities is also important. The provision for Special Committees for each of the National Parks and Wildlife Sanctuaries in Sarawak that would involve communities in the management of protected areas in the State, and to move towards a system of co‐management is a step in the right direction.
Community‐Based Resource Management
Indigenous resource management practice such as the Tagal in Sabah has been recognized and promoted by Sabah Fisheries Department is an example of community participation in the sustainable utilization and management of resources. Agreement with communities can also include traditional practices on utilization and management of river and forests resources. Other governance types within protected areas such as community conserved areas and indigenous biocultural heritage areas for areas that have been nurtured by indigenous peoples would also provide significant recognition and pride to indigenous communities and would definitely contribute to long‐term effective park management.
Honorary Park Rangers
community participation. Effective implementation of ideas such as the TUZ requires
trust and good communication between park authorities and communities. Dialogues with communities on park management should not be left to honorary park rangers, which may lead to marginalisation of the honorary park rangers by their own community. Training modules to understand the park enactment, rules and regulations and good communication as well as reporting skills need to be given. It is also important to provide training, perhaps with park rangers and staff, on skills to work with communities, to enhance good working relationship and to avoid assumption that the honorary park rangers know how to work with community since they are from the villages.
Park authorities in Malaysia all aspire towards the promotion of tourism, particularly community‐based ecotourism as a way of earning income to maintain Parks. Ecotourism management, training and licensing of tourist guides need to be detailed and supported before any ecotourism activities benefit the villagers. Livelihood issues related to land tenure and conservation will still remain vital to villagers and these issues may hinder effective participation to other socio‐economic venture such as ecotourism. If affected indigenous communities are to benefit, a good system of revenue‐sharing also needs to be mutually agreed upon.
Dispute Resolution Procedures
t is also critical to put in place a dispute resolution procedure. A case‐by‐case review in the settlement of land claims has the potential to be a protracted process. The COP7 Programme of Work on Protected Areas2 suggests several governance principles for dispute resolution institutions and procedures. Other successful mechanisms include a referral of land claims to a Land Tribunal.
About the Author
Ms. Jannie Lasimbang is a Kadazan from Sabah, Malaysia. She is presently an officer of the Partners of Communities (PACOS) Trust and the Secretary General of the Asia Indigenous Peoples Pact (AIPP) Foundation. She has been an active participant to the various meetings of the Convention on Biological Diversity (CBD) as one of the representatives of the International Indigenous Forum on Biodiversity (IIFB) and the Indigenous Peoples’ Conservation Committee (IPCC).