Divers Paths to Justice - English - Forest Peoples Programme

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Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast Asia4. Native customary land rights in Sabah, Malaysia 1881-2010 1IntroductionAmity DoolittleIn the following pages I want to explore three questions regarding nativeland rights and legal pluralism in the context of Sabah, Malaysia. My firstquestion is: How were native customary land rights treated in the early daysof colonial rule under the North Borneo Chartered Company? To answerthis question I explore the formation of land laws and policies instituted atthe start of colonial rule in 1881. At the heart of colonial land laws was theprinciple of legal pluralism: one set of land laws for the colonialists andanother set of laws for native peoples. While Company officers oftenframed their commitment to legal pluralism as a way to paternalisticallyprotect native peoples and their customs, it can also be seen as a mechanismof control and authority that severely limited the rights of native peoples togovern their traditional lands according to their customs, whilesimultaneously fostering the development of colonial plantation agriculture.The second question I seek to answer is: What is the legacy of colonial legalpluralism for native peoples’ struggles for land rights in contemporarySabah? Drawing on a high profile case regarding the violation of native landrights that was brought before the Sabah Human Rights Commission 2 in2003, I show that one of the largest obstacles to natives gaining title to theirland in the 21st century is the very same obstacle that natives faced in the1880s; large companies, working in collusion with ruling elite are able toplace their land claims at the forefront of the application process, overridingpre-existing native claims.Finally I seek to understand the constraints and benefits associated with1 Sections of this paper have been previously published in Doolittle 2003, 2005 and2007.2 Suhakam 200381
Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast Asialegal pluralism and the notion of “reinvigorating” native customary law. Iask: What is the best path for native peoples in contemporary Sabah to gainsecure land rights? Specifically, is there room for a vibrant native customarylaw to exist within the modern legal system in Sabah, Malaysia? Thissection builds on the previous one, demonstrating how the modern State stillpaternalistically articulates the need for the State to protect natives fromtheir own inexperience. This modern reworking of the colonial policies ofselectively supporting limited aspects of native land rights makes for a veryweak form of legal pluralism that does not secure justice for native peoples,but rather further marginalises them by taking control of native customarylaw. In this situation the State’s supposed interest in protecting nativetraditional lifestyles has less to do with equity for natives and everything todo with limiting native land rights.In the conclusion I do not argue for the end of legal pluralism and for thebeginning of legal integration, despite the damage legal pluralism appears tohave done to native peoples’ rights and autonomy. Instead I draw attentionto the need for the State to return control over defining and adjudicatingnative land rights to native peoples. In brief, it is time for a new form oflegal pluralism in Sabah.Treatment of native customary land rights under the rule of NorthBorneo Chartered CompanyThe North Borneo Chartered Company (hereafter the Company),established in 1881, had a dual mission in North Borneo. First, it wasconcerned with economic growth through the exploitation of the territory’snatural resources. Second, the Company was obligated to respect nativerights and customs. There were inherent conflicts between these twoconsiderations; the very property rights and native legal institutions thatCompany officials were charged to respect soon became an obstacle to theexpansion of commercial agriculture. As a result, the Company instituted asystem of legal pluralism in which some native customary laws weresupported while those that hampered the commercial exploitation of landwere replaced with western legal concepts.82
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Divers Paths to Justice - English - Forest Peoples Programme

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