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 AsiaAs I will show later in this paper, the failure of the colonial government tofully recognise all native land rights and the disempowering form of legalpluralism instituted under colonial rule has had a profound impact on landmanagement in present day Sabah. Currently, complaints over the violationsof native land rights constitute the largest single issue brought before theSabah Human Rights Commission. 25Protecting natives from their own improvidenceWhile aspects of the colonial administration were concerned with howmuch rent they could obtain from the issuance of native land titles, otheraspects were concerned with protecting native peoples from the fast-pacedeconomic development that was occurring in the region. Many colonialadministrators believed that natives were unable to manage their lands in arapidly changing market economy. Evidence of this concern is found in thelegal restrictions on natives selling their native titles to non-natives withoutgovernmental sanction. The notion behind this restriction was that nativesdid not understand commercial land transactions, and if they were not“protected from their own improvidence”, they would sell all their land toforeign speculators and be left with no land of their own to cultivate. 26Debates within the colonial administration over the possibility that nativeswould sell all their lands to non-natives peaked in the late 1950s. Somecolonial officers believed that the “North Borneo native is a poorunsophisticated wight, 27 who is easy meat for a non-native land shark”. 28These officers felt that it was their paternalistic duty to protect natives“against the cunningness of the sophisticated non-natives, who carrot-wise,25 Keng 201126 Circular Notice to Officers, 1928. North Borneo Company Archives # 815.27 “Wight” is an old English word meaning “person…thing, creature of unknownorigin” (The Oxford, 1991).28 Letter from the Director of Lands and Surveys to All Residents, 17 October 1957,District Office Records.93
Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast Asiadangle treasury notes or trade goods before their noses”. 29Even in Peninsular Malaya official paternalism resulted in policies aimed atprotecting the orang asli (lit. “the original people”) from the “unseemlycommercialisation” of their life. 30 Commercialisation of resources, it wouldappear, was attractive only in the hands of Europeans. This legal pluralismcouched in terms of paternalism significantly limited native land rights andbarred natives from entry into the rapidly developing commercialagricultural sector. As previously argued, this form of legal pluralism didnot support native rights nor did it provide them with any secure avenue toseek equity and justice in terms of land rights.The enduring legacy of colonial legal pluralismThe legacy of colonial legal pluralism over land matters is still apparent inthe 21 st century in native peoples’ daily lives. The incomplete process ofland settlement initiated in the early 20 th century still plagues nativepeoples. Many natives still have not received legal title to land that has beenin their family for generations. In contemporary Sabah, it is not unusual tohear stories of the difficulties families have endured in their efforts to claimtitle to land. Commonly, the head of the household has gone through theappropriate steps of filing their claim with the land office. Many havereturned to the land office countless times to check on their applications.Sons have continued checking on claims their fathers made before theydied. 31 Most native farmers, who cannot afford a private surveyor, must waitan average of twenty years, and up to fifty years 32 before the State surveyormakes it to their land to register their claim.This problem was largely ignored at the governmental level until 2009 whenthe Director of Land and Survey Department, Datuk Osman Jamal, finally29 Letter from the Director of Lands and Surveys to All Residents, 17 October 1957,District Office Record30 Harper 1997:931 Bernama 200432 Bangkuai 200394
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Divers Paths to Justice - English - Forest Peoples Programme

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