Seeking Redress in the Courts: Indigenous Land Rights and Judicial Decisions in Malaysia

2010 ◽  
Vol 45 (4) ◽  
pp. 825-875 ◽  
Author(s):  
S. ROBERT AIKEN ◽  
COLIN H. LEIGH
Keyword(s):  
Common Law ◽  
Land Rights ◽  
Federal Court ◽  
State Governments ◽  
High Court ◽  
Native Title ◽  
Development Policies ◽  
Indigenous Land Rights ◽  
Number Of Individuals ◽  
Indigenous Land

AbstractMalaysia's indigenous peoples continue to suffer numerous grievous injustices, including appropriation of their ancestral lands and socio-economic deprivation. In large part because their voices of resistance to development policies have gone unheard by the authorities, a growing number of individuals and communities have taken their grievances to the nation's courts. In particular, they have pleaded for judicial intervention to address alleged breaches of statutory land and other rights by governments and their contractors, and for recognition of native title at common law. In the landmark 1996Adongcase, the High Court ruled that Malaysian jurisprudence recognizes native title, thus bringing Malaysia into line with a number of other countries that share an English-derived legal system. The concept has been upheld in subsequent High Court, Court of Appeal, and Federal Court judgments. In spite of the rulings in favour of indigenous parties, the federal government, along with certain of the state governments, has continued to adopt an adversarial approach to indigenous land issues. An encouraging development is the reported willingness of governments in Perak and Selangor to tackle indigenous land rights issues through mediation rather than litigation. This paper summarizes seven court cases concerning alleged breaches of statutory rights and four cases dealing with native title at common law; it also looks at certain issues arising from the cases, as well as the responses of communities and governments to the various court judgments.

scholarly journals Settling with Indigenous People: Modern Treaty and Agreement-Making

2008 ◽  
Vol 2 ◽  
Author(s):  
Thalia Anthony
Keyword(s):  
Indigenous People ◽  
Land Rights ◽  
Land Claims ◽  
Political Climate ◽  
Third Way ◽  
Native Title ◽  
Land Access ◽  
Customary Rights ◽  
Indigenous Land Rights ◽  
Indigenous Land

Negotiating Indigenous land rights has become known as the new third way. It is the alternative to native title claims and claims under land rights legislation. Negotiation of land and other customary rights is a source of empowerment in a contemporary political climate that is otherwise paternalistic. It allows Indigenous people to be involved in setting the terms of land claims in terms of compensation, land access, native title rights, conservation and even governance rights. Already, over 3000 voluntary negotiations have led to settled outcomes with governments, mining companies and other stakeholders

Part I Foundations, Ch.2 Settlement

2018 ◽  
Author(s):  
Waugh John
Keyword(s):  
Indigenous Peoples ◽  
Common Law ◽  
Legal Framework ◽  
Land Ownership ◽  
High Court ◽  
Native Title ◽  
The Status ◽  
The Common ◽  
The Law ◽  
Indigenous Land

This chapter explores the law of Australian colonization and its relationship with the laws of Australia's Indigenous peoples. A line of legal continuity links the Australian Constitution to the imposition of British law made during the colonization of Australia and to the decisions of colonial courts that treated the Australian colonies as colonies of settlement. Those decisions, after some initial doubts, displaced the diverse and intricate laws of Australia’s Indigenous peoples, who have occupied the continent for tens of thousands of years. Only in relation to native title to land have later courts made a major reassessment of the status of Indigenous laws. There, the High Court has challenged the factual assumptions of earlier decisions and found accommodation for Indigenous land ownership within the common law, but left the legal framework of colonization otherwise intact.

Recognition of Indigenous Land Rights in Norway and Canada

2017 ◽  
Vol 24 (1) ◽  
pp. 70-117 ◽  
Author(s):  
Øyvind Ravna ◽  
Nigel Bankes
Keyword(s):  
Indigenous Peoples ◽  
Common Law ◽  
Land Rights ◽  
Indigenous Communities ◽  
International Treaties ◽  
Constitutional Protection ◽  
Aboriginal Title ◽  
Similarities And Differences ◽  
Indigenous Land Rights ◽  
Indigenous Land

Many states offer constitutional protection to the traditional lands of indigenous peoples. International treaties protecting ethnic minorities and indigenous peoples also require protection of the rights of indigenous communities with respect to traditional territories. States have followed different routes in identifying the ownership and resource rights of indigenous communities. In Norway, the Courts have traditionally applied the rules on prescription and immemorial usage, developed through centuries in the farming societies of Scandinavia. The legislature has chosen to follow the same approach in the Finnmark area of Norway under the terms of the Finnmark Act (2005). By contrast, in Canada, a settled colony with an English common law tradition, the Courts have developed a sui generis approach to the recognition of Aboriginal title. This article examines the rules for identifying and legally recognising the traditional lands of indigenous people in Norway and Canada with a view to reflecting on similarities and differences.

Indigenous Planning: From Forced Assimilation to Self-determination

2021 ◽  
pp. 088541222110266
Author(s):  
Michael Hibbard
Keyword(s):  
Indigenous Peoples ◽  
Settler Colonialism ◽  
Land Rights ◽  
Self Determination ◽  
Indigenous Cultures ◽  
Indigenous Planning ◽  
Indigenous Land Rights ◽  
Indigenous Land

Interest in Indigenous planning has blossomed in recent years, particularly as it relates to the Indigenous response to settler colonialism. Driven by land and resource hunger, settler states strove to extinguish Indigenous land rights and ultimately to destroy Indigenous cultures. However, Indigenous peoples have persisted. This article draws on the literature to examine the resistance of Indigenous peoples to settler colonialism, their resilience, and the resurgence of Indigenous planning as a vehicle for Indigenous peoples to determine their own fate and to enact their own conceptions of self-determination and self-governance.

Justice and Indigenous Land Rights

Inquiry ◽  
1998 ◽  
Vol 41 (2) ◽  
pp. 187-205 ◽  
Author(s):  
Susan Dodds
Keyword(s):  
Land Rights ◽  
Indigenous Land Rights ◽  
Indigenous Land

The Influence of Judicial Uncertainty on Executive Support for Negotiation in Canadian Land Claims Policy

2009 ◽  
Vol 42 (2) ◽  
pp. 417-442 ◽  
Author(s):  
Christa Scholtz
Keyword(s):  
Time Series ◽  
Research Agenda ◽  
Judicial Politics ◽  
Federal Budget ◽  
Land Rights ◽  
Land Claims ◽  
Indigenous Groups ◽  
Indigenous Land Rights ◽  
Indigenous Land ◽  
Judicial Uncertainty

Abstract. Governments and Indigenous groups bargain under the shadow of the law, and this paper pushes the judicial politics research agenda by examining empirically whether flickers in law's shadow systematically affect the implementation of the Canadian government's negotiation choice in the Indigenous land rights context. Through interviews and a time series analysis of Canada's specific claims policy, I find that judicial uncertainty increases the federal government's propensity to accept specific claims for negotiation. However, there is evidence that Indigenous protest action during the Oka crisis and Elijah Harper's role in scuttling the Meech Lake constitutional accord, more than other factors, greatly impacted the federal budget allocated towards negotiation.Résumé. Les négociations entre les gouvernements et les groupes autochtones se déroulent sous les auspices de la loi, et le présent document examine le programme de recherche sur les politiques légales afin de déterminer de façon empirique si certaines imprécisions dans la loi influent sur les options retenues par le gouvernement du Canada en ce qui concerne les droits sur les terres autochtones. Une analyse statistique de la politique de revendication en vigueur au Canada ainsi qu'un certain nombre d'entrevues m'ont permis de constater l'existence d'un flou juridique qui amène le gouvernement fédéral à accepter d'examiner certaines revendications spécifiques à la table des négociations. Il semble toutefois que certains incidents particuliers, comme les gestes de protestation posés par les autochtones lors de la crise d'Oka, ou le rôle joué par Elijah Harper dans l'échec de l'Accord constitutionnel du lac Meech, aient eu une incidence marquée sur l'importance des sommes allouées par le gouvernement fédéral à ces négociations.

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