Protecting native customary rights: is legal recourse viable alternative?

• Main Author: Phoa, John
• Format: Article
• Language: English
• Published: Universiti Kebangsaan Malaysia 2009
• Online Access: http://journalarticle.ukm.my/607/1/akademika78%5B03%5DA4.pdf; http://journalarticle.ukm.my/607/; http://www.ukm.my/~penerbit/akademika

The objective of this article is to examine the legal protection of native customary rights over land in the Borneo state of Sarawak. This is necessary because the conflict between native customary rights owners and the state has left the former more vulnerable. Firstly, it will look into the nature of the nation-state with historical evidence as the conflict evolved in the past. This is done generally by examining the state of NCR during the various sovereignties and in particular, two important legal documents, the Sarawak Land Code and Sarawak Forest Ordinance. The contest of land/forest use between the state and the forest peoples/indigenous peoples became sharpened since the 1980s. Commercial logging and cash crop plantations that had expanded in the last two decades had left them marginalised. Different indigenous communities’ respond differently and in recent years one community decided to take a legal course. Thirdly, this article looks at Nor Nyawai land mark case and discusses its implication on the indigenous peoples’ struggle to protect their land. In doing so, it will also prove its viability as an alternative for the indigenous peoples of Sarawak. As an alternative means to legal recourse requires a lot of efforts on the part of indigenous communities especially in the documentation of evidences of NCR.