Weak laws governing Malaysia's indigenous people complicate conservation efforts

By: Liz Kimbrough
July 22, 2013



The balance between biodiversity conservation, land acquisition, natural resource utilization and indigenous peoples is often wrought with conflict. Legislation governing the use of natural resources should ideally protect biodiversity and address the needs of indigenous peoples, but in many places, falls short of these ambitions. In a recent study published in Biodiversity Conservation, researchers examined the weaknesses in select natural resource laws that affect the indigenous peoples of Peninsular Malaysia, and compared these laws with data on a specific group of indigenous people’s use of natural resources, collected through questionnaires. In addition to suggesting potential solutions to address legislative weaknesses, the researchers make a strong case for why natural resource legislation is a matter of concern for conservationists.

Peninsular Malaysia contains some of the world’s most wildlife-rich forests and is home to a diverse group of indigenous peoples known as the Orang Asli, or "original people." The Orang Asli hold legal occupancy rights in many protected forests under the Aboriginal Peoples Act (APA) of 1954, but inconsistencies and ambiguities plague much of the legislation affecting their rights to hunt, fish, use land, and harvest Non-Timber Forest Products (NFTPs). The Wildlife Protection Act of 2010 attempts to regulate hunting by listing ten species that the Orang Asli are allowed to hunt for sustenance. But the list includes the threatened pig-tailed macaque and sambar deer, as well as two species of rare leaf monkeys, while commonly hunted wild squirrels are not included on the list, raising questions about how policymakers gathered information to inform this legislation.

Orang Asli children playing in RPS Banun, a government resettlement scheme in the Belum-Temengor forest complex. Photo by: Sheema Abdul Aziz.
Orang Asli children playing in RPS Banun, a government resettlement scheme in the Belum-Temengor forest complex. Photo by: Sheema Abdul Aziz.
Though allowances for subsistence hunting are important, a lack of regulations and enforcement can make way for a problematic system of exploitation. For example, because the Orang Asli are allowed to hunt restricted animals in areas otherwise restricted from commercial hunting, they are sometimes paid to hunt wildlife for middlemen who sell the animals on the black market. This system not only exploits the land and the Orang Asli, but also fuels the perception that indigenous peoples are the main reason for the unsustainable harvesting of natural resources.

While the Orang Asli practice some subsistence hunting and gathering, they have been primarily trade-oriented for thousands of years, so the harvesting of Non-Timber Forest Products (NFTPs) is perhaps the most important source of livelihood for their communities. Currently, 55% of the Orang Asli interviewed in the study report that they sell NTFPs for their livelihood. Rattan, honey, bamboo, forest fruits, and various herbs are among the products sold to outsiders. NTFP extraction needs to be addressed and regulated not only for the benefit of the Orang Asli, but also because the unchecked harvesting of NTFPs can have a detrimental impact on biodiversity. The best way to set up reasonable protocols, according to the study, is to involve the Orang Asli in the decision-making process.

In an interview with mongabay.com, lead author Sheema Abdul Aziz, as well as former Community Education and Engagement Manager with WWF-Malaysia Rejani Kunjappan and former Head of Policy with WWF-Malaysia Preetha Sankar further discuss these issues. The views they express here are not a reflection of the organizations in which they have worked and are therefore not organizational viewpoints.

INTERVIEW WITH SHEEMA ABDUL AZIZ, PREETH SANKAR, and REJANI KUNJAPPAN



Orang Asli children playing in RPS Banun, a government resettlement scheme in the Belum-Temengor forest complex. Photo by: Sheema Abdul Aziz.
Orang Asli children playing in RPS Banun, a government resettlement scheme in the Belum-Temengor forest complex. Photo by: Sheema Abdul Aziz.

Mongabay: Can you tell me a bit about each of your backgrounds?

Sheema Abdul Aziz, Preeth Sankar, and Rejani Kumjappan: Sheema Abdul Aziz was previously an archaeologist but switched fields to become a conservation biologist. She has 10 years of conservation experience, working on various issues such as wildlife trade, population ecology, forestry, protected area management, and indigenous peoples. She is former Senior Protected Areas Specialist with WWF-Malaysia and co-founder of the independent, non-profit research group Rimba.

Preetha Sankar was the former Head of Policy and Education at WWF-Malaysia working on macro level environmental law and policy. A Chevening Alumni, Preetha currently practices law and is still active on a number of committees and organizations that promote and advocate for sustainable development.

Rejani Kunjappan holds a Masters Degree in Education and International Relations. She has been working to increase awareness, knowledge and capacity of local and indigenous communities on community-based conservation (CBC) in Southeast Asia for more than eight years. She has also been involved in training, project planning and strategic development, and monitoring and evaluation of CBC initiatives.

Mongabay: How would you summarize the problems with the legislation governing the Orang Asli and their land use rights?

Sheema Abdul Aziz, Preeth Sankar, and Rejani Kumjappan: Many of the laws that govern management of natural resources either restrict the Orang Asli's use of these resources, or can encourage abuse of Orang Asli rights to access and use such resources. Oftentimes, what is permitted in the law does not match what is actually being practiced on the ground, and can severely impinge on the survival and livelihood of Orang Asli communities. Also, not much effort has been made to ensure that information on these laws reach the affected communities, so many Orang Asli remain ignorant over what their rights are within the laws: what they are permitted and not permitted to do. At the same time, conservation of biodiversity can also be negatively affected. And to date there are no mechanisms to address conflicts that may arise when there is a clash between conservation and livelihoods.

Mongabay: What approaches might conservationists adopt to ensure that indigenous needs and welfare are best entrenched in conservation-oriented policies and legislation?

Sheema Abdul Aziz, Preeth Sankar, and Rejani Kumjappan: Indigenous communities are usually the ones living closest to nature, and they are the first and the most affected by conservation projects. If conservation policies are having a negative effect on the livelihoods of certain people, then those people are much less likely to support conservation efforts. It is true that over-harvesting and poaching by certain indigenous people are detrimental to conservation. But with the right attitude and approach, indigenous peoples can be made a part of the solution rather than the problem.

Attitudes on both sides are changing and things have improved as more and more conservation projects now include an element of community participation and/or consultation, but these efforts can only go so far to address the problem if the legal aspect is being overlooked. Therefore, it is imperative for conservationists to realize that where indigenous communities exist, one of the first steps towards effective conservation in such areas is to understand how legislation affects the situation of indigenous livelihoods and rights there. This can pave the way towards engaging indigenous communities as equal partners in the effective management of natural resources.

In recent years there has been increased attention on the dimension of rights and the conservation of natural resources and biodiversity. The rights-based approach (RBA) has been considered as one way to balance both human rights and ecological and natural resources. While there is much more to be done in terms of the practical application of RBA, there are many examples and lessons that can be drawn from such initiatives. This is something that should be explored further in Peninsular Malaysia specifically, and in Malaysia as a whole. The rights-based approach may reduce some of the conflicts and tensions that exist with regards to indigenous communities, land and resources and conservation in the country. Malaysia has yet to do anything concrete in terms of RBA despite the fact there are quite huge populations of indigenous peoples in the country who rely on resources for livelihoods and food, and have a cultural identity that is closely connected to these resources.

Mongabay: Why is there a lack of knowledge amongst conservationists about indigenous peoples legislation? How can this be remedied?

Orang Asli near Cameron Highlands playing a nose flute. Photo by: Bart Van den Bosch.
Orang Asli near Cameron Highlands playing a nose flute. Photo by: Bart Van den Bosch/Creative Commons 2.5.

Sheema Abdul Aziz, Preeth Sankar, and Rejani Kumjappan: We can only speak for the situation here in Peninsular Malaysia. It's not that conservationists lack knowledge about legislation per se—conservationists know a great deal about legislation that governs the protection of ecosystems and species. The issue is that in some places with indigenous, forest-dependent communities such as Peninsular Malaysia, not everyone working in conservation has fully understood or noticed the link between these natural resource laws and the indigenous livelihoods that are affected by them, and how this has negative implications for conservation efforts. Additionally, where specific laws exist to govern indigenous issues, conservationists haven't quite examined these laws seriously and how they also affect conservation. Conservation projects don't attempt to address these laws as part of their work.

This may be partly because many in this country who work in conservation haven't truly experienced the reality of life in the communities they work with, and therefore it can be difficult to fully empathize when the law forbids someone to earn a livelihood through harvesting natural resources. Simply living with the community for awhile, or making periodic visits to them, may not be enough to learn what it feels like when your belly is empty and your very survival depends on natural resources. So more effort needs to be made to try and understand the realities that these communities have to deal with in their day-to-day lives.

Another reason could be that many people come to conservation via the more traditional routes of studying ecology and biology, or through a love of wildlife and nature, which emphasizes the study and protection of nature on its own. Many people continue to confuse conservation with environmentalism, which can be two separate things. Environmentalism started out with this belief that nature should be preserved for its own sake away from humans, a belief which still persists today. Conservation differs from environmentalism in that conservation aims to develop sustainable use of natural resources for the benefit of humans, and also recognizes the value of local communities, such as indigenous peoples, in managing these resources. But some of this 'deep ecology' thinking from environmentalism continues to influence some conservationists today. It can create a mistaken belief that indigenous rights are a separate issue from conservation, and that indigenous issues should be left to the social scientists and social activists to address separately.

Mongabay: Why does such a disparity exist between actual indigenous resource use and the laws that govern land use?

Sheema Abdul Aziz, Preeth Sankar, and Rejani Kumjappan: In Malaysia, many of these laws were drawn up in pre-independence, colonial times. They employ a top-down, paternalistic approach that doesn't allow for transparency or consultation. Unfortunately this approach hasn't changed much, even when the laws are reviewed and amended, and is made worse by the fact that there is still little understanding of indigenous or customary rights—and how these link with the need to manage resources more sustainably, particularly amongst policymakers. Minimal effort is made to consider indigenous livelihoods seriously and how these might affect the management of natural resources. The effective and working institutions and systems are not in place to ensure that this is addressed. This is clearly seen when laws are reviewed.

This is the very reason why social safeguards exist and have been getting so much attention internationally, and are becoming the minimum standard when it comes to the role of local and indigenous communities. However, Malaysia has no national guidelines for Free, Prior and Informed Consent (FPIC), and application of the international standards is non-existent or dismal to say the least. FPIC is bandied about when it is convenient or to fulfill some donor requirement, but this is usually a very superficial application. Many parties involved in conservation have little understanding of social safeguards, and are not adept in the tools to administer them. But more than that, there is a lack of political will to develop these safeguards in Malaysia.

Mongabay: How can decision makers better involve indigenous peoples in laws that affect them?

Sheema Abdul Aziz, Preeth Sankar, and Rejani Kumjappan: Today, the issue with natural resource legislation is about linking science and social aspects into law-making to ensure that there is a win-win situation all around. Malaysia hasn't reached the kind of holistic approach to law-making in natural resource use and management as one would like to see. So, what can conservationists do? The responsibility is to understand and appreciate that there are several aspects to conservation measures and try to gain knowledge on the best practices available. From there, assume the responsibility to create awareness and advocate for a multi-pronged approach to policy and law-making in relation to conservation measures.

Efforts must be made to reach out to indigenous communities to educate and inform them on these various laws and how they affect indigenous livelihoods. Also, policymakers need to start making genuine efforts to consult indigenous communities, and invite their participation to review or develop any law that affects them. There also must be sufficient representation by the affected communities, and laws must be based on dialogues and extensive, empirical data collection rather than assumptions or limited feedback from a few select individuals. Mechanisms for conflict resolution must also be included.

The right to FPIC, which is an international human rights standard, requires that governments and project proponents (including conservationists) ensure that laws, rules and regulations (including their review) be implemented in a way that fully respects the rights of affected communities with their agreement. This could be one way for decision-makers to start having meaningful participation of communities.















AUTHOR: Jeremy Hance joined Mongabay full-time in 2009. He currently serves as senior writer and editor. He has also authored a book.




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CITATION:
By: Liz Kimbrough (July 22, 2013).

Weak laws governing Malaysia's indigenous people complicate conservation efforts.

http://news.mongabay.com/2013/0722-kimbrough-orang-asli.html