Wook, Izawati (2015) The Rights of the Orang Asli in Forests in Peninsular Malaysia: Towards Justice and Equality. PhD thesis, Victoria University.

Abstract

This is an evaluative study of the rights in land and forest resources of the Orang Asli communities who are indigenous and minority peoples of Peninsular Malaysia. It argues that justice, fairness, equality and non-discrimination are the basic principles to be used in generating relevant policies and laws and in their interpretation. It uses mixed methodologies with a law reform oriented approach. Interviews were conducted to understand the law and practices around it, and the perspectives of the relevant actors. An examination of the communities’ custom and related resource rights reveals significant economic and cultural connections with their environment. Although these have some recognition in Malaysian law, there is a significant gap between the law and the practice. Their recognition in common law has strengthened but is yet to have a significant impact on practice. Conflicts over interpretation adversely affect the exercise of existing rights. Using comparative law methodology, the study considers measures addressing these rights in international law and in selected jurisdictions. The analysis is structured around the framework established: the recognition of rights to natural resources, restorative measures, and procedural and environmental justice. Autopoietic theory and its concept of legal irritants are used to analyse the potential development of these rights. The exchange of information between common law and international law has contributed to positive changes in Malaysian law and policy. However, resistance to the common law itself and international human rights law may limit their further development or exercise. Factors in the political, economic and social systems are also hostile to their greater recognition. This perpetuates injustice to the Orang Asli. The thesis suggests that a rights based approach, focused on the basic principles above, be taken in reforming the law. This will be significant not only to the wellbeing of the Orang Asli but the whole society.

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