INTRODUCTION
While Malaysia’s draft National Action Plan on Business and Human Rights (NAP-BHR) signals federal intent to align corporate practices with global human rights norms, the historical and structural denial of indigenous land rights suggests a dire contradiction. For the indigenous peoples of Malaysia – collectively referred to as “Orang Asli” – the rhetoric of the federal state on reform is still largely disconnected from the realities on the ground, especially regarding land dispossession, legal ambiguity, and continuous unchecked extractivism. This intersectional disjuncture is procedural and rooted in the building blocks of Malaysia’s governance, facilitating the erosion of indigenous rights (Human Rights Watch, 2025).
LEGAL FRAGMENTATION: THE LIMITS OF RECOGNITION
Malaysia has a dual legal system, where control over land and forests is divided at the state level, without federal oversight. The lack of federal oversight extends to human rights violations, in this case, the continuous weakening of Indigenous land claims. For instance, federal states Sabah and Sarawak, in particular, have used this jurisdictional separation to shield extractive interests from federal accountability (Human Rights Watch, 2024).
Indigenous land tenure is primarily recognised under Native Customary Rights (NCR). The NCR is codified in each state’s legislation, such as the Sarawak Land Code. However, the NCR lacks the security of a formal title, often requiring indigenous communities to prove their continuous occupation of the land based on arbitrary dates set by the state government, usually decades ago, with no regard for the history of the people. This evidentiary burden, especially in remote and orally transmitted cultures, frequently results in the exclusion of the Orang Asli from legal recognition (Subramaniam & Nicholas, 2018).
Moreover, even recognised NCR land can be reclassified unilaterally by the state. The Sarawak Government, for instance, can convert indigenous lands into “Native Communal Reserves”, granting the state discretion over land use often without the consent of affected indigenous communities (Subramaniam & Nicholas, 2018).
LITIGATION AS RESISTANCE
Despite having to overcome institutional disadvantages, Indigenous communities have used the courts to resist dispossession. In 2024, a Malaysian court ordered the suspension of a dam project in Perak, ruling that developers had failed to obtain proper consent from the Semai people. The decision also rebuked state and federal authorities for neglecting their duty to protect indigenous land (Mongabay, 2024).
Still, such legal victories are inconsistent and are not enough. In 2021, the Sarawak Federal Court declined to uphold customary land claims of the Iban people, raising concerns that even existing legal precedents recognising indigenous rights may be taken apart (Cultural Survival, 2023). When courts validate NCR but stop short of enforcing penalties or halting extractive operations, the law merely functions as a gesture.
EXTRACTIVISM
Malaysia’s development model, particularly in Sarawak, is dependent on extractive industries. Logging, palm oil, and hydropower projects are being expanded into NCR lands with little regard for community consultation. Human Rights Watch reported that Sarawak’s law restricts indigenous communities to claiming a maximum of 1,000 hectares, regardless of their historical value and use. The state is allowed to revoke NCR titles without compensation and routinely grants concessions before official land surveys are completed (Human Rights Watch, 2024).
In many cases, companies are permitted to survey the lands they exploit. Therefore, giving them de facto control over how land boundaries are drawn, which claims are recognised, and which are excluded. Despite Malaysia’s endorsement of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), domestic law fails to operationalise free, prior, and informed consent (FPIC). This matters because FPIC is the basis of international Indigenous rights standards. It affirms the right of communities to decide what happens on their land before any development even begins. The state’s ability to override indigenous claims exposes the shortcomings between the federal government’s policy promises and legal enforcement (Human Rights Watch, 2025).
COMMITMENTS WITHOUT CONSEQUENCES
Malaysia has yet to ratify ILO Convention No. 169, requiring states to recognise land tenure systems based on Indigenous traditions and to legislate FPIC explicitly. Although the NAP-BHR promises to “implement” UNDRIP, there are currently no legislative frameworks in place to guarantee that these rights are enforceable. Again, in its current state, the NAP-BHR reads more like an aspirational guideline rather than a legal guarantee for the Orang Asli.
Additionally, environmental activists and indigenous leaders often face judicial harassment, including criminal defamation charges (Freedom House, 2023; Human Rights Watch, 2025). This is often referred to as Strategic Lawsuits Against Public Participation (SLAPP). Therefore, developing anti-SLAPP legislation is critical in protecting the legitimacy of civic participation, ensuring that indigenous communities and activists can challenge unlawful practices without fear of facing punitive lawsuits.
DEVELOPMENTALISM AS DISPOSSESSION
The state’s treatment of Indigenous land is also a legacy of developmentalism. From the New Economic Policy onwards, the territories of the Orang Asli have been framed as underutilised resources in need of “productive” use. Projects like the Bakun Dam displaced more than 10,000 people, showing how historically state planning prioritised economic growth over the rights of the indigenous (Ahsan & Ahmad, 2016).
Academic research highlights how this narrative positions Indigenous claims as obstructions to national progress. Malaysia’s development discourse rarely accommodates Indigenous legal pluralism (Aiken & Leigh, 2011). Instead, it leans toward assimilation, recasting ancestral lands as economic assets to be regulated and leased, not lived on. This view has not changed despite Malaysia’s rhetorical shift towards sustainability. Even as public officials invoke environmental justice, the structural logic of extraction remains intact.
CONCLUSION
Reform must go beyond policy language. Malaysia needs federal legislation that codifies Indigenous land rights in line with UNDRIP and ILO 169, including FPIC as a non-negotiable prerequisite for development. Independent land tribunals should be established to provide accessible and culturally competent venues for conflict resolution.
Transparency must be institutionalised: communities must have unrestricted access to concession data, impact assessments, and legal maps. Coordination between federal and state governments must be formalised through binding frameworks that prevent localised resistance to national human rights obligations.
However, the most necessary reform is the hardest to legislate—recognition. The state must confront its historical complicity in Indigenous displacement through truth-telling mechanisms and reparative justice programs. Education systems must centre Indigenous histories as foundational chapters in Malaysia’s story.
BIBLIOGRAPHY
Ahsan, R., & Ahmad, M. H. (2016). Development, Displacement and Resettlement a Challenge for Social Sustainability: A Study on Mega Development Project (Bakun Dam) In Sarawak. International Journal of Advances in Agricultural and Environmental Engineering, 3(1). https://doi.org/10.15242/ijaaee.er0116020.
Aiken, S. R., & Leigh, C. H. (2011). In the Way of Development: Indigenous Land‐Rights Issues in Malaysia*. Geographical Review, 101(4), 471–496. https://doi.org/10.1111/j.1931-0846.2011.00113.x.
Subramaniam, Y., & Nicholas, C. (2018). The Courts and the Restitution of Indigenous Territories in Malaysia. Erasmus Law Review, 11(1), 67–79. https://doi.org/10.5553/ELR.000096
Freedom House. (2023). Freedom on the Net 2023: Malaysia. Freedom House. https://freedomhouse.org/country/malaysia/freedom-net/2023.
Human Rights Watch. (2024, September 23). EU: Address Indigenous rights violations in Malaysian imports. https://www.hrw.org/news/2024/09/23/eu-address-indigenous-rights-violations-malaysian-imports.
Human Rights Watch. (2025, March 17). Malaysia: New Business and Human Rights Plan Needs Enforcement Mechanism. https://www.hrw.org/news/2025/03/17/malaysia-new-business-and-human-rights-plan-needs-enforcement-mechanism,
Mongabay. (2024, February 13). Malaysian court halts Indigenous land grab for dam project, in major ruling. https://news.mongabay.com/2024/02/malaysian-court-halts-indigenous-land-grab-for-dam-project-in-major-ruling/.
