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Malaysia: Native Villagers Lose Land Rights Suit over Bakun Dam Construction

(Sept. 12, 2011) On September 8, 2011, Malaysia's Federal Court, the highest judicial authority in the country, delivered a unanimous ruling against members of an indigenous tribe who had challenged Sarawak State's seizure of land to build the massive Bakun Dam. The three-judge panel dismissed the villagers' appeal. The tribe members had argued that the Sarawak authorities violated the tribe's constitutional rights by seizing land, occupied by tribal ancestors for generations, to construct the dam. The legal battle reportedly dates back to 1997, when the Sarawak government first began to take over the land. (Michael Haggerson, Malaysia Court Rules Against Indigenous People in Land Rights Suit, PAPER CHASE NEWSBURST (Sept. 8, 2011); Sean Yoong, Borneo Tribe Loses Land Case in Top Malaysia Court, ASSOCIATED PRESS (Sept. 8, 2011).) The land seizure was made possible because “[m]any indigenous tribes in Sarawak and elsewhere in Malaysia do not formally own land … where they live, grow crops and hunt.” (Yoong, supra.)

The grounds for dismissal of the appeal adduced by two of the judges, who chose not to address the question of whether the seizure was unconstitutional, were largely technical. They concluded that the issues had not been “raised or properly canvassed before the court.” (Haggerson, supra.) They contended that the plaintiffs should go to arbitration if they are dissatisfied with the amount of compensation they had received for the land; it was not for the court to decide such matters. The third judge, however, gave as his ground for dismissal of the appeal that the state acquisition of the land was constitutional. (Id.)

It is not clear, from press reports available in English, which articles of the Constitution of Malaysia were cited in the judgment. Article 8 of the Constitution, on equality before the law and equal protection under the law, “does not invalidate or prohibit … any provision for the protection, well-being or advancement of the aboriginal peoples of the Malay Peninsula (including the reservation of land) … .” (Federal Constitution, as amended up to P.U.(A) 164/2009, art. 8(5)(c), LAWS OF MALAYSIA, Judicial Appointments Commission website (last visited Sept. 12, 2011).) Article 13 provides that no one will be deprived of property except in accordance with law (item 1) and that “[n]o law shall provide for the compulsory acquisition or use of property without adequate compensation” (art. 13(2)).

According to a spokesperson of the nongovernment organization Friends of the Earth Malaysia, the Court's ruling “left uncertainty over the status of over about 100 other land rights lawsuits filed by other indigenous Malaysians in Sarawak.” (Yoong, supra.) While officials argue that the dam is needed to meet the rising demand for power, environmentalists have reportedly widely criticized it from the start because of its displacement of thousands of people and flooding of at least a 260-square-mile area. In the view of rights activists, moreover, “while numerous villagers forced out by the Bakun Dam had received monetary compensation, it was not a fair amount for the size and value of the land.” (Id.) The Socialist Party of Malaysia viewed the decision as a failure on the part of the judges to uphold the principles of the United Nations Declaration on the Rights of Indigenous Peoples. (K. Pragalath, Keputasan kes empangan Bakun tamparankuat terhadap hak rakyat, FREE MALAYSIA TODAY (Sept. 10, 2011) [using Google Translate]; United Nations Declaration on the Rights of Indigenous Peoples (Sept. 13, 2007), United Nations Permanent Forum on Indigenous Issues website.)

Sarawak is one of two East Malaysian states (along with a small federal territory) on the island of Borneo, shared with Indonesia and Brunei. The approximately 260-square-mile hydroelectric project, roughly the size of Singapore, has already cost nearly US$2.3 billion. (Yoong, supra; Haggerson, supra.)