42 Chapter 4 | LEGAL FRAMEWORK OF INDIGENOUS PEOPLES’ RIGHTS TO LAND Convention on Biological Diversity 4.31 The Convention on Biological Diversity which was ratified by Malaysia in 1994, also endorsed the Programme of Work on Protected Areas,84 which among others, requires that “…the establishment, management and monitoring of Protected Areas should take place with the full and effective participation of, and full respect for the rights of, indigenous and local communities ...”(para 22). Declaration on the Right to Development 4.32 The right to development is an inalienable human right, which belongs to everyone, individually and collectively, with no discrimination and with their full participation. The human right to development also implies the full realization of the right of peoples to self-determination, which includes the exercise of their inalienable right to full sovereignty over all their natural wealth and resources. Article 8(2) of the Declaration urges States to encourage popular participation in all spheres as an important factor in development and in the full realization of all human rights.85 RECOGNITION OF LAND RIGHTS UNDER MALAYSIAN LAWS    4.33 In Malaysia, the Federal Constitution protects rights critical to attaining the special relationship between native and aboriginal communities and their lands. This relationship underlies the spiritual, cultural, economic, and social existence of native communities. The right to property, livelihood, and equality before the law, safeguards for native interests, the fiduciary obligation of Government officials and recognition of customs as law, all play a role in the recognition and protection of what is referred to in this Chapter as native title, a term that includes aboriginal title and native customary rights to land. Native title arises out of native customs, and these customs, which define the content of native title, are part of the law of Malaysia and are protected under the Federal Constitution. Clearly, the recognition of native title based on native law and customs ensures the preservation of native communities. 4.34 The Constitutional protection for equality before the law requires recognition of native and aboriginal customary title on an equal basis with non-native property rights. What this requires is not merely formal equality but substantive equality. It does not mean that all laws must apply uniformly to all persons in all circumstances everywhere.86 The principle of equality requires that customary laws that form the basis of these rights are interpreted in their own context, incorporating indigenous perspectives into the law. 4.35 Once recognised, native title must be afforded the same protection provided to non-native property interests. This may mean that methods for registering and protecting native title must be implemented on an equal basis with non-native property interests. In practical terms, this requires surveying lands, properly registering native title interests, and issuing documentary titles to natives and native communities once they have established NCR. In sum, in terms of proprietary rights, equality between natives and non-natives will only be achieved when comparable protection under native law and customs take their rightful place alongside the other sources of law as stipulated under Article 160 of the Federal Constitution. Anything short of full recognition for the relevant native law and customs would perpetuate 84 http://www.cbd.int/programmes/pa/pow-goals-alone.pdf 85 http://www.ohchr.org/Documents/Issues/Development/DeclarationRightDevelopment_en.pdf 86 Per Suffian LP in Datuk Harun Idris v Public Prosecutor [1977] 2 MLJ 155. chapter 4_a4.indd 42 7/5/13 6:46 PM