SEEKING CONSENT? THE LEGAL CHALLENGES IN CONSULTING INDIGENOUS PEOPLES FOR HYDROELECTRIC DAM PROJECTS

Abstract

The consultation process with indigenous communities in large-scale development projects remains a contested issue, particularly in projects involving the relocation of the communities and compensation. This paper examines the challenges in the consultation process in the context of hydroelectric dam construction, taking the example of the Nenggiri Dam project in Malaysia which is currently under construction. Through a doctrinal legal analysis, this study argues that, with the current Malaysian legal framework recognising the customary land rights of the indigenous communities in the country, it is a legitimate expectation that the consultation process observes the principle of Free, Prior, and Informed Consent (FPIC). This is entailed from the fiduciary duty of the state authority in protecting indigenous land rights under the legal framework in Malaysia. The position of FPIC under the international legal standards, including the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and other instruments, and its relevance to the Malaysian legal framework are also discussed. The paper further highlights gaps in the legal framework, which lacks clear mechanisms to enforce FPIC as a binding legal obligation. This paper argues for stronger legal protections and policy reforms to ensure meaningful participation of indigenous communities in decision-making. This could be done through formal integration of FPIC into national legislation, and the establishment of independent oversight bodies. By addressing these legal and procedural shortcomings, Malaysia can move towards a more equitable and sustainable approach in development projects affecting the indigenous peoples.