Hydropower Development and Indigenous Rights in Malaysia: Socioeconomic Harms, Cultural Displacement and Comparative Legal Lessons from Canada and Brazil

Abstract

Hydropower gained high popularity in Malaysia in the context of the promotion of national decarbonisation and renewable energy sources. Nevertheless, the ongoing development of hydroelectric dams on a large scale has resulted in the development of legal and governance issues, especially where the construction of the dams intersects with land, livelihood and cultural integrity of the Indigenous communities. This paper discusses the socioeconomic and cultural impacts of hydropower dams on Indigenous people through the Malaysian legal lens and with some Canadian and Brazilian experiences, as these countries have more defined norms of Indigenous involvement and protection in resource development. Using a qualitative doctrinal approach, the study examines Malaysian legislative and policy frameworks of developing renewable energy and judicial jurisdiction of acknowledging Indigenous customary rights, such as the Adong Kuwau and Sagong Tasi cases. It is a comparative analysis to evaluate the manner in which Canadian and Brazilian legal systems respond to the responsibilities of consultation, as well as how they respond to the Indigenous land protection and consent-based governance of energy project approvals. The results indicate that the existing regulatory orientation in Malaysia is more focused on development agendas and the provision of little procedural protection that can cause displacement, cultural loss and socioeconomic turmoil in the long run among the affected Indigenous populations. The paper also concludes that the application of the compensation-based frameworks in Malaysia is still inadequate when the hydropower development leads to structural damage to the traditional tenure, cultural heritage and subsistence activities. The study uses lessons learned in other countries to recommend legal and institutional changes to empower Indigenous participatory rights, incorporate the standards of consultation in the governance of energy resources and align hydropower development with the principles of energy justice and sustainable development. The paper will add to the existing body of socio-legal research by elucidating the regulatory gaps in the current hydropower policy in Malaysia and providing a form of reform based on rights-based regulation of renewable energy.