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Introduction
In Malaysia, private ownership of beaches is permitted by the law. The constitution of
Malaysia guarantees its citizen the rights of private ownership. Lands can be bought freely
without any restriction on the type of area the land belongs to on the geographical aspect. Private
lands are owned solely by the owner and trespassing is not allowed. Consequently, privately
owned beaches are not accessible by the public unless permitted by the owner. This is mostly the
case at resorts or hotels located near beaches where the area can be blocked from public access.
While this issue has sparked debates in many developed nations, the issue received little
attention in Malaysia due partly to the fact that many portions of coastal areas in the country are
still accessible to public and even the privately owned beaches are still accessible. Nevertheless,
it is a fact that private tourism interests normally obtain the best beaches and thus they are not
anymore public. The paper aims to discuss Malaysia laws in relation to public access to beaches,
the implications, the advantages and disadvantages of allowing private ownership of beaches and
its consequences on coastal area management.
Land Jurisdiction in Malaysia and Rights of Private Ownership of Beaches
A glance of the legislative list in the Ninth Schedule of the Constitution divulges that
land, agriculture, forestry, local government and turtles and riverine fishing are assigned to the
State List, but, town and country planning, rehabilitation of mining land, housing, drainage and
irrigation are placed under the concurrent list, meaning that, both the federal and state
governments shares jurisdiction over these matters. On the other hand, environmental related
matters appear in all parts of the legislative list of the Ninth Schedule. In other words land, land
related matters and its resources do not exclusively belong to the states. Moreover, the
Constitution in many instances allows federal intervention in land matters. In encouraging
diversity in its land law it also promotes uniformity of law and policy by permitting federal
intervention in land and land related matters. This federal intervention on grounds of achieving
uniformity of land law and policy however, is not applicable to the two states of East Malaysia
that is Sabah and Sarawak.
Malaysia has, on the national level, the National Land Code (enforced since 1966) as the
main reference on land laws. However, it cannot override land laws of individual states. The
implication is that the state government is the highest authority on land matters. Nonetheless,
there have been many instances of federal intervention on land related issues over the years,
giving an indication that the federal government can, to some extent, interfere with state
authority over land matters with the pretext of national interest. Individual land laws legislated
must not contradict enactments within the National Land Code. Any area that is not privately
owned is considered state land and it is considered as part of public domain where the public can
have unrestricted access unless prohibited by the state.
Land ownership is protected by the NLC1 and guaranteed by the Federal Constitution in
Article 13. Under the NLC, if a person is registered as owner of a piece of land, his title (or
interest) is “indefeasible.” Indefeasibility of title means that one’s ownership cannot be
“challenged or questioned,” unless the case falls under any one or more of the circumstances
mentioned in section 340(2) NLC - e.g. where there has been fraud, misrepresentation, or so on,
when ownership is acquired. Land cannot be compulsorily acquired or used by anyone (even by
the government) unless it has been acquired in accordance with the procedure laid down in the
law (the Land Acquisition Act 1960) and “adequate compensation” has been paid.
The lands owned by private entities are under private jurisdiction and the public must
obtain consent prior to access. The state have jurisdiction on land and 3 nautica miles (nm)
seawards from mean low water mark according to the Emergency Ordinance and thus any
private ownership of beaches extends from the beach land up to 3 nm of the territorial waters
(see Figure 1). It must be noted, however, that while beaches can be legally owned by private
entities in Malaysia, most of them still allow considerable access to the public.
While a private owner of a beach have the right to impede entrance into their property,
they cannot develop the area freely. Any building of structures must be in accordance to
Environmental Quality Act 1974 which obligates developers to conduct Environmental Impact
Assessment (EIA) prior to development of the area. This is due to the sensitive nature of beaches
in particular and the coastal areas in general. Any structure enlisted in Environmental Quality
Act, 1974 Environmental Quality (Prescribed Activities) (Environmental Impact Assessment)
Order 1987 must have EIA or Detailed EIA (DEIA) approved prior to its commencement.
All in all, there is no specific law regarding private ownership of beaches but there is
enough legal prescriptions indicating that beaches can be privately owned in Malaysia. However,
there are laws that prohibit excessive development activities on beaches with strict procedural
requirements as a prevention measures. Most beaches are still very much accessible for the
public but nonetheless, the existence of laws allowing private ownership which in turn grant
them the authority to prohibit access can result in less access in the future. This is very true in
developed nations where impediment of public access to beaches are already exercised by
private owners and are receiving opposition from various quarter of the public and the CSOs2.
Beaches are indeed a public domain and the public should have rights to access them.
1
National Land Code 1965
2
Civil Society Organizations or more commonly referred to as NGOs (Non-Government
Organizations)
Figure 1: Classification of jurisdiction of state and federal governments as well as international waters.
Consequences on ICZM
Allowing private ownership on beaches can make integrated coastal management more
complicated than it already is. The interconnected nature of coastal areas necessitate that all
areas to be managed as a whole. A private beach means that the authority must get consent from
owners prior to implementation of any policies within the area. To compulsorily acquire the land
can involve very complicated legal procedures and monitoring opportunities will be limited. The
beach is the most sensitive part of a coastal area due to its direct contact to the wave forces and
strong winds. It is also more exposed to the risk of storms and ocean related natural disasters like
the tsunami. Thus, this area are more suited to be a public domain owned by the state for it will
allow for more opportunities for monitoring and preserving activites by the state. It is a fact that
most beaches acquired are used for tourism and the ones that attract the tourists are normally the
most beautiful ones. As many evidences suggest, this has brought so much pollution to the
beaches and ultimately the sea, disrupting many other economic resources such as the fisheries
and polluting other areas that are not privately owned. Although the Environmental Quality Act
has its reservation for such events, the enforcement has been very poor and the punishment is not
severe enough to serve as a deterrent for irresponsible acts. This is the same for beaches open to
the public but the state can have monitoring authority on these lands. The wastes are also less
from open beaches compared to the ones utilized for tourism purposes by private enterprises.
Natural Landscapes of Beaches
A beach can be defined as the zone of unconsolidated material that extends from the
mean low water line to the place where there is a marked change in material or physiographic
form, or to the line of permanent vegetation (the effective limit of storm waves and storm surge),
i.e. to the coastline (see Figure 2). The beach or shore3 can be divided in the foreshore and the
backshore. The width and location of the shore (or beach) vary as wave conditions change and
erosion and sedimentation processes occur.
3
The term beach can be used interchangeably with shore
Figure 2: Coastal profile
The beach is very dynamic due to the fact that it is constantly affected by the waves.
Beaches often occur along coastal areas where wave or current action deposits and reworks
sediments. Beaches in Malaysia are dominated by natural landscapes of flat sandy beaches,
estuaries, bays and capes which are all shaped by wave forces (see Figure 3). All these
landscapes are very sensitive to changes and offers very high economic value. Any physical
structure that interferes with wave directions and forces can alter the natural landscape
significantly (the magnitude of the effect varies) and thus require careful planning. Vigilant
monitoring is also imperative as wave forces are a constant force in shaping the beach.