A turning point for Indonesia’s indigenous peoples
DTE Update, June 7th 2013
Indigenous peoples and their supporters have celebrated a decision by Indonesia’s Constitutional Court that takes their customary forests out of state forest areas. This represents a huge gain for indigenous communities whose rights to own and manage their territories have been denied for decades. They have seen their customary forests devastated by large-scale logging, mining, plantations, aquaculture, tourism, transmigration and other industrial-scale schemes in the name of development. Their forests have also been taken over for national parks and protected areas. The big challenge now is to ensure that the Court’s verdict is translated into positive changes on the ground.
In March 2012, AMAN plus representatives of two indigenous communities – the Kuntu and the Kasepuhan Cisitu communities – applied for a judicial review of Forestry Law No 41/1999, parts of which, they argued, were unconstitutional. They asked for several changes to the law, some of which were granted by the Constitutional Court, in its decision No.35/PUU-X/2012, issued on May 16th.[1]
Crucially, the Court agreed that Article 1 Paragraph six of the law was in conflict with the constitution and should be changed to delete the word ‘state’ from the sentence: ‘Customary forests are state forests located in indigenous peoples’ territories.’ The other changes adopted flow from this one fundamental change. Forests remain divided into two main categories, hutan negara (state forests) and hutan hak (forests subject to rights[2]) (Article 5.1), but the judgement means that customary forests have moved from hutan negara into the hutan hak category. (A breakdown of the changes implied by the Court’s decision is included in the table at the end of this report.)
The court’s decision has been rightfully described as a historic ruling not least because of the huge areas involved: the area treated as hutan negara up to now covers around 70% of Indonesia’s total land area.[3] Indonesia’ vast forest zone (kawasan hutan), controlled by the immensely powerful forestry department has been treated almost without exception as kawasan hutan negara (state forest areas) although this has been done on shaky legal ground.[4] In turn, the forestry department has leased tens of millions of hectares out for public and private sector exploitation, handed it over to be cleared for non-forest use, as well zoning it off for conservation, and, more recently REDD+ and ecosystem restoration schemes.
There is no official figure for the extent of customary forests – although research by the Rights and Resources Initiative, published in 2011 showed that local communities and indigenous groups had recognised rights to less than 1% of Indonesia’s forests.[5] Government data does show that there are almost 32,000 villages located in and around the forest zone and that 71% of those villages depend on forest resources.[6]
The indigenous peoples’ movement has started to fill in this data gap since setting up the Ancestral Domain Registration Agency (BRWA) in 2010. In November 2012, the results of BRWA’s initiative to map indigenous territories across Indonesia were formally handed over to the government’s UKP4 development delivery unit and the Geospatial Information Agency. The land registered so far – 2.4 million hectares consisting of 265 maps of indigenous territories - represents only a small fraction of these territories, but could provide a starting point for officially recognising customary forests. Nevertheless, their presentation to the government marked an important step on the road towards full official recognition.[7]
Welcome news
Streamed live on AMAN’s website, the Court’s decision was greeted with a mixture of excitement and relief by indigenous peoples, their organisations and supporters. There was also a sense of regret that the decision had come too late for many indigenous communities whose forests and livelihoods have already been lost. In an interview at the Court after the decision was read out, AMAN’s Secretary General Abdon Nababan immediately called for follow-up action to ensure the decision was made meaningful for indigenous communities on the ground, and to tackle the gross injustices of the past.[8]
On May 27th AMAN held a celebration to mark the Constitutional Court’s decision, and launched a civil society declaration to garner support for its message to the government: implement the Constitutional Court decision, settle conflicts related to customary forests and natural resources in the territories of indigenous peoples and map indigenous territories. AMAN also called for faster discussion and adoption of the Draft Law on the Recognition and Protection of the Rights of Indigenous Peoples (PPHMA) which is in the government’s current legislative programme.[9]
The response from the forestry ministry was positive. Quoted in the Jakarta Globe, Sumarto, a spokesman for the Ministry of Forestry, said the court’s decision was in line with the ministry’s policies.“The Ministry of Forestry considers indigenous peoples living in a certain area as being part of the forest itself. They cannot be separated,” Sumarto said. “Custom-based societies are on the front lines of forest management.”[10] But there were also indications that the ministry may be reluctant to relinquish its control: the ministry’s Secretary General Hadi Daryanto said that, in the almost total absence of regional regulations which recognise the existence of indigenous peoples’, the government’s existing ‘Hutan Desa’ scheme could be revisited.[11]
Indonesia’s National Human Rights Commission, Komnas HAM, also welcomed the ruling, calling it “an important moment in the struggle for recognition of the existence of indigenous peoples and their rights.” In a press statement, Commissioner Sandra Moniaga also called for a speedy implementation of the Court decision and urged the government to follow up by reviewing, revising and completing related legislation through a participative process, as mandated by TAP MPR IX/2001 – a decree issued in 2001 by Indonesia’s highest legislative body, the Peoples’ Representative Assembly (MPR) (see also below).
Komnas HAM also appealed for an approach based on respect for human rights, the rule of law and non-violence in the process of restoring indigenous peoples' rights to their territories “so that the process is constitutional and dignified”. The commission in particular reminded the Indonesian police and other security personnel “to abandon violence in their approach and to help prevent violence” in this process.[12]
The long road to recognition
The dramatic announcement of May 16th was the result of a hard-fought campaign by indigenous peoples – in particular AMAN - and their supporters. This began to gain ground in the politically fluid immediate post-Suharto years around the turn of the millennium when Indonesia’s future composition governance was up for debate as well as how the country’s rich natural resources should be managed.
For decades, indigenous peoples had been treated as the target of development schemes aimed at bringing them into mainstream society. Many indigenous communities had been labelled “forest squatters”, criminalised for using their own forest resources on the one hand, and, on the other, targeted by programmes to provide ‘proper’ housing and teach them ‘modern’ farming methods. Early editions of the DTE newsletter in the 1990s frequently featured reports of resettlement schemes targeting communities officially termed “isolated tribes” (suku-suku terasing). These schemes involved evicting communities from their homes, and putting them in regulation houses far away from their customary-owned resources and means of livelihood. Meanwhile, their resource-rich customary territories were being handed over to well-connected business entrepreneurs to exploit.[13]
In areas targeted for transmigration – the much-criticised scheme to resettle millions of people from populous Java, Madura and Bali to the less denslely populated ‘outer islands’ – indigenous communities became translok (local transmigrants). They were allotted housing and small plots of their own customary land for growing rice or commercial crops (often ill-suited to the terrain) and expected to learn sedentary farming techniques from their fellow transmigrants newly arrived from Java.
Progress was made following Suharto’s fall from power in 2008. AMAN was founded in 1999,[14] and a human rights law, which recognised indigenous peoples’ existence and rights was passed the same year. In 2001 Indonesia’s highest legislative body, the Peoples Representative Assembly issued Decree (TAP MPR IX/2011 Regarding Agrarian Reform and Natural Resources Management) which was intended to prepare the ground for the reform of all sectoral laws affecting land and natural resources management.[15] The Constitution was amended in 2002 to include language recognising the cultural identity and traditional rights of indigenous peoples as a basic human right. More recent gains have seen the recognition of adat rights in the 2007 Law on the Management of Coastal Regions and Small Islands, and in the 2009 Environment Law.
However, the backdrop for this progress has been one which has made it extremely difficult to achieve positive results for indigenous peoples on the ground. Powerful domestic and international business interests, plus a growing global demand for energy, food and consumer goods, have piled pressure on the world’s diminishing natural resources and intensified landgrabbing for investment. This means indigenous peoples’ lands and livelihoods are being targeted for large-scale development as never before. In Indonesia’s case large tracts of land are being handed to businesses to develop plantations for food, energy crops, pulp & paper, coal and other mining projects, oil and gas, as well as infrastructure and power projects.[16] These projects are being supported by the Indonesian government’s ‘MP3EI’ Masterplan for the Acceleration and Expansion of Indonesia Economic Development. Produced in May 2011, the plan sets out a three-stage plan for Indonesia to become a developed country by 2025. It is based on accelerated economic growth and relies heavily on investment from the private sector.[17]
The continuing focus on industrial scale development, currently being pursued under MP3EI, means that the good intentions of the TAP MPR IX/2001 and other legislation have not been followed up. These could have opened the door to a more sustainable and rights-based development path which included recognising the rights of indigenous peoples and the value of their customary resources management systems. This lost opportunity has also reflected the situation in Aceh and Papua, the regions afforded Special Autonomy over a decade ago. Here, provincial legislation recognising indigenous peoples’ rights has been passed, but, like the national-level legislation, has never been followed up with implementing legislation.[18]
Nevertheless, there have been recent signs that the political ground is shifting: this was signalled in 2011 by Kuntoro Mangkusubroto, head of the REDD+ Task Force, who announced to an international audience that Indonesia would recognise, respect and protect adat rights. The fact that the draft law on the Recognition and Protection of indigenous Peoples is on the current parliamentary agenda is another major step forward. [19]
| Getting recognition right One of the big questions prompted by the Constitutional Court decision is how to get official recognition for indigenous peoples in Indonesia, in order to be able to claim forests as customary forest. This already exists for some communities, whose adat governance systems have been recognised,[20] but most indigenous peoples in Indonesia do not have any official recognition. The official term which refers to some indigenous peoples (as per a decree issued in 2002 by the Social Affairs Ministry) is komunitas adat terpencil ( “remote customary communities”) with the official number of people totalling 1.1 million people.[21] There is no national-level process for recognising them. AMAN identifies a much broader group of peoples termed masyarakat adat (Indigenous Peoples[22]) as “a group of people who have lived in their ancestral land for generations, have sovereignty over the land and natural resources, govern their community by customary law and institutions which sustain the continuity of their livelihood.”[23] It estimates the number of indigenous people at 50-70 million people, based on this definition. AMAN’s membership of more than 2000 communities[24] is based on self-identification,[25] according to the above definition.[26] |
Challenges
The huge challenges still facing indigenous peoples in securing their rights to adat forests on the ground, have been thrown into sharp relief by the Constitutional Court’s decision. Questions include: how quickly and effectively will the follow-up legislation be set up so that the decision can be implemented? What will happen to indigenous communities’ forests in the meantime? How can customary forests be protected from those seeking to exploit any resulting legal limbo to grab the forests for themselves? What will happen to REDD+ schemes targeting indigenous-owned forests? How will the new situation affect the newly extended Moratorium on clearing primary forests announced by the government just days before the Court’s decision? How will big business react – will there be a rush to speed up exploitation in customary forests where they’re operating, on the basis that they may have less time than they originally thought? Or will their leases be considered valid despite the change in legal status of the forests resulting from the Court’s decision? To what extent will indigenous communities be ready to negotiate directly with businesses interested in exploiting their land? Komnas HAM has stressed the importance of applying the non-retroactive principle (to licences which have been lawfully issued), alongside respect for human rights, the rule of law and non-violence.[27]
The coming weeks and months will see how these questions are negotiated between the indigenous peoples movement, civil society, the corporate world and the government. What is not in doubt is that the door to the long-awaited reforms that will enable Indonesia’s indigenous peoples to secure their rights has been opened a lot wider than it was one month ago.
| AMAN-DTE book launched at key moment The Court’s May 16th decision was closely followed by the launch online of the Indonesian edition of the AMAN-DTE book Forests for the Future – Hutan untuk Masa Depan. Written by indigenous communities across Indonesia, the book includes contributions from Sumatra, East Nusa Tenggara, West Nusa Tenggara, Sulawesi, Kalimantan and Java. It describes the skills and knowledge used for generations to manage forest ecosystems without destroying them. AMAN’s Secretary General Abdon Nababan hopes the book will “motivate other indigenous people to document their own accounts of safeguarding forests, as well as motivating development planners and local and national-level policymakers currently drafting a new forest management regime for Indonesia which is more just and sustainable.” The original English language edition of the book was designed to engage with an international audience so that indigenous ways of forest management become better known and get the recognition and respect they deserve. DTE very much hopes that this Indonesian edition which is now being presented to a “home” audience can help spread this positive message inside Indonesia. The book can be downloaded from http://www.downtoearth-indonesia.org/id/story/hutan-untuk-masa-depan-pengelolaan-hutan-adat-di-tengah-arus-perubahan-dunia. The English language edition, published in 2009, is also available online at: http://www.downtoearth-indonesia.org/story/forests-future-indigenous-forest-managament-changing-world
|
Constitutional Court Ruling 35/PUU-X/2012, 16th May 2013 (Judicial Review of articles in Forestry Law 41/1999)[28] A PDF version of this table is available here | ||||
What was changed | Original Indonesian wording in Law 41/1999 | English (unofficial)
| Indonesian revision by Constitutional Court’s (stated or implied in 35/PUU-X/2012, 16th May) | English revision (unofficial) |
Article 1.6 | Hutan adat adalah hutan negara yang berada dalam wilayah masyarakat hukum adat. | "Adat" forests are state forests located in indigenous peoples’ territories. | Hutan adat adalah hutan yang berada dalam wilayah masyarakat hukum adat. | "Adat" forests areforests located in indigenous peoples’ territories. |
Article 4.3 | Penguasaan hutan oleh Negara tetap memperhatikan hak masyarakat hukum adat, sepanjang kenyataannya masih ada dan diakui keberadaannya, serta tidak bertentangan dengan kepentingan nasional.
| Forest control by the state shall respect the rights of indigenous peoples, as long as they exist and their existence is recognized, and does not contradict national interests. | Penguasaan hutan oleh Negara tetap memperhatikan hak masyarakat hukum adat, sepanjang masih hidup dan sesuai dengan perkembangan masyarakat dan prinsip Negara Kesatuan Republik Indonesia yang diatur dalam undang-undang.
| Forest control by the state shall respect the rights of indigenous peoples, as long as they remain in existence and are compatible with societal development, and with the principle of the Unitary State of the Republic of Indonesia as regulated by law.
|
Article 5.1 | Hutan berdasarkan statusnya terdiri dari: a. hutan negara, dan b. hutan hak.
| Forest status consists of two types: | Hutan negara sebagaimana dimaksud pada ayat (1) huruf a, tidak termasuk hutan adat
| State forest as referred to in paragraph (1) point a, does not include adat forest. |
Article 5.2 | Hutan negara sebagaimana dimaksud pada ayat (1) huruf a, dapat berupa hutan adat.
| State forest as referred to in paragraph (1) point a, can be in the form of "adat" forest. | [deleted] | [deleted] |
Article 5.3 | Pemerintah menetapkan status hutan sebagaimana dimaksud pada ayat (1) dan ayat (2); dan hutan adat ditetapkan sepanjang menurut kenyataannya masyarakat hukum adat yang bersangkutan masih ada dan diakui keberadaannya. | The Government shall determine the status of forest as referred to in paragraph (1) and paragraph (2); and adat forest shall be determined as long as the indigenous peoples concerned remain in existence and their existence is recognised. | Pemerintah menetapkan status hutan sebagaiman a dimaksud pada ayat (1); dan hutan adat ditetapkan sepanjang menurut kenyataannya masyarakat hukum adat yang bersangkutan masih ada dan diakui keberadaannya. | The Government shall determine the status of forest as referred to in paragraph (1); and adat forest shall be determined as long as the indigenous peoples concerned remain in existence and their existence is recognised. |
Many thanks to Noer Fauzi Rachman, Rukka Sombolinggi and Marcus Colchester for their assistance with this article.
[1] Available at http://www.mahkamahkonstitusi.go.id/putusan/putusan_sidang_35%20PUU%202012-Kehutanan-telah%20ucap%2016%20Mei%202013.pdf
[2] Hutan hak is sometimes translated as “private forest”, “proprietary forest” or “rights forest”.
[3] Figures in the Forestry Department’s Statistik Kehutanan Indonesia 2011, put the total area within the ‘forest zone’ (kawasan hutan) at 133,513.8 million hectares, whereas the total land area is 187,840.9 million hectares. It is important to note that not all of the forest zone is actually covered by forest. For example 13.9 million hectares of the forest zone in Sumatra and 7.7 million hectares in Papua is noted as “non-forest.” See Table I.1.2, based on satellite data from 2009/2010 at http://www.dephut.go.id/files/BUku%20Statistik%20Juli%202012_terbaru.pdf.
[4] The legal arguments against the forestry department’s treatment of the majority of Indonesia’s forest zone as hutan negara centre on the fact that the government has ignored a legal requirement to ascertain that there are no other rights over the forest before they can be gazetted as state forests. The arguments are set out by Dr. Arnoldo Contreras-Hermosilla and Chip Fay in their paper Strengthening Forest Management in Indonesia through Land Tenure Reform, Issues and Framework for Action, Forest Trends, 2005, available online at http://www.forest-trends.org/documents/files/doc_107.pdf. Last year a Constitutional Court decision tightened up the rules for deciding what is and isn’t state forest further – see ‘Call to save Indonesia’s remaining forests’ in DTE 95, March 2013.
[5] The Greener Side of REDD+: Lessons for REDD+ from Countries where Forest Area is Increasing, RRI , 2011, quoted in ‘Indonesia upholds Indigenous People’s Rights to Forest, World Agroforestry Centre, 21 May, 2013.
[6] Forestry Department and National Statistics Agency data quoted in Komnas HAM press release 27/May/2013
[8] Abdon Nababan said the reconciliation process should begin with a government apology for past wrongdoing. The interview is available on Youtube at http://www.youtube.com/watch?v=7UmxcO_PbdU
[9] Declaration of Civil Societies: The Government Urged to Immediately Implement Constitutional Court Decision on Customary Forests, 27 May 2013. http://www.aman.or.id/2013/05/27/declaration-of-civil-societies-the-government-urged-to-immediately-implement-constitutional-court-decision-on-customary-forests/#.UaRz1Nhz4s1, accessed 28 May 2013.10] ‘Constitutional Court Annuls Government Ownership of Customary Forests, The Jakarta Globe, May 17, 2013, http://www.thejakartaglobe.com/news/constitutional-court-annuls-government-ownership-of-customary-forests/
[11] See ‘Implementasi Putusan MK, perlu dorong Daerah Bikin Perda Masyarakat Adat’, Mongabay Indonesia, 20 May 2013. http://www.mongabay.co.id/2013/05/20/implementasi-putusan-mk-perlu-dorong-daerah-bikin-perda-masyarakat-adat/ The article states that the Hutan Desa scheme is targeting 2.5million hectares within state forests in the 2010-2014 period. According to the ministry, licences for Hutan Desa covered around 83,000 hectares by November 2012. (Figures in Table 2, Data dan Informasi Pemanfaatan Hutan, Tahun 2012.
[12] Available on Komnas HAM’s website at http://www.komnasham.go.id/
[13] Reports of such resettlement schemes were often based on announcements by local officials that district-level or provincial-level resettlement targets had or had not been met.
[14] See ‘AMAN: Indonesia’s new indigenous voice’, DTE 41, May 1999.
[16] See DTE’s special edition newsletter 93-94 The struggle for Land, December 2012.
[17] For more details of MP3EI see ‘Big Plans for Papua’ DTE 92-93, May 2012.
[18] See ‘Policies and practice: favouring big companies over communities’ in The struggle for land, DTE special edition newsletter 93-94, December 2012.
[19] See ‘Indonesia’s Indigenous Peoples continue the struggle for recognition, DTE 91-92, May 2012.
[20] Toraja, Nunukan, Nagari, Sanggau and Dayak governance systems have been recognised through regional government regulations (Perda) and more communities have had their customary rights recognised through the same type of regulation, as noted by Sandra Moniaga in Peluang Hukum untuk Pengakuan Hak Masyarakat Adat atas Wilayah Adat (tanah ulayat), Powerpoint Presentation, Kapuas Hulu April 2012, revised May 2012.
[21] See http://www.iwgia.org/regions/asia/indonesia/871-update-2011-indonesia, which uses the translation: or “geographically-isolated customary law communities”.
[22] AMAN uses the English term ‘indigenous peoples’ for masyarakat adat. For more discussion on this and associated terms, see, for example, Marcus Colchester, Palm oil and indigenous peoples in South East Asia, FPP, Cirad, ILC, 2011 (p.6), and Marcus Colchester, Martua Sirait and Boedhi Wijardjo, Obstacles and Possibilities, The Application of FSC Principles 2 and 3 in Indonesia, AMAN & WALHI, 2003 (chapter 3).
[23] Indigenous Peoples in Indonesia, Overview, Alliance & Movement, AMAN Powerpoint Presentation http://www.angoc.org/Download-document/20-Indigenues-People-in-Indonesia.html
[24] See Noer Fauzi Rachman, Masyarakat Adat, Agrarian Conflicts, and Struggle for Inclusive Ctitzenship in Indonesia, paper presented at Conference on Property and Citizenship in Developing Countries, Copenhagen 28-31 May 2013.
[25] The principle of self-identification for indigenous peoples is upheld in ILO 169 (Article 1(2)) and in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
[26] See AMAN’s membership form at http://www.aman.or.id/wp-content/plugins/downloads-manager/upload/form_komunitas_anggota_aman.pdf. The Draft Law on the Recognition and Protection of indigenous Peoples, does not base recognition of masyarakat adat on the self-identification principle, but gives the national government and regional governments the job of identifying, verifying and validating indigenous peoples. The communities concerned have the right to appeal and decision within 90 days of the validation being made public. See Draft Law on the Recognition and Protection of indigenous Peoples (Indonesian language), September 2012. It remains to be seen whether this will be an effective means of identification, assuming the law is passed.
[27] Komnas HAM press release, 17th May 2013, available via http://www.komnasham.go.id/
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