On May 16, the Constitutional Court issued a ruling favoring the country’s indigenous peoples. It stated that customary forests were not state owned as earlier recognized, but belonged to local indigenous people. It was a historic ruling, which raises questions as to the fate of businesses that have already been issued permits in such state forests, and the consequent impact on the many land conflicts across the country. The Jakarta Post’s Prodita Sabarini looks at how the ruling will affect the people living in these areas.

The village of Muara Tae in Jempang, West Kutai, an East Kalimantan regency heavily dependent on mining and palm oil, is home to an indigenous tribe, the Dayak Benuaq.

For years, their customary land has been converted into open pit coal mines and palm oil plantations. Muara Tae’s young leader, 28-year-old Masrani, wants sued West Kutai Regent Ismael Thomas last August for drawing up a new village border to protect the last plots of their customary forests, .

The border led to them losing their forest to the next village, whose residents had agreed to let their land go for plantations. The court ruled in favor of the regent and Masrani appealed.

In April this year, Masrani lost his job as village leader. Under a decree, Thomas ended Masrani’s tenure.

For Indonesia, home to more than 1,000 ethnic groups, the world’s largest thermal coal exporter and one of the top palm oil producers, conflicts such as this one in Muara Tae — where various interests collide — have been a common feature of business involving large tracts of land. Many concessions for mining and plantations are allocated on customary land belonging to indigenous peoples.

Meanwhile, government conservation programs relating to protected forests also involve areas considered customary forests by indigenous peoples, making these forests inaccessible to those whose livelihoods have depended on them for generations.

The Indigenous Peoples’ Alliance of the Archipelago (AMAN) documented 48 conflicts between businesses, government and indigenous communities in 2011, affecting 947 families in an area of 690,558 hectares.

Erasmus Cahyadi from the organization’s legal and advocacy division said that almost all the conflicts were due to the government’s failure to recognize the rights of indigenous peoples over their customary land, especially customary forests.

AMAN’s documentation between October 2012 and March 2013 shows that some 224 indigenous people were criminalized for taking wood from forests turned into conservation or business areas.

The recent landmark ruling by the Constitutional Court on the 1999 Forestry Law signaled the recognition of the rights of indigenous peoples over their customary forests. According to the May 16 ruling, customary forests are not state forests, but “forests located in the areas of custom-based communities”.

But AMAN and other civil society groups understand that resolving conflicts and fighting for restitution remains a long battle amid a complicated land policy.

Prior to the ruling, as customary forests were treated as state forests, the Forestry Ministry granted concessions to businesses on customary land. “Many indigenous peoples were shocked by the enactment of the Forestry Law,”
Erasmus said.

Following the Constitutional Court ruling, some 20 regional coordinators from AMAN were in Jakarta to discuss follow-up strategies with civil society organizations including the Indonesian Forum for the Environment (Walhi),  the Indonesian Community Mapping Network (JKPP), as well as organizations specializing in land reform. Together, they organized a workshop to consolidate their strategies to push the government to implement the court’s ruling.

Margaretha Seting Beraan, AMAN’s East Kalimantan coordinator, was at the May 29 workshop. A high concentration of indigenous people and widespread mining and plantation activities makes her area prone to conflicts. “Many people called me, saying ‘the court has ruled in our favor, so now we can have our land back?’ but I had to say, ‘hang on, let’s not get ahead of ourselves’,” Margaretha said.

The court’s ruling on customary forests is unlikely to have much effect on  Muara Tae, for example. Margaretha said Muara Tae’s disputed forest was not part of the approximately 130 million hectares of the country’s designated forests, which are under the authority of the Forestry Ministry based on the court-reviewed Forestry Law. Muara Tae’s forest is instead under the authority of the West Kutai regent and is labeled, Other Usage Area (APL).

Further, despite a challenge by AMAN, the Constitutional Court ruling retained intact Article 67 of the law, stating that the recognition of customary forests was to be carried out by regional governments through bylaws. This means that for the indigenous people of Muara Tae to be recognized, the regency administration must issue a bylaw.

Contacted by phone in his village, Masrani said that whatever the status given to their customary forest “for us a forest is a condition. It’s not a territory that’s appointed by the government. The forest is protected by the people. It doesn’t come from the government”.

Ade Cholik Mutaqin, advocacy and campaigns officer with the JKPP, said the problem with customary land recognition was that several authorities governed the status of their land, but there was very little coordination between them.

The Forestry Ministry is regulated by the Forestry Law to oversee customary land within forest boundaries, while the land outside those forest boundaries is within the control of the National Land Agency (BPN) as regulated by the Agrarian Law. Further, these two institutions only recognize customary land that has been recognized through
regional bylaws.

Despite the provision of customary forest recognition by regional governments in the Forestry Law, no administration has issued a bylaw on customary forests.

However, West Sumatra has released a bylaw on the indigenous Nagari people. Other regional administrations that have released bylaws on indigenous communities are Central Kalimantan province, Lebak in Banten and North Luwu in South Sulawesi.

AMAN secretary-general Abdon Nababan has called for President Susilo Bambang Yudhoyono to establish a mechanism for indigenous peoples to register their communities and to map out their customary areas.

However, Forestry Ministry secretary-general Hadi Daryanto said that the government had yet to release official documentation on customary forests. The JKPP has mapped 3.9 million hectares of customary land, of which 3.1 million hectares is within forest areas.

According to Abdon, there is an estimated 40 million hectares of customary forests across the country.

Hadi said it was the ministry’s task to draft a government regulation to force local administrations to acknowledge customary forests in bylaws.

Nirarta Samadi, the Presidential Working Unit for the Supervision and Management of Development (UKP4) deputy who chairs a task force on forest monitoring, said the Constitutional Court ruling provided a new opportunity for regional administrations to recognize indigeneous peoples.

“Now we have an opportunity for a new process,” he said, referring to the court ruling. “It now feels right to use the avenue of bylaws; a political decision is indeed needed to create a positive atmosphere,” he said.

The Jakarta Post | Reportage | Mon, June 24 2013

The government is signaling the possible restitution of customary forests to indigenous communities after the Constitutional Court annulled the government’s ownership of customary forests.

Restitution, which Forestry Ministry secretary-general Hadi Dar-yanto said would be carried out by revoking business permits of companies operating in customary forests and by the reclamation of damaged areas, can start once regional administrations legally recognize customary forests on their territory.

Hadi said that businesses would be driven out of customary forests, which would then be “saved”.

“Even if there’s a concession for an HTI [industrial forest permits] or HPH [production forest concessions], as long as there’s a bylaw, then the companies will have to leave,” he said.

“The key lies with the regents. As long as there is no bylaw, there can be no [restitution],” he added.

There is one problem with the government’s intention to rescue customary forests: as yet, no regional administration has issued a customary forest bylaw.

Moreover, only a few administrations have enacted bylaws on indigenous communities. Out of more than 30 provinces, only Central Kalimantan and West Sumatra have issued bylaws on indigenous communities living in those provinces. Meanwhile, from around 400 regencies and cities, only four regencies — Lebak in Banten; Malinau in North Kalimantan; North Luwu in South Sulawesi; and Tana Toraja in Central Sulawesi — have passed bylaws on indigenous communities in their areas.

Hadi said the Forestry Ministry was working on a draft regulation to force local administrations to acknowledge customary forests in bylaws.

But he acknowledged that implementation still depended on local administrations. “If it’s election time, will they be willing to manage issues such as this? And we have 400 regencies and municipalities, that’s the challenge,” he said.

“If the regent is accommodating, the process will be fast. Let’s just be positive,” he said.

Indonesian Palm Oil Producers Association (Gapki) executive director Fadhil Hasan said he had yet to be informed of the plan to revoke business permits following the Constitutional Court ruling. He said that Gapki members adhered to government’s regulations on concessions.

Following the court ruling on customary forests, the Indigenous Peoples’ Alliance of the Archipelago (AMAN) and civil society organizations signed a declaration on May 27 welcoming the ruling.

Along with the civil society organizations and individuals, including a commissioner from the National Commission on Human Rights (Komnas HAM), Sandra Moniaga, AMAN called for the government to resolve conflicts relating to customary forests and natural resources on customary land. They also demanded an amnesty for indigenous peoples who have been criminalized for entering protected forest areas.

Abdon Nababan, AMAN’s secretary-general, also called for the central government to coordinate a mechanism for indigenous people to register their communities and map out their customary areas. At the moment, there is no official government data about the number of communities and their territories.

“President [Susilo Bambang Yudhoyono] should take a step toward collecting data on indigenous peoples, their customary land, and mapping out customary forests,” Abdon said.

Abdon doubted the financial feasibility of relying on bylaws for the recognition of customary forests. “There can be dozens of customary forests in a single regency. In that case, would a regency introduce dozens of bylaws? The cost to issue just one regency bylaw is around Rp 400 million [US$40,302] to Rp 700 million. If, for instance, there are 10 identified customary forests, it would cost between Rp 4 billion and Rp 10 billion to recognize all the customary forests in one regency,” Abdon said.

Komnas HAM commissioner Sandra Moniaga said the President should release a decree “to prevent confusion among communities”.

Currently, with no official identification of indigenous communities and their territories, indigenous peoples’ rights have only been nominally recognized. “The government should recognize indigenous communities in various other pieces of legislation,” she said.

Currently, lawmakers are deliberating a bill on the rights of indigenous peoples.

AMAN claims Indonesia has around 40 million hectares of customary forest. So far a civil society-led mapping of indigenous land by the Indonesian Community Mapping Network (JKPP) has documented 3.9 million hectares of indigenous land, of which 3.1 million hectares are forest areas, JKPP coordinator Kasmita Widodo said.

The network has submitted its preliminary mapping of 2.4 million hectares of customary forests to the Presidential Working Unit for the Supervision and Management of Development (UKP4), which is working on an integrated map of Indonesia.

— JP/Prodita Sabarini

The Jakarta Post | Reportage | Mon, June 24 2013