Recognition of indigenous peoples stuck in red tape

Native colors: Indigenous people’s rights activists wear traditional clothing while rallying at the Hotel Indonesia traffic circle, Central Jakarta, in this photo taken on March 17. The activists demanded rights to customary land and its resources for indigenous communities. JP/Nurhayati

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

Restitution of customary forests: Not so fast

Bald patch: An aerial view of a coal mine in the middle of a Samarinda forest in East Kalimantan. Antara

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

NGO maps out indigenous community territories

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Rahmat Sulaiman, information and documentation manager with the Community Mapping Network (JKPP), sat facing his laptop at his office in Bogor. He clicked his mouse, and a map of Indonesia appeared on his screen.

Another click and small red-lined areas emerged on Sumatra, Kalimantan, Sulawesi, Papua and Java. He clicked again and an overlay of mining concession areas covered the red-lined areas.

A final click brought another overlay showing oil palm plantation concessions. The red-lines marked the territory of mapped indigenous communities in Indonesia.

The map, which shows how business concessions overlap with customary land belonging to indigenous communities, can be accessed at geodata-cso.org.

A group of NGOs — the JKPP; the community and ecological-based Society for Legal Reform (HuMa); Sawit Watch; the Consortium for Agrarian Reform (KPA); the Consortium in Support of a Community Forest System (KpSHK); and the Mining Advocacy Network (JATAM) — established the website to document and track land conflicts in Indonesia.

As of now, around 222 reports of land conflicts have been documented on the Geodata website. JKPP advocacy and campaigns officer Ade Cholik Mutaqin said the reports were compiled from data from the Indonesian Forum for the Environment (Walhi) and other NGOs. Most of the conflicts are between indigenous communities and businesses and/or government.

The resource-rich Kalimantan contributed the highest number of land conflicts. According to data from Walhi’s East Kalimantan branch, following the enactment of the Masterplan for the Acceleration and Expansion of Indonesian Economic Development (MP3EI) in 2011, some 135 communities became involved in conflict with businesses. Most of the land conflicts, according to Walhi, involved palm oil plantations, followed by logging and mining firms.

Maps of indigenous communities are provided by the JKPP, which as of now has mapped 3.9 million hectares of customary land. Ade said the JKPP used a participatory method of mapping, in which the whole community held a consultation to agree to have their area mapped out. Information of the borders of customary lands were passed on mainly through storytelling from one generation to another, Ade said.

Given the absence of a national mechanism to identify and map out territory belonging to indigenous communities, AMAN, the JKPP and several other NGOs have set up the Ancestral Domain Registration Agency (BRWA) to allow indigenous communities to register their ancestral domains.

Ade said the idea behind the BRWA was to provide a map of customary land. “We wanted to be prepared for the court ruling. If it [the Constitutional Court] ruled that customary forests belonged to indigenous peoples, we wanted to be able to show where those customary forests were located,” he said.

— JP/Prodita Sabarini

 

The Jakarta Post | Reportage | Mon, June 24 2013

Indigenous communities set to mark out their territory

Indigenous communities will be erecting placards in their customary forests, stating that they do not belong to the state, following the Constitutional Court ruling that annulled state ownership of the areas.

During a consolidation workshop in Jakarta last month following the court ruling on customary forests, members from the Indigenous Peoples’ Alliance of the Archipelago (AMAN) and other NGOs working on land reform and the
environment agreed that indigenous communities should put up signs as a first step toward reclaiming their land.

The activists agreed that the move, which was cheekily dubbed “plangisasi”, a made-up word that sounds like the word “rainbow” in Indonesian (pelangi) by combining plang (placard) and sasi (process), would only be carried out if all the communities agreed and if they were supported by NGOs in their areas.

Nur Amalia, from the Indonesian Women’s Association for Justice (APIK) who was present at the meeting, said that other civil society organizations agreed that support was a precondition for putting up the placards, so as to avoid conflict.

Some customary leaders, however, are reluctant to put placards up out of fear of triggering conflict in their area. Yohanes, 35, a village leader in Sekatak district, Bulungan regency, East Kalimantan, said he had heard about the placard suggestion but added that each village had their own considerations.

In Yohanes’ village, areas of customary forest belonging to the Punan, Kenyah, Tidung, Belusu and Bulungan tribes were handed out as concessions during the Soeharto era to Intraca Wood Manufacturing, a timber producer owned by Hartati Murdaya.

Yohannes said he did not want to create conflict in his area. More than 30 people from his village have been criminalized for taking wood out of the forest.

Meanwhile, Masrani, a former village leader of Muara Tae in Jempang, West Kutai, said they had erected placards even before the Constitutional Court ruling.

Masrani said he welcomed the court ruling but that the implementation of the ruling faced many obstacles.

The Indonesian Community Mapping Network (JKPP) has mapped 3.9 million hectares of customary land, of which 3.1 million lie within forest areas. According to AMAN’s secretary-general, Abdon Nababan, there were an estimated 40 million hectares of customary forest in Indonesia.

Prodita Sabarini, The Jakarta Post, Jakarta | Headlines | Mon, June 24 2013

Indigenous Dayaks struggle to hold on to their lands

 Village meeting: Yua (far left) and village leader Yohanes (second from left) participate in a local community gathering in Sekatak district, Bulungan regency. Yua witnessed the forceful eviction of indigenous people in Bulungan during the Soeharto era to make way for a wood manufacturing company. (JP/Prodita Sabarini)

Village meeting: Yua (far left) and village leader Yohanes (second from left) participate in a local community gathering in Sekatak district, Bulungan regency. Yua witnessed the forceful eviction of indigenous people in Bulungan during the Soeharto era to make way for a wood manufacturing company. (JP/Prodita Sabarini)

Yua is a small man with fine lines on his face. He does not know how old he is but he remembers vividly the time when he was newly married and saw men with green uniforms holding rifles entering his village in the forest near the Sekatak River in Bulungan regency.

He is from the Bulungan tribe, one of the 400 Dayak ethnic groups in Kalimantan. He said that the men in uniform came into his village in the early 1970s and forced the people to move closer to the river. Four decades have enabled him to recall the forceful relocation with humor.

“They soaked them,” Yua said, chuckling. He was sitting on the floor in the house of Yohanes, 35, a village leader in Sekatak district. Yohanes explained that those who resisted the relocation were made to go into the river by the soldiers and stay neck-deep in the water for hours.

“They stripped them,” Yua added. “They pointed their guns.”

Under former president Soeharto’s rule, many indigenous groups in East Kalimantan that are connected to the land and forest around them have been forced to relocate, their ancestral lands given away as concessions for mining and timber production.

Yohanes said that seven indigenous settlements from the tribes of the Punan, Kenyah, Tidung, Belusu and Bulungan were relocated to what is now the Sekatak district. The central government gave the ancestral lands to Intraca Wood Manufacturing, a timber producer, owned by Hartarti Murdaya, he said.

The Reformasi era after the fall of Soeharto, which included decentralization, did not do much to change the plight of indigenous people. Their lost lands remained in the hands of private companies.

Internationally however, the rights of indigenous people are starting to gain ground through the non-binding UN Declaration of the Rights of Indigenous People, which includes the rights of indigenous people to “free, prior and informed consent” of projects in their customary lands. In Indonesia, legislative members are deliberating a bill on the recognition and protection of indigenous people.

In Samarinda, the National Alliance for Indigenous People (AMAN) East Kalimantan coordinator Margaretha Seting Beraan said that the tension between the Unitary State of the Republic of Indonesia (NKRI) concept and indigenous people’s rights could be seen in the difference between the latter’s suggested draft of the bill and the legislature’s. In the bill, recognition for indigenous people’s rights was conditional on the principle of NKRI.

“Actually, I don’t agree with the concept of NKRI if they homogenize groups. I only agree with the NKRI concept if pluralism is respected,” Margaretha said. “Basically we come from different cultures with different customs and laws that come together in one country,” she said.

Back in Sekatak, village leaders say their people rely on the forest and land. Having been pushed out from their ancestral forest, many of their people have been criminalized for illegal logging. “We have at least 50 people jailed for illegal logging,” said Zainal Abidin, 37, leader of Ujang village in Sekatak.

He said that people used the wood to build their houses, climbed the trees searching for honey from giant beehives and planted fruit trees and rice.

Margaretha, who comes from the Dayak tribe called Kayan, said that Kalimantan’s indigenous people came from Yunnan, the southwest part of China that borders Southeast Asian countries such as Laos,
Vietnam and Burma.

“Some come from Sumatra and some come from the Philippines,” she said. “The Punan was believed to be the oldest group that came here and the rest mixed with people who came later and created subgroups,” she said.

Each group would settle on a plot of land and develop its language and customs, she said. The borders of each group’s land are usually determined by the hills and rivers. “If the water from the mountain flows down toward a tribe’s village then it’s considered part of that tribe’s land. If the water flows the other way, then that belongs to another tribe,” she said.

Each ethnic group understands the respective borders, she added, and customary leaders usually settled disputes using customary law. The authority of administrative governments and their power over land however, undermines customary ways. This not only worked to the government’s advantage in giving concessions to private companies, but also caused conflict between villages like in the case of Muara Tae, West Kutai, according to Margaretha.

Kutai Barat regency has made concessions on Muara Tae’s land to a palm oil company. Masrani, a village leader, said the palm oil company started to bulldoze the ancestral forest there, which belonged to the Dayak Benoaq in Muara Tae, after a neighboring village claimed that Muara Tae’s land was theirs. He said that people from Muara Ponak village gave away land that was within Muara Tae’s customary village border to a palm oil company in 2010.

While bulldozers have started to cut off the forest, the regent, Ismael Thomas, released a decree saying that the 638 hectares of land that were cleared were Muara Ponak’s. “But this is our land that has been passed on for generations. Our village border with the neighboring village is nature’s border. We have different rivers with Muara Ponak, there’s a hill and that becomes our border,” he said.

Margaretha said that disputes of customary land could be solved using customary law, but that the government’s commercial interests in those lands undermined these laws.

In West Kutai, customary leaders even had to be officiated by the administrative government, which made it easier for the regional government to control local communities there. “The customary leaders become government pawns because their position depends on the government,” Masrani said.

As the national law does not explicitly recognize the protection of customary land, Margaretha said that the Muara Tae had community fought for their rights through various avenues, including by filing a complaint to the Kuala Lumpur based-Roundtable on Sustainable Palm Oil. Despite these efforts, the palm oil company continues to operate on their lands.

East Kalimantan province has a slogan for its 2009-2013 development plan: “Building Kaltim for all”. The government is preparing big projects to speed up development. One of them is the Maloy Industrial Zone and International Port. Margaretha is worried how it will affect indigenous people in the area.

When Governor Awang Farouk Ishak was asked whether the development would consider the rights of indigenous people, he answered: “We do not differentiate between religious groups or ethnic groups. Every one should enjoy progress.”

Margaretha says indigenous groups are concerned because experience shows that the government’s approach has exploited nature, while the groups themselves have learnt to live and care for their natural surroundings.

JP/Prodita Sabarini and Nurni Sulaiman, Bulungan/Samarinda

The Jakarta Post | Special Report | Fri, January 18 2013