Deliverable 5B.

(Rev)
30 January 2021

Access to Effective Remedy for

Women and Indigenous People in the Mining, Plantation and Tourism Sectors
By Prabianto Mukti Wibowo

Introduction

Indonesia is blessed with abundant natural resources that have enormous potential for
economic development and, if managed properly, could provide a strong base for the
livelihood of its people. Of the natural wealth dispersed in the Indonesia landmass, 35% is
subject to land-based business activities, including the mining, logging, palm oil plantations,
and tourism.1 Indeed, the existence of mining, palm oil plantations and tourism industries in
Indonesia have often been regarded as a catalyst for accelerating local and regional
development and increasing community well-being in many areas. This is particularly true for
many districts (Kabupaten) where local governments generally lack of funds and capacity to
provide public services. Several multinational mining, plantation and tourism companies
operating for many years in remote rural areas, in some ways have acted as “proxies” for local
governments (i.e., districts and subdistricts) in many development areas. The companies
created wealth and jobs, delivered public services, and generally improved the welfare of the
people. However, their operations have not been without adverse consequences, and
problems have increased significantly in the last decade. The above-mentioned industries
hold the inherent risks to adversely affect all issues concerning human rights, and in most
cases women and indigenous people are among the worst- affected.2

The United Nations Guiding Principles on Business and Human Rights (UNGPs) provides
the internationally agreed reference framework for economy, justice, politics and civil society,
specifying corporate responsibility to respect human rights wherever businesses operate in
the world. Accordingly, businesses must prevent their activities from adversely affecting
human rights, and provide remedy in case of abuse. This responsibility refers not only to their
own acts (and failures to act), but also to their immediate impact on human rights with
respect to business operations, goods and services – even if they themselves have not
contributed to this impact.

1
https://www.oxfam.org.au/wp-content/uploads/2011/11/OAus-TunnelVisionWomenMining-1102.pdf
2
https://www.researchgate.net/profile/Budy_Resosudarmo/publication/294696093_Socioeconomic_
conflicts_in_Indonesia%27s_mining_industry/links/58a2692caca272046aafe8be
 Deliverable 5.B (Rev.)
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According to the Guiding Principles, this means, that companies should act with human
rights due diligence in all of their business activities to avoid infringing on the rights of others,
and addressing harms that do occur.3 Access to remedy is a duty shared by states and
businesses. Hence, appropriate steps must be taken to ensure that when such abuses occur,
those affected have access to effective grievance mechanisms and appropriate
compensation.

Against this backdrop, this article provides an analysis of human rights and environment
impacts of land-based business activities – mining, oil palm plantations, and tourisms – in
Indonesia, especially on women and indigenous people. It also presents a broad overview of
the existing grievance mechanisms that have been applied in the three business sectors, and
feedback for future improvements.

Assessing Human Rights Risks and Impacts of Business Activities: Mining, Plantations, and
Tourism Industries
Mining, plantations and tourism business activities have significant risks and impacts on
human rights. However, they continue to expand under large-scale concessions, depleting
natural resources and negatively impacting the livelihoods of millions of indigenous peoples
and smallholder farmers. Unsurprisingly, farmers’ resistance and opposition to private
plantations, mining companies, and developers has spread across Indonesia in recent years,
as local and multinational companies are allowed to seize and deforest customary lands.

Mining, plantations and tourism business activities have also been associated with land-
grabbing and displacement of local communities and indigenous peoples, and pollution that
impacts on the right to food and the right to health. More specifically, the human rights
impact of these business activities is described below.

1. Mining Industry

The presence of a large-scale mining industry in Indonesia has the potential to create
social conflict and serious human rights violations. Mining activities have disregarded
women's rights, resulting in the further marginalisation and impoverishment of women. The
following list represents a consolidation of women’s grievances affected by mining activities:

3
https://www.humanrights-in-tourism.net/file/537/download?token=McFCnQ7b

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a. Companies entering into negotiations only with men, making women neither party to
the negotiations, nor beneficiaries of royalties or compensation payments - as a result,
women are stripped of their traditional means of acquiring status and wealth. For
example, social dynamics resulted in the marginalisation of women during
compensation negotiations with PT Freeport in Timika, Papua.4 During these
negotiations it was determined that compensation payments in the form of the 1% fund
would be distributed to men, as it was believed that they fairly represented women's
interests. As such, the women of Timika have suffered a double blow at the hands of
the mining company. Firstly, mining companies have evicted them: their livelihood
resources have been taken and destroyed. Secondly, the women do not have the right
to receive or manage compensation payments. In addition, men's sole receipt of
compensation payments has resulted in increased alcohol consumption, increased
violence against women, and increased violence in households;

b. Women generally have little or no control over and access to any of the benefits of
mining developments, especially money and employment. They therefore become
more dependent on men who are more likely to be able to access these benefits;

c. The traditional roles and responsibilities of women are marginalised as the community
becomes more dependent on the cash-based economy created by mine development;
For example, Newmont Nusa Tenggara's mining activities in Sumbawa have stopped the
production of palm sugar, an economic activity normally undertaken by women. As a
result, women have lost an income of approximately Rp. 20,000 per day;

d. The workload of women increases as men work in a cash economy created by mining
operations and women have increased responsibility for the household and food
provision through traditional means;

e. Women become more at risk of impoverishment, particularly in women headed

households. For example, coal mining in South Kalimantan has prevented women from
earning income from rubber plantations. This loss of income is equivalent to 2 kg of
rubber or Rp. 14,000 per day.

4
https://www.oxfam.org.au/wp-content/ uploads/2011/11/OAus-TunnelVisionWomenMining-1102.pdf

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f. Women suffer from an increased risk of HIV/AIDS and other STD infections, family
violence, rape and prostitution - often fuelled by alcohol abuse and/or a transient male
workforce. For example, Timika is a mining town Papua, where the large goldmining
company, PT Freeport Indonesia, has operated since 1972, the spread of HIV/AIDS is at
alarming rate. Despite efforts to prevent the spread of HIV/AIDS within the community,
the number of infections continues to increase.

g. Women suffer active and often brutal discrimination in the workplace. For example, In
East Kalimantan, women who choose to work as mine workers with PT Kelian Equatorial
Mining (PT KEM) are forced to endure sexual discrimination. In addition, "female" job
seekers are often forced to fulfil the sexual needs of higher ranked employees.
Consequently, as a result of the working conditions being forced upon them by mining
companies, women's reproduction rights have been subject to abuse.

These grievances represent a denial of the basic human rights of women from
communities affected by mining. They do not represent natural occurrences within the
community, but are the result of gender insensitive projects that fail to consider the strategic
gender interests of women affected by the project. As a result, the mining operations have
further disadvantaged and disenfranchised women in these communities. As in many other
countries, mining activities in Indonesia have a long history of sociocultural, economic, and
environmentally driven conflicts between mining operators and local and/or indigenous
communities. In Indonesia, much of the conflict is triggered by the allocation of mining
permits or contracts to companies on community or indigenous lands. For example, a gold
mining company PT IMK has occupied customary lands belonging to the Dayak Siang and
Bakumpai community, in Murung Raya Regency, Central Kalimantan. When the community
were displaced and evicted from their own land, companies was not recognising the religious
and spiritual connections of indigenous women to their environments and land. Similarly, a
number of traditional miners in Kutai Barat Regency, East Kalimantan, have been forcibly
evicted from their economic activity by a multi-national mining company. This eviction has
been carried out using the government's claim that the community members are "illegal
miners". This is a violation of the citizen's economic and socio-cultural rights.5

5
https://www.oxfam.org.au/wp-content/uploads/2011/11/OAus-TunnelVisionWomenMining-1102.pdf

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2. Palm Oil Plantations

The palm oil sector holds the promise of economic growth, employment and
development, but is also widely acknowledged as entailing significant social and economic
risks. Human rights concern in the sector relate to the displacement and dispossession of
indigenous people and local communities from their lands as the sector rapidly expands and
plantations are established in frontier areas; and the social and economic rights of
smallholders and landless labourers who often work in conditions that entrench rather than
alleviate their poverty.

Women play an important role in the palm oil plantations in Indonesia, almost half of
the plantation’s workforce is comprised of women.6 However, despite providing a backbone
to one of the nation’s most economically important sectors, women in palm oil plantations
have been marginalized and often have little access to financial resources, knowledge and
technology to improve their crop yields and in turn better their lives.

Gender inequality in palm oil industry is widely recognised as an issue that must be
addressed urgently. In the palm oil industry, although women have contributed significantly
to the work and operations on oil palm plantations, employment has long been men-
dominated. The following list represents human rights impact of oil palm plantations, which
affect women and indigenous people:

a. Women are usually employed as casual workers with low job quality, and under
seasonal contract. While most of the men dominantly work in the mill as permanent
workers. Casual workers in Indonesian palm oil plantations are mostly paid below the
normal minimum wages because they are considered unskilled labour. As seasonal
workers, women are not entitled to paid maternity leaves and menstrual leaves despite
having worked there for years.

b. Women can be unpaid for fruit collection as their contribution is sometimes used to
help meet their spouses’ production quotas rather than for personal profit. This
happens because instead of definitely being paid by hour, workers in palm oil plantation

6
Forum Kelapa Sawit Berkelanjutan Indonesia, 2016. Empower Women in Palm Oil, Empower Indonesia.
Downloaded from http://foksbi.id/id/berita/baca/03-07-2016-empower-women-in-palm-oil-empower-
indonesia

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are usually paid based on the daily target achievements. If they do not meet their
target, they may ask spouse for help. This practice can potentially lead to forced labour.

c. Women, and their children, also often bear the brunt of health hazards whilst working
in the palm oil sector. A report from West Kalimatan reveals that in one village almost
three out of 10 women who worked on the surrounding oil palm plantations were
treated for skin irritations caused by spraying pesticides without the use of appropriate
safety apparel. As provided in ILO Convention No. 187, companies are responsible for
giving health and safety protections to the workers. Unfortunately, some companies do
not provide any healthcare facilities for the workers. In addition, forest and peatland
fires and toxic haze may also cause significant long-term health hazards to women and
children who lives in and around plantations.

d. Beyond the direct disadvantages experienced by women on oil palm plantations are
negative environmental consequences, which can have serious implications for women
and their families. Environmentally irresponsible practices on oil palm plantations have
led to deforestation, a decrease in groundwater, and pollution from run-off in nearby
lakes and rivers. As a result, it is difficult for women to gather firewood and access clean
water for household chores like washing, cooking and cleaning. For example, in the
village of Keladi, in the Ketapang district of West Kalimantan, people are beginning to
experience a shortage of clean drinking water because the river they use for their
supplies is downstream of a large oil palm plantation.

e. Women’s lack of voice within their communities has made them especially vulnerable
to dispossession. Women’s livelihood activities are often the first to be affected by the
development of large-scale plantations, which curtails their ability to collect fuel, fodder
and foodstuffs from hitherto forested areas.

f. Land acquisition for oil palm plantations in particular has been noted for its negative
impact on indigenous people. They have seen their customary forests devastated by
large-scale logging, mining, plantations, tourism, transmigration and other industrial-
scale schemes in the name of development. Indigenous communities have suffered
significant harm since losing their lush ancestral forests to oil palm plantations. For
indigenous peoples, a violation of their land rights poses not only a threat to their

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livelihoods but also to their cultural existence as their land forms an integral part of
their belief system. As was reported by the Human Rights Watch7, there were two palm
oil companies in West Kalimantan and in Jambi have had a devastating impact on the
rights of two indigenous peoples, namely: the Ibans, a subgroup of the Dayak peoples
indigenous to Borneo (Kalimantan), and the Orang Rimba, a semi-nomadic, forest-
dependent indigenous people in Jambi. In both communities, women experienced
distinct losses in passing on intergenerational knowledge and skills, such as weaving
mats and baskets made from forest products. Several Indigenous women also said they
had lost sources of supplemental income.

3. Tourism Industry

Tourism is one of the priority sectors of Indonesia’s economic development. This sector
is considered to have a sizeable economic linkage so that it can contribute significantly to the
national economy. The tourism sector’s contribution to GDP has been increasing sustainably.
The contribution had increased from 4.25 percent in 2015 to 8.0 percent in 2019. It is
estimated that nearly ten percent of Indonesia's total national workforce is employed in the
tourism sector. However, Indonesia’s development policy promoting economic growth has
given priority to granting exploitation permits to large-scale economic enterprises over
indigenous territories.8

Despite positive impacts, tourism industry can also bring negative consequences for
human rights and environment. Tourism affects many aspects of human rights, such as the
right to information and participation in decision-making processes, to protection against
discrimination, to housing, food, water, health and education, to work with dignity, to join
trade unions, to protection against forced labour and to privacy. In addition, tourism can
result in the displacement of local people as a result from land acquisition. in a number of
ways. People are evicted from their homes either by governments or developers. In other
cases, they are forced to move due to environmental disasters or economic reasons.
Frequently tourism causes dramatic price rises and local people can no longer afford rents
and are forced to migrate.

7
https://www.hrw.org/ sites/default/files/report_pdf/indonesia0919_web.pdf
8
https://www.oaklandinstitute.org/sites/oaklandinstitute.org/files/indonesia-world-bank-failed-east-asian-

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As in many other sectors, women and local people are the most vulnerable victims of
human rights violations in tourism industry. The following table represents some negative
consequences of tourism industry for women and indigenous people.

Women’s Rights Indigenous People’s Rights

1. Gender discrimination at a workplace 1. Forceful displacement

2. Unwanted sexual attention
3. Economic inequalities increased by
loss of traditional jobs, cultural
barriers to entry to jobs in the tourism
industry
4. Time lost fetching water, diverted
from other activities
5. Trafficking for sex tourism purposes.
2. Barring access to pastures,
hunting grounds or water
3. Nature conservation areas used as
a justification for eviction
4. Culture exploitation (dignity and
privacy rights)
5. Ignorance of free, prior and
informed consent (FPI) rights

In Indonesia, tourism has almost twice as many women employers as other sectors, but
they mostly work in part-time, informal, seasonal, agency, and casual work. Tourism
employment tends to be structured in gender pyramids pushing women into lower job levels.
Women in tourism appear to be concentrated in gender specific jobs (e.g., servers, cleaners,
travel agency sales persons) resulting in gender-related gaps in payment and job status.
Women are contributing a substantial amount of unpaid labour to home-based tourism
businesses as contributing family workers. For example, homestays and handicraft activities
can further burden women who are already overworked if there are no safeguards in place
to ensure women receive their due income.

Women continue to be paid less and are underrepresented in certain tourism

occupations and management levels. Women typically earn 10-15% less than their male
counterparts. World Bank study found that women are greatly underrepresented in the
tourism sector. Fewer women in decision making roles in tourism than men. Only 5% of firms
have a female managing director and only 4% have female majority ownership.9

9
https://openknowledge.worldbank.org/bitstream/handle/10986/28535/IFC_Women%20and%20Tourism%20
final.pdf?sequence=1&isAllowed=y

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Women work often in strenuous working conditions. As a tour guide or hotel desk
agents, they have to work in close contact with people from all over the world who might not
be familiar with their cultural norms. Hotel, catering and other service positions often involve
challenging and strenuous work, as well as standing for long periods of time.

Women are more likely to be victims of sexual exploitation from tourism. Poverty-
trapped households are at increased risk for prostitution and child trafficking. This can occur
through tourism or through the construction teams with temporary laborers often attracted
by tourism development. For example, a young girl waitress in a popular Jakarta’s
entertainment district. In the impoverished urban area, the parents have no other choice but
to send their daughter to work in the tourist centre instead of sending her to school.

Tourism development has become virtually synonymous with water depletion, scarcity
and shortages. Moreover, extensive landscaping, water parks, swimming pools and golf
courses are typical tourist facilities that require water during the dry season. In many regions
in Indonesia, water is typically the responsibility of women. Therefore, women suffer to a
greater extent when water resources are mismanaged as many have to walk for several hours
every day to find it. Apart from increasing their workload, they lose out on their right to
education-essential for strengthening their position in society and for efficient poverty
eradication. Apart from water depletion, the tourism industry is also known for polluting
water sources due to its mismanagement of water and inadequate sewage systems, which is
adversely affecting local community’s health.

Tourism can also result in the displacement of indigenous communities. People are
forcibly evicted either by governments or developers because their lands have been
designated for tourism development. There are examples of land conflicts between local
communities and government or developers during land acquisition process for tourism
development in Indonesia. In November 2019, a land conflict has erupted in Bali, where 50
families of local community and a resort developer have squared off over a 144 hectares (356-
acre) site in one of the most fertile parts of the island. The Resort Developer claimed that it
has the rightful owner of the land, having obtained the necessary permit in 1997. But the
families said that they have cultivated the land for generations, and that the developer has
not done anything with the land since acquiring the permit. It was only in 2019 that the
company announced it would begin developing the land. No concrete plans have been

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announced, although locals say they have heard a new golf course is in the pipeline. The
conflict escalated when workers backed by hundreds of police officers drove bulldozers in the
village to clear the families’ farms. The families formed a human shield to block them, with
the women staging a topless protest.

Another land conflict took place at the Mandalika coastal region on the island of
Lombok, next to Bali. The government is building a 4.32 km (2.68-mi) circuit in Mandalika to
host the MotoGP racing series from 2021. At least 145 households in two villages will be
relocated to make way for the circuit. Some locals have opposed the project by erecting
fences around some of the affected plots. They claimed that the developer has not paid any
compensation and they relied on the land to access the road networks. The local communities
feel disadvantaged because they have become victims of land acquisition for the construction
of a circuit that is integrated into the tourism area.

Other common violated rights over indigenous people are dignity, privacy and free,
prior and informed consent (FPIC) rights. This violation happens when people and their homes
are made into tourist attractions without their free, prior and informed consent and without
any intention to make them rightful stakeholders in a profitable industry. For example, the
tourism industry and its clients have profited on the exploitation of the Dayak tribes in
Kalimantan for years. The images of the “Dayak long house” and Dayak woman who have
elongated earlobe with silver or iron earrings dangling up to their shoulders, without their
consent, seen plastered all over vacation brochures and circulated amongst tour agents.

Available Grievance Mechanisms

In addition to positive impacts on economic development, land-based business

activities such as mining, plantations and tourism are also sometimes associated with
significant human rights abuses – for example through land dispossession and forced
resettlement, exploitation of workers, environmental damage or harm to peoples’ health.
According to the UNGPs, States and Corporates have the duty to provide remedies to
individuals or people who suffer harm due to human rights violations. Guiding Principle-1
requires States to take "appropriate steps to prevent, investigate, punish and redress"
business-related human rights abuses within their territory and/or jurisdiction. While Guiding
Principle-22, provides that where "business enterprises identify that they have caused or

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contributed to adverse impacts, they should provide for or cooperate in their remediation
through legitimate processes". The UNGPs envisage the following three types of mechanisms
to provide access to effective remedy in business-related human rights abuses: (1) state-
based judicial mechanisms, (2) state-based non-judicial grievance mechanisms, and (3) non-
state-based grievance mechanisms.10

Judicial mechanisms are the core of accessing remedy. Unfortunately, judicial remedy
in Indonesia suffers from several shortcomings. In dealing with human rights issues against
corporations, the judicial system is frequently impeded by failures of domestic legal systems,
significant structural imbalances of power between corporations and local communities, and
distance of various types including – geographic, cultural, bureaucratic, political and economic
– from decision-makers and established redress mechanisms. The victims tend to have limited
capacity to file lawsuits or to pursue other avenues. Seeking justice through courts regarding
human rights violations by the corporations remains difficult. Although, the legal process has
clearly defined deadlines for rendering decisions, but given that the capabilities of courts in
different parts of the country can vary widely, this does not ensure that they will return a
decision on time. It is not uncommon that the claimants had to go through a long process
with multiple challenges. As a result, plaintiffs encounter difficulties in finding adequate
access to judicial remedies under Indonesian Law.

Alternatively, victims are looking for access to remedial mechanisms through non-
judicial grievance mechanisms (NJGMs). There are several NJGMs available to address human
rights issues in Indonesia, among others include: Industrial Relations Court, National Human
Rights Institutions (NHRI), Ombudsman Offices, and Multi-Stakeholder Initiatives (MSIs).
NJGMs play an important role to complement and supplement judicial mechanisms. UNGPs
Principle 27 suggests that judicial remedies are not always required. Even if they are effective,
they are not always successful in solving most alleged abuses because they cannot carry the
burden of addressing all alleged abuses. Also, judicial mechanisms are not always favoured by
the claimants because they are costly, prolonged, and inflexible. Therefore, avenues to
judicial enforcement are not always accessible for victims of human rights abuses, making
NJGM the only available option for them.

10
https://www.ohchr.org/EN/Issues/Business/Pages/AccessToRemedy.aspx#:~:text=
The%20UNGPs%20envisage%20the%20following,%2Dstate%2Dbased%20grievance%20mechanisms.

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This paper focuses on Multi-Stakeholder Initiatives (MSIs) as non-state-based grievance

mechanisms (NSBGM). The term MSIs tends to be used to define a voluntary initiative where
several stakeholders cooperate in addressing sustainability, corporate social responsibility,
and human rights problems. These stakeholders include, but not limited to companies, NGOs,
trade unions. These initiatives are usually set up by multiple corporations under the same
industry to develop standards that the members should voluntarily respect. Companies are
involved in MSIs in order to prevent and mitigate impacts of human rights violations in their
supply chain. MSIs is considered as an early warning system regarding grievances and
providing a feedback loop for management to prevent future escalation. Although the
outcome is not binding like judicial decision, the outcome of MSIs has been proven effective
and socially binding.

Within the palm oil industry, the MSIs have established a sustainable certification
scheme, known as the Round Table on Sustainable Palm Oil (RSPO). Many Indonesian palm
oils companies are certified by RSPO. Indonesia has the most significant number of complaints
registered in the RSPO. Several parties considered the RSPO’s Complaints System as a much
more accessible mechanism rather than the judicial ones. An example of grievance process
through MSIs was the case of one of the world’s biggest palm oil company operates in Jambi,
Indonesia. The company has been the target of complaints to the Office of the Compliance
Advisor Ombudsman (CAO) for the International Finance Corporation (IFC) and Multilateral
Investment Guarantee Agency (MIGA) (henceforth referred to as ‘CAO’), and the Roundtable
on Sustainable Palm Oil (RSPO), among other local non-judicial mechanisms. These
complaints centre around human rights issues associated with violations of land rights of
indigenous people and local communities, and to a lesser extent with transformation of
livelihoods to smallholding ‘plasma’ arrangements, and violence and intimidation when
protesting against companies. Despite the best efforts of largely well-respected mediators,
the mediation processes failed to deliver any tangible outcome. The complaints processed
did, however, have other noteworthy effects, including: the big palm oil company has
broadened and strengthened its institutional commitment to human rights issues, and
established a company-level grievance mechanism.11

11
Balaton-Chrimes Samantha and K. Macdonald, 2016. Wilmar and Palm Oil Grievances: The Promise and
Pitfalls of Problem Solving. https://corporateaccountabilityresearch.net/njm-report-viii-wilmar.

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In mining industry, an example of MSIs mediation process was a nickel mining company
case, which breached indigenous’ and seaside communities’ rights at Halmahera Island in
North Maluku, Indonesia. The mining operation was embroiled in significant controversy over
the disruption of the livelihoods of the affected villages, and the Tobelo Dalam, an indigenous
tribe inhabiting part of the mine’s concession area. The initial exploration and feasibility
phase of the project was marred by the encroachment of the rights of these people —
including improper land acquisition and compensation procedures, corruption, intimidation
sponsored by state and company, and also raised issues regarding cultural, environmental
and health rights.

In this case, a complaint was made to the CAO alleging that the mining company was
in violation of all eight of the International Finance Corporation’s (IFC) required Performance
Standards on Environmental and Social Sustainability. The complaint argued that the project
will have widespread negative environmental and social consequences that were not fully
considered or disclosed in the Environmental Impact Assessment (AMDAL) required by the
Indonesian government. Particularly in relation to social risks, the complaint argued that the
company had not taken seriously the risk of displacement of and impacts on the Tobelo Dalam
people in their assessments. The complaint was made by a consortium of Indonesian NGOs
primarily concerned with the project’s environmental impacts. At the end, the CAO complaint
had no tangible effect on human rights outcomes for affected communities because
communities were too fearful for their safety to be identified, and did not adequately
understand other options available to them.12

Conclusion and Recommendations

In addition to positive impacts on economic development and local livelihoods, land-

based business activities such as mining, plantations, and tourism industries are sometimes
associated with significant human rights violations – for example through land dispossession,
displacement and forced resettlement, exploitation of workers, environmental damage or
harm to peoples’ health. Under UNGPs and other International Laws, business enterprises
that have caused or contributed to adverse impacts, they should provide for or cooperate in

12
Marshalll S., Taylor Kate, and Balaton-Chrimes Samatha, 2016. Case Study of the CAO’s Approach to the PT
Weda Nickel Mine Complaint: Barriers to Mediation in a Climate of Fear.
https://corporateaccountabilityresearch.net/njm-report-x-weda-bay

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their remediation through legitimate processes. Unfortunately, Indonesia has not yet
comprehensively addressed the human rights impacts of companies and investors in either
policy or legal terms. State-judicial and non-judicial grievance mechanisms have in placed but
they were not performing well when dealing with human rights issues against corporations.
Seeking justice through courts regarding human rights violations by the corporations remains
difficult. It is not uncommon that the claimants had to go through a long process with multiple
challenges. As a result, plaintiffs encounter difficulties in finding adequate access to judicial
remedies under Indonesian Law. Women and indigenous people whose human rights are
impacted within company value chains or investment portfolios still have very few avenues
to seek a remedy, and face significant hurdles.

As an alternative, victims are looking for access to remedial mechanisms through non-
judicial grievance mechanisms (NJGMs) such as the National Human Rights Institutions
(NHRI), Ombudsman Offices, and Multi-Stakeholder Initiatives (MSIs). The NJGMs are
potentially quicker and cheaper route to resolving business and human rights-related
complaints and disputes between individuals and business enterprises than judicial
mechanisms. Non-judicial redress mechanisms have the potential to play a distinctive role in
complementing formal justice systems and regulatory frameworks. They provide alternative
avenues to resolving a dispute that may take less time and be less resource intensive than
litigating in court, and offer an avenue of redress in cases where it is practically impossible to
use the formal justice system effectively. However, the capacity of NJGMs to deliver redress
in all cases is limited. Non-judicial mechanisms do not have the mandate to stop projects
which are violating human rights. In most cases, they cannot ensure compliance with
negotiated agreements, nor provide remedies that repair the harm caused to an individual’s
health, the environment or affected communities.

Indonesia’s recent commitment to develop a National Strategic or National Action

Plan on Business and Human Rights provides an opportunity to engage diverse stakeholders
in considering the role of the government in business and human rights. It is also an important
step towards developing a comprehensive policy and legal framework to fulfil Indonesia’s
obligations under the UN Guiding Principles on Business and Human Rights. The third pillar of
access to remedy requires significant attention. The Government should consider how to
enable and guarantee access to judicial and non-judicial remedies that respond to the human

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rights impacts of Indonesian companies and investors at both domestic and overseas. Further,
it is important to explore the potential roles of Multi-stakeholders Initiatives (MSIs) in
facilitating grievance mechanisms, and support to NGOs or CSOs to play an important role in
making effective use of MSIs. Also, the Government is encouraged to ensure adequate
funding and legal protection for civil society organisation (CSOs) to enable them to effectively
fulfil their role in supporting victims of business-related abuses and monitoring business
compliance with human rights standards.

References
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