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Communal Rights in

Indonesia
ANDIKO

 Lawyer on Indonesian Law of Agrarian and Natural


Resources
Legal Reform Program Coordinator
Association for Community and Ecologically Based
Law Reform
Indegenous People Statistic
Quantity
1. Isolated Indigenous Communities in
Terminology Indonesia include about 267,550
households or about 1.1 million people,
“Isolated Indigenous spread out in 30 provinces in Indonesia.
(Department of Social Welfare - 2005),
Community, is a social 2. According to AMAN, there are 776 Adat
group which is local and Law Communities, with 366 of them
registered as members of AMAN. (AMAN
scattered, and not much 2007)
involved in social, 3. In 1992 the National Planning Agency
(Bappenas), estimated about 12 million
economic, and politic people live inside and around forests in
Indonesia. Owen Lynch noted about 40-60
networks and services” million people live inside and around
forest (Owen Lynch 1995). Most people
who live inside and around the forest are
“Adat Law Community” members of Indigenous Peoples and are
among the poorest in Indonesia.

“Indigenous People”
Status of Customary Land
Rights :
Forest Tenurial Conflict The government claims
that 120 million hectares
of land, more than
seventy per cent of the
land of the nation, is state
forest. Most of the
remaining 30 per cent is
claimed by the state for
farms and mines. But on
much of this land,
indigenous peoples still
have rights.
According to function,
State Forest Areas
are used for
Production,
Protection and
Conversion.
Therefore,
indigenous
communities should
Only 12% of the state forest area in Indonesia has been defined
leave &
thegazetted
forest.
(legal & legitimate). There are some 40-60 million people living in state
forest areas, most of them are indigenous peoples who live in poverty, and
are regarded as illegal residents by the government.
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Status of Customary Land Rights :
Pressure by Other Sectors in Non
Forest Areas
Oil Palm Plantation 2006
(HA)
2007
(HA)
2008
(HA)

Existing Expansion Existing Expansion Existing Expansion


TOTAL 6.495.147 19.840.000 7.417.379 22.123.600 7.866.070 24.407.200

District governments plan an additional 20 million hectares of oil palm in the


coming decade.

Mining
Until 2006, there are 2,556 mineral and coal mining permits
issued. Only in South Kalimantan, there are more than 400 mining
permits issued. In East Kalimantan there are 509 mining permits
issed, in South East Sulawesi there are 127 mining permits issued,
and in Morowali, a new district of Central Sulawesi there are 190
permits issued.
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Overlapping Forest Functions:
Forestry Concessions, Plantations, Mining
Concessions
Impact : A Rich Region But Poor
People
In 2009, the number of poor citizens in Papua increased
by 45 % compared to the previous year. Most of this Citizen
increase took place in rural areas where poor people
increasing into 30.660 people (BPS Papua Juli 09)
Numbers:
1.942.627
jiwa

Below the
poverty line :
38,69%

Level 3 on
Gross Domestic
Income, and
level 29 on
Poverty Index,
Walhi;
of the 2006
30
provinces
Gov Response to Forestry
Issues

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Peoples Participation in Forestry
Policy
4) peasant (petani
pedesaan)
5) worker (urban)

Sub-system (Daily Trading


Need)
“Adat “Forest  
Village Forest, Social
Forestry, People Tree
Plantation  

1) hunter and food gather,


2) raising
animals (beternak),
3) farming
(bercocok tanam)
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What is the legal framework that defines ownership, control, and
access to land? (This may include the different categories of
land and of ownership)

1. Control of land and natural resources by the state is set


fourth in Article 33 paragraph (3) Constitution 1945 which
states that land and water and natural riches contained
therein shall be controlled by the state and used to attain
the prosperity of the people.
2. Article 2 of the Agrarian Law (Law Num 5 Year 1960)
states that: the State has the right to:
 Regulate and implement the allocation, usage, supplies,
and maintenance/conservation of earth, water, and
atmosphere
 Determine and regulate legal relations between people
and earth, water, and atmosphere.
 Determine and regulate legal relation between people
and legal actions about earth, water, and atmosphere
Have there been efforts at land redistribution and tenure reform?
What major laws and programs have been introduced to improve
the poor’s access to land and tenurial security?

1. Between 2006-2007 President SBY


introduced a National Agrarian Reform
Program (PPAN) with distribution of land to
the poor people as its core program
2. The land distribution process on this
program is based on individual ownership
3. Indigenous people want recognition of their
communal land tenure, but this program
does not touch this issue
4. PPAN failed, and has been discontinued.
Are there other laws or legislations that affect access to customary
land? &
Is the country legally committed to any international convention or
bilateral agreement that is related to, or has impact on, customary
land rights?
Land and Natural Resources
Recognition of Customary
Right
Law Communities
1. Recognition of a Customary Law
• Government Criteria: Community by a Local Government
Regulation does not mean the
– The community still lives community has the authority to
as a societal group manage their land and natural
(rechtsgemeenschap); resources.
– It still has institutions that 2. Their forestry usage must respect
apply customary law; national forestry law and land
usage and submit to land
– It has a clear costomary regulation based on individual
area; ownership.
– It is recognised by local
government regulation.
• Local Regulation:
Indigenous Peoples 1. Kampar District Regulation Num. 12/1999 about
Rights Protection Ulayat Land Right
2. Lebak District Regulation Num. 32/2001 about
Baduy Ulayat Rights Protection
National Regulation 3. Nunukan District Regulation Num. 3/2004 about
1. Article 18B paragraph Ulayat Rights of Indigenous People
(2) UUD 1945: 4. Nunukan District Regulation Num. 4/2004 about
2. Article 28I Paragraph Lundayeh Community Ulayat Right
(3) UUD 1945 5. West Sumatera Province Regulation Num.
3. Human Rights Law (Act 6/2008 about Ulayat Land and Its Utilization
6. Bungo Head District Decision Num. 1249/2002
Num. 39 Year 1999)
about Recognition of Batu Kerbau Adat Forest
4. Water Resources law
7. Merangin Head District Dicision Num. 287/2003
(Act Num. 7 year 2004) about Recocnition of Bukit Tapanggang Area as
5. Plantation Law ( Act Adat Forest of Desa Guguk Community
Num. 18 Year 2004)
6. TAP MPR No IX Year
2001
7. Agrarian Minister
Regulation Num. 5 Year
1999
Assessment of the key actors
facilitating or impeding access to land
and tenure security
1. Forestry Department, Agriculture Department, Ministry of
Energy-Natural Resources & Mineral, and National Land Agency
continue to control access to land because their policies have
not changed since the dictatorship.
2. World Bank has supported increased access to land and tenure
security. Besides funding a land administration project which
supports the individualization of communal land, the Bank has
also funded plantation corporation who impact communal land
(Wilmar Case: in Sambas district, West Kalimantan)
3. Learning from land rights advocacy efforts: the Forestry
Department is the most difficult institution to change its attitude
to communal lands. During the reformation and decentralization
period, Local Government had authority to issue some permits
such as Location Permits for Big Plantations.
Key opportunities, challenges and
strategies to advance customary land
rights
• MPR Decree Num IX Year 2001 • In forestry sector, the government has
about Agrarian and Natural opened space for village forest areas.
Resources Reform. This space must be used.
Adat Law Community delegation • Recently, the National Land Agency,

BPN, is working to make a land
start take steps into legislatures.
certification model based on
Local legislative position is used to
communal land ownership.
promote the recognition of Adat Law • Now the Indonesian government is
Communities in that area. willing to improve the REDD pilot
• Policy to return “Nagari” in West project framework, and can be used to
Sumatra, strengthen “Nagari” push for communal recognition. This is
position on management of their because REDD pilot project require the
natural resources. certainty of the area/and tenure rights.
• Sungai Utik , West Kalimantan, uses • Indigenous peoples have started to
forestry mechanism to strengthen take positions in legislatures. These
the adat area. positions can be used to push
recognition of Indigenous Peoples at
the regional and local level.
MPR Decree
Number IX
Comprehensive
year 2001
regarding Solutions
1. Agrarian and natural resources management has caused
environmental degradation, imbalanced claims, problems
agrarian of land ownership, problems of land use, problems of
land exploitation, and many conflicts have occurred.
reform and 2. There are many laws on natural resources which are
natural overlapped and contrary to each other.
3. Fair, sustainable, and environmental friendly natural
resources resources management should be done in a coordinated
management and integrated way. This can support the dynamics and
aspiration and public participation to solve outstanding
conflicts.
1. Review the laws on
natural resources 1. Agrarian reform should be concerned with re-
and agrarian visiting and resolving land claims, land
2. Restoring the ownership, land use, and natural
control, ownership, resources/agrarian exploitation, to achieve the
land use & certainty of law and law protection, equity and
utilization (land- prosperity for all Indonesian people.
reform)
2. Natural resources management on land, sea, and
3. Conflict Resolution air space must be done optimally, in a fair,
sustainable, and environmental friendly manner.
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Huma’s Work

• Supporting Indigenous and Local


Community Empowerment for Reclaiming
and Defending their Rights over their Land
and Natural Resources;
• Improvement of Analytical Capacity for
Developing Critical Theories and
Methodologies on Law;
• The development of Consolidated Public
Pressure for Forest Law and Policy Reform