Elimination of customary laws through regulations
In 1950, Indonesia’s forests spanned over 162,290,000 hectares, covering 80% of the country’s 192,257,000-hectare land area. According to the 1999 Forestry Law, the forest area owned by the state accounted for 133,876,645.68 hectares.
When it comes to forest and land resource policy in Indonesia, there are two key problems. One is the government’s views of forests and the way it translates them into practice. The other is the difference between how the government regulates land affairs and how the people regulate land ownership.
A closer examination of the ongoing agrarian conflicts in the country reveals that the nation and the state do not lie in one single, unified legal realm. Local communities and indigenous peoples in Indonesia are dispersed, forming their respective administrative territories, each governed by different laws and cultures in the form of clans or tribes. Tribe or “suku” is used for identification of population distribution, while clan or “marga” is used for identification of an administrative territory. In some places, clan is also used for identification of population distribution based on genetic lineage.
In almost all regions in Indonesia, communities practise territorial management, including the management of forest and land use, in the form of laws that are generally known to the members of the community and that are passed down orally, known as customary/local laws. These laws are respected and observed from one generation to another, and become a legal system that ensures that the rights of all the community members are maintained and respected. They cannot be changed without an agreement among all of the community members. At the same time, all of the community members can directly act as supervisors and enforcers of the law, to protect the rights of others from harm.Under this system, land and forests are the basis of the identity and existence of a particular indigenous group and seem to be safely protected.
In the formal regulatory realm, the 1945 Constitution and the Basic Agrarian Law normatively recognize customary laws that have been observed and developed by indigenous peoples over time.The government sets requirements for the recognition and application of customary laws in a number of regulations, such as those under the Foreign Investment (PMA) Law, the Estate Crops Law and Forestry Law No. 41 of 1999. However, regulations issued under the Basic Agrarian Law both negate customary laws as well as positioning the government as the authority governing forests and the agrarian regulator.
Hundreds of provincial and district heads, with the authority granted by the 2004 Regional Law, have issued thousands of plantation permits and, along with the forestry minister, have issued industrial “plantation forest” permits on tens of millions of hectares of community and customary land. This dualism of ownership arising as a result of the different perspectives of land ownershipnow applies to some 80 million hectares of land on Indonesia’s islands. Under these plantation permits, customary laws and the right of communities to maintain and manage their forests are abolished, leading to the destruction of forests by concessionaires that cannot be controlled by eitherthe government orcommunities.
Expropriation of living space through concessions
In 2010, oil palm plantations in Indonesia spanned over 7.3 million hectares, dispersed in 17 provinces in Sumatra, Java, Kalimantan, Sulawesi, Maluku and Papua. In 2012, the plantations had grown to occupy 9.1 million hectares. Based on current regulatory processes, we can predict that this expansion will continue until reaching at least 30 million hectares and spreading to another five provinces.
In addition to the so-called borrow-and-use permit (izinpinjampakai), the government is involved in forest degradation by issuing licences for the utilization of “production forests”, known as IUPHHK-HA, which permit the production of timber from natural forests, as well as permits known as IUPHHK-HTI, which allow the conversion of primary and secondary forests into economic-oriented monoculture plantations and drive concessionaires to “steal” (i.e. take control of) natural forests. Up until November 2011, forest concessions had been issued on 34.6 million hectares out of the total 77.5 million hectares of “production forests”. Of the remaining 37.1 million hectares of “production forests”, the forestry ministry is currently processing permits for another 5.7 million hectares.
Out of the nearly 39 million hectares of forest on which utilization permits have been issued, only 0.5% have been granted for the people’s benefit, in the form of People’s Plantation Forests (Hutantanaman Rakyat/HTR) covering 189,903 hectares, Community Forests (Hutan Kemasyarakatan/HKM) covering 30,387 hectares, and Village Forests (Hutan Desa) covering 18,908 hectares. Meanwhile, out of 40,859 villages in 17 provinces, 1,500 villages covering an area of 11,135,011 hectares are included as part of forest areas, and another 8,662 villages covering an area of 28,456,324 hectares border on the state’s forests. While these villagers could be charged with violating the law by utilizing the state’s forests, the government provides protection for oil palm companies operating in the state’s forests through Government Regulation No. 60 of 2012, which allows these companies to legally use the forest by applying for borrow-and-use permits or through forest relinquishment.
Change of land identity and its associated impacts
The large-scale development of oil palm and HTI industrial plantations is not aimed at boosting the economy, but it is rather intended for the benefit of a number of businesses, which try to mould laws and regulations for their own financial gain. As we all know, the large political parties that occupy the government and serve for the benefit of provincial and district heads are made up of plantation and forestry businesspersons. While the capital sector grabs political room in land tenure, in forest management there is a shift in paradigm within the government as the regulator of forest policies. The government’s interest is to ensure that the authority over forests remains in their hands, not to develop policies that would save the ecological functions of forest.
Hundreds of companies that hold forest concessions not only deprive communities of their rights through the government’s formal regulations, but also violate the regulations themselves through forest clearing and other environmentally destructive practices. Examples include the destruction of peat forests in Aceh’s mangrove ecosystems, peat forests in Riau province and in all the provinces of Kalimantan, and primary forests in Papua.
The practices of oil palm and timber plantation companies have directly placed numerous native species on the verge of extinction in the remaining primary forests. For a growing percentage of the population, these companies have created poverty and communities without identity. While some communities are driven away from their customary lands, others are driven into poverty through dependence on low-paid work in oil palm plantations.
Indigenous people’s belief in the customary laws they have always observed and low distribution and socialisation of the government’s formal laws, will trap them in a position where they can suddenly lose their right to their territory. Thousands of conflicts have arisen and are growing, forcing farmers to face the bitter choice of either losing and leaving their motherland, receiving insufficient compensation and working for the company, or defending their rights at the risk of being criminalized (e.g. charged with encroaching) by the company and the police.
Up to 2012 WALHI had received complaints and advocated communities with regard to 113 cases of land grabbing by companies which led to the criminalization and arrest of 147 people. In addition, WALHI received 66 reports of intimidation and violence, not to mention the shooting of 28 people and death of 10 people including women and children.
On the island of Sumatra in particular, in addition to grabbing farmers’ sources of livelihood and creating trauma through violence, oil palm plantations contribute greatly to environmental degradation, for example, the siltation of rivers, floods and droughts, as well as pollution-driven poverty among coastal communities.
By Zenzi Suhadi, WALHI/Friends of the Earth Indonesia, http://zenzie.blogspot.com