Indigenous Peoples in Indonesia The Struggle for “Legal” Recognition

Mina Susana Setra Deputi for Advocacy, Law and Politics

Aliansi Masyarakat Adat Nusantara (AMAN)

Interlaken, 19 September 2013

WEST Kalimantan Fact - 2010

West Kalimantan Fact - 2010 • • West Kalimantan, total area 14, 4 millions hectares. 4,3 millions

population. • 326 oil palm companies with concession over 4,8 millions hectares. • Mining permit for 651 mining companies, cover 1,5 millions

hectares. • Forest Timber Products Utilization Business Licenses, given to 151

companies, cover 3,7 millions hectares. • Total 1.128 companies controlled 10 million hectares of land and

forest land, around 70% of total area of West Kalimantan. Left 30% or 4,4 million hectares areas for 4,3 million people in West Kalimantan. This has not included 3,7 millions hectares of conservation and protected areas!

• This left NOTHING for people, especially indigenous peoples

Indigenous territory 53.542 Ha

Protected forest 21.750,933 Ha

Logging Concessions

Land Use Rights (HGU) PT. Trimadu Murni Asri 3.026 Ha

Mining concessions

Remaining areas 409 Ha

CASE: LUSAN INDIGENOUS TERRITORY IN MUARA KOMAM, PASER, EAST KALIMANTAN

Companies Ha PT. RIZKI KACIDA REANA

18043,16

PT. TELAGA MAS KALIMANTAN

9639,43

Companies Ha PT. RAHAYANA INDONESIA 3081,48 PT. INTEREK SACRA RAYA 6683,06 PT. HAMISAH 21997,2 PT. SATRIA PRATAMA BERLIAN 258,9 PT. TAMINDO BUMI LESTARI 10158,07

Processed by JKPP

When Was it All Begin…? “If the state do not recognize us, we will not recognize

the state!” First Congress of AMAN, March 1999

Indigenous Communities, Member of AMAN (2.240 communities, 15 Millions People; February 2013)

322 692

192

55

189

744 46

In the Absent of “Legal” Recognition → Customary Laws is the Strongest Instrument

• Customary law is a set of rules that are developed based on certain behavioral rules agreed to by the local society. It responds to the local needs and governs the local setting. In forest cultivation, for example, the customary law is established to ensure the sustainability and preservation of nature for the sake of the society itself. • Customary Law is the basis of all laws in Indonesia. During the colonial era, The Dutch recognize there’s various customary laws regulate Indigenous communities in Indonesia. Soekarno said, Customary Laws was the foundation of Indonesia Constitution.

Customary Laws and It’s Practices • The practice get weakened by the Village Law No. 5/1979 → Uniformity of Village (form, structures, decision making) • Whenever the Customary Institution is weakened the customary law loose it’s power. Customary Institution is needed to enforce the law. • However, whenever the Customary Institution still strong, the Customary Law also strongly practice.

Examples : • The Ibanic of Sui Utik – penalize the Minister of Forestry, MS Kaban, in 2009 (accepted by the Minister, agreed to pay the fine) • Dayak Limbai – PT. GSP and CV. Mekanika Utama Group (Coal Mining Company) Conviction accepted, the company stop it’s operation. • Dayak Bunyau – Logging company (PT. MKK) convicted Adat Kesupan Pemimpin, Pemomar Daroh and Kokoh Sengkolan,40, agreed to pay compensation for the cut trees. In the second case, PT. GSP and Dinas Pertambangan were convicted under Baso Tidak Beguno (66 ulun)41 and made to pay a fine whose nominal value was converted to cash.

The JOURNEY to TODAY

•Pre 1999 to 2003 → Confrontation •Regional Autonomy Act No. 22/1999 (Desentralization) – No specific provision on Ips, but it give opportunity for Village Autonomy •National Assembly Decree No IX/2001 – Recognize Indigenous Peoples Rights on Land, Territories and Natural Resources. •Amendment of the Constitution of the Republic of Indonesia 1945, Paragraph 18-B article (2) of the Amendment states that “The State recognizes and respects the units of indigenous community along with their traditional rights…” •However, oppression to IPs communities and encroachment of their territories getting massive. Business with Military and Police Brigade back up has lead to Human Rights violations in different regions. •2003 to 2007→ bridging gaps, dialogues

The JOURNEY to TODAY

•2007 to 2013 → Greater Policy Changes, Cooperation (MoUs), Program Development •Act No. 27/2007 on Small Islands and Coastal Areas → Recognize IPs ownership on territory; recognize FPIC •Act No. 32/2009 on The Management and Protection of Environment → Recognize IPs rights and traditional knowledge •National Legislation Program 2010-2014:

•Draft Act on Recognition and Protection of IPs’ Rights Priority in 2012 (continued in 2013) AMAN provided the Academic Paper and Draft Act in Dec 2011 The Draft Act is adopted by Parliament and sent to the Govt of Indonesia in April 2013 for inputs

•To revise the National Forestry Act No. 41/1999 Not in priority for 2012 (unfortunately) → Judicial review in Constitutional Court: Decision No. 35/PUU-X/2012 in 16 May 2013

Constitutional Court Ruling on the Judicial Review of the Forestry law 1999 (No. 35/PUU-X/2012)

•Acknowledging that the State has ignored the Land rights of IPs in forest areas for claiming the customary forest as State Forests •The Right of the State “to control” shall not override the inherent rights of IPs to control their Land, Territories & Resources:

•Customary Forests are not State Forest but falls within the category of private collective ownership •Customary forests are forest located within indigenous territories •Authority of State is limited to ensure forest function and distribution of forest resources •Free Prior Informed Consent •Indigenous Peoples in Indonesia are Masyarakat (Hukum) Adat

Challenges of Implementation of the Ruling: •Require a Government Regulation on the Rights of IPs over Customary Forest •Require a Government Regulation to ensure the recognition of IPs by District Government

Customary Forest is No Longer State’s Forest!

Official Collaboration between IPOs and Government:

•MoU AMAN-National Commission on HR (to implement Law No. 39/1999 on Human Rights – Mainstreaming IPs Rights in different policies and regulations) •MoU AMAN-Ministry of Environment (to implement Law No. 32/2009) → Identify IPs Communities and Their Traditional Knowledge •MoU AMAN-National Land Agency 2011 → Recognition of IPs Collective Rights on territories and official registration (ongoing process)

HOW TO SINERGIZE ?

People Base

Indigenous Organisation/Core Circle

NGOs/Supporting Circle

Nasional Movement

International Support

“TERIMAKASIH”