Forests, law and customary rights in Indonesia: Implications of a decision of the Indonesian Constitutional Court in 2012 (original) (raw)
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Dividing the Land: Legal Gaps in the Recognition of Customary Land in Indonesian Forest Areas
Kasarinlan: Philippine Journal of Third World Studies , 2016
On 30 December 2016, for the first time, the government of Indonesia recognized customary forests of nine indigenous communities. This recognition has proved the implementation of the 1945 Indonesian Constitution, as echoed by Constitutional Court Ruling 35/2012 that was released in May 2013, concerning the legal recognition of indigenous peoples' rights on land and forest. Ruling 35 took three years to be implemented. This paper discusses the factors that brought about the delay of that recognition. For decades before December 2016, the legal recognition of indigenous peoples' rights in Indonesia had not resulted in the successful reclaiming of indigenous peoples' customary land from "state forests." There were gaps between government commitments, laws, and development plans. Law, politics, and the economic interests of bureaucracy had created these gaps and had led to complex obstacles to the recognition of indigenous territories in Indonesia. Dualism of government authority over land tenure had prevented adequate protection of indigenous rights. Inconsistency of national laws and the absence of a clear national policy toward the recognition of indigenous peoples and their territories had induced local governments to play safe by not recognizing indigenous territories; rather, local governments continued granting licenses for mega projects for natural resource extraction. This paper also presents the dynamics of advocacy and lawmaking concerning customary forests in Indonesia, and it notes the relevance of the Philippines-Indonesia nexus for learning and sharing on behalf of indigenous peoples' advocacy. How the national law in different forms and at different levels has enabled and constrained the recognition of indigenous peoples and their claims to customary forests is the key theme discussed.
Land Use Policy, 2017
The hopes of customary communities in Indonesia have recently been bolstered by Constitutional Court assurances that they have the right to control customary forest. There are, however, several obstacles to making successful claims, and there are also many situations in which forest users and customary land claimants do not stand to benefit from the recent rulings. This policy review analyses the court decisions, politics around their implementation, and considerations of types of land claimants who are excluded from the current process. We highlight groups of forest and ex-forestland users that are excluded from benefiting from the Constitutional Court decisions and are adversely affected by land use change and re-designation of land. These groups include those with claims over land in conservation areas, allocated to concessionaires for resource extraction, on land already issued to them through forest management rights, and those whose land has already been removed from the State forest land. Highlights: • Contestations around claims by customary groups on forest areas in Indonesia have been rejuvenated by 2011 and 2012 Constitutional Court decisions. • There remains significant confusion around how to apply the laws, however both State and customary community rights groups are actively advancing their preparations • The Constitutional Court decisions are specific to 'customary communities' with claims over State forest land. • Communities with claims over gazetted national parks, land issued for forestry concessions, land removed from the State forest, and migrants remain without legal basis for claiming forest land.
The International Journal of Humanities & Social Studies
According to the 1945 Constitution, Indonesia is stated as a Unitary State (eenheidsstaat) which is based on law (rechtstaat) rather than power (machstaat). Then, it is divided into several autonomous regions (streekandlocale rechtsgemeenscahppen) with the division of their respective affairs or authorities which are further regulated in the relevant law, in accordance with Article 18 paragraph (7) of the 1945 Constitution of the Republic of Indonesia concerning the structure and procedures for administering regional government are regulated in Law. Changes in the pattern of agrarian policy arrangements and including the forestry sector in Indonesia are also strongly influenced by historical factors in the political journey of the agrarian and forestry laws in this country, which certainly has an impact on agrarian policies in Indonesia, as we can look at the agrarian politics journey from the Dutch East Indies era which began with the issuance of agrarisch Weton April 9, 1870, with the issuance of this law, the owners of foreign capital, the Dutch and other Europeans had great opportunities to conduct business in plantation and forestry. The profits obtained by the owners of private capital were very large from the export of plantation products and forestry, although, on the contrary, the Indonesian people were suffering, because their lands, as a source of livelihood, have been controlled by the colonial government. This agrarian law gave birth to a term or provision known as Domein Verklaring that all lands which were not proven to have eigendom rights overtaken by other people were on the state domain. This agrarian political thinking in the colonial period has influenced the dynamics of policies in the land sector including forestry in Indonesia, resulted in conflicts over the control of forest areas between the indigenous communities who have a history of origins with their existence with State power legitimized by legal products based on the right to control the country (HMN), which was wrongly interpreted by some State Organizations. The author was highly interested in conducting an in-depth study through the research process on how the role of the State or government in an effort to protect the constitutional rights of indigenous communities related to customary forests, which have caused many conflicts over the control of natural resources, including forests within the customary law.
International Journal of Criminology and Sociology, 2021
This study is motivated by the perspective of government officials and the mechanism for determining customary forests which is often the cause of conflict between indigenous peoples and plantation entrepreneurs who accept concessions from the government. The aims of this study are to evaluate the legal positivism perspective that continued domein verklaring during the Dutch colonialism saw customary forests as state forests as long as they had not been determined by the government so that they could be concessioned to plantation entrepreneurs. The results showed that in order to prevent conflicts and to simplify and speed up the mechanism for determining customary forests, an idea is offered to apply the legal processing (rechtsverwerking) analogy in customary law that has been accepted by the national land law. The physical control of customary forests by customary communities by collecting products, utilizing and conserving the forest, regulated in customary law and not denied by indigenous peoples, who border, is sufficient as a sign that the customary forest is under the control of the customary community concerned. Likewise, for the stipulation mechanism, it is necessary to give authority to the local government to be able to determine customary forests.
The Struggle over Adat Forest Rights in Upland Banten, Indonesia
2019
This study investigates local institutional arrangements and the regulation of forest access and control in the wake of the 2013 decision of the Indonesian Constitutional Court, which recognised indigenous peoples’ rights over forest territory. The research focuses on the interactions between adat groups and other actors in that context, with specific attention to the Kasepuhan indigenous communities of West Java. There has been considerable political ecology scholarship about state-society-nature relations in Indonesia; this research contributes to this knowledge base by extending political ecology analysis to the entirely new situation that is unfolding in the wake of the court decision. As such, this research interrogates ongoing changes by employing the concept of institutional bricolage as a tool for understanding just how institutional alterations occur and how these mediate resource access and entitlements. For the greater part of Indonesian history, indigenous communities in...
Customary forest and state forest are still a dichotomy contested by indigenous peoples and the state. The forests around Singkarak Lake, West Sumatra are managed in different ways which are related to the capacity of indigenous communities around the forest. The indigenous Minangkabau people of Nagari Malalo Tigo Jurai have local wisdom for the management of customary forests, but the recognition of their customary forest is beginning to be disturbed by the new recognition of this forest as state forest. This study examines the communal efforts carried out by the indigenous peoples in recognizing the customary forest management rights in Nagari Malalo Tigo Jurai customary forest. This study using a qualitative approach with in-depth interview techniques, observation and literature study. This research shows that there have some local wisdom practiced for forest management in the customary forest area for many years. Lately, there is a strong communal movement of the indigenous peoples for recognition of their customary forest areas.
The Political Structure of Indonesia’s Regulation to Protection Customary Forest
Journal of Human Rights, Culture and Legal System
There is an increasing awareness that indigenous communities hold a key role in sustainable forest management in Indonesia. However, this awareness did not necessarily come with sufficient legal acknowledgement of the rights of indigenous people to have autonomy over customary forest. This research aims to fill this gap through an understanding of the socio-political development that led to the policy institutionalization of the customary forest. The findings show that discourses on indigeneity, human rights, agrarian reform, social justice, and sustainability advocated by a coalition of Civil Society Organization (CSOs), dominated the political arrangements of both policies. The exchange of resources such as expertise, network, and participatory mapping among the CSOs helped to overshadow the counternarrative of competing policy actors. This thesis contends that a mature discourse coalition was a major factor that empowered the CSOs to advocate their discourses and to convince ot...
Forest conflicts and the informal nature of realizing indigenous land rights in Indonesia
Citizenship Studies, 2018
Despite a widening legal scope for indigenous rights, the invocation of indigeneity to claim land rights rarely empowers marginalized communities. This article develops an explanation for why this formal recognition of community rights actually has little substantive impact on local struggles over land in Indonesia. Employing almost two years of fieldwork on how rural communities employ indigeneity-based land claims in South Sulawesi, it argues that claims for land rights on the basis of indigeneity are settled not simply on the basis of law, but also on that of the relative bargaining positions and the character of informal linkages between communities, their mediators and local authorities. Indigenous status therefore must be understood as a privilege most likely to be obtained by those groups with relatively strong connections to influential state actors. In contrast, communities that are in conflict with local state actors tend be excluded from obtaining the status of indigeneity and hence the state is likely to deny them their land rights claims.
Kanun (Banda Aceh), 2021
This article aims to analyze the urgency of strengthening the rights and participation of indigenous peoples in customary forest management in Indonesia. Law No. 41/1999 on Forestry, which is still centralized in nature, has limited the rights and roles of indigenous peoples in managing their customary forests. The regulation regarding customary forest in the Forestry Law is inconsistent with protecting ecosystem carrying capacity and democratic decentralization. This article was prepared using a normative legal research methodology in which a statutory and conceptual approach is used. Then, secondary sources of legal material were analyzed and qualified to be narrowed down to answer existing juridical problems. The results show that the rights and roles of indigenous peoples in managing their customary forests are still minimal. Customary forest management centered on the central government and prioritized a sectoral approach can have implications for exploitation that ignores the interests of conservation and sustainability of customary forest natural resources.