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Long, winding road for indigenous rights

This article was originally published in The Jakarta Post on July 30, 2018.

Although they have the strongest historical and emotional ties to their land, indigenous groups in Indonesia are at the bottom of the totem pole when it comes to secured land tenure rights and legal access to natural resources. For the greater part of history, indigenous communities have been trying in vain to assert their traditional rights and redefine their role in Indonesian statehood.

Indigenous rights have, however, been severely undermined for the sake of development or other “national interests”. Reformasi has, since 1998, opened the channel for many disenfranchised groups, like indigenous peoples, to demand social justice.

A new study from 15 countries, including Indonesia, titled “The scramble for land rights” by the World Resources Institute, highlights significant disparities between companies and indigenous communities in terms of land ownership and the ease of acquiring secure land tenure to support their livelihood.

Currently, only 26 indigenous communities have managed to secure their land rights from the government, covering just over 24,000 hectares of land. This number is far less than over 37 million ha of concessions granted to plantation and timber companies.

The report states the problem lies in the fact that the land licensing process for indigenous communities is time-consuming, complex and sometimes ambiguous, while companies can obtain concessions relatively quickly and are anecdotally known to exploit loopholes in regulations. The report concludes there is a discriminatory nature in the steps needed to secure land rights, where legal procedures offer little flexibility.

This is evident in the following examples. First, although Constitutional Court Ruling No. 35/2012 says that indigenous forests should be treated as private forests and excluded from state forests, the mechanism to enforce this ruling lacks clarity.

For this decision to be implemented, indigenous groups require a local regulation sanctioned by the local legislature that recognizes and acknowledges their rights and indigenous status. Often this process is burdensome and even unattainable for most indigenous groups due to the lack of resources to go through all the steps, and political will from the local government and legislature.

Second, procedures are more challenging for indigenous communities to secure land compared to investors. While there is no guarantee for communities to secure land rights after decades of struggle, companies are able to secure their concession rights, on average, within three to five years.

Third, indigenous communities lack the resources to mobilize concerted advocacy efforts, unlike companies, which are much better equipped. They mostly rely heavily on non-governmental organizations (NGOs) to navigate the legal and political hurdles of securing land rights. Unfortunately, resources to support this type of advocacy work are limited, and not all NGOs can afford to support the entirety of the process.

There are three factors that can explain this lack of progress. These factors reinforce one another, and provide a possible explanation for why progress has been very hard to attain for the majority of indigenous communities in Indonesia.

First, for it to be effective, the Constitutional Court ruling requires strong collaboration between related line ministries. Unfortunately, we face a deficit of policy synchronization between state institutions on multiple levels of government.

Second, although some government policies already in place, such as the social forestry program, have opened up a new range of possibilities for indigenous communities, the process to actually implement the decision is still onerous and heavily reliant on the local government. In other words, making those who are not in favor of indigenous land rights to stop or delay their land rights.

The Kajang community in Bulukumba, South Sulawesi, and Kasepuhan Karang in Lebak, Banten, are examples where there has been unwavering support from the local government for the legislative process. Both communities are among the first indigenous communities that were able to pass legislation to secure their indigenous rights after the Constitutional Court’s decision.

Third, the absence of a framework for national recognition makes it hard for indigenous communities at the local level to advance their rights. This is especially prevalent for those communities that face adversity from commercial interests, to force local governments to address indigenous communities’ issues.

Therefore, it is crucial to have a state law that would mandate all levels of government to legally recognize the rights of indigenous communities in their regions to give the communities the much-needed stamp of approval from the state to accelerate, or even just to start the negotiation process.

It has been over five years since the landmark court ruling; there has been progress, albeit very slow.

Strong leadership from President Joko “Jokowi” Widodo is crucial to give the necessary legal and political push to accelerate the waiting time for indigenous people to secure their land tenure. Indonesia currently faces a situation where there is downturn in indigenous communities’ livelihood and even existence due to their inability to gain secure access to the natural resources they depended upon.

It is the time for the President to review the system in formalizing indigenous land, as well as ensuring its implementation to level the playing field, which is now lopsided against indigenous communities all over the archipelago.

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