in Indonesia

Free, prior and informed consent: The legal framework in Indonesia

Free, prior and informed consent: The legal framework in IndonesiaIn October 2010, the Forest Peoples Programme helped to organise a four day workshop of The Forests Dialogue about Free, Prior and Informed Consent (FPIC) in Indonesia. More than 80 participants took part, including indigenous peoples, local community representatives, NGOs, international financial institutions, government agencies and the private sector.

The meeting generated a large amount of information, which is available on The Forest Dialogue’s website. Among the information is a detailed paper by Forest Peoples Programme’s Director, Marcus Colchester, titled “Free Prior and Informed Consent: Making FPIC work for forests and peoples” (pdf file 1.5 MB).

The Forest Dialogue meeting took place in Riau Province, Sumatra and involved field trips as well as discussions. FPP comments that “FPIC is not a stand-alone right, observation of which can substitute for addressing the other rights and values of importance to local people, especially their rights in land.” In fact, one of the root problems in implementing FPIC was the lack of clarity in Indonesian law of communities’ rights to land:

Not only are customary rights not recognised in practice but the legal framework itself does not provide for effective means by which land rights can be recognised. Most communities in agricultural lands are considered to be on State land and almost all forests are classed as State Forest Areas. As a result, State agencies are granting leaseholds to palm oil companies on agricultural lands and to forestry companies in State Forests without taking community rights or views into account.

A recent post on REDD-Monitor triggered a discussion about the legal status of free, prior and informed consent in Indonesia. FPP’s briefing materials for the meeting about FPIC includes an overview (pdf file 1.0 MB) of the legal framework for FPIC in Indonesia. The following is an extract from the briefing, written by Marcus Colchester, Patrick Anderson and Ahmad Zazali:

THE LEGAL FRAMEWORK: SOME BASIC CONSIDERATION RELEVANT TO FPIC

Rights to Lands and Forests

The Constitution of the Republic of Indonesia acknowledges the rights of citizens and recognises ‘customary law communities’ and other self-governing entities. It does so however through entrusting the State with a controlling power over lands and natural resources to be used for the benefit of the people.

The Basic Agrarian Law provides for a variety of tenure options including private ownership, private use rights and various forms of leasehold on State lands by companies. It also recognises the existence of collective rights based on custom (hak ulayat) but treats these rights as usufructs on State lands that must give way to national development. According to the World Bank less than 40% of all land holdings in Indonesia have been titled. The majority of lands are held under informal or customary tenures. Most landowners in Indonesia thus have difficulties proving they are legitimate rights-holders and rely on letters (SKT) from local officials authorizing land transfers or documents proving they have paid land tax. Procedures for recognising and titling customary rights to land have never been developed, and no land titling of customary collective tenures has been carried out apart from a few pilot projects with World Bank assistance in West Sumatra.

The Forest Law entrusts all forests to the jurisdiction of the Ministry of Forests and recognises two kinds of forest areas: those which are unencumbered with rights which are then considered State Forest Areas and those areas which are encumbered with rights (hutan hak). The process of gazettement which determines the legal status of forest areas has only been completed for 12 % of the forest zone. There are no procedures for the recognition or management of hutan hak. De facto the State has seized control of more than one hundred million hectares of forests without ascertaining if there are rightsholders within them or not.

There are well developed procedures and requirements for allocating forest areas to logging (HPH) and timber plantation (HTI) companies to manage as long term leaseholds. By contrast equivalent regulations and procedures are lacking for allocating state forest areas to communities, although a variety of tenure options exist on paper including: community forests (Hutan ke Masyarakatan), peoples forest (Hutan Rakyat), customary forest (Hutan Adat), village forest (Hutan Desa) and people’s plantation forests (Hutan Tanaman Rakyat). In reality less than 0.2% of the forest estate has been allocated to communities. Other sectoral laws, like those related to mining and plantations also make provisions that favour corporate entities.

These legal realities mean that local communities and especially indigenous peoples are weakly protected when companies seek access to forests and lands by getting permits from State agencies. The Committee on the Elimination of Racial Discrimination has noted that Indonesia’s land and forest laws are incompatible with Indonesia’s obligations under the Convention on the Elimination of All Forms of Discrimination to which Indonesia is a signatory.

Representation

Customary courts and higher level traditional authorities – such as rajahs and sultans – were largely abolished in the 1950s as part of a government programme to eliminate ‘feudalism’ and ‘backward’ ways. In the 1970s, the whole of Indonesia was reorganised into a single administrative framework, which reorganised settlements into hamlets (dusun), communities (kampung), villages (desa) and sub-districts (kecamatan), which meant that village level customary institutions were no longer recognised and thereby deprived of legal personality.

Since the 1990s, the decentralization laws have allowed local legislatures to recognise and revive customary institutions and this has happened in a few provinces and districts such as West Sumatra (nagari) and Toraja (lembang). However, the majority of communities are still represented through these introduced structures. It is common in Indonesia that the prior but unrecognised customary institutions continue to operate de facto alongside the formal structures imposed during the Suharto era.

 

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