Indonesia upholds Indigenous People’s Rights to Forest
By Elizabeth Kahurani with additional reporting by Martua Sirait, Meine van Noordwijk and Ujjwal Pradhan
Last Thursday, the constitutional court in Indonesia resolved a major ambiguity in Article 1 of the 1999 Forestry Law that claimed customary community’s forests were classified as state forest. This landmark ruling made a clear distinction between customary forests (hutan adat) belonging to the customary communities (masyarakat adat) that were controlled indirectly by the state, and state forests controlled directly by the state through the Ministry of Forestry (MoF).
The court ruled that the word “state” should be scrapped in the provision: customary forests are state forests located in the areas of customary communities. Article 5 of the same law was revised to also show that state forest does not include customary forest. The ruling was made in favor of a petition filed by Indonesia’s national indigenous peoples’ alliance, AMAN (Aliansi Masyarakat Adat Nusantara) in March 2012.
This new development is of special significance to the Customary Communities of Indonesia and also to many stakeholders and partners who have worked at various levels to have government policy recognize and cede rights to community ownership of forests as one of the key strategies to enhance livelihoods and curb deforestation. Among these is the World Agroforestry Centre (ICRAF) SouthEast Asia (SEA) especially through the ASB Partnership for the Tropical Forest Margins programme and partnership with the Rights and Resources Initiative (RRI).
“This has been a long standing debate. When it emerged in the lead-up to the Bali COP in 2007 where REDD was discussed, there still was a lot of denial and resistance, but gradually positions have shifted. It’s like the Latin saying that water wins from a stone, not by force but by falling continuously,” notes Meine van Noordwijk, ICRAF Chief Scientist based in Indonesia. He further notes that this was an important decision because “When communities own the forests, they are more inclined to take care of it. When they do not, they will want to exploit it to their maximum benefit before they are displaced.”
So exactly what does this revision of the forest law mean for the Indigenous people of Indonesia? Martua Sirait, a researcher from ICRAF Indonesia explains, “I was there at the Constitutional Court session and based on the decision by the Court , the new reading of the Forestry Law reflects that Customary Forest (Hutan Adat) is not classified as State Forest anymore, but as Rights Forest (Hutan Hak; privately-owned and customary forest).”
The Struggle: Historical Background
To understand the issue and its sensitivities there is need for some historical background. According to the 1945 Indonesia constitution, all resources belong to the Indonesian people and the State does not own the resources but controls them directly and indirectly. In so doing, the state appeared not to represent the interests of the communities. For example, from the perspective of many communities living in and around the forests, the state-sanctioned permits given to the private sector to exploit the forests did not serve their interests.
The colonial government, in the patchwork of institutional arrangements with local leaders that had evolved over time, had accepted and respected the “adat” (often translated as “customary” but better taken as a unique term) communities (referred to as masyarakat adat) as having effective systems of rules and rights. In contrast, the unitary Republik Indonesia had strong centralistic tendencies, and the military power to enforce them. Adat leaders found common ground and sympathy in what was termed internationally “indigenous peoples” (IPs) movements elsewhere, even though the diversity of actual settlement histories did not necessarily match the pattern elsewhere with the term masyarakat adat (customary communities), which is not based on indigenouity but a way of life following the traditional custom.
The political change of 1998 brought a wave of democratization and decentralization to Indonesia, but did not reduce the fear of the country falling apart, hence the articulation of “state” in the reference to Adat communities and their forest in the 1999 Forest Law. However, important procedures in the law which require a formal process of gazettement to identify forest ownership as separate from spatial planning designation as “forest lands” were not effectively implemented (up till now only about ten percent of the forest has completed the legal procedures), and a legal vacuum with contradicting legal clauses surrounds Indonesia’s forests. The constitutional court ruling on Adat forests is a big step forward, as was last years’ ruling that reinforced the need for the gazettement procedure with rules for local governments as well as national forest institutions.
ICRAF-SEA, ASB Partnership and RRI lend their support
Within the confines of its mandate in Indonesia, ICRAF-SEA and ASB Partnership got involved in land tenure research and supported negotiated solutions. One year before the political overturning of General Suharto’s rule by the 1998 “reformasi”, a first breakthrough was achieved with MoF decree no 47/1998 that recognized the indigenous agroforest of Krui (West Lampung, Sumatra). This formed the basis towards recognition of the customary communities known as masyarakat adat in Indonesia in managing their agroforests.
In 1999, freedom of organization and political debate was established and the National Indigenous Peoples Alliance (AMAN) was instated. ICRAF and partners supported the customary communities who managed many interesting agroforest systems, through comparative knowledge on the recognition of IPs as well as field research. This support was channeled through the Indonesian Customary Community Study Group (KEDAI), hosted by ICRAF (1999-2005), which held regular meetings and seminars at the AMAN’s venue. KEDAI was critical on the government’s position and practice. Their meeting discussions and seminars would be printed for distribution to stakeholders, and posted on ICRAF website.
In 2001, ICRAF, through research evidence supported the process of formulation of Legislative Act no IX/2001 regarding Land Reform and Natural Resources Management Reform, which became the reference to the legal reform on the land and natural resources sectors.
A broader academic debate followed on the issue of land tenure and IPs rights, with international comparative study support. A book on the future of forest tenure reform in Indonesia (Contreras & Fay 2005) was still deemed highly controversial. Meanwhile, small steps were made in the application of the legal instruments of “community forest” and “village forest” designation.
A report published by The Rights and Resources Initiative (RRI) in 2011 titled The Greener Side of REDD+: Lessons for REDD+ from Countries where Forest Area Is Increasing suggested that Indonesia was lagging behind other countries in the Southeast Asia region with regard to giving more rights to the local communities and indigenous groups. According to the report, the almost 30,000 villages and indigenous communities had recognized rights to less than 1 percent of the nation's forests.
A major sign that positions in the Ministry of Forestry were shifting was the International Forest Tenure Conference in Lombok in 2011, jointly organized by the Rights Resources Initiative, ICRAF, and The International Tropical Timber Organization, and the Ministry of Forestry. The commitment of the Government expressed at this meeting was consolidated in the Road Map of Forest Tenure in Indonesia and integrated it to the government policy (2011-2013).
The result of Judicial Review by Constitutional Court announced few days ago was the result of a long process by all participants including ICRAF and its partners. Significantly, the Ministry of Forestry did not object in court to the proposal to remove the legal ambiguity that equated Adat with the state.
According to Martua, it still remains unclear yet, how the forest conflict will be resolved between the customary communities and private sector actors that have in the past received permits to customary forests from the Ministry of Forest or local government. “But what remains clear is that the court decision strengthened the rights and will prevent customary communities from being criminalized for entering their forest,” says Martua.
“What this also means is that in future, MoF or local government will not release permit to large scale concessions without a Free Prior and Informed Consent (FPIC) process,” he notes, adding that the court decision opens a window for a customary community based conservation management system, as well as an opportunity for reconciliation and close collaboration between MoF and customary communities.
Indeed, customary communities have been managing their natural and forest resources for generations and long before the advent of colonialism and pre-independence. A series of legislation and center-locality relations had rendered these local forms of natural resources management systems under de jure control of the state. The ruling on Thursday now opens an opportunity for stakeholders to work with the communities to enhance conservation.
 WATCH video: Indigenous Peoples; Guardians of Indonesian Forest
 van Noordwijk, M., Purnomo, H., Peskett, L. and Setiono,B., 2008. Reducing emissions from deforestation and forest degradation (REDD) in Indonesia: options and challenges for fair and efficient payment distribution mechanisms. ICRAF Working Paper No. 81. World Agroforestry Centre, Bogor; ASB Policy Brief No. 15: If we cannot define it, we cannot save it; ASB Policy Brief No. 16: Reducing emissions from deforestation, inside and outside the ‘forest.
 See ASB Policy Brief 2 and Agroforestry Today, 1998 http://www.worldagroforestry.org/sea/publication?do=view_pub_detail&pub_no=MA0008-04
 Specific mention deserve the 2004 Land Tenure Conference on Indonesia at Jakarta, the International Land Conference in 2006 at ISS Den Haag, and the International Common Property Conference IASCP 2006 Bali
 See Suyanto 2006; Impact analysis of HKm (Hutan Kemasyarakatan) on livelihoods and land management in Sumberjaya and Akiefnawati, R., Villamor, G. B., Zulfikar, F.,Budisetiawan, I., Mulyoutami, E., Ayat A. and Van Noordwijk, M., 2010. Stewardship agreement to reduce emissions from deforestation and degradation (REDD): case study from Lubuk Beringin’s Hutan Desa, Jambi Province, Sumatra, Indonesia. International Forestry Review 12, 349-360.