Article

Indonesia: No rights, only duties to conserve environment and forest

In a letter to the Government of the Republic of Indonesia on 18 March 2009[1], Fatimata-Binta Victoire Dah, Chairperson of the Committee for the Elimination of Racial Discrimination (CERD Committee) expressed concerns over the failure of Indonesia to provide information on implementation of CERD Committee’s recommendations on reviewing of Law No. 18 of 2004 on Plantations and interpreting and implementing the same to ensure respect for rights of indigenous peoples to possess, develop, control and use their communal lands. At paragraph 17 of the Concluding Observations, the CERD Committee recommended that Indonesia secures the possession and ownership rights of local communities before proceeding further with the Kalimantan Border Oil Palm Mega-project and that the State party should also ensure that meaningful consultations are undertaken with the concerned communities, with a view to obtaining their consent and participation in it.

Asian Indigenous and Tribal Peoples’ Network (AITPN) in its alternate report titled, “Indonesia: Piecemeal approaches to systematic and institutionalised discrimination” of August 2007 to the CERD Committee had highlighted discriminations faced by the indigenous, Adat, communities. AITPN had expressed concerns over the failure of the Indonesian Government to protect the rights of the indigenous peoples over land and natural resources and highlighted how various laws of Indonesia, including the Constitution (Article 33) ignored and denied the indigenous peoples ulayat, customary rights, over land and natural resources. AITPN, inter alia, recommended that[2]–
(i) The Committee should recommend to the State party to amend various laws relating to indigenous peoples in particular the Forestry Acts (Act No. 5 of 1967 and Act No. 41 of 1999), Law No. 11 of 1967 on the Principles of Mining, Act No. 5 of 1990 concerning the Conservation of Biological Resources and the Ecosystem and Presidential Regulation No. 36 of 2005 on Land Procurement for Development for Public Purposes to recognise the rights of the indigenous peoples; and

(ii) The Committee should urge the State party to fully respect and implement the right of ownership, collective or individual, of the members of indigenous communities over the lands traditionally occupied by them in its practice concerning indigenous peoples. The State party should seek the prior informed consent of communities while taking away any land for the Kalimantan Palm Oil Project in full conformity with the general recommendation No. 23 of the ICERD.

In paragraph 31 of its Concluding Observations, the CERD Committee asked Indonesia to provide information on the implementation of the CERD Committee’s recommendation contained in paragraph 17 of the Concluding Observations within a year. But Indonesia failed to do so. On the other hand, Indonesia not only failed to implement the recommendations of the CERD Committee but also continues to enact or in the process of enacting new laws and regulations that seek to perpetuate discrimination against indigenous peoples and allow further denial of their rights. For example, Indonesia’s draft “Regulation on Implementation Procedures for Reducing Emissions from Deforestation and Degradation” of 2008 reiterates the Act No. 41 of 1999 on Forestry that seeks to deny Ulayat, collective community rights, to the indigenous peoples.[3]

In early March 2009, Indonesia has applied to the World Bank asking for assistance from the Bank’s $350 million Forest Carbon Partnership Facility, also known as Reduced Emissions from Deforestation and Degradation (REDD). This program supports developing nations’ efforts to fight deforestation and help them earn cash through the sale of tradable carbon credits. The REDD also supports developing states design and create projects under a U.N. backed scheme that could eventually earn poorer nations billions of dollars a year by protecting their forests.[4]

A perusal of Indonesia’s draft “Regulation on Implementation Procedures for Reducing Emissions from Deforestation and Degradation” of 2008 only confirms the fact that indigenous peoples would be further marginalized in the guise of reducing emissions from deforestation and forest degradation because of the following reasons.

I. Carrying forward the discriminatory and regressive Forestry Law (Law 41 of 1999)
Article 1, paragraph (3) of the 2008 draft “Regulation on the Implementation Procedures for Reducing Emissions from Deforestation and Forest Degradation” defines “State forest” as forest on land unencumbered by proprietary rights while paragraph (5) defines “Customary forest” as forest within an area of a customary community.[5] These definitions are nearly the same as in the discriminatory and regressive Forestry Law 41 of 1999 which defines “State forest” (Article 1, paragraph 4) as any forest on a land not charged with land title and “Indigenous forest” (Article 1, paragraph 6) as state’s forest situated in indigenous law community area.[6]; The draft Regulation on the Implementation Procedures for Reducing Emissions from Deforestation and Forest Degradation of 2008 is basically a repetition of the discriminatory and regressive Forestry Law 41 of 1999. Under Article 5, paragraph 3, the Government is the sole authority to stipulate status of forest as “State forest” or “title forest” (paragraph 1) and therefore “customary forest” can be included as an item of state forest. The government is again the sole authority to stipulate the existence of indigenous forest, if any. Thus, under the Forestry Law, the government is the only authority to determine the existence of indigenous peoples or community irrespective of their actual existence in a particular part of Indonesia. The 2008 draft Regulation on the Implementation Procedures for Reducing Emissions from Deforestation and Forest Degradation is similar with the Forestry Law in its word and intent is expected to result in further abrogation of rights of the indigenous peoples in Indonesia.

II. Draft Regulation on REDD of 2008 is only a tool to control international payments
Indonesia’s 2008 draft Regulation on ‘reduced emissions from deforestation and forest degradation’ is primarily intended to control payments being received from the relevant international forums and funding agencies. Huge amounts of funds are expected to flow to Indonesia for reducing or halting rate of deforestation.

According to submissions to the World Bank, Indonesia says that the main drivers for deforestation are extensive forest harvesting by pulp, paper and palm oil firms, expansion into rainforests and peat land by agriculture and forest plantations as well as encroachment by low-income communities into forest lands. The deforestation rate was calculated to be 2.8 million hectares per year between 1997 and 2000 which reportedly fell to 1.2 million hectares in 2000 to 2005.[7]

Even at this existing annual rate of deforestation of 1.2 million hectares, Indonesia releases huge amounts green house gas and is expected to receive huge amount of funds under the REDD scheme. But, given Indonesia’s past records about the marginalization of the Indigenous peoples and gradual abrogation of their rights it is feared that payments and incentives under the proposed REDD scheme would not benefit the Indigenous people who are the real conservationist of environment and forests across the globe. Indigenous groups and forest communities have long struggled against development interests seeking to exploit their traditional lands and resources.

III. Draft Regulation on REDD will cause further marginalization of indigenous people
Even before the promulgation or enactment of Indonesia’s draft “Regulation on Implementation Procedures for Reducing Emissions from Deforestation and Degradation” of 2008 there are about 20 REDD schemes currently at various stages of development in Indonesia.[8] It is only natural that REDD activities will proliferate extensively once the draft regulation on REDD comes into force. And, with the proliferation of activities under REDD, alienation of land of the indigenous people would aggravate further as there is no provision in the draft regulation on REDD for protection and promotion of rights of the indigenous proponents.

Most indigenous groups and forest communities across the world fear that they will not get benefits from REDD. They are apprehensive that the mechanism could trigger a new wave of land grabbing and evictions by parties seeking to capitalize on carbon payments.[9]