MAC: Mines and Communities

Indonesia's government to revoke concessions in customary forests

Published by MAC on 2013-06-03
Source: Jakarta Post, Jakarta Globe, Mongabay.com (2013-05-29)

Indonesia's Constitutional Court has invalidated the Indonesian government's claim to millions of hectares of forest land, potentially giving indigenous and local communities the right to manage their customary forests.

While the decision - if properly implemented - will primarily affect the country's massive logging and plantation schemes, it could also have a major impact on mining projects.

Indonesia: Govt to revoke concessions in customary forests

Jakarta Post

29 May 2013

The government has said it will revoke business permits it has given to companies operating in customary forests after the Constitutional Court annulled its ownership of customary forests.

Forestry Ministry's secretary general, Hadi Daryanto, said on Monday that the government would rescind all plantation and mining concessions that have been granted to businesses in customary forests that have been legally recognized by the local administrations.

"We'll get them [businesses] out. Even if there's a concession for HTI [industrial forest permits] or HPH [production forest concessions] as long as there's a bylaw then the businesses will have to leave," Hadi said.

However, as of now, no regional administration has issued a bylaw on customary forests.

The court last week decided to scrap the word "state" from Article 1 of the 1999 Forestry Law, which says "customary forests are state forests located in the areas of custom-based communities".

The court also ruled that the government had to recognize indigenous communities' ownership of customary forests, saying that "indigenous peoples have the right to own and exploit their customary forests to meet their daily need."

The ruling has been seen as a victory for the indigenous people, who have long had their rights to make a living by making productive use of their forests denied by the state.

Indigenous People's Alliance of the Archipelago (AMAN) secretary general Abdon Nababan said that relying on regional administrations to issue a bylaw on customary forests without a directive from the central government will risk reducing the court's ruling to that of a paper tiger.

He doubted that it was financially feasible to have customary forests recognized through a bylaw.

"There can be dozens of customary forests in one regency. Will this regency have dozens of bylaws on customary forests? The cost to stipulate one bylaw in a regency is between Rp 400 million (US$40,850) to 700 million. If there are around 10 identified customary forests, it would cost between Rp 4 billion to Rp 10 billion to recognize customary forests in one regency," Abdon said.

"And it's proven that for 14 years since the passing of the Forestry Law, not one customary forest has been recognized," he said.

Abdon said the president should release a decree for a registration mechanism of indigenous people communities and customary forests to start the restitution process of indigenous peoples' forests.

Currently there is no official government data on the number of existing indigenous communities and the size and territory of their customary land and forests.

A civil society led mapping of indigenous land by The Participative Mapping Working Network (JKPP) has documented 3.9 million hectares of indigenous land, of which 3.1 million hectares are forest areas, JKPP coordinator Kasmita Widodo said.

JKPP has submitted their preliminary mapping of 2.4 million hectares of customary forests to the Presidential Working Unit for the Supervision and Management of Development (UKP4), currently working on an integrated map of Indonesia.

Nirarta Samadi, the UKP4 Deputy and Chair of the REDD+ Task Force Working Group on Forest Monitoring, said that the reason there have not yet been any bylaws recognizing customary forests was due to the previous status of customary forests as state forest. "Now we have an opportunity for a new process," he said referring to the MK ruling. "It feels right now to use the avenue of bylaws and a political decision is indeed needed to create a positive atmosphere," he said.

Hadi said that it was the ministry's task to draft a government regulation to force local administrations to acknowledge customary forests in bylaws.


Constitutional Court annuls government ownership of customary forests

Jakarta Globe

17 May 2013

Camelia Pasandaran -- In a landmark decision for indigenous rights, the Constitutional Court decided on Thursday to make null and void the government's ownership of customary forest areas.

The court eliminated the word "state" from Article 1f of the 1999 Law on Forestry, which previously declared that "customary forests are state forests located in the areas of custom-based communities." Also revised was Article 5 of the law, which said that state forests include customary forests.

"Members of customary societies have the right to clear forests belonging to them and use the land to fulfill their personal and family needs. The rights of indigenous communities will not be eradicated, as long as they're protected under Article 18b of the Constitution," justice Muhammad Alim said on Thursday as quoted by the state-run Antara news agency.

Sumarto, a spokesman for the Ministry of Forestry, told the Jakarta Globe on Friday that the court's decision was in line with the ministry's policies.

"The Ministry of Forestry considers indigenous peoples living in a certain area as being part of the forest itself. They cannot be separated," Sumarto said. "Custom-based societies are on the front lines of forest management."

In its decision, the court affirmed that a clear distinction must be made between customary forests and state-owned forests. While the government still has the right to manage state forests, its authority is now limited in dealing with the forest lands of indigenous peoples.

"If there's an issue with forest management, indigenous communities will have their own mechanisms to deal with it. We're sure that these communities are environmentally friendly, concerned with sustainable economic practices and devoted to environmental protection," Sumarto said.

The Alliance of Indigenous Peoples of the Archipelago (AMAN) filed a judicial review with the Constitutional Court in March 2012. AMAN accused the government of several times violating the rights of indigenous peoples by taking over customary forests and turning them into state-controlled lands. The state repeatedly granted concessions to business people to establish plantations or construct mines while ignoring the rights of customary communities.

The alliance pointed to an instance when the government claimed the lands of the Kasepuhan people in Lebak, Banten in 1992 and converted it into a conservation area.

Sumarto explained that the Kasepuhan community may have not completed the process to be considered a custom-based community at the time. "There are certain requirements that are needed in order to claim [that status]," he said. "They were probably still in the process when the government converted the forest into a conservation area."

However, in 2012, the local government asked the central to change the status of the area into a production forest. The Ministry of Forestry is still mulling over whether or not to open up the land to miners and plantation managers.

Zenzi Suhadi, a campaigner with the Indonesian Forum for the Environment (Walhi) and Friends of the Earth, told the Jakarta Globe on Friday that the government should urge regional governments to issue bylaws acknowledging custom-based communities and their lands as soon as possible.

"Regional governments [should draft bylaws] in order to specify which areas belong to indigenous societies," Zenzi advised. "The House of Representatives should also issue laws to support the ruling."

Without clear legal acknowledgment, Zenzi believes that local governments and customary communities may disagree on which areas belong to the which group.

He also added that in many cases, customary forests are better managed than protected forests owned by the government. "In Samosir, North Sumatra, the customary forest is well maintained. The government's protected forest, however, is cleared."


In landmark ruling, Indonesia's indigenous people win right to millions of hectares of forest

Rhett A. Butler

Mongabay.com

17 May 2013

In a landmark ruling, Indonesia's Constitutional Court has invalidated the Indonesian government's claim to millions of hectares of forest land, potentially giving indigenous and local communities the right to manage their customary forests, reports Mongabay-Indonesia.

In a review of a 1999 forestry law, Indonesia's Constitutional Court ruled [PDF - Indonesian] that customary forests should not be classified as "State Forest Areas". The move is significant because Indonesia's central government has control over the country's vast forest estate, effectively enabling agencies like the Ministry of Forestry to grant large concessions to companies for logging and plantations even if the area has been managed for generations by local people.

In practice that meant ago-forestry plots, community gardens, and small-holder selective logging concessions could be bulldozed for industrial logging, pulp and paper production, and oil palm plantations. In many cases, industrial conversion sparked violent opposition from local communities, which often saw few, if any, benefits from the land seizures.

The move was prompted by a request for review by National People's Indigenous Organization (AMAN), which represents indigenous people across the sprawling archipelago. AMAN estimates that the ruling affects 30 percent of Indonesia's forest estate or 40 million hectares (154,000 square miles).

"About 40 million indigenous people are now the rightful owners of our customary forests," said Abdon Nababanm, AMAN's Secretary-General, in a statement.

The ruling is a potential blow to the Ministry of Forestry, which has used its massive land bank to accumulate substantial revenue and political power in recent decades.

However the full implications of the ruling are still unknown. A senior Ministry of Forestry official told AFP that the area of "customary forest" was far smaller than 40 million hectares and that implementation could take years to move through the various levels of government.

Martua Sirait, a researcher from the International Centre for Research in Agroforestry (ICRAF), agreed that the next steps will be complex.

"In the future the Ministry of Forestry or the local government cannot release a permit in an area that is classified as privately-owned forest and customary forest without a Free, Prior Informed Consent (FPIC) process," Martua continued. "For conservation areas, I believe this will open the window for customary community-based conservation management systems and close collaboration between the Ministry of Forestry and customary communities."

Martua added that the decision could eventually reduce social conflict over forestry permits in Indonesia. According to the National Forestry Council, conflicts over forest management currently involve nearly 20,000 villages in 33 provinces throughout Indonesia. The rights to more than 1.2 million hectares is in dispute.

The court decision was cheered by environmentalists and indigenous rights groups.

"For more than 40 years, indigenous peoples of Indonesia have been marginalized, impoverished and criminalized due to lack of recognition of indigenous rights that led to lasting tenurial conflicts," said Mardi Minangsari, a forest campaigner at the Environmental Investigation Agency (EIA). "The judicial review filed by AMAN (Indigenous Peoples' Alliance of the Archipelago) is one effort to reclaim the rights of indigenous peoples in Indonesia."

Fighting illegal logging in Indonesia by giving communities a stake in forest management

"This is an important change for indigenous peoples in the republic," AMAN's Abdon told Mongabay-Indonesia. "It is a decision that restores a sense of nationhood for indigenous peoples who have been close to despair."

"The court has found the forestry laws provisions unconstitutional," Abdon continued. "The state cannot expel us from our customary forests that have been our source of livelihoods for generations."

Indonesia has one of the highest rates of forest loss in the world. Industrial activities - notably logging, conversion for timber and oil palm plantations, and mining - are a major driver of deforestation, especially in Indonesian Borneo (Kalimantan), Sumatra, and Indonesian New Guinea (Papua and West Papua). However forest recovery has been observed some areas where communities have been granted land tenure. For example, the island of Java - where community forests are rapidly expanding - now has more forest than it had a decade ago.

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Implications for both business, conservation

The court decision could make it more difficult for companies to get forestry concessions in Indonesia as well as the government to set aside conservation areas without the consent of local people. Both concession licenses and the establishment of parks have been sources of social conflict in Indonesia in recent decades.

"It is still unclear yet how conflict between customary communities and private sector [companies] that received permits from the Ministry of Forestry or local government will be resolved," Martua told Mongabay.com. "But the court decision strengthened the customary community in mediation and in front of court, if a case brought to the court. It will prevent customary communities from being criminalized for entering their forest."

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