Jokowi must accommodate customary rights lest his development agenda spur land conflicts
Nanang Indra Kurniawan
Land conflicts in Indonesia have risen over the last ten years, as private investors and the government have acquired large tracts of land without respecting the rights and interests of local users. In 2013 alone, land conflicts in Indonesia caused 22 deaths due to violent clashes and involved almost 140,000 households, according to Agrarian Reform Consortium (KPA) figures. Over the course of Susilo Bambang Yudhoyono's (SBY) ten-year presidency, the organisation recorded 1391 land conflicts causing 70 deaths, involving five million hectares of disputed land and 926,700 households. Such land-grabbing most often involves land designated as 'forest area', according to the KPA, or former forest areas converted for non-forest uses such as mining, plantations and infrastructure. Adat (indigenous) rights to land are an important element of these conflicts, because large tracts of indigenous customary lands are located within forest area, which the government controls. Historically, the government has often claimed such customary lands to be ‘idle’ or ‘empty’, and transferred them to private investors.
At present, rising global demands for land for food, alternative energy, and conservation have put adat community lands under pressure, as has the rapid expansion of speculative land-based investments. Further pressure will come too as the new government of President Joko Widodo (Jokowi) needs to acquire extensive land for his plans to boost the national economy. With poor and unclear legal protections for customary rights to land, Jokowi’s development programs could trigger many more land conflicts.
Jokowi has formed a new agrarian ministry and promised a new agency to handle agrarian disputes. But new institutions will not suffice without concrete actions to improve governance and clarify land rights.
Meeting demands for land
At one level, land-grabbing is a global trend driven by global demands. Global crises in food, energy, finance and the environment are increasingly driving economic actors and national governments to search for ‘empty’ lands in the Global South, according to International Institute of Social Studies scholar and activist Saturnino Borras. Governments often legitimise rapid, extensive land acquisition by issuing permits or concessions, or justify land-grabbing through scientific discourses, such as the need for conservation or measures to address climate change.
Indonesia stands at the forefront of this global trend. Between 2000 and 2012, investors acquired 9.5 million hectares of land in Indonesia, the largest in the world, according to Land Matrix figures. Even these figures may be an underestimate, as land deals are not always transparent or may go unreported. Such large-scale, globally-oriented investment poses a real threat to indigenous communities, whose customary rights to land receive insufficient recognition and protection. National development programs to support investment by providing better infrastructure and sufficient labour through transmigration exacerbate the threat, because they drive further land acquisition.
The Indonesian government’s own ambition to promote economic growth has compounded this global trend. Aiming to make Indonesia one of the world's ten major economies by 2025, in May 2011 SBY’s administration announced the Master Plan for Acceleration and Expansion of Indonesia Economic Development (MP3EI). Spanning agriculture, mining, energy, industry, tourism, marine transport, telecommunication and the development of strategic areas, the plan is estimated to require almost AUD $400 billion of investment over fifteen years. To secure land acquisition for MP3EI, the Land Acquisition Law was passed in 2012.
The master plan divides Indonesia into six economic corridors: Sumatra as centre for production and processing of natural resources and the energy reserves; Java as driver for national industry and service provision; Kalimantan as a centre for production and processing of national mining and energy reserves; Sulawesi as centre for production and processing of national agricultural, plantation, fishery, oil and gas, and mining; Papua and Maluku Islands as centres for development of food, fisheries, energy, and national mining; and Bali and Nusa Tenggara as centres for tourism and national food support.
One ambitious project under the auspices of MP3EI is the Merauke Integrated Food and Energy Estate (MIFEE) in Papua. This agricultural mega project officially commenced in 2010, and covers a total area of 2.5 million hectares to develop large-scale investment in food crops and biofuels for global markets. A coalition of 27 Indonesian and international non-governmental organisations (NGOs) submitted a letter to the UN Committee for the Elimination of Racial Discrimination (CERD) in 2013 claiming that MIFEE has led to abuses against indigenous Malind communities through extensive land dispossession as well as social and ecological destruction. CERD has raised concerns, and has requested the Indonesian government to respond to the allegations.
Another slated project under MP3EI is a Central Kalimantan provincial government plan to establish a 385-kilometre railway to transport coal from mines near Puruk Cahu to Bangkuang. Governor Teras Narang maintains that the railway will contribute significantly to economic growth in Central Kalimantan and create multiplier economic effects. However, local communities and NGO activists fear that the coal railway will lead to the seizure of local communities’ lands and lay the foundations for more large-scale investment and land-grabbing in inland Kalimantan in the future.
Local governments and elites have also facilitated the massive acquisition of local community lands since the early 2000s under the umbrella of regional autonomy. These local actors exploit overlapping and conflicting national regulations to create self-serving local policies. There has been uncontrolled growth in the number of licenses issues by local governments for global-oriented investments in agriculture, plantations, mining, and forestry. With no basis for national or local governments to demarcate customary land and land use, and often ignorance even of the need to do so, these licenses threaten local people’s access and control over land. As a result, local communities have become socially and economically vulnerable.
Land acquisition and Jokowi’s economic agenda
Indonesia's new president has promised to provide a favourable business environment for investors and accelerate Indonesia's economic development. He aims to lift annual GDP growth above seven per cent within three years.
Jokowi's focus is on food security and maritime development, and he will alter Yudhoyono's MP3EI master plan to match this vision. His agenda will inevitably require massive land acquisition, and activists warn it may trigger more land-grabbing and speed up environmental destruction.
In the maritime domain, Jokowi plans to make Indonesia a global ‘maritime axis’, improving maritime infrastructure and establishing what he calls a ‘marine highway’. This highway will be a huge and rapid marine transportation system to connect Indonesia's islands. The highway promises to increase economic integration across the archipelago, but will require land for ports and other infrastructure. It also threatens to speed up resource exploitation.
On food security, Jokowi will need to build infrastructure such as dams, irrigation and land for agriculture. He aims to establish one million hectares of new rice fields in the outer islands. Central Kalimantan's experience of a Suharto-era project to convert 1.5 million hectares of peat forests to rice fields in the mid 1990s illustrates the risks. Local Ngaju Dayak people lost their land and access to resources because of the project, creating serious social problems. Degradation of peat lands also led to annual haze and forest fires.
Jokowi is not blind to the potential for his development plans to spur new land conflicts. He has established a new Agrarian and Spatial Planning ministry tasked with regulating and coordinating land use policies. On the campaign trail, Jokowi also indicated to the environmental NGO Walhi that he agreed with an activist proposal to establish a special agency to resolve land conflicts. It remains unclear whether this special agency will be established; Jokowi's administration has subsequently indicated that the new agrarian ministry will also perform this function.
Yet, without a genuine effort to recognise local communities’ rights and demarcate customary land rights and land use, Jokowi’s institutional reforms will not create legal certainty nor solve the problem of land conflicts.
Recognising customary land rights
One key development Jokowi's government must address regarding customary land rights and land use is a 2013 Constitutional Court decision, which alters the definition of 'state forest' under Indonesia's 1999 Forestry Law. This law categorises land in Indonesia into ‘forest area’ and ‘non-forest area’. This categorisation is political not ecological. Not all lands in forest areas are forested, whereas some parts of non-forest areas are forested. Forest area is defined only as 'any particular area determined or designated by the government to be permanent forest'. So-called forest area often comprises villages, settlements, grasslands and agricultural lands, including lands under customary law.
Community members blockade a road to protest a palm oil plantation in Gunung Mas district, Central Kalimantan Save Our Borneo
The government has designated around 122 million hectares as forest area, or 64 per cent of Indonesia's total land area. The Ministry of Forestry and Environment controls this area, and has authority to convert lands within the area into non-forest area, available for public and private use, or to zone it off for conservation.
The categorisation of lands as forest area affects vast numbers of people. According to government figures, around one third of all villages in Indonesia are located within forest area, whereas the Archipelagic Alliance of Indigenous Peoples (AMAN) asserts that forest areas encompass around 40 million hectares of customary territory.
'State forests' are a further classification of lands within forest areas. No land title is recognised within state forests, which become state land. To designate land as state forests, the government must undertake a four-stage process of designation, boundary management, mapping and stipulation. But in practice, the government treats all forest area as state forest, even before going through this process, using it as a land bank for investment and other development programs.
State forests have been an important impediment to adat communities seeking to defend their lands on which they have lived for generations. The 1999 Forestry Law defines customary forests as 'state forests located in the areas of custom-based communities'. This legal definition renders communities unable to own their customary land, leaving them powerless when the state takes possession of customary forests. The law does allow for adat communities to obtain rights to manage customary land or forests, but only if the state acknowledges these adat communities, and further deems the acknowledgement of adat rights not to conflict with the national interest.
Adat communities achieved a legal breakthrough in May 2013 when AMAN succeeded in its request for the Constitutional Court to overturn the Forestry Law's classification of customary forests as state forests. The Court deleted the word “state” in Article 1 of the law, which originally read 'customary forests are state forests located in the areas of custom-based communities'. The decision voided state ownership of customary forests, meaning the state must acknowledge local communities’ rights over customary forests. According to the Court: 'Customary forests are within the scope of indigenous land rights where indigenous peoples are constitutionally recognized and respected as the rights owners.' The Court reasoned that the state should not ignore the rights of indigenous people, because they existed before Indonesia exited. The state still has the rights to manage state forests but a clear distinction between customary forests and state forests must be made.
The Court's decision has opened a new opportunity to defend adat rights to land, and to reallocate customary forest back to adat communities. Adat communities responded to the decision by erecting signboards on their customary lands in forest areas, reading: ‘Customary forests are no longer state forests. Adat communities are implementing the Constitutional Court's Decision No. 35/PUU-X/2012’.
Customary rights and Jokowi's policy agenda
Jokowi’s ambitious economic development plans require legal certainty for lands in both forest areas and non-forest areas. Otherwise, the plans will heighten land conflicts in Indonesia. One urgent step Jokowi's government should take to strengthen legal protections for land is to implement the Constitutional Court’s decision on customary forests. Although the Court handed down its decision in May 2013, the government has been slow to follow up.
To implement the Constitutional Court decision, Jokowi's government will require information about indigenous peoples and their territories. In the short term, the government needs an indicative map of indigenous territories as a basis for its land use policies, to avoid potential land-grabbing driven by growing investments. Several NGOs have already initiated a mapping process, coordinated by AMAN and the Network for Participatory Mapping (JKPP). This NGO-led process has limited resources and, as a result, also has limited coverage. The government should take responsibility for this exercise, and expand it to become a national, systematic mapping process.
Next, the government should accelerate the delineation of boundaries between state forests and titled forests, including customary forests, using a participatory approach. Various NGOs throughout the country have already helped indigenous communities to map their land and territories. In Central Kalimantan, the provincial government is working together with NGOs and adat communities to create an inventory of customary communities' territories. The government plans to incorporate this mapping into its planning processes in certain parts of the province, a practice that merits replication. Adopting participatory mapping as part of the official mapping process would help Jokowi's government strengthen the One Map Initiative, which aims to establish an integrated map as a single reference for land use. During the presidential campaign Jokowi indicated his support for this initiative, which started under his predecessor, SBY. Each government agency's use of their own maps and spatial planning has been an important factor in the growth of land conflicts in Indonesia. Apart from harmonising the various different government land use maps, the initiative also aims to handle overlapping claims between local communities and private companies.
Fundamental legal reform to recognise and protect indigenous people’s rights to land, customary law, and culture is also urgently needed. The House of Representatives (DPR) deliberated on a draft Indigenous People’s Bill in 2013, but discussions remained incomplete when the legislature finished its five-year term in September. Jokowi’s government needs to revive the bill and support its passage through the legislature.
One of the crucial points in the existing draft of the bill was the establishment of an independent commission for adat communities. Jokowi also pledged to establish this commission in his written campaign statement. The commission would be tasked with preparing regulations and policies related to recognition, respect, protection, and development of adat communities' rights.
The newly established Agrarian and Spatial Planning Ministry, slated to include a special agency to solve land disputes, looms as another important step to handle current and future conflicts. For these institutional reforms to have real impact though, the ministry will need to be empowered to coordinate with other ministries that regulate land use, such as the Agriculture Ministry and the Ministry for Forestry and Environment.
Broader reforms to enhance governance and the rule of law are also important. The government also needs to address the confusion that a raft of new bills and regulations pertaining to land use has caused. For instance, the new Village Law recognises adat villages, but how this will be implemented remains unclear.
Finally, civil society and indigenous communities should continue to criticise the government to ensure that the government’s land use policies are environmentally sustainable and respect indigenous rights.
Agrarian reform should address the issue of justice in the access to, ownership of, and utilization of land. Institutional arrangements are important but they are meaningless without recognition of local rights to land.
Nanang Indra Kurniawan (nanang.indra@ugm.ac.id) is a lecturer at Department of Politics and Government, Gadjah Mada University and a PhD Candidate at Victoria University, Melbourne.
Other related articles from the II archive:
'Campaigning for Agrarian Reform'. Rahmat Ajiguna with Eve Warburton, Edition 114: Oct-Dec 2013
'Fighting for Land'. Dianto Bachriadi, Edition 107: Jan-Mar 2012
Inside Indonesia 118: Oct-Dec 2014{jcomments on}
