VII. INDIGENOUS LAND RIGHTS

What could we do? Nobody said no to the [security] `apparatus' (aparat) in those days. We often heard about people being arrested or just disappearing. So when they came here wearing their guns, we just kept our mouths shut.

-Villager from Mandigangin

Indigenous Malay and Sakai communities have had vast areas of constitutionally protected customary land seized for Arara Abadi's pulp plantations, without due process and under intimidation by state actors. These seizures, although viewed by company representatives as the legal exercise of the rights granted to them by the state, were in violation of both international standards and constitutional provisions for indigenous property rights. Furthermore, the issuance of Arara Abadi's concession is based on a flawed interpretation of "unowned land" that unlawfully permitted the designation of indigenous land as "state forest." This fundamental problem of indigenous lands that have been inappropriately classified as "state forest" is one that must be addressed in order to stem the rising tide of violence around forest operations as well as to bring security to this economically important industry.

Indigenous Property Rights and International Law
Governments are entitled to confiscate land for public purposes, if done according to law, with public participation, due process and adequate compensation. Indonesia's designation of huge tracts of land as unowned and the subsequent transfer of land to business interests ignored pre-existing indigenous rights specifically recognized by the Constitution. Article 18 of the 1945 Constitution states: "The State of the Republic of Indonesia respect the status of self-governing villages (Zelfbesturende landschappen) and native communities (volksgemeenschappen) and all the state regulations concerning them shall heed the original hereditary rights (hak-hak asal-usul) of these areas."

The Indonesian government has pursued policies on forest classification and use that violated constitutionally protected indigenous land rights and disadvantaged local communities in land ownership and their ability to pursue adequate livelihoods. Among those deeply affected have been the Sakai and Melayu indigenous people of Riau.

Property rights are protected by international law. The Universal Declaration of Human Rights, which is widely recognized as customary international law, states that "[e]veryone has the right to own property alone as well as in association with others." Furthermore, "[n]o one shall be arbitrarily deprived of his property."²

Indigenous land and resource rights under international law have been informed by contemporary understandings of cultural integrity and self-determination.³ The U.N. Committee on the Elimination of Racial Discrimination in its General Recommendation on Indigenous Peoples, calls upon states parties to:

recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources and, where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return those lands and territories. Only when this is for factual reasons not possible, the right to restitution should be substituted by the right to just, fair and prompt compensation. Such compensation should as far as possible take the form of lands and territories.⁴

The relationship between indigenous peoples and land and its legal implications is developed in the International Labor Organization (ILO) Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries. ILO Convention No. 169 provides that governments shall respect the special importance for the cultures and spiritual values of indigenous peoples of their relationship with the lands they occupy or otherwise use.⁵ Fundamental is the idea that indigenous peoples, through their traditional means of occupancy and use, are entitled to a continuing relationship with their land and its resources.⁶

Although Indonesia is not a party to ILO Convention No. 169, it provides important guidelines for addressing the rights of indigenous peoples to the land⁷ and their "use, management and conservation" of their natural resources.⁸ Article 14 states that:

The rights of ownership and possession of [indigenous peoples] over the lands which they traditionally occupy shall be recognised. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities.⁹

ILO Convention No. 169 calls upon governments to take steps as necessary to identify the lands of indigenous peoples and to guarantee effective protection of their rights of ownership and possession. Governments should also establish adequate procedures within the national legal system to resolve land claims by the peoples concerned.¹⁰ Indigenous people must be consulted in development plans that will affect them and their lands directly.¹¹

Convention No. 169 permits the relocation of indigenous peoples from the lands they occupy only when necessary and as an exceptional measure. Such a relocation must take place with "their free and informed consent" or, when their consent cannot be obtained, "only following appropriate procedures established by national laws and regulations, including public inquiries where appropriate, which provide the opportunity for effective representation of the peoples concerned."¹² Those relocated are to receive full compensation for loss or injury. As soon as the grounds for the relocation ceases, indigenous peoples are entitled to return to their traditional lands. When this is not possible, they are to be provided with "lands of quality and legal status at least equal to that of the lands previously occupied by them, suitable to provide for their present needs and future development," or compensation as they choose.¹³

Much of the current conflict over land rights in Indonesia, particularly with respect to indigenous communities, can be traced to Indonesian government seizures of constitutionally protected land. But this failure of the government to act in accordance with basic rights is not merely an historical wrong left unresolved. Despite greater international attention to the special rights of indigenous people to customary land and resource management rights, such abuses continue in the present. This is because of a failure by the government to create a mechanism whereby constitutionally protected indigenous land rights could be protected. During the New Order, "state forest" was designated on land that was untitled, yet there is no means by which land used by indigenous people can be titled or otherwise formally and legally recognized. The establishment of such a mechanism is a key element to addressing the systemic rural conflicts around commercial forestry operations, as well as other industries that operate on traditionally claimed land.

Further, land seizures were not only illegal according to internationals standards of indigenous rights and due process, but according to Indonesia's own national law. Land seizures by Arara Abadi, like other commercial forest operations, took place based on the premise that, as state forest, concession rights could be legally granted by the state to corporate entities, while in fact the designation as "state forest" was in most cases unlawful as it violated basic forest regulations. Government data reveals that approximately two-thirds of the area the Department of Forestry claims as "state forest zone" has yet to be legally gazetted and is still unclassified. As a result, by the government's own admission, only 68 percent of what the ministry considers state forest is legally under its putative jurisdiction. ¹⁴ Further, the 1999 Revised Forestry Law and its implementing regulations call into question the legality of even the remaining gazetted land: the new laws require that all local communities be informed of the creation of state forest in their village territories, and that community leaders must sign documents saying they were informed and that there were no outstanding rights to the area.¹⁵ However, information about which areas have been gazetted is unavailable to local communities and it is widely known that in the past, most areas were gazetted by the Ministry of Forestry in the absence of community consent.¹⁶ Finally, the 1999 Revise Basic Forest Law specifically defines state forest as "forest unencumbered by land rights," and not "untitled land."¹⁷ Members of indigenous communities often have rights even when they currently lack legal title. Therefore, only a tiny fraction of land classified as state forest actually legally qualifies as such. A reassessment of State Forest classifications offers a critical entry point for resolving persistent conflicts between local communities, the government, and concessionaires.

According to APP/Sinar Mas Group, the surrender of land to Arara Abadi by local communities took place voluntarily following consultation with local communities.¹⁸ But mere "consultation" with local community members is not sufficient to satisfy the legal standards outlined above. As they have been most commonly undertaken in Indonesia, such "consultations" more closely resembled notifications, as they routinely occurred under intimidation, with an unrepresentative group of community members, and with no meaningful process for addressing dissent or negotiation of terms.

2 Universal Declaration of Human Rights, Article 17(2).

3 See S. James Anaya, Indigenous Peoples in International Law (Oxford University Press: New York, 1996), p. 104-07.

4 Indonesia has been a party to the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) since 1999. Committee on the Elimination of Racial Discrimination, General Recommendation XXIII on Indigenous Peoples (Fifty-first session, 1997) U.N. Doc. A/52/18, annex V.

5 Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries, adopted June 27, 1989, 76^th Session of the General Conference of the ILO, entry into force, Sept. 5, 1991, Art. 13(1).

6 See Anaya, Indigenous Peoples, p. 106.

7 ILO Convention No. 169, Art. 14.

8 Ibid., Art. 15.

9 Ibid., Art. 14(1).

10 Ibid., Art. 14(2)-(3).

11 Ibid., Article 7 (1) states, "the peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use...In addition, they shall participate in the formulation, implementation and evaluation of plans and programs for national and regional development which may affect them directly."

12 Ibid., Art. 16.

13 Ibid., Art. 16.

14 The legal gazettement of the State Forest Zone is contingent on notification units (BATB) being signed by the Minister of Forestry. As of February 1999, the Ministry's own Forest Inventory and Land Use Planning Unit (Inventarisasi dan Tata Guna Hutan, INTAG) documented that of the 2531 units identified during the 1984 classification process, only 1719 units have been signed, leaving 812 units still legally unclassified. Direktorat Inventarisasi dan Tata Guna Hutan (INTAG), unpublished internal progress report, cited in Chip Fay and Martua Sirait, "Getting the Boundaries Right: Indonesia's Urgent Need to Redefine its Forest Estate," unpublished manuscript, International Center for Agroforestry Research (ICRAF), Bogor, Indonesia, 2001, p.11.

15 Ministerial Decree No 32/Kpts-II/2001 on the Criteria and Standards for Forest Area Classification.

16 Chip Fay and Martua Sirait, "Getting the Boundaries Right."

17 Revised Basic Forestry Law, Article 1, Section 4; also Ministry of Forestry and Estate Crops Decree (SK) No. 32/2000, Article 5, Section 2, Paragraph b (emphasis added). The article does not use the word hak milik, which specifically indicates "ownership rights" (commonly interpreted to be equivalent to individual freehold property titles), but rather an unqualified hak atas tanah, which refers to the broader idea of "land rights."

18 Human Rights Watch interview with Mark Werren (Director, Sinar Mas Group Forestry Support Audit), Jakarta, February 13, 2002.