Erik Meijaard: Tricky Tradeoffs Between Indigenous Land Rights and Deforestation i

Remote forest river in East Kalimantan. (Photo courtesy of E. Sudiono).

By : Erik Meijaard | on 4:06 PM December 25, 2015
Category : Opinion, Commentary

Indonesia stands at the brink of a decision that may play a decisive role in determining the fate of its remaining forests. Surprisingly few want to critically and publicly reflect on this decision, probably because the issue is highly sensitive.

What is at play here is the right of indigenous communities in Indonesia to use and own the forests they live in. Historically these communities have had little to say about these forests. The Indonesian constitution established in 1945 basically assigned all forest rights to the state, with the added note that the government is responsible for using these forests for the benefit of society. The Basic Agrarian Law of 1960 reinforced supremacy of the state in land matters and converted most adat  (traditional) rights into a series of weaker titles that made indigenous land ownership subordinate to the national interest.

Obviously the national government didn’t do too well in managing the nation’s forests. Much of Indonesia’s forests have since disappeared, so there is an obvious need to look at new ways of sustainably managing Indonesia’s forests.

Recognizing traditional forest rights

Possible new ways were found in 2011 and 2012 when the Constitutional Court determined in several legal decisions that denying indigenous rights to forests was wrong and in conflict with the constitution. The constitutional decision 35/PUU-X/2012 clearly stated that customary forest lands (hutan adat) cannot be State Forest land.

Thus, the Indonesian government was forced to take action. And it did. Surprisingly quickly the government decided to release large areas of forests from the national Forest Estate and handed these back to indigenous communities.

So far so good — but let’s look at the details. The most recent proposals I have seen have identified 12.7 million hectares of State Forest land (about 10 percent of Indonesia’s remaining forest), which need to be handed back to indigenous communities. Nearly half, or 6.3 million ha of this land, will apparently be taken out of existing protected areas and watershed protection forests. There could be additional claims though, with up to 40 million ha of forests assessed as customary forest.

Managing deforestation risks

My key question here is: What will happen to those forests?

The outcome may very much depend on the legal and governmental context of how the forests lands are handed back to communities. There are two basic options: 1. Trustee-ship under tenure principles; or 2. Ownership under property principles. As far as I can see, the key law regarding this, the Joint Decision 79 of 2014 between various ministries, does not clarify which of the two options above is favored.

Property principles would privatize state land and potentially allow communities to sell the land to others, unless this is specifically prohibited or regulated by law. With the plantation industries expanding rapidly in Indonesia with strong government support, I can imagine that out of the 12.7 million hectares of forests initially handed back to communities, a significant part will be sold on to investors and deforested.

Whether a trustee-ship or property-rights solution is sought, the key to avoiding deforestation appears to be that jointly agreed management plans are developed that identify what can and cannot be done on the land. For example, if part of a national park is handed over to communities, there will have to be some very clear arrangements ensuring that those communities manage the land and wildlife in line with the conservation objectives for which the park was established, and with other legislation for protecting wildlife and habitats or international agreements that Indonesia is signatory to.

It also needs to be clear how this will be funded, implemented, monitored and regulated, and by whom. Presently the law is vague on this. For example, the Agrarian and Spatial Planning Law No. 9 of 2015 states that people are responsible for preserving the forest, but doesn’t clarify how they are supposed to do that.

Lessons learned elsewhere

There are some important lessons to be learned from other countries that have gone through a similar process.  Malaysia is an example of the private property option. There, the government issued so called Communal Land Titles with the intention to expedite land alienation to native people, but also to ensure the development of their land. In several states of the country, these titles proved unhelpful to local communities. The issuance of these titles by the government was often implemented in association with joint venture development schemes with government agencies or corporations. The result is that in many cases, the primary beneficiaries of these communal titles were the government, development agencies and plantation companies, with communities losing their forests and earning opportunities.

A different example is from Australia, where in the state of Victoria an innovative and measured approach is implemented for recognizing the rights and interest of Aboriginal communities under the Traditional Owner Settlement Act (2010). The legislation provides a framework for these communities to negotiate a range of land and natural resource benefits from government, including the handing back of national parks and reserves into “Aboriginal title,” and the establishment of joint management arrangements through Traditional Owner Land Management Boards.

These boards have a majority of traditional owners, and are responsible for setting the strategic direction for the management of these lands. While these lands must still be managed to meet the objectives of various Public Land Acts, and cannot be sold or subdivided, they are legally owned by these communities. This again is an example of the private property option, but with strong checks and balances to ensure that ecological functions are maintained, and long-term processes to ensure that the best solutions are identified.

Potential net losses to traditional communities

Both the Indonesian government and the indigenous rights groups who are pushing for recognition of traditional forest rights need to understand the risks of getting the processes wrong. If communities end up rapidly passing on their land to the private sector, because of a lack of controls and the irresistible financial opportunities this creates, they risk losing access to their land and free forest resources.

Our perception studies in Kalimantan clearly suggest that such potential losses worry many community members. But it only takes one powerful member of the community to sell off the community land, and the business sector understands this very well, and has effectively used this insight in the past.

Changing legal land titles and developing management plans that are in line with forests' functions (e.g., watershed protection and protected area management) is a lengthy process that will need to be repeated for thousands of indigenous communities. Fast-tracking this process entails significant risks of ending up with poorly designed and implemented plans, rapid deforestation, social conflict and loss of forest goods and services for those communities that are meant to benefit from the policy initiatives.

Indonesia needs competent institutions and careful and transparent processes for guiding the indigenous land rights issue to make sure that affected communities are the main beneficiaries. Quick-win solutions may look good on paper but could be more dangerous than many realize.

Erik Meijaard coordinates the Borneo Futures initiative:   and

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