Situation of Indigenous Peoples in Indonesia 2010
Pada 2010, saya turut menjadi bagian dari penulisan buku tentang situasi masyarakat adat
dari berbagai penjuru dunia, The
Indigenous World Book. Buku ini diterbitkan pada setiap akhir tahun oleh IWGIA. Maksud
penerbitan buku ini adalah memberikan ruang bagi aktifis dan pendukung masyarakat
adat untuk menuliskan perkembangan dan atau kegiatan-kegiatan penting dari
sudut pandang masyarakat adat. Tentu saja, perkembangan dan kegiatan-kegiatan
tersebut harus relevan dengan gerakan masyarakat adat di masing-masing negeri.
Dalam 1
dekade terakhir, buku ini selalu menjadi referensi dan rujukan bagi pemerintah
dan atau akademisi untuk mengetahui situasi masyarakat adat seluruh dunia. Buku
ini terdiri dari beberapa laporan tentang situasi masyarakat adat dari berbagai
penjuru dunia dan berbagai aktifitas Advokasi masyarakat adat internasional,
termasuk situasi masyarakat adat di Indonesia sepanjang 2010.
Berikut adalah tulisan saya tentang situasi masyarakat adat di Indonesia sepanjang 2010. Dan bukunya bisa dibeli di link ini >>> http://www.iwgia.org/publications/search-pubs?publication_id=1
Situation of Indigenous Peoples
in Indonesia
Indonesia has a population of
around 220 million. The government recognizes 365 ethnic and sub-ethnic groups
as komunitas adat terpencil
(geographically-isolated customary law communities). They number about 1.1
million. However, many more peoples consider themselves, or are considered by
others, as indigenous. The national indigenous peoples’ organization, Aliansi
Masyarakat Adat Nusantara (AMAN), uses the term masyarakat adat to refer to indigenous peoples. A conservative
estimate of the number of indigenous peoples in Indonesia amounts to between 30 and
40 million people.
The third amendment to the Indonesian Constitution recognizes indigenous
peoples’ rights in Article 18b-2. In more recent legislation there is an
implicit, though conditional, recognition of some rights of peoples referred to
as masyarakat adat or masyarakat hukum adat, such as Act
No. 5/1960 on Basic Agrarian Regulation, Act No. 39/1999 on Human Rights, MPR Decree No X/2001 on Agrarian Reform.
However, government officials argue that the concept of indigenous peoples
is not applicable, as almost all Indonesians (with the exception of the ethnic
Chinese) are indigenous and thus entitled to the same rights. Consequently, the
government has rejected calls for special treatment by groups identifying
themselves as indigenous.
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| Komunitas Adat di Kayeli, Pulau Buru |
Coastal Waters Management Right (HP3) for Indigenous Peoples and the
New Environmental Act
By
the end of 2009, little progress has been made with regard to policies on indigenous
peoples’ rights. Only Law No. 27 of 2007 on coastal and small island management
is considered to be a relatively big step with regard to the recognition of
indigenous peoples’ rights.
However, the progressive spirit
in the Act has been criticized, particularly with regard to the recent policy
development on the coastal waters management right (HP3). The plan to apply HP3
had resulted in pros and cons among the public and NGOs. There is much concern
that the HP3 - which allows the commercialization of waters areas- will
undermine the rights of indigenous peoples. In relation to this, indigenous
peoples observe that the application of HP3 in indigenous territories is
acceptable if it reinforces the respect for, recognition and protection of
indigenous peoples living within for the time immemorial.
On 2 – 4 September 2009, the
Department of Marine and Fishery held a consultation as a part of Governmental
Regulation (GR) on HP3 development process. Even though HP3 was accepted, there
were some notes and requirements indigenous peoples requested the government to
be adopted in the GR. Among the requirements is that the application of HP3 should
be restricted to indigenous peoples, indigenous organizations and or indigenous
peoples’ partnership with any party. AMAN suggested that a single extension of
HP3 should be limited to 10 years.
According to the regulation, before the HP3 is granted, the regional government should develop a management zonation plan. AMAN urged that the zonation policy should guarantee full participation of concerned indigenous peoples. AMAN’s Secretary General, Mr. Abdon Nababan stated that any HP3 in indigenous territories should be recognized through communal certificates or letter of the District Head. The process to obtain HP3 for indigenous peoples should be simplified.
The public consultation,
therefore, should become the stepping stone to the participation of indigenous
peoples in further decision making processes. The government must seriously
oversee the application of HP3 in order not to harm or cause a loss to
indigenous peoples as in the case of forest and mining concessions.
In the meantime, a hope grew on 8
September 2009, when the national House of the Representatives (DPR) endorsed
Law No 32 of 2009 on Protection and Management of the Environment to replace the
Law No 23 of 1997 on Management of the Environment. In the new Environmental
law, the central, provincial and district governments have authority to develop policies on the procedures
of the recognition of the existence and the rights of indigenous peoples with
regard to the protection and management of the environment (Article 63 paragraph
t). In relation to these task and authority, indigenous peoples’ empowerment
should be done through indigenous knowledge-based environmental management
system, as well as capacity and skill building. The empowerment should include
natural resource management and utilization rights for indigenous peoples. The
rights give certainty for indigenous peoples that they will benefit when they
conserve natural resources and preserve the environment.
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| Komunitas Adat yang tergantung pada hutan |
Discussion on the Act on the Protection of Indigenous Peoples Rights in the National Legislation Program
(Program Legislasi Nasional/Prolegnas)
The Regional
Representatives (DPD) in 2004 proposed a draft Act on the Protection of Indigenous
Peoples’ Rights (RUU PHMA) to the parliament for its inclusion in to the National
Legislation Program (Prolegnas). On 30 November 2009, the Ad-Hoc Committee
(PAH) I DPD invited AMAN to participate in a hearing concerning the draft Act.
AMAN put forward a
scope of the Draft Act that covers the following:
1.
Identification and existence of indigenous peoples as
collective rights holders;
2.
Right to land, territory and resources;
3.
Right to self-governance and self-management in
accordance to indigenous peoples’ social, economic, cultural, customary law and
institution;
4.
Right to determine development model that best suit
their needs and situations.
The terms of indigenous peoples vary from The Indonesian Constitution to
the existing Laws and Regulations. This uncertain situation has been the
source of marginalization of indigenous peoples in all dimensions, made them deprived
from their rights and the very protections they need. Therefore, AMAN sees the urgency of an Act to bridge gaps and conflicts among
existing Acts, policy and regulations relevant to indigenous peoples in Indonesia. The
Draft Act is
expected to be an intact, comprehensive, inter-sectoral that should perceive indigenous
peoples as an integral part of their customary institutions, laws and territories.
The Act should provide a space for indigenous speoples to enjoy their human
rights and fundamental freedom. It should allow indigenous peoples to fully
determine their social, economy and cultural development.
Yet, the result
of the negotiation between the law-making body and the DPD’s Law-Making
Committee (PPUU) did not include the Draft Act into the priority list for the
2010 National Legislation Program. Hence, legal recognition of indigenous
peoples and of their rights is still a long way to go.
One-Decade Anniversary of the Awakening of Indigenous Peoples of the
Archipelago
Indigenous peoples in Indonesia
observe the 17 March every year as the Indigenous Peoples Day. This particular
date is to commemorate the first Congress of Indigenous Peoples of the
Archipelago back in 1999.
On commemorating the one-decade
anniversary, AMAN in collaboration with the Indonesian National Commission on
Human Rights, held an interactive dialog “Considering
National Mechanism to achieve recognition, protection and fulfillment of the
Rights and Fundamental Freedom of Indigenous Peoples in Indonesia”.
The main speaker in the dialog was the UN
Special Rappourteur on the Rights and Fundamental Freedom of Indigenous Peoples,
Mr. James F Anaya.
In the dialog, James
Anaya said that the 23-year indigenous peoples’ advocacy in the UN has yielded
the UN Declaration on the Rights of Indigenous Peoples. Being one of the
international minimum standards for protection, respect and fulfillment of
indigenous peoples’ rights, the Declaration emphasizes collective right of
indigenous peoples; right to self-determination, land, territory and natural
resources; right to cultural identity and intellectual property; right to free, prior and informed consent; and
right to determine the most appropriate development models.
The summit of the anniversary was
the signing of the MoU between AMAN and Komnas HAM concerning mainstreaming indonesia’s indigenous peoples
right-based approaches. Steps to
undertake by AMAN and KOMNAS, as included in the MoU, are as follows:
1.
Socialising the UN Declaration on the Rights of
Indigenous Peoples
2.
Exchanging information regularly and periodically.
3.
Assessing the existence of indigenous peoples in Indonesia and
their basic rights.
4.
Developing resolution mechanism of human rights
violation towards indigenous peoples.
5. Fostering ratification of the optional protocols of
International Convention on Economic, Social and Cultural Rights.
James F Anaya was the witness to
the signing.
The 2009 National Election and Indigenous peoples’ political
participation
The 2009 National Election was one
of the important political events for indigenous peoples in Indonesia. It
was used as the indicator of indigenous peoples’ political participation, which
has been their important agenda of since 1999. It has been well understood
since the onset that deprivation of indigenous peoples in formal political
processes has led to the issue of national and regional regulations that deprive
them of their rights and that adversely affect their life and interests in the
development process in Indonesia.
Therefore, indigenous peoples through
AMAN agreed to rely not only on directly exercising democracy through advocacy
work to reform policies but also on entering the state’s politics, which means
political representations through the existing formal democratic spaces to
participate in the State’s political institutions.
The extension of political
participation as mandated by the AMAN’s Congress of in 2007 was further
translated into intervention in the 2009 National Election. The strategy developed
to intervene in the election was not to form a political party but to encourage
and support all AMAN’s members to nominate for legislative members. Approximately
192 AMAN’s political cadres were officially registered as legislative members,
either through non-political party mechanism for the regional house of representatives
(DPD) election or through political party mechanism for the national house of
representatives (DPR) at city/district, provincial and national levels.
Furthermore, AMAN furnished its
political cadres with how-to-win-the-election strategies, bound them to always
be highly committed (if successful in the election) to promoting susbtantial
democracy, mainstreaming human rights-based development approaches, and
structuring sustainable and just agrarian and natural resource management
policies in Indonesia. Officially, AMAN collected its political cadres through
the National Consultation Forum for
Indigenous Peoples’ Political Delegation before campaign period for the 2009
National Election started.
In April 2009, the legislative
election was held. Although the election result was quantitatively
unsatisfactory – only a few AMAN’s cadres were successful. The number of
candidates totaling of 212 comprised of 194 men and 18 women, out of that
number, 22 candidates ware elected (Regional Representatives (2), Provincial
Parliament (1) and Municipality/District Parliament (19). The 2009 Election taught
a useful lesson to AMAN’s activists to develop future political strategies.
National Consultation on Climate Change and REDD
4 – 9 August 2009 saw a series of AMAN’s activities, starting
with Indigenous Peoples’ National
Consultation on Climate Change and REDD, followed by AMAN’s National Annual Planning
Meeting, and closed with the celebration of the International Indigenous
Peoples Day.
The national consultation and the Annual Planning Meeting were
attended by approximately 139 participants comprising representatives of The
AMAN’s Headquarter, Council Members and Regional Chapters. The activities were aimed at formulating
an annual working programs and strategies in the future, particularly to prepare
AMAN’s members to respond to REDD and climate change.
To respond to climate change, the capacity of AMAN’s
indigenous community group members must be enhanced to pursue recognition of
rights to customary teritorries and forests. Facts show that a lot of customary
forests have been dispossessed for exploitative activities that tend to emit
emission into the atmosphere.
Concerning the above, long-term collective work is needed
to foster recognition and guarantee of indigenous peoples’ ownership right to
land, teritorries and natural resources. As the first step, well-developed
preparation both at local and national level is imperative. Strategies to
support such collective work were developed in the working meeting.
Natural Resource-related conflicts and neglect of Free, Prior and
Inform Consent (FPIC) Principle
In 2009, natural resource-related
conflicts could not be separated from indigenous peoples’ lives, in particular
the dispossession of customary land. Such conflict were prevalent throughout Indonesia. AMAN’s
data show that the year 2009 saw several cases of dispossession of indigenous
peoples’ land by plantation companies, mining companies, and others. As a
result, many of AMAN’s indigenous activists were criminalised for holding a
protest.
8 members of the Sedulur Sikep in Pati District, Central
Java Province,
were arrested for protesting against the establishment of a cement plant owned
by PT. Semen Gresik. The plant was erected on customary land without
knowledge and consent of the indigenous community. The community seized the
company’s cars and employees. The police, who had been serving the
capitalists, managed to free the hostages and arrested 8 Sedulur Sikep
activists (TEMPO Interaktif, Friday, 23 January 2009).
In West Kalimantan,
the indigenous Semunying Jaya were against PT. Ledo Lestari (PTLL), which was
still operating despite the termination of the permit on 20 December 2007. PTLL
even expanded its operation and triggered the community’s anger. They seized
the company’s heavy duty vehicles. As a
result, the village head and some community members were arrested. Komnas HAM investigated
the case and found out that PTLL had committed human rights violation towards
the indigenous Semunying Jaya.
Similar cases occurred in some
districts in West
Kalimantan Province,
such as Sanggau, Ketapang, Sintang, Melawi, Landak and Sambas.
In Manggarai Barat District, East
Nusa Tenggara, the indigenous peoples rallied to the Regent’s office (28 June
2009), protesting against a gold company PT. Grand Nusantara, which would start
the exploration on their customary land.
In the meantime, in North Sumatera, conflicts
erupted between the indigenous Batak of Pandumaan Village and Sipitu Huta
Village in Humbahas District
and PT.Toba Pulp Lestari, Tbk (TPL). The casue of the conflicts was the
dispossession of the customary tombak
haminjon (benzoin forest/grove) and the destruction/felling of the trees on
it by PT TPL.
The conflicts above were the continuation
of the previous ones. All these have happened because no significant changes in
the legal system and state’s policies are in place. In most cases, neglect of
Free Prior and Inform Consent (FPIC) principle is the root of the conflicts.
Application of Customary Justice to Police Officers
A rare event, and maybe the first
in Indonesia, happened on 6
July 2009 in Berabai District, South
Kalimantan Province,
when four officers of Hulu Sungai Tengah police
district got a sentence by a customary justice. The officers were sentenced to a
20-tahil fine (one tahil equals USD 30) by the Dayak
Meratus court. Besides having to pay the fine, the ‘accused’ were obliged to
pay Piduduk (a kind of indemnity in
which the accused give rice, eggs, brown sugar, coconuts, needles and threads)
to the community.
The officers
were brought to customary justice for violating customary norms, namely
maltreating and molesting a child of the Balai Japan Chief from Mianau Village,
in Balangan District.
Prior to the
court, a traditional ritual was performed. Damang and the elderly and the
customary head slaughtered a black chicken and drank the blood as invocation
for the court.
The court opened
with 3 customary prosecutors and 3-membered customary consultation board
requesting explanation from the victim and the accused. After almost two hours,
the customary judge gave the accused a 20-tahil fine. The decision was lighter
than demanded by the prosecutor, who demanded 45 tahils. Despite the large
number of people coming to the court, the process ran in an orderly and smooth
way.
Endnotes:
Kompas, 17 March 2009
Gaung AMAN, June – September 2009
edition
Gaung AMAN, April – May 2009
edition
Kompas, 8 September 2009
http://www.banjarmasinpost.co.id/read/artikel/16458/polisi-divonis-hukum-adat-20-tahil
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