Forestryhadint_cescr_css_idn_16699_e

International Covenant on Economic,Social and

Cultural Rights

(ICESCR)

Alternative Report

Indonesia

52ndSession

Committeeontheon Economic,Socialand

Cultural Rights

April/May 2014

Ajointsubmission by

Aliansi Masyarakat Adat Nusantara,YMC,HUMA,Paradisea,and the Rainforest Foundation Norway

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Introduction

1. This report is a joint submission by Al iansi Masyarakat Adat Nusantara (AMAN), YMC, HUMA,Paradisea and the Rainforest Foundation Norway,based on information andinputfrom several otherpartners in Indonesia.The report highl ights key concerns related to the appl ication of the Covenantof Economic,Social and Cultural rights by the state of Indonesia in relation to indigenous peoples.The report isstructured based onthe l istof issuesfor Indonesia’sexamination underthe Committeeon Economic,Social and Cultural rights.

Article 1 paragraph 2–Free disposal of natural wealth and resources

The recognition of the rightto self determination forindigenous peoples,within the sovereigntyofthe Republ icof Indonesia, remainsa concern.Whi lethe revised Indonesian Constitution of 1945recognisesthe existence of indigenous communities and theirtraditional rights as stipulated inarticle 18B(2), the Governmentof Indonesia does not recognise the terminologyand definition ofindigenous peoples as stipulated in internationalframeworks, l ike the United Nations Declaration onthe Rightsof Indigenous Peoples (UNDRIP).1Whi le Indonesia isone of the signatoriestothe UNDRIP,thegovernmenthasarguedthatthe conceptof indigenous peoplesasstipulated inthe UNDRIP is notappl icable,asal l Indonesians (withtheexception of theethnicChinese)areindigenous.The non-recognition of theexistence of indigenous peoplesinthe country has ledto massiveviolationsoftheir rights.

It can be said that 2013 was a landmark year in the history of the recognition of the rights ofindigenous peoples in Indonesia, as it sawthe Constitutional Court Decision No. 35/PUU-X/2012 onthejudicial reviewof Law No.41 Year1999on Forestry, and the adoption of RUU PPHMHAas theHouse of Representatives’ Initiative Bi l l .Yet despite these important events, indigenous peoples inIndonesia continue to face confl icts of territory, land and natural resources.The Law on Forestry of1999 gives the Government, and the Ministry of Forestry, the right to regulate the legal relationshipbetween peoples and land, and between groups of indigenous peoples.As a result, there are manyoverlapping land claims.At present, according to data from the Ministry of Forestry and Statistics-Indonesia of 2007 and 2009, there are 31,957vi l lages located inside orborderingthe forestareas.Over 70%of these communities depend on the natural resources of the forest.2The State’s right tocontrol and manage natural resources leads to deprivation of indigenous people's means of

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subsistence and infl icts upon many basic human rights, as expressed in the ICESCR. Deprivation ofland means loss of the right to adequate housingand l ivel ihood, and, thus,oftentimes the right tofood and right to water.The customary land of indigenous peoples isalso the source of theircultureand identity,and boththeirphysical and mental healthisdependentonit.

Indigenous peoples are often criminal ized when trying to defend their rights. In the period betweenSeptember 2012 and March 2013, at least 218 indigenous peoples around the country have beenarrested.Their charges vary from entering the forest without permission (as in the case of DatuPekasa, the leader of Pekasa indigenous community jai led in Sumbawa,West Nusa Tenggara) tofighting against state apparatus (as in the case of the indigenous people of Pandumaan Sipituhutawho are struggl ing to protect their ancestral forest). Hundreds of confl icts have been recordedbetween indigenous communities, the Government and businesses that operate on indigenouspeople’s lands3. The business sector and companies receive protection from the State throughdeploymentof pol ice and mi l itaryforces.

The Governmentof Indonesia is preparingthe Draft Law on Recognition and Protection on the Rightsof Indigenous Peoples (Rancangan Undang–Undang Pengakuan dan Perlindungan Hak –HakMasyarakatAdat–RUU PPHMHA) to be considered for adoption by the parl iament.When such anadoption wi l l take place is however uncertain. Civi l society organisations continue to raise theirconcerns on the Draft Law, especial ly concerning the definition of indigenous peoples and thediscriminatory terms.The Draft Law does not use the definition of indigenous peoples as stipulatedby the UNDRIP. Instead, the Draft Law uses the constitutional clause’s recognition of indigenouspeoples,which is l imited to customary governance and justice systems and in specific context torights over territories and natural resources.Adopting the same term means adopting a purelyfunctional approach,whereas any legislation on indigenous peoples should combine both afunctional and human rights approach. Having ratified the ICESCR, it is of utmost importance thatIndonesia recognizes customary laws, justice systems and institutionsin the country,especial ly in theRUU PPHMA currently being reviewed.

Examples:

The impactof this issue can be seen in manycases:

1. The Law number 18/2013 has recently been used againstSemendeBanding

Agungindigenous community.The community was subjected to forced eviction and wasprohibitedfrom enteringtheirancestral territories.The areawasclaimed bythe governmentas BukitBarisanSelatan National Park.The designation of the National Parkarea had beendecidedwithoutconsideringand respectingthe existence and rightsof the indigenouscommunity.Despite strong resistance from the people, the forced eviction took placebetween the 21stand 24thof December2013. Itcaused great negative impactson thel ivel ihood of 378households which arethreatened bystarvation.Hundredsof indigenouschi ldren are in dangerof havingtheir righttoeducationtakenfromthem.

3http://huma.or.id/pus at-databas e-dan-informas i/outlook-konflik-sumberdaya-alam-dan-agraria-2012-3.html andhttps://www.hu mawin.org/

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2. The case of the Matteko indigenous peoples, fromthevi l lage of Erelambang,Gowa district,South Sulawesi .The indigenous peoplesof Matteko havel ived inthe area since 1933. Fromthe end of the 1970s, the ForestService Officeforcedthe Mattekoto plantpinetreesinsettlementareas.They never received information thatthe Ministryof Agriculture(atthattimethe Ministryof Forestryhad notbeen establ ishedyet)hadissued Decision Letternumber:760/Kpts/Um/10/1982 dated 12October1982, concerningthe designation of forestareas of the South Sulawesi Province.The indigenous land of the Mattekowas designated aspartof a l imited productionforestarea. In 2007, the Head of the Gowa District issued DecreeNo.522.2/25/V/2007,dated 14 May2007,which provides permissionforpinetappingontheMatteko’slandto PT.AdimitraPinusUtama unti l 2018.The indigenous peoplesare deprivedof the benefitsfrom the pine treeswhich they planted on theirown land.The Matteko havetried to protestthe grabbingof their lands,butthe company, thatholds Head of District'spermit,has reacted bytreatingthem ascriminals.

3. In KelurahanBattang Barat, the Palopo district,South Sulawesi, about 500 ha of that area ismanaged by the Ba’tan indigenous peoples,which have settlements located inside the area.This area is, however, also claimed by the nature conservation agency(BalaiKonservasiSumberDayaAlam/BKSDA), as part of the protected forests of the NanggalaI I I nature tourism park(Taman WisataAlam/TWA),which existence is based on the Decisionof the Ministerof Forestryand Plantation No.890/Kpts-I I/1999.On the basis of said pol icy,BKSDA often forcesthe communityto leave bythe use of threats.

4. Eleven vi l lagers of BontoKatute vi l lage in Sinjai district in South Sulawesi were brought tocourt in 2013foroccupyingtheforestarea i l legal ly.

5. In 2011 we saw the forced eviction of Suku Anak Dalam(SAD). PTAsiaticPersada, a palm oi lcompany,claimedthattheir indigenous landswere located insidethe concession areaof thecompany.They acted by burningvi l lagers' houses and bul ldozed their plantations in SungaiBeruang, Jambi .

6. The confl ict between the Arfak indigenous peoples and PT. Perkebunan Nusantara I I inPrafiManokwari in West Papua province.TheArfak have been forced to leave their lands.

7. The Uraso vi l lage,Mapedecceng sub-district, Luwu Utara district,have seen theirvi l lage andlandturnedinto palm oi l plantation bythe PTPN XVI .

8.Recommendations:

1. The Government of Indonesia should swiftly improve,enact and implement RUU PPHMAto comprehensively recognize,protectand promote the rights of indigenous peoples in ful laccordance with relevant international human rights laws, standards and instruments,includingthe UNDRIP.

2. The Governmentof Indonesiashouldforma National Commission on Indigenous Peoples.

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3. The Government of Indonesia should conduct,with ful l and effective participation ofindigenous peoples,mappingof the territoriesof all indigenous peoplesexistinginthecountry,based on theirself-identification, in orderto protect and respectthe ownership ofindigenous peoples overtheirterritories.

The absence of wel l-conducted FPIC(free, prior, and informed consent) processes has resulted inrepeated invasions and grabbingof indigenousterritories overgenerations.The impactof this is clearwhen one real izes that the land that is beingtaken away is the main source of indigenous peoples’l ivel ihood. Indigenous peoples aren’t given the option to reject projects to be carried out on theirterritory,even though those projects potential ly affect their l ives in various ways. Indigenous peoplesare not provided with a space or a means to pursue dialogwith the government, or with privateparties that obtain concession l icenses to manage indigenous territories.Those who oppose thesedevelopments wi l l face an oppressive reaction from the government, in most cases supported bysecurity forces, either the mi l itary or the pol ice. Land grabbing continues in the name ofdevelopment.

Examples:

1. Pekasa indigenous community, located in West Nusa Tenggara province was forcibly evictedin December2011,wherebyabout30membersof heavi lyarmed mi l itaryforces burneddown 63housesof the Pekasacommunity.The actionwascarried outand peoplewereforcibly displaced with the argumentthat Pekasa territory is a protected forest area.4Recentlyon 30th May 2013,morethan 500securityguards hired by National PlantationCompany(PTPN I I)destroyed houses and more than 50hectaresfarming land of RakyatPenunggu communitylocated in Klumpangvi l lage,North Sumatera province. In this incident,thevi l lagerswere beaten and heavi lyinjured;one of them wasstabbed inthe head.5

2. Despite the massive agrarian confl icts throughout Indonesia,concessions given to privatecompanieswithout respectfor indigenous peoples rightsare sti l l taking place on a large scale.In North Moluccas, the rivers of the Pagu indigenous community have been affected bythemining activities of PT.Nusa Halmahera Minerals (PT.NHM).PT.NHM started its activityin1997,withoutanyconsultation ornotification given tothe Pagu people.Asof 2013, the totalconcession area of PT.NHM is 29,622 hectares, from the around 50,000hectare-territoryofthe Pagu community. In addition, theentire territory-notonlyof the partof itoperated by

4 Fact sheet on indigenous peoples rights violation,Pekasa indigenous community,Aliansi MasyarakatAdat Nusantara,20125 Report:Violation against indigenous peoples rights,Klumpangvillage,Aliansi MasyarakatAdat Nusantara,2013

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PT.NHM–has been severely impacted bythe pol lution caused bythe activityof thecompany.Cyanide and mercuryare foundin several rivers and ocean areas in the territoryofthe Pagu. Furthermore, repeated leaksfromthe sewage pipesof PT.NHMin 2010,2011,2012caused contamination of the rivers of KobokandAke Tabobo, the main watersourcesof the respective community.Also,watercontamination has made itclose to impossible forthefisherycommunityto upholdtheirtraditional source of food.

3. Recently,on the 7thof December2013,ajointoperation by pol ice and mi l itaryforces,alongwith the securityforces of PT.Asiatic Persada(PT.AP),destroyed 256housesin the SukuAnak Dalam Padang Salak indigenous community, located in Bungku and PompaAirvi l lages,Batangharidistrict,Jambi province.The respective indigenous community has beensubjected to forced displacement.

4. The provincial spatial planning (RTRW-P)was done without the involvement of indigenouspeoples. Forexample,decisions made in 2013 about the convergence of forest areas in theArfak mountain area in Minyambouw district,West Papua, to non-forest areas,was madewithoutthe FPICof theArfaktribe.

5. The 850ha of forest landin Plabai, inhabited bythe Rejang's indigenous peoples, aswel l as700 ha in Kota BaruSantanvi l lage, Plabai sub-district, Lebongdistrict, are claimed as partofthe protected forest and l imited production forest. Plabaivi l lage is one of the oldest vi l lagesinhabited by the Rejangs,where they have l ived since the 6th century. Boundary markerswere suddenlysetupintheforestwithoutanyprior informationgiventovi l lage officialsandcommunity leaders. The Rejangs are being deprived of access to hundred hectares ofplantation, aswel l as resources such as rubber,durian and coffee.These resources are theirsourcesof l ivel ihood.The area is claimed to be part of the l imited production forest area bydecision No.643/Menhut-I I/2011bythe Ministryof Forestry.

6. In West Kal imantan, in the Sintang district, the District Government has issued locationpermit No.445 to PT. SinarSawitAndalan and Plantation Business Permit No. 1232 to PT.SumberHasi l Prima. Each company receives 20,000 ha, including areas belonging to theindigenous peoples of Kampung Sungai Garung, a part of the DayakMelahui 's tribe. Theindigenous peoples of Kampung Sungai Garung use natural resources fortheirsubsistence,l ikeswidden agriculture/cultivation/beumo (in hi l ls area/high-land and low-land), rubbertapping, rattan gathering, animal hunting in the forest, fishing and col lecting of timber tobui ld theirown houses, in the area where the palm oi l companies operate.Around 20,000ready-to-harvest rubbertrees owned by the indigenous peoples and 400Tengkawang trees,endemictothisarea,are beingdestroyed bythe companies.

13.Recommendations:

1. The Government of Indonesia should ensure participation and representation ofindigenous peoples in al l levels and stages of political and economic decision-makingprocesses that affect their lives

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2. The Government of Indonesia should ensure that thefree,prior and informed consent ofindigenous peoples are given in al l matters affectingtheir land,territories and resources.

3. The Governmentof Indonesia should immediatelytake al l necessary measuresto preventconflicts affecting indigenous peoples.This includes endingthe issuances of licenses andconcessions foroperations on indigenous territories to private actors,unless free,priorand informed consentisgiven by,and adequate compensation and reparation areguaranteed to, indigenous peoples.

4. The Governmentof Indonesia should take al l possible measuresto ensure the accesstojustice forindigenous peoples.Thisincludes respecting indigenousjustice systems andintegratingthem,wherever possible and appropriate, in the national judicial systemthrough comprehensive consultation with indigenous peoples.

Regulatory Framework

Article 18B of the Indonesian Constitution stipulates the recognition and the respect fortraditionalcommunities, alongwith theirtraditional customary rights,with the conditionthat the State has thecontrol l ing power over the lands and natural resources. Since 2011, the Indonesian People’sRepresentative Counci l hasconsidered a draft lawon the Recognition and Protection of the RightsofIndigenous Peoples, in which the principle of free, priorand informed consent has been proposed.The adoption is scheduled totake place in 2014. However,due tothe pol itical cl imate before theparl iamentarian-and presidential electionsin2014, theadoptionof the bi l l doesnot receive pol iticalpriority.

On 16 May 2013, the Indonesian Constitutional Courtadopted decision No. 35/PUU-X/2012 on thereview of the Forestry Law No 41/1999. The decision drew two significant conclusions: The firstrelates to indigenous peoples’ rights over indigenous territories, or in this case, customary forest.Within that context, the Constitutional Court found in favor of the plaintiff (AMAN, jointly withKasepuhan Cisitu and Kenegerian Kuntu indigenous communities).Where Article 1 Paragraph (6)ofLaw No.41 Year 1999 on Forestry states “customary forest is State forest located in the areas oftraditional-law society”, the Court found this contrary to Article 18B Paragraph (2) of The 1945Constitution of the Republ ic of Indonesia recognizingthe existence of indigenous peoples and theirrights, including over customary forest in their indigenous territory.Accepting the argumentation,the Constitutional Court ruled that the word “State”in the Article 1 Paragraph (6)of the Law No.41Year1999on Forestrycontradictedthe 1945Constitution, thus renderingit legal lyvoid. Interpreting

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and enacting concrete results from the deletion of the word “State” from the paragraph remainschal lenging.

Indonesia’s National Commissionon Human Rights(Komnas HAM)arguedthatnumeroushumanrightsviolations are caused bythe absence of clarity regardingcustomaryforest’slegal status in theLawon Forestry.Komnas HAM perceivesthe Constitutional Court Decision No.35/PUU-X/2012 as arul ingthatmarksa neweraof indigenouspeoples’ recognition in Indonesia.Usingthismomentum,Komnas HAMproposed a National Inquiryon indigenous peoples’ rightovercustomaryforestwithinforest area.The proposal has gained support from civi l society organizations.However, the slowresponse of the Governmenttothe Constitutional Court Decision No.35/PUU-X/2012, in terms ofcarryingitthrough toimplementation,can be perceived as demonstratingan intentiontocontinuedenying indigenous peoples’ rights overtheir indigenous territories, including their customary forests.Furtherevidence of thiscan befound in acircular letterissued bythe Ministryof Forestrydeemed asan attempttoextend demarcation between customaryforestand State forest.This meansthatforestdegradation continues and concession rightsfortimbercompaniesand palm oi l plantationsl imitindigenous people’saccesstoavai lableforestproductsastheir local food source and meansofsubsistence. The lossandlackof l ivel ihoodsources iscausinghealth problems, suchasmalnutrition,malaria and psychological health issues,amongindigenouscommunities. In communitiesthat receivefoodthrough social support programs, there has been a shift in culture from a productiveworkingculture, toaconsumptive culturewhere communities have become dependenton unhealthyfoodstuffs such as supermi,beras Miskin(instant noodles and poor-rice).

Tothe extentthatthe Indonesian government does undertake environmental and human rightsimpact assessments, they are inadequate.

Examples:

1. The Crude Palm Oi l factoryowned by PT.Perkebunan Nusantara I I in PrafiManokwari,West

Papua,has disposed wasteintothe riverand thereby pol lutedit.This has affectedindigenouspeople’saccesstowater,aswel l as resulted in healthissuessuchasskin diseasesand otherdiseasescaused bythe pol lution.

2. The Trans Manokwari–Sorongin West Papua Province,a developmentandinfrastructureproject,has disregarded the environmental impact analysis(AMDAL)and thereby damagedthewatersourcesof indigenouscommunities.

3. The bui ldingof PLTA Larona and PLTAKarebbe,as partof the HydroPowerPlant (PLTA)project to provide power supply to“PT. Inco/PT.Vale”,has decreased the lake’s water debtwith4-6meters, leadingto unproductive fish pondsandfarms.

4. TheCrude Palm Oi l wastedisposal from PTPNXIVand palmoi l plantationin Burau,

LuwuTimurhas pol luted the river,causingthe loss of fishingwatersforindigenouscommunities.

5. The indigenous communityof To Karunsie of Dongi Vi l lage in LuwuTimurdistrict,South

Sulawesi,wereforcedtoevacuatetheir landsin 1953 duringthe DI/TI I pol itical uprising.

Whentheyreturnedtotheirvi l lage, theindigenous people of KampungDongi foundthattheir land had been grabbed bythe state,which hadissued concessionto PT. Inco(later:PT.

Vale),one of the world’s biggest nickel miningcompanies.The indigenous peopleswere sti l lableto rebui ldtheirsettlementswhenthey returnedin 1999.Today, the indigenous peoples

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of KampungDongi are regarded asan i l legal community.Because if this, the Dongi people arebeing deprived of their right to access several publ ic services, l ike water,electricity,healthand education services.The company insiststhatthe Dongi relocate because their lands arescheduledto beturned intoa Nature Park/Nature ConservationArea.

33.Recommendations:

1. The Governmentof Indonesia should ensureswift implementation of the ConstitutionalCourtDecision No.35/PUU-X/2012and Constitutional CourtDecision No.45/PUU-IX/2011,aswel l asthe revision of the Law No.41Year1999on Forestry,which isbased onthesecourt decisions;

2. The Government of Indonesia should conduct adequate reform of the currentforest tenuresystem,as well as related laws and regulations, in orderto ful ly protect and respecttherightsof indigenous peoples;

3. The Government of Indonesia, together with relevant State organs, in particular theMinistry of Forestry, the Ministry of Mining and the Ministry of Agriculture as wel l asprovincial and regency governments, should conduct environmental and human rightsimpact assessments on development and extractive projects through effective involvementof affected communities,especial lyindigenous peoples;

4. The Government of Indonesia should review licenses that have been issued to privateenterprises, in particular those under the Law No.41 Year 1999 on Forestry, and revokesuch licenses in cases where companies are reported to violate the human rights ofaffected indigenous peoples and ensure that adequate compensations or reparation areprovided for the community concerned;

Article 15-Cultural rights

Article 15(1) of the ICESCR guarantees the right of al l persons to ‘take part in cultural l ife’ and tobenefit from the ‘moral and material interests of any scientific, l iterary or artistic production’authored bythem,which raisesthe possibi l ityof protection of traditional knowledge and intel lectualand cultural heritage rights under the Covenant, as wel l as in domestic laws implementing theCovenant.6Article 15(2) provides that States must take steps to achieve the ful l real ization of theright to culture. In several places in Indonesia, indigenous culture is not respected and protected by

6 The CESCR held a Day of Discussion on 27 November 2000,during which members stated that traditional

paras 578-635.

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