The Urgency of Indigenous Communities Law in Indonesia and the Protection of Customary Rights
Written by Abdurrahman Al-Fatih Ifdal (Legal & Environmental Permitting Advisor in Yayasan Carbon Ethics Indonesia and Undergraduate Law Student at Universitas Indonesia)
Indigenous peoples, commonly referred to as masyarakat hukum adat or indigenous communities, have been long recognized as an integral part of the country. Since the amendment of the Constitution, indigenous communities, despite being minority groups due to their non-dominant forms and strong link to territories and surrounding natural resources, have now been recognized not only for their existence, but also for their indigenous rights.
Article 18B para. (2) of the Constitution expressly states that Indonesia acknowledges and respects the unities of existing indigenous in the country. For this article to be exercised, it requires two conditions; first being the continuous existence of indigenous communities and second, such indigenous communities still possess and execute their indigenous rights in accordance with the societal development and principles of the Unitary State of the Republic of Indonesia. These societal developments and principles are reflected though the currently applicable laws and regulations (peraturan perundang-undangan) in Indonesia.
Article 18B para. (2) also provides that the two conditions will be further elaborated and regulated through Undang-Undang (“UU”) or an act/law. Knowing that such law has not even been adopted yet, how would Indonesia adequately implement the protection of the rights of its indigenous communities now?
The Quest to Recognize Indigenous Communities in Indonesia
The quest of acknowledging indigenous communities has been started since the enactment of Law Number 5 of 1960 on Basic Rules of Agrarian Affairs (“Undang-Undang Pokok Agraria/UUPA”). One of indigenous rights recognized in UUPA is the provisions on the right to control from state in agrarian affairs. Agrarian affairs in Indonesia mean that not only controlled lands in Indonesian territories, but also everything below and above those lands. As indigenous communities are entitled to possess rights and participate in these agrarian affairs, Indonesia enacts UUPA to further regulate such entitlement.
As a state, Indonesia controls the earth, water, and space, including the natural resources contained inside it, of the Indonesian territories. This is a fundamental state principle recognized in the Constitution (through Article 33 para. 3) and in the UUPA as well (through Article 2 para. 1). As a State, Indonesia can delegate its control right to other parties specified in UUPA to carry out its agrarian affairs, including indigenous communities under Article 16 UUPA for its recognition.
In accordance with this article, indigenous communities can still exercise their indigenous rights in agrarian affairs through what UUPA calls as hak ulayat or customary rights. Based on Article 3 of the Law, the exercise of hak ulayat can only be done if such indigenous communities still exists and if such exercise goes in line with Indonesia’s national interest or does not violate the Constitution or other higher regulations.
To date, there is still no guide on how these conditions are interpreted. Here, the emergence of a specific law or UU on indigenous communities was then seen crucial.
Customary Rights as a Human Rights
Going back to 1999, customary or indigenous rights started to gain its recognition as integral part of human rights under national law. On the same vein, Law Number 39 of 1999 on Human Rights (“Human Rights Law”), also recognizes the need to protect customary or indigenous rights as part of human rights. Through Article 6 para. (1), it is further regulated that “in the context of upholding human rights, differences and needs within indigenous communities must be considered and protected by law, society and the Government”.
Under international human rights law, Indonesia has the duty to respect, protect, and fulfil indigenous or customary rights. Article 27 of the International Covenant on Civil and Political Rights (ICCPR) also provides that each State must not deny the rights of indigenous communities to enjoy their own culture.
Since Indonesia has ratified ICCPR through Law Number 12 of 2005, it means that Indonesia should comply with its duty under the Covenant, one of which is through national legislation. Until a specific legislation is issued, the full realization of this right will always be hindered.
Pursuing the Law on Indigenous Community
Back in 2012, Indonesia refused the recommendation from the delegates in the “Consideration of Universal Periodic Review (UPR)” agenda of the UN Human Rights Council to ratify International Labour Organization (ILO) Convention Number 169 of 1989 on Indigenous and Tribal Peoples Convention. Indonesia argued that the concept of indigenous communities is different with what is defined in ILO Convention 169/1989.
Indonesia should ask themselves: How could Indonesia doubt the internationally recognized standard of ILO while Indonesia itself still lacks a specific law to further protect indigenous communities’ rights?
Despite the absence of a specific law on indigenous community, Indonesia has recognized several indigenous communities’ rights in different sectors. For example, under Article 1 number 31 of the Law Number 32 of 2009 on the Protection and Management of Environment (“Undang-Undang tentang Perlindungan dan Pengelolaan Lingkungan Hidup/UU PPLH”), indigenous communities is defined as “community groups who have been living in certain geographic areas from generation to generation due to ties to their ancestral origins, a strong relationship with the environment, and the existence of a value system that determines economic, political, social and legal institutions”. This is not to mention other definitions of indigenous communities in other relevant laws.[i]
With no existence of a specific indigenous communities, Indonesia will have a hard time to specify which communities are categorized as indigenous communities and which ones are not. Moreover, there are still existing institutional and structural gaps which cause the inability of the Government of Indonesia to fully crystallize indigenous communities’ customary rights into codified legislations. Not only lead to the questions on Indonesia’s definition of indigenous communities, this situation will also affect the sectoral implementation of certain laws.
Next Step: What Indonesia Should Do
Despite having been acknowledged in many sectoral regulations, a specific law on indigenous community is still needed. This is to make sure that there is one main guideline of how sectoral laws will not deviate such guideline provided in the specific law, which is as a guideline of the protection of customary rights of the indigenous people. Moreover, such specific law will also eradicate different interpretations that may arise so as to protect and exercise the customary rights of the indigenous communities. Andi Agtas, the Head Legislation Body of DPR, states that it is urgent that two parameters of acknowledging indigenous communities (as mentioned earlier) are specified using specific corridors.
As mentioned, indigenous rights can be fully protected under two conditions: continuous existence and compliance to the national laws by the indigenous communities. The indigenous communities bill regulate fundamental principles on customary rights implementation and several requirements for indigenous communities to be fully recognized by the government. In the current draft bill (Article 5 para. 2), the first step for indigenous communities to be recognized is through the collection of indigenous communities’ data, consisting of facts and statistics. Such data can only be collected if five conditions are met:
- have a certain community that lives in groups in a form of association, has an attachment due to similarities descent and/or territoriality.
- inhabit a customary area with certain boundaries from generation to generation.
- have the same local wisdom and cultural identity.
- have a legal institution or instrument and is obeyed by the group as a guide in the life of Indigenous Peoples; and/or
- have a recognized and functioning Customary Institution.
As per September 5th of 2020, the bill is currently in the harmonization stage. The indigenous communities bill was endorsed firstly by the People’s Representative Council (Dewan Perwakilan Rakyat/DPR). Harmonization stage itself, according to Article 129 para. (2) of DPR Regulation Number 1 of 2020 on Code of Conducts, includes discussions on technical and substantial aspects of such bill, as well as its legalization principles. As for what is being harmonized now from the bill, the representatives in DPR see that there are still conflicting views on how rights specified in the bill can be practically implemented in different sectoral purposes, such as in agrarian affairs
As this is still a draft bill, the five conditions set out earlier can still be further revised or edited. This necessary revision is to further streamline current indigenous communities requirements with modern societal requirements. For instance, in the second requirement, what if the certain customary area boundaries overlap with Indonesia’s already established spatial planning boundaries? Which one prevails? Another important aspect to note is the question as to whether indigenous communities can appeal to government decisions which deny their official adat status approval. These questions have not yet further elaborated in the current draft bill, and if no more explanations are put, the prevailing technical regulations (peraturan turunan) from this draft bill will impair the rights of indigenous communities on the legal certainty of their status.
The urgency of indigenous communities law is also raised due to the growing cases of violations to indigenous communities’ rights. For instance, in September 2020, houses of the Besipae indigenous communities in Linamnutu, Nusa Tenggara Timur Province were demolished by local authorities. Apart from uncertain rights, indigenous communities also face problems from reports filed by companies residing in their lands. The Laman Kinipan indigenous community members in Kalimantan Tengah Province were arrested for protesting PT Sawit Mandiri Lestari (SML), a palm oil company, because of SML’s action to conserve Laman Kinipan’s customary forests as palm lands. As a respond, SML reported them using alleged theft reports.
Without a specific law that regulates customary rights, indigenous communities’ rights violations will still arise.
Indonesia currently recognizes indigenous communities in its Constitution and several sectoral laws. On the other hand, Indonesia is yet to enact a specific indigenous communities law to prevent conflicting regulations or any redundancy in protection measures. For that, such specific law will not only help indigenous communities perform their customary rights fully, but also will prevent sectoral laws to become contradictory.
For such, the indigenous communities bill must be immediately adopted to law for Indonesia to recognize and protect indigenous communities’ rights. DPR and the President must prioritize the bill as it determines the fate of many indigenous communities’ groups in Indonesia. Adoption of this bill needs to be carried out immediately, to guarantee a more adequate protection of indigenous rights and to stop the violations against indigenous groups in the country.
[i] Furthermore, Indonesia apparently also differentiates societies when it comes to a certain aspect of a sectoral scope. For instance, in coastal zones sectoral scope, through Article 1 number 32 until number 35 of Law Number 1 of 2014 on the Amendment of Law Number 27 of 2007 on Management of Coastal Areas and Small Islands (“UU PWP3K”), Indonesia includes indigenous communities, local communities, and traditional communities as three different scopes of a society. Indigenous communities are defined the same as what has been referred to in Article 1 number 31 UU PPLH.
The main difference of indigenous communities and the other two scope definitions (local communities that are defined by their daily customs and traditional communities that are defined by their daily fishery indigenous rights) in sectoral coastal zone management is the existence of a value system that determines economic, political, social and legal institutions, among other indigenous communities characteristics. Here, we can learn that Indonesia, sectorally speaking, has quite regulated indigenous communities’ rights and treated them as a distinct one compared to non-indigenous communities’ rights. This is a good pathway to walk since this is the very instruction told by the Constitutions, which is for Indonesia to respect and acknowledge indigenous communities’ rights.
About the Author
Abdurrahman Al-Fatih Ifdal presently works as the Legal & Environmental Permitting Advisor in Yayasan Carbon Ethics Indonesia, a foundation whose works focus on blue carbon conservation and carbon-offsetting projects. Abdur is also currently finishing his undergraduate thesis in Faculty of Law, Universitas Indonesia (FHUI) with environmental law as his minor. Moreover, he founded Klinik Kacamata Hukum, a youth-led public legal education & information (PLEI) organization which has gained over 1.220+ followers in only five months (per October 2020). Abdur can be further contacted through email@example.com.