Holding clear rights to access, use and own land is a crucial means for the poor to improve their food and livelihood security. Secure land tenure can stave off worsening poverty or even be a means to move out of poverty if land is used for subsistence, agriculture, harvesting non-timber forest products, or other productive and environmentally sustainable purposes. The importance of securing land tenure and ensuring the associated rights are upheld, therefore, cannot be overstated. This is especially the case as the Indonesian population grows, and competition for resource access increases among individuals, communities and companies.
President Joko “Jokowi” Widodo and Vice President Jusuf Kalla have argued that continued high rates of poverty, welfare inequality and development gaps between regions, as well as environmental destruction through over-exploitation of natural resources, were indicators of weaknesses in Indonesia’s economy. Their nine “Nawa Cita” priorities were aimed at improving the economy and addressing some of these issues. But encouraging economic growth can be at odds with protecting the land rights of the poor, particularly if large scale infrastructure development, and mining, palm oil, and timber extraction are carried out at the expense of the rights of local peoples to use, access and own land and forest resources.
Jokowi made a commitment to strengthen the rights of local communities over land and forests when he took office in 2014. The Ministry of Environment and Forestry has since announced that 12.7 million hectares of forest land will be transferred to communities by 2019. In December 2016, the government took the first step toward fulfilling this promise, formally recognising the rights of nine customary communities to their forests. While laudable, the quality and accessibility of such land and the administrative processes by which such land is transferred could prove problematic, particularly if the ability to exercise land rights is curtailed, or land rights are contested and threaten more powerful interests. Further, such land transfers may be intended to detract from attention to other situations where extensive concessions are granted for large-scale agribusinesses that violate community land rights.
The recognition of land rights, particularly for the poor, has advanced significantly in the two decades since the fall of the New Order. Crucial developments, albeit with challenges in implementation, have included improved land certification processes by the National Land Agency (BPN), the introduction of free land titling programs, revisions to the 1999 Forestry Law and other laws, and the 2013 decision of the Constitutional Court that recognised customary forests as forests located in the areas of indigenous (or adat) communities, rather than state forest.
Despite these legal and institutional advancements, however, many challenges remain. The historical legacy of overlapping land claims, resulting from concessions granted by district heads, governors, and ministries, poses a challenge for clarifying tenure and improving Indonesia’s land governance systems. Indonesia’s One Map project, which was initiated by former President Susilo Bambang Yudhoyono to reconcile the conflicting maps produced by the previously separate ministries of environment and forestry, has the ambitious objective of combining official data on forest land use, tenure, and other spatial information into a single database.
However, because the database may capture overlapping claims, the compilation of data is particularly sensitive, and prone to contestation between government agencies and between the state and communities. A presidential regulation was passed last year to accelerate the implementation of the One Map policy. Major challenges remain in actually accessing the relevant data, however, as government agencies seek to protect themselves from the exposure of prior transgressions, or to protect their opportunities to gain illicit economic benefits.
Similarly, with the clarification of indigenous rights by the Constitutional Court, systems need to be developed to record communal areas and integrate these into governance systems, including the One Map. Civil society organisations like the Alliance of Indigenous Peoples of the Archipelago (AMAN) use participatory mapping processes to determine the demarcation of customary land. But government agencies have questioned the standards applied, threatening the inclusion of such data in governance systems. Further, observers are concerned that the Constitutional Court ruling could lead to increased disputes and even violent conflict between customary communities and mining or palm oil companies that assumed they had secure tenure rights (even if these were gained through illicit processes).
The extent to which poor land-connected peoples can exercise their land rights is contingent on much more than advancements in legal and institutional frameworks. Even if Indonesia manages to make significant inroads into clarifying land tenure, this alone is insufficient to protect the land rights of the poor. The poor must also have knowledge of these rights, access to mechanisms and institutions that can uphold such rights, and the resources and capacity to exercise their rights.
As long as the poor lack this knowledge or access, they will be at a major disadvantage in the face of powerful business interests with the resources and knowhow to navigate Indonesia’s complex administrative systems. Securing land rights is a challenge in urban areas, particularly if the poor have limited proof of title, especially with the growing population pressures in Indonesia’s cities and the number of new infrastructure development projects underway. But it is even more of a challenge in rural areas. In remote areas, where large-scale mining projects and palm oil plantations are often located, knowledge of land rights, boundaries and concessions may be limited, along with the power and resources to counter the interests of large companies. Equally, if supportive government agencies or civil society organisations are not accessible, the land rights of the poor are less likely to be upheld.
It is not surprising then that poor and customary communities are vulnerable to overt land grabs, and sometimes forgo their land rights when intimidated, or sign away their rights for short-term economic gains.
There are many other documented examples of the vulnerability of and threats to remote communities. The palm-oil giant Wilmar, for example, has been the target of numerous complaints of human rights abuses, and it is alleged that violence and intimidation have been used against those who protest against palm oil activities, land grabs and other incursions. Violations of rights and the disruption to livelihoods have been documented in remote parts of North Halmahera over the activities for the commencement of the Weda Bay nickel mine. The National Commission on Human Rights (Komnas HAM) has also noted that the National Police’s Mobile Brigade (Brimob) pressured and intimidated community members to sign agreements to give up their rights. Meanwhile, reports have also been made to the United Nations Office of the High Commissioner for Human Rights of torture, arrests of protesters, and deaths at the hands of security forces, of those protesting against extraction and palm oil activities in the Papuan provinces. Such areas have very few supporting institutions available to help protect land rights or to support communities on an ongoing basis with their claims.
At the heart of all of these issues is the challenge of finding ways for the urban and rural poor to counter the power of well-connected elites whose interests in land for extractive or development purposes overlap with their land rights. Such actors have the power and resources to launch legal challenges, intimidate communities through illicit means, undertake land grabs, make ‘informal’ payments to gain the appropriate concessions, or to simply navigate Indonesia’s complex administrative arrangements.
Indonesian civil society organisations are well aware of these challenges in palm oil, timber extraction, mining and even in Reducing Emissions from Deforestation and Forest Degradation (REDD+) projects. They have sought to organise to advance the interests of poorer communities against more powerful interests both globally and domestically. While they have made inroads in some cases and not others, a major concern is the risks faced by remote communities where there are few such supporting institutions.
While there have been some advancements, the challenges of upholding land rights, protecting the interests of communities and ultimately for countering powerful interests in situations of contested tenure remain. Limited knowledge of land rights, limited means and access to institutions that can advocate for rights (especially in poor, remote communities), poor trust in administrative or judicial processes, and short-term financial incentives for the poor to give up land title, are among the many reasons that tenure security for the poor remains a challenge. It is also the reason that natural resource and land conflicts continue to emerge. These issues compound poverty and see the protection of land rights lagging behind the improvements introduced with democratisation in Indonesia.