The Indigenous World 2023: Indonesia

Written on 29 March 2023. Posted in Indonesia

Indonesia has a population of approximately 250 million people. The Indigenous Peoples’ Alliance of the Archipelago – Aliansi Masyarakat Adat Nusantara (AMAN), an independent Indigenous organization that represents 2,512 Indigenous communities throughout Indonesia, totalling some 20 million individual members – estimates that the number of Indigenous Peoples in Indonesia stands at between 50 and 70 million individuals.

The third amendment to the Indonesian Constitution recognizes Indigenous Peoples’ rights in Article 18b-2. In more recent legislation, there is implicit recognition of some Indigenous Peoples’ rights, referred to as: Masyarakat Adat or Masyarakat Hukum Adat, including Act No. 5/1960 on Basic Agrarian Regulation, Act No. 39/1999 on Human Rights, and MPR Decree No. X/2001 on Agrarian Reform. Act No. 27/2007 on Management of the Coastal Zone and Small Islands and Act No. 32/2010 on the Environment clearly use the term Masyarakat Adat and use the working definition (in terms of characteristics) of AMAN. The Constitutional Court affirmed the constitutional rights of Indigenous Peoples to their land and territories in May 2013, including their collective rights to customary forests.

While Indonesia is a signatory to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), 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 specific needs from groups identifying themselves as Indigenous.

This article is part of the 37^th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. The photo above is of an Indigenous person in Tanzania. This photo was taken by Geneviève Rose, and is the cover of the Indigenous World 2023 where this article is featured. Find the Indigenous World 2023 in full here.

Throughout 2022, Indigenous Peoples in Indonesia demonstrated their resilience to the political pressure and policies that were increasingly moving away from the agenda of recognizing and protecting Indigenous Peoples. The fact that recognition has been confirmed in the Constitution^[1] does not necessarily mean that the State is carrying out its mandate to establish the Indigenous Peoples Law. After a long process of more than a decade, the Indigenous Peoples Bill remains simply a bill in Parliament. By the end of 2022, the Indigenous Peoples Bill had again failed to be adopted into law, as in previous years. In the midst of this situation, there have recently been a number of discriminatory laws and regulations enacted that have placed Indigenous Peoples in an increasingly threatened position.

Over the last five years, there have been at least 301 cases of grabbing of 8.5 million hectares of customary territories together with the criminalization of 672 Indigenous persons. In general, conflicts that occur on Indigenous Peoples’ territories relate to the plantation sector, State forest areas, mining, and the construction of infrastructure projects. Meanwhile, there were 19 cases of expropriation of Indigenous territories, together with criminalization and violence of Indigenous Peoples in 2022 alone. Indigenous individuals who are persistent in fighting for their rights to their territories, including youth and women, are the victims. Meanwhile, these conflicts involved Indigenous territories covering almost 600,000 hectares.^[2]

By the end of 2022, the Indonesian government had succeeded in designating parts of 105 Indigenous territories as customary forest, covering a total area of 148,488 hectares.^[3] However, instead of speeding up the recovery of Indigenous Peoples' rights to customary forests as mandated in the MK.35/2012 decision, as many as 2,400 hectares of customary lands have been confiscated through social forestry programmes other than the Indigenous Forests programme, which is the only rights-based programme (in terms of land title) under social forestry. In addition, the threat of the National Strategic Project is also a major factor in the expropriation of Indigenous territories. The National Strategic Project is an Indonesian infrastructure project that has been identified as vital to increasing Indonesia’s economic growth.

Policies related to or affecting Indigenous Peoples

Criminal Code

In December 2022, the Government of Indonesia passed an amendment to the Criminal Code. The old version of the criminal code did not regulate customary law as part of living law. The new, amended criminal code defines customary law as living law but the problem is that this will be regulated by the implementation of regional regulations with reference to government regulations to be initiated later. This will result in the death of the dynamic nature of customary law and revoke the original rights of Indigenous Peoples to exercise customary law, as carried out for generations, because the authority to enforce customary law will no longer lie with Indigenous Peoples but will henceforward be fully under the authority of the State. The intention to strengthen customary law through the Criminal Code somehow took a wrong turn.^[4]

Presidential Decree on the Job Creation Omnibus Law

The previous Indonesian government passed the law known as the Job Creation Omnibus Law in 2020.^[5],[6] The existence of the Omnibus Law provides an open door for development permits and further erodes and opens up space for violations of Indigenous Peoples’ rights. Civil society submitted a Judicial Review to the Constitutional Court in 2021 requesting the repeal of the Omnibus Law and the Court then declared the Omnibus Law unconstitutional. However, on 30 December 2022, the President issued Decree in lieu of Law (PERPPU) 2/2022 concerning Job Creation which reinstated the legal force of the Omnibus Law. In substance, this implies no change for Indigenous Peoples in this Decree. It means that the potential to expropriate customary territories for investment reasons, as regulated by the Omnibus Law, will continue.^[7]

Presidential Decree on Carbon Economic Value

The government's response to addressing climate change has been to approve carbon trading. This policy is reflected in Presidential Regulation Number 98/2021 on Implementation of Carbon Economic Value to Achieve Nationally-Determined Contribution Targets and Control of Greenhouse Gas Emissions in National Development.^[8] One of the basic problems of this Decree is that the right to carbon is a State-controlled right when, in fact, the right to carbon cannot be separated from a set of rights owned by Indigenous Peoples, namely the right to the Indigenous territories (land, water and sea) that produce carbon.

Conservation Bill

In other sectors, the Indonesian government is currently discussing amendments to the conservation law.^[9] Given that conservation management should adopt the traditional knowledge of Indigenous Peoples in managing their territory, the amendment should provide a mechanism for administering Indigenous Peoples' conservation areas that is easy and cheap, with legally legitimate results, so that collaboration between Indigenous Peoples and the government around management can take place in a fair and sustainable manner. In fact, however, this amendment has not shifted from the conservation paradigm of keeping people out of conservation/protected areas towards simple protection, preservation and use.

Indigenous Peoples and conservation

At the time the Basic Agrarian Law was enacted in 1960, it was stated in the law that the State's right to control land, water and space and the natural resources contained therein could be delegated to the central government, regional governments and Indigenous Peoples. However, in reality the right to “control” is monopolized by the central and regional governments. The right to “control the country” has experienced a distortion and hijacking of meaning to become merely “legitimacy” for the authorities to “privatize” the management of natural resources and ignore their basic mandate for the greatest prosperity of the people. As a result, Indigenous Peoples remain neglected in conservation governance.

In many cases, people in and around conservation areas have been evicted from their lands, for example, Lore Lindu and Ujungkulon.^[10] With legal legitimacy, Indigenous Peoples' access to conservation areas is restricted and, in some cases, completely prohibited. Around the Ujungkulon National Park area, there are still Indigenous Peoples who have difficulty in obtaining access to enjoy their basic rights such as the right to proper housing, health, education, electricity and also a sense of security. It seems there is a close relationship between restricting access to natural resources and the process of impoverishment. Poverty is a condition that is understood as a consequence of various inequalities (social, economic, political).

Based on as yet unpublished data compiled by organizations working on Indigenous Peoples’ issues, an area of 4.5 million hectares of customary lands that have been mapped out in a participatory manner is being claimed for inclusion in a National Park area. This figure is equivalent to 17.2% of the participatory mapping area, and is higher than for other conservation area categories. This is an opportunity for the criminalization of Indigenous Peoples and confiscation of Indigenous territories in the name of conservation.

Recognition and protection of Indigenous Peoples at the local level

As of October 2022, 161 regional (provincial level) and local (district level) regulations had been successfully enacted.^[11] These regulations focus on the recognition and protection of Indigenous Peoples as legal subjects and their rights, including to their territories. Currently, the territories of 968 Indigenous communities covering an area of 12.4 million hectares have been mapped. Only a few of these communities have obtained legal recognition and land title from the government.

This shows a slight positive trend but, at the same time, exposes the real situation of Indigenous Peoples’ recognition and protection in Indonesia, which still relies on sectoral laws and regulations. Indonesia's constitution recognizes the existence of Indigenous Peoples but the constitutional mandate that the State should immediately enact the Indigenous Peoples Law has not thus far been implemented.

Monica Ndoen is an Indigenous person from Rote, East Nusa Tenggara. She is now the Special Envoy to the Secretary General of AMAN. This email address is being protected from spambots. You need JavaScript enabled to view it.

This article is part of the 37^th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced.  Find The Indigenous World 2023 in full here.

Notes and references

^[1] Indonesia Constitution 1945.Article 18-b, https://www.mkri.id/public/content/infoumum/regulation/pdf/UUD45%20ASLI.pdf

^[2] AMAN. AMAN’s End of Year Report. 2022, pp 22, https://www.aman.or.id/publication-documentation/catatan-tahun-2022-aman:-melawan-penundukan

^[3] Ministry of Environment and Forestry. Achievements of Social Forestry Up to 1 October 2022, http://pskl.menlhk.go.id/berita/437-capaian-perhutanan-sosial-sampai-dengan-1-oktober-2022.html?showall=1&limitstart=

^[4] “The “Living Law” in the RKUHP Violates the Rights of Indigenous Peoples.” AMAN, 2022, https://www.aman.or.id/news/read/pengaturan-hukum-yang-hidup-dalam-rkuhp-melanggar-hak-masyarakat-adat

^[5] Siringoringo, Jakob., and Victor Mambor. “Indonesia.” In The Indigenous World 2020, edited by Dwayne Mamo, pp 218-231. Copenhagen: The International Work Group for Indigenous Affairs (IWGIA), 2020, https://www.iwgia.org/en/indonesia/3602-iw-2020-indonesia.html

^[6] Siringoringo, Jakob., and Victor Mambor. “Indonesia.” In The Indigenous World 2021, edited by Dwayne Mamo, pp 250-266. Copenhagen: The International Work Group for Indigenous Affairs (IWGIA), 2021, https://www.iwgia.org/en/indonesia/4224-iw-2021-indonesia.html

^[7] AMAN’s End of Year Report. AMAN, 2022, https://www.aman.or.id/publication-documentation/catatan-tahun-2022-aman:-melawan-penundukan

^[8] Presidential Regulation 98/2021 concerning Implementation of Carbon Economic Value. 2021, https://peraturan.bpk.go.id/Home/Details/187122/perpres-no-98-tahun-2021.

^[9] Wahyu Chandra. “The Conservation Bill is Expected to Accommodate the Interests of Indigenous Peoples.” Mongabay, 2022, https://www.mongabay.co.id/2022/12/01/ruu-konservasi-diharap-akomodir-kepentingan-masyarakat-adat/

^[10] Eko Cahyono, Erasmus Cahyadi, Monica Ndoen. Exclusion in the Name of Conservation - A Study by AMAN. 2018.

^[11] AMAN’s End of Year Report. 2022, pp 16, https://www.aman.or.id/publication-documentation/catatan-tahun-2022-aman:-melawan-penundukan

Tags: Global governance