Notes: I am proud to be the presenter of submitting parties during the regional consultation with UN Special Rapporteur on Rights to Food, Melia Hotel, Kuala Lumpur 23-24 March 2010
Thanks to the team (Cion, Andiko, Mina, and Fergus)
Case on Land Rights and the Right to Food:
Indonesia: palm oil development on indigenous peoples’ lands
submitted by Aliansi Masyarakat Adat Nusantara, SawitWatch, HuMA and Forest Peoples Programme January 2010
Title of the case
Indonesia: palm oil development on indigenous peoples’ lands
Country + Region/District within country
Indonesia. This is a national problem with the most serious cases being found in Sumatra, Kalimantan, Sulawesi and Papua
Summary of the case(s)
Provincial land use plans in Indonesia show planned palm oil expansion from a current 7.5 m ha. to over 20 m ha. These lands are being acquired without respect for customary rights and without community consent, leading to escalating land conflicts.
Keywords
• commercial pressures on land (palm oil development); • needs of special groups (customary rights holders, indigenous peoples, smallholders); • (lack of) mechanisms to handle land conflicts.
What land issues are implicated? How is the right to food affected by this situation?
In Indonesia less than 40% of land holdings have been titled. Most people hold land informally and, especially on the outer islands, most lands are held by custom. Communities governed by custom (masyarakat adat – usually glossed as ‘indigenous peoples’) comprise as many as 70 million people in rural Indonesia. Owing to weak and discriminatory legal protections of indigenous peoples’ rights, companies acquire lands for oil palm estates without respect for customary rights; due process; payment of fair compensation and; without the free, prior and informed consent of the communities. This is leading to widespread land conflicts and associated human rights abuses, including of rights to food, subsistence and associated social, cultural, spiritual and other rights pertaining to relations with lands, waters and forests and the right to freely dispose of natural wealth and resources. Communities have also been intimidated and worse by paramilitary forces and mobile police brigades (BRIMOB). As a result of land acquisition by palm oil developers, indigenous peoples are restricted to small portions of their ancestral territories. They lose access to their hunting grounds, fishing areas and other resources crucial to their subsistence and forest-based livelihoods. The lands available for farming are also severely restricted. A (contested) proportion of dispossessed indigenous peoples are offered smallholdings planted with oil palm the costs of which are paid for by loans. These smallholders are contractually tied to mills to pay off their debts and complain of discriminatory treatment and poor prices (See Annexes 1-3)
Is the situation contrary to or incompatible with principles established in national law (including constitutional rights)?
The Constitution recognizes customary rights but subordinates them to the national interest and the controlling power of the State (which are normally exercised without regard for procedural and substantive rights). The agrarian law recognizes customary rights as weak usufructs on State lands that must give way to the national interest. No effective procedures exist to title or secure customary lands. Leases are granted to companies over customary areas without prior consultation. Companies then seek to extinguish customary rights through imposed negotiations. Where communities refuse to relinquish lands, State agencies may force them to accept nugatory compensation. Lands revert to the State, not to the indigenous peoples, at the expiry of company leaseholds (See Annexes 1-3).
What actions have been started by the local community to improve the situation?
With thousands of communities involved, the responses have been very varied. Communities have appealed to local authorities for redress. They have taken their complaints to the national land agency (BPN) and to the relevant Ministries of Forestry, Environment and Agriculture (Dept. Plantations). They have made appeals to the local and national legislatures. They have raised their concerns with the national human rights commission (KOMNASHAM). They have brought their cases to the consideration of the Indonesian palm oil commission and have made numerous submissions to the Roundtable on Sustainable Palm Oil (a voluntary trade body). They have also complained about specific cases to the Compliance Advisory Ombudsman of the International Finance Corporation which has upheld their complaints and as a result of which the World Bank Group has suspended financing of palm oil developments worldwide.1
Have courts or other independent bodies made specific orders or recommendations to local or national authorities?
The need for widespread reforms of national laws and policies to respect customary rights and curtail land conflicts has been widely acknowledged including by the Minister for Home Affairs2 and by the Minister for the Environment.3 Indeed, in 2001, the People’s Assembly (MPR), the maximal representative body of the electorate, passed a Legislative Act (TAP MPR IX/2001), which ordered such reforms. UN treaty bodies, such as CERD, and the UN Permanent Forum on Indigenous Issues have both made specific recommendations to Indonesia about the impact of oil palm plantations on indigenous peoples (see Annex 9 and works cited therein & Annex 10).
If applicable, did local or national authorities take any action following these actions and recommendations?
Despite these instructions and admissions of the need for change, no effective actions have been taken either locally or nationally by the responsible agencies. A draft bill on indigenous peoples’ rights is under discussion and was recently accepted for consideration by the Parliament in 2011, as part of the Legal Reform Programme (PROLEGNAS 2010-2014). In the meantime, the provincial offices of the national land agency (BPN) claim to be unable to secure or title indigenous lands for lack of implementing regulations and a budget. BPN’s programme to resolve land conflicts is also hampered by weak institutional capacity. On the other hand, the government still plans to expand oil palm and other plantations.4
Did local communities start a civil action (court case)?
Communities express little confidence in the courts and indeed the lack of an independent judiciary has long been recognized by the international agencies as a major impediment to reform in Indonesia. The lack of effective legal protection of indigenous peoples’ rights under national laws has further discouraged communities from seeking redress through the local or provincial courts.
Did local communities ask the Office of the High Commissioner for Human rights (OHCHR) or any of the special procedures of the Human Rights Council to write to your government about this case?
In 2005, the Indonesia government announced its plans to establish a 1.8 million hectare palm oil plantation in the centre of Indonesian Borneo. Massive protests from indigenous peoples and social and environmental NGOs against the plan have not been responded to effectively by the government. In June 2007, a consortium of Indonesian NGOs and the national indigenous peoples’ organization, AMAN, raised concerns about these plans with the UN’s Committee on the Elimination of Racial Discrimination (CERD) under its early warning and urgent action procedure (Annex 4, 6 and 9). In August 2007, CERD adopted concluding observations recommending action on, inter alia, indigenous peoples’ rights in connection with oil palm plantations (Annex 10, esp. para. 17). In March 2009, CERD responded to another urgent action request, submitted in February 2009, noting that indigenous peoples’ lands are not adequately protected and requesting the Government of Indonesia to amend its laws to recognize these rights (Annex 5). The Government did not respond. In July 2009, the NGOs filed an update, noting the lack of action by the government and that a newly adopted regulation related to the allocation of forests for projects to Reduce Emissions from Deforestation and Forest Degradation likewise contravened indigenous peoples’ rights (Annex 6). CERD again wrote to the Government of Indonesia expressing concern about the compatibility of its regulation and associated plans with its international obligations and about its lack of response (Annex 7). The former and present Special Rapporteur on the rights of indigenous peoples and two rapporteurs appointed by the UN Permanent Forum on Indigenous Issues have also raised concerns about the impact of plantations on indigenous peoples in Indonesia (see Annex 9 and works cited therein).
Are there important ongoing actions or expected decisions in 2010?
The submitting parties urge the Government of Indonesia to prioritise:
The adoption of a law on indigenous peoples’ rights consistent with Indonesia’s obligations under international law,
A review and revision of Law No. 18/2004 on Plantations, which as currently worded facilitates the takeover of indigenous peoples’ lands without respect for their rights,
The establishment of a formal mechanism to resolve existing land conflicts in favour of indigenous peoples (customary rights-holders).
Is this case representative of the land issues in the country/region?
The situation highlighted in this case is widespread across Indonesia. One of our organizations, SawitWatch, the national network monitoring palm oil development, has identified 579 ongoing land conflicts in the country between local communities and palm oil developers. The national land agency, BPN, has stated that there are some 3,500 land conflicts related to oil palm plantations in Indonesia as a whole. Similar problems are reported in other countries in the region (notably Malaysia and Cambodia). In Sarawak (East Malaysia) palm oil expansion is triggering protracted land disputes with native peoples whose rights are not adequately protected by the State. There are already at least 40 cases of land disputes between native peoples and palm oil developers in the courts in Sarawak (Annex 8).
If a regional consultation is organized in your region by the Special Rapporteur, who could represent the case?
• National NGO - Norman Jiwan, SawitWatch, Tel: +69 251 352171 Email: norman@sawitwatch.or.id
• Regional palm oil smallholders association - Cion Aleksander, Serikat Petani Kelapa Sawit, No Tel or Email: contact via SawitWatch (above)
• National Indigenous Peoples’ Organization - Mina Setra, Aliansi Masyarakat Adat Nusantara, Tel: +62218297954 Email: setramina@gmail.com
• Indigenous peoples’ legal advisory service - Andiko, HuMA, Tel: +62-21-788 45871, 780 6959 Email: andiko@huma.or.id
Appendices
1. Marcus Colchester, Norman Jiwan, Andiko, Martua Sirait, Asep Yunan Firdaus, A. Surambo and Herbert Pane, 2006, Promised Land: Palm Oil and Land Acquisition in Indonesia – Implications for Local Communities and Indigenous Peoples, Forest Peoples Programme, Sawit Watch, HuMA and ICRAF, Bogor.
2. Marcus Colchester and Norman Jiwan, 2006, Ghosts on our own land: oil palm smallholders in Indonesia and the Roundtable on Sustainable Palm Oil, Forest Peoples Programme and SawitWatch, Bogor.
3. Serge Marti, 2008, Losing Ground: the human rights impacts of oil palm plantation expansion in Indonesia, SawitWatch, Life Mosaic and Friends of the Earth, Bogor.
4. NGO and AMAN Urgent Action submission to CERD, February 2009
5. CERD response, March 2009
6. NGO and AMAN Urgent Action update submission to CERD, July 2009
7. CERD letter to Government, September 2009
8. Marcus Colchester, Wee Aik Pang, Wong Meng Chuo and Thomas Jalong, 2007, Land is Life: Land Rights and Palm Oil Development in Sarawak, Forest Peoples Programme and SawitWatch, Bogor.
9. Indigenous Peoples and NGO request for urgent action to CERD, July 2007
10. Concluding observations adopted by CERD, August 2007
No comments:
Post a Comment