Forward looking results

Palm oil agribusiness social impacts
Positive development and critical results of NGO advocacy works for national strategic and systematic long term reforms

Norman Jiwan, Sawit Watch (Prepared for as written inputs and remarks to the preparation of the Implementation Guide on Agricultural Investment and Access to Land, Food and Agriculture Organisation of the United Nations, Bangkok 17-20 January 2012)

Background
Since 2006, Indonesia has been the world's largest palm oil producing country overtaken Malaysia. NGOs and affected peoples grave concerns over increasing ongoing and unresolved 663 conflicts. Deforestation and degradation of forests critical issues. The two-year moratorium on new concessions in primary forest and peatland areas is questionable because there have been 28.9 million hectares of land and forest areas already under oil palm permits.

Having factual and future human rights issues, social and environmental consequences of the palm oil industry, Sawit Watch wants the Government of Indonesia (GoI) to take the firm and effective immediate measures. It is only with systematic actions and measurable steps towards social and ecological justice for the affected indigenous peoples, local communities, labourers and oil palm smallholder farmers.

First, undertake corrective and affirmative actions for affected and vulnerable groups: women, child labour, bonded labour, and stateless children, victims of indigenous people, local communities, and labourers. The government relevant authorities stop issuing new permits, resolve problem, review permits. Secondly, the State develops national human rights standards in agribusiness to enable, reconcile and incorporate international best practices into state policy. Third, function and empowers existing national human rights regimes to incorporate and institutionalise cross-cutting issues, regimes and arrangements of the food sovereignty, human rights, and climate responsibility of the palm oil sector. And lastly, the fourth much-needed legal reforms towards credible, sustainable and responsible palm oil development and production consistent with human rights based approach (HRBA).

Following the Regional Expert Consultation on Preparation of the Implementation Guide on Agricultural Investment and Access to Land, Food and Agriculture Organisation of the United Nations, Bangkok, 18-20 January 2012, therefore, Sawit Watch pleases to share some positive results for further consideration of the FAO in the development of the Voluntary Guidelines.

Taking lessons from positive results
Since 1998, Sawit Watch and its allies have advocated for, established and observed body of positive results that have and will contribute to more structural and institutional changes and reforms the governance of responsible and sustainable palm oil industry. They are established promising and forward looking advocacy results. First, establishing international jurisprudence under State's obligation and its binding state party clauses to the United Nations' treaty body procedures. Secondly, upholding constitutional rights of the affected peoples through judicial review of the Indonesian Constitutional Court. Thirdly, promoting forward looking legislative products on sustainable, responsible and democratic palm oil sector. Fourth, promoting and advancing conflict resolution mechanism for approaches on land disputes. And lastly, using the most of palm oil case in advocating regional human rights standards in the agribusiness using palm oil case.

1. Establish jurisprudence for human rights and justice2
Indonesia is a state party to some key human rights instruments, inter alia, the international convention on civil and political rights; economic, social and cultural rights; elimination of racial discrimination; and elimination of discrimination against women. Indonesia is therefore bound by effective and progressive implementation of the concerned conventions. One of the prominent under UN treaty body and relevant procedures such as the Early Warning and Urgent Action Procedure of the UN CERD.

In 2005, the president of Indonesia announces its plan to set up the largest plantation in the world 1.8 million hectares oil palm plantations along West Kalimantan to East Kalimantan Border. Sawit Watch together with other supportive submitting organisations establish high level intervention. Corresponding controversial plan and grave concerns over actual and potential impacts of oil palm plantations to the 71st Session. The international treaty body of the UN CERD Committee observed and considered strong observations and recommendations. In its concluding observations and recommendations, the Committee states:

‘ The State party should amend its domestic laws … to ensure that the concept of national interest … [is] not used as a justification to override the rights of indigenous peoples… [and] recommends that the State party secure the possession and ownership rights of local communities before proceeding with the Kalimantan Border Oil Palm Mega-project… [and] ensure meaningful consultations are undertaken with concerned communities with a view to obtaining their consent and participation in the Plan’

In addition relevant submissions and communication letters including palm oil case and right to food submission to the UN Special Rapporteur on the Rights to Food in 2010. in 2011, under strategic response mechanism, Sawit Watch and other concerned organisations further raising human rights factual issues of the Merauke Integrated Food and Energy Estates (MIFEE). In parallel, the group also establish communication letter with Chairman of the United Nations Commission on Economic, Social and Cultural Rights (ECSR).3

2. Judicial Review against Discriminatory Laws
Aside case-by-case non litigation works, Sawit Watch and its allies also challenge biased legal products. Concerns over discriminatory legal frameworks and unfair law implementation that have been used intentionally to control and eradicate activities might harm and disturb plantation business and mill operations. Both oil palm private operators and government authorities have in many cases lodged reports with local police against local leaders and activists in their struggles over their customary land claims and historical land disputes, for instances4. Sawit Watch together with victims and substantive supports and legal services of the public interest lawyer network (PILNET) undertake judicial review against the Law No. 18 Year 2004 on Plantation, in particular the following (unofficial translation) articles:

Article 21
Each individual is prohibited to perform any action that can result in the damage of the plantation and/or other assets, use of plantation land without any permit and/or any other actions that can disrupt the plantation activities.

Article 47
Any individual intentionally break the law by performing activities leading to destruction of plantation and/or other assets, using plantation land without any permit and/or other actions that lead to the disruption of plantation activities as stated in Article 21 shall be sent to trial with the maximum parole of 5 (five) years and fined with the maximum of IDR 5,000,000,000
Any individual carelessly perform activities leading to destruction of plantation and/or other assets, using plantation land without permit and/or other actions leading to the disruption of plantation activities as stated in Article 21 shall be sent to trial with the maximum parole of 2 (two) years and 6 (six) months and fined with the maximum of IDR 2,500,000,000

The Indonesian Constitutional Court accepts the judicial review request of the victims people and concluded that both articles are invalid, unlawful and unconstitutional. It is therefore, urgent for the government authorities to undertake immediate measures on any future land conflicts and struggles for land rights have to be properly addressed and/or resolved before any charges of criminals against any legitimate claims and rights.

3. Forward looking legislation
During the past five years, a process has been underway in the Province to develop a new law that would regulate the way plantations are developed. The law has been explicitly designed to facilitate adherence to the RSPO’s Principles and Criteria and makes provisions for companies to secure HCVs and respect the right of communities to FPIC. Accordingly the Governor and others have been developing a local legislative act (PERDA) preceded by a Governor’s Decree (PERGUB), which is meant to ensure sustainable plantation management, effectively in line with the RSPO and ISPO. These laws have been carefully framed to be in compliance with national social, environmental and estate crop laws and are designed to regulate the way permitting is carried out by the head of district or regents.

The law is the outcome of a long process that was started after a training workshop held in 2005 on Managing Conflicts in Oil Palm areas. As a follow up to that meeting, two NGOs, BOSF and WWF, sponsored the setting up of a multi-stakeholder team including indigenous peoples organisations, companies, NGOs, Government officials, academics and environmental assessment consultants to develop standards for palm oil development for the province. The process gained the approval of the Governor who issued a letter in support of the Multi-stakeholder Working Group on Oil Palm in Central Kalimantan, as the group came to be called. Given mixed reactions to the idea by other interests, the Group spent much of 2006-2007 engaged in trust building among different stakeholders while a small working group examined the various RSPO Principles and Criteria to assess how they could be best applied in the province.

4. CAO mediated negotiation of land dispute settlement5
One of the prominent cases is the World Bank Group and its International Finance Corporation's palm oil client6 and its subsequent complaint handling processes including negotiation and mediation of land dispute settlement to deliver fair and proper compensation, due process and remedy.

These are established processes that might generate solution over problems/issues, pertinent to human rights, land, and other natural resources that are key for effective and meaningful decision making and democratic governance of land tenure. It is fundamental to go beyond business as usual, do no harm approach and good practices in sustainable development of palm oil production.

Accepted as good and meet minimum required respectful participatory process by negotiating parties in particular oil palm plantation companies and the affected communities. The negotiation is also attended by observers from the district government authorities in particular forestry and estates crops, office of investment board, and national land agency as well as a representative of district parliament. The negotiation was also witnessed by local, national and international NGOs of represent complaining parties. The negotiation was running effectively for about two-year before concluding to mutually agreed points of settlement including mutual respect lead to recognition of rights to FPIC; compensation for lost of livelihoods; rehabilitation of cleared lands and forests with rubber and productive plants.

5. Bali Declaration on Human Rights and Agribusiness in South East Asia7
Sawit Watch has been working intensively on palm oil sector, through its organisation partners and allies in regional and international levels in bringing cases and issues of the palm oil industry, from social, environmental, and human rights non litigation campaign and processes.8 Process of the advocacy works is mainly highlighting human rights issues of transnational operations and investments in South East Asian palm oil producing countries.9

In December 2011, the Indonesian National Human Rights Commission (KOMNAS HAM) in hosting the international conference on human rights and agribusiness in South East Asia produced the Bali Declaration on Human Rights and Agribusiness in South East Asia. The Bali Declaration lays moral aspiration the fundamental aspects to respect, protect and promote human rights of the peoples impacted by agribusiness operations in South East Asia. The declaration comprises of (1) Right to food; (2) Land rights; (3) Free, Prior and Informed Consent (FPIC); (4) Right to personal integrity and security; (5) Smallholders and community options; (6) Workers; (7) women; (8) children; (9) dispute resolution; (10) access to justice; (11) impact assessment; (12) rights to development and human rights; and (13) ratification of human right instruments.