Denial of indigenous peoples’ rights fuels land tenure conflict

...all land designated as forest areas is considered free state land, allowing the government to grant concessions to anyone it wishes without the need for a land acquisition process...

The Awyu indigenous community in Boven Digoel regency, South Papua has recently captured the attention of social media with the viral tagline #AllEyesOnPapua, which serves as a symbol of solidarity with the Papuan tribe’s resistance to forest resource exploitation by oil palm plantation company PT Indo Asiana Lestari. The Awyu community is also engaged in a struggle against land clearing for oil palm plantations by PT Kartika Cipta Pratama and PT Magakarya Jaya Raya.

Approximately 36,094 hectares of forest have been cleared by PT Indo Asiana Lestari for oil palm plantation concessions. The deforestation in the regency could exceed this figure when including the concession lands of other palm oil companies. In 2023, Pustaka Bentala Rakyat reported that about 51,000 ha of forest in Boven Digoel had been logged for the timber trade and oil palm land clearance. The large-scale deforestation has threatened the sustainability of the forest’s biodiversity and the animals inhabiting the area. This situation has also deprived the indigenous communities of their ancestral forest assets, which they have relied on for hunting and harvesting sago for their daily needs.

For the indigenous people, the forest represents a wealth that guarantees their survival and cultural continuity. At this point, the struggle against corporate concessions becomes pertinent, as the indigenous communities are disadvantaged, and their identities are at risk of extinction. The tenure conflict involving the Awyu community in Boven Digoel is not solely due to the presence of forest concession holders and palm oil plantation companies. Rather, it originates from the government’s desire to enhance the “surplus value” of land and forests labeled as unproductive. This desire was subsequently formalized in a policy that facilitated access to the proposed surplus value.

Consequently, the Forestry Ministerial Decree No. 782/2012 on the forest area map of Papua province was issued, designating all forest areas in Boven Digoel as state forest. The types of forests are cateforized as permanent production forest areas, convertible production forest areas, limited production forest areas, plantation allocation forest areas, agricultural land allocation areas and protected forest areas. Unfortunately, in Boven Digoel, no forest areas have been designated as adat (ancestral) forests. Additionally, the forest area map has been upheld through Provincial Regulation No. 23/2013 on the spatial planning for Papua province for the 2013-2033 period. South Papua province was formed in 2022, having been separated from Papua.

The government’s mapping of forest areas that do not recognize the existence of adat forests has paved the way for the unrestricted entry of company concessions in the forestry and plantation sectors. This situation arises due to the doctrine that all land designated as forest areas is considered free state land, allowing the government to grant concessions to anyone it wishes without the need for a land acquisition process. Whereas, Boven Digoel has long been inhabited by various tribes, including the Awyu. This fact indicates the weakness of regulations regarding the recognition and protection of indigenous communities’ right to the forest, particularly for the Awyu. Nevertheless, the community’s claims to adat forest rights are still being pursued. Indeed, the government has yet to ratify and enact into law several international agreements on the recognition and protection of indigenous community rights over their ancestral natural resources, particularly rights to land and forests.

Several agreements, such as International Labor Organization Convention No. 169.1989 on indigenous and tribal peoples and the United Nations Declaration on the Rights of Indigenous Peoples of 2007, are noteworthy. These international agreements obligate state parties to grant indigenous communities the right to self-identification and the right to accept or reject developments that could harm their survival and culture, through the principle of free, prior and informed consent. The government and the House of Representatives have not enacted laws regarding indigenous peoples either. Within a highly administrative and positivistic regime, this is detrimental to indigenous communities, including but not limited to the indigenous peoples in Boven Digoel. The government does not provide accommodative space for them to obtain recognition and procedural justice about the issues they face due to the absence of such legislation. This is confirmed by a survey report conducted by the Center of Economic and Law Studies (CELIOS) this year, which found that at least 53 percent of Indonesians are unaware of the communal or adat land rights registration process.

The lack of knowledge among indigenous communities in submitting applications for adat land and forest rights is attributed to the absence of specific legislation addressing this issue. Additionally, the regulations regarding the procedures for the recognition and protection of adat forest rights remain sectoral and complex. This is evidenced by the numerous sectoral regulations governing the recognition of the indigenous communities, issued by various ministries, including the Home Ministry, the Villages, Disadvantaged Regions and Transmigration Ministry, the Agriculture Ministry and the Environment and Forestry Ministry.

The multitude of these sectoral regulations complicates the efforts of indigenous communities to obtain recognition and protection of adat forest rights. Although sectoral regulations and even regional regulation that provide procedures for the recognition of indigenous communities have been issued by the government, these sectoral and regional regulations remain ineffective in practice. For example, the environment and forestry minister signed Regulation No. 9/2021 on the management of social forestry. The Boven Digoel administration has enforced Regional Ordinance No. 2/2023 on the recognition and protection of indigenous peoples’ rights, but its implementation faces challenges due to the principle of the hierarchy of legislation lex superior derogat legi inferiori (a higher norm overrides a lower norm). Additionally, the regulations often contradict one another. For instance, some ministerial regulations recognize and protect the rights to adat forests. However, at the law level, there are no norms regulating the same provisions.

If left unaddressed, this situation will continue to perpetuate tenure conflicts between indigenous communities and the state and corporations. Consequently, not only will the government suffer from ongoing involvement in these conflicts, but corporations will also be disrupted and harmed due to the government’s unilateral policies in designating free state forest areas, without considering the de facto land control by indigenous communities. Therefore, the government must begin to take bold steps, in collaboration with the House of Representatives to ratify international agreements concerning indigenous peoples, enact indigenous peoples’ laws and facilitate the recognition and stipulation of adat forests.