Chip Fay, Denpasar | Opinion | Thu, May 23 2013, 11:16 AM
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Paper Edition | Page: 6
Last week Indonesia took a major step in a multi-decade struggle to address unsustainable forest and land use practices and the widespread injustices and conflicts they create. On Thursday, the Constitutional Court, responding to a petition from the National Alliance of Customary Communities (AMAN), declared unconstitutional provisions in the 1999 Forestry Law that denied the rights of customary communities (adat) to their land and forests.
The decision also explicitly admonished the Forestry Ministry for misusing the Forestry Law to disenfranchise local communities by issuing management licenses to outside parties who have the financial capital to exploit these areas.
In other words, traditional lands, forest rights and management systems, were kept invisible to the forest regulatory framework so that licenses for logging and paper and pulp timber concessions could be awarded over those areas.
These forests and the communities who manage them are now fully visible and recognized within the legal system. Their potential to now play a leading role in the rural development strategy for economic growth and environmental sustainability can now be realized.
This extraordinary turn of events began during the post-Soeharto reform period, when the latest Forestry Law was enacted. That process included significant participation from human rights and conservation organizations as well as AMAN. This law was a product of its time and brought about an increase in opportunities for the participation of local communities in forest management.
One of the most progressive changes was that the forest area, as defined by the State, divided into two classifications. The first is “private forests” areas where rights over the land and forests already exist and the second is “state forest” or areas where no such prior rights exist.
Yet, a major disappointment in this law emerged when the drafters, under pressure to recognize customary forests and protect the interests of the forest industry, classified customary forests as only existing within areas of “state forest”, meaning where no rights pre-exist over the land and forests.
While it took more than 10 years, this legal contradiction and clear injustice has been irrevocably redressed by the landmark constitutional court decision.
Today, customary forests are now legally classified as private or non-state forest areas.
The burning question, now beginning to be asked throughout Indonesia, is how these areas can be recognized and what happens to logging and timber plantation licenses that have already been issued within these customary lands and forests?
The answer begins with the Forestry Ministry. While this ministry has programs designed to increase participation of local communities in forest management, evaluations of the ministry’s performance in this area indicate that only a small fraction of the targets set have been achieved and that there is a substantial backlog of inaction on the issuance of management licenses to local communities and cooperatives.
This inaction led recently to demands by local communities and supporting nongovernmental organizations to have a high-level meeting with the ministry to de-bottleneck these programs.
When this meeting took place, frustration at what was an unsatisfactory and largely bureaucratic response from the ministry, led to large numbers of community and NGO participants leaving the meeting. Many proceeded directly to the office of the Ombudsman to register a complaint concerning the lack of performance on community forestry and their consequent lack of contribution to the government’s priority programs on poverty alleviation and land reform.
The ministry’s poor performance and subsequent frustration of their community forestry’s partners on the ground, is an important indication that they are not the agency that can effectively lead the next steps in the implementation of the Constitutional Court’s decision.
Most relevant, legally, it is the National Land Agency (BPN) not the Forestry Ministry that has the mandate and responsibility to deal with property rights on land throughout Indonesia. By law, the Forestry Ministry only has the mandate and responsibility to maintain and protect forest production and conservation functions.
Regrettably, since the Soeharto presidency until today, the Forestry Ministry has acted as a land agent, issuing forest utilization and forest conversion to agriculture licenses over millions of hectares of forests across Indonesia.
Over this period, it is important to bring attention to the reality that the steep increase in power and influence of the Forestry Ministry directly corresponds to the demise of vast rain forests. While exact deforestation rates continue to be debated, no one can disagree that nearly all of the lowland natural forests in Sumatra are now gone and that this trend is proceeding eastward toward Papua.
The recognition of customary forests as both a legal right and management strategy can contribute significantly to reversing this trend. But the first and most difficult step is organizing the recognition process.
The Forestry Ministry takes the position that recognition of customary forest areas can only be done by local government. This is legally incorrect.
The part of the forest law that deals with customary forest says that among other legal processes, local government can recognize these areas through local legislation. While many local administrations, both district and provincial, can and have taken legal steps toward the recognition of customary forest areas, they do not constitute the only way forward.
Hundreds of customary communities have already submitted maps to BPN totalling millions of hectares. While these maps identify traditional lands and forests, BPN seems either unwilling or incapable of dedicating themselves to developing and administrating a process of registering these maps and building a national program around issuing ownership certificates to customary communities as a collective.
When this happens, local government will be provided a framework for recognition and can proceed in a more systematic way to accelerate the recognition of customary rights to forest that is now firmly
enshrined in Indonesian law.
The writer is a land and forest policy analyst and a director at Kemala Development Services.