- The fate of a long-awaited bill on the rights of Indonesia’s indigenous peoples appeared to be in jeopardy last month when the home ministry, which had been tasked by the president with shepherding the bill’s passage into law, expressed the view that the bill was not necessary.
- Though the ministry has since backtracked on its position following an outcry from indigenous rights advocates, it remains uncertain whether the bill will make it through the legislative process before the end of the current parliament term.
- But even those pushing for the bill to be passed say it is far from perfect. Among the critiques is that it creates new hoops for indigenous communities to jump through on the path to securing tenure over their land and forests.
Fresh momentum on a long-delayed indigenous rights bill hit a snag last week when the Indonesian Ministry of Home Affairs, tasked by President Joko Widodo with leading a review of the draft legislation, rejected its basic rationale – that indigenous Indonesians need a law on their rights.
“The passage of an indigenous rights bill is not yet a concrete necessity,” concluded home minister Tjahjo Kumolo in a letter to the State Secretariat.
Tjahjo pointed to a series of ministerial regulations – 16 in all – that already pertain to Indonesia’s indigenous peoples. It is the same chaotic mix of rules that President Jokowi, as he is known, has pledged to simplify through the passage of a law.
A subsequent letter from the home ministry clarified its objections were not over the bill’s premise, but its particulars. But for those pushing for greater recognition and protection of indigenous rights, the damage was done.
“The response from the home ministry is bad news for indigenous Indonesians,” said Mohamed Arman, head of law and advocacy at AMAN, the main advocacy group for these communities.
“It shows that the home ministry, which is the government liaison to the [parliamentary] commission in charge of the bill, may not believe in the urgent need to get it done.”
AMAN began work on the bill back in 2012, but it was only added to the parliament’s docket of priority legislation last year.
“In fact, we’ve been waiting for a national bill for 70 years,” said Rukka Sombolinggi, AMAN’s secretary general, referring to the 1945 founding of the republic. “We are still waiting for the government to make good on its duty to protect indigenous collective rights, including to identity and territory.”
For decades in Indonesia, the state has handed indigenous lands to business groups for logging, mining and plantation development. After the nation’s Constitutional Court ruled in 2012 that indigenous peoples’ customary forests were not to be managed by the state, but by the communities themselves, efforts to pass a law on their rights ramped up.
“We need a national bill, and we support the process of finalizing the current one. But our support for this version is not absolute,” Sombolinggi said.
“The current bill falls short on many counts.”
An imperfect bill?
For one, the bill would complicate the already onerous process by which the state recognizes communities as indigenous. This is important because a community must be recognized as indigenous before it can apply for tenure over the territory it has occupied for generations.
Right now, an indigenous group can be recognized via a decree from a regional chief executive, or a regulation from a local legislature. But the process, ultimately reliant on the will of mercurial politicians, can take years to complete.
Despite the hurdles, 97 of these legal instruments have been issued since the 2012 ruling — no small feat, according to AMAN’s Arman.
“It’s a system that, however imperfect, we would rather not see abandoned,” he said. “It’s better to have this one door to go through than many.”
The bill would add a number of additional hoops for indigenous peoples to jump through. For one, it would require that the Ministry of Environment and Forestry also sign off on recogntion. This would make things “worse” for indigenous groups, according to Dahniar Andriani, executive director of HuMa, a community rights NGO.
“You can imagine, how if you have to go to the ministry for recognition,” she said. “How much money you have to spend to go to Jakarta?”
The new law would further establish a complex procedure for the issuance of collective indigenous land title. First, it would require groups to prove their indigenous bonafides through, among other requirements, the establishment of an “indigenous institution” and the existence of “customary legal instruments.”
Many less-organized communities may not meet these criteria, according to Sombolinggi. “This could exclude many of those who need the law most,” she said.
The bill would also mandate the formation of “indigenous committees” tasked with overseeing the process of acknowledging, verifying and certifying indigenous rights among individual groups to their territory.
Formed by governors, mayors and district chiefs and comprising, among others, officials from the Ministry of Agrarian and Spatial Planning, the committees would replace the current regulation/decree mechanism, distancing indigenous Indonesians from what is, in truth, their “inherent right” to self-determination,” Sombolinggi said.
The critique taps into a larger debate over whether the best way to protect indigenous rights is via a system where communities self-identify as indigenous, rather than one in which they must be certified by the state. The state could still challenge claims it sees as false, but the burden to prove its position would fall on the government, rather than on communities.
Another area AMAN diverges over is the bill’s inclusion of a mandatory “evaluation” to be carried out by the committees 10 years after the issuance of a customary land title.
Should an indigenous group’s adherence to any of the qualifying criteria be found to have lapsed, the land could be reabsorbed by the state.
“This goes against the spirit of recognizing, protecting and fulfilling indigenous peoples’ rights as mandated by the constitution,” Arman said. “It should not be included in the final version.”
By AMAN’s count, there are at least 50 million indigenous Indonesians still awaiting their constitutional rights. The bill, by clarifying a procedure by which these groups can assert their collective rights, could deliver greater security for these groups in a country where huge areas have been licensed out to big companies, often under corrupt circumstances.
But for the results to be legitimate in the eyes of indigenous Indonesians, Sombolinggi says, there’s a lot of work left to do.
“The ball is now in the government’s court.”
Additional reporting by Philip Jacobson.
Banner: A Dani man in Indonesia’s Papua, one of the most linguistically diverse regions in the world. Image by Rhett Butler for Mongabay.