Authors: Vidhyandika Perkasa, Senior Researcher, Department of Politics and International Relations, Centre for Strategic and International Studies (CSIS), Jakarta; and Nukila Evanty, Executive Director, Rights Foundation, Jakarta
Sep 22, 2014
The first UN World Conference on Indigenous Peoples will take place on September 22 and 23 in New York. Over one thousand indigenous and non-indigenous delegates will gather to discuss the realization of the rights of more than 370 million indigenous peoples around the world. Vidhyandika Perkasa of the Indonesian Centre for Strategic and International Studies and Nukila Evanty of the Rights Foundation in Jakarta, provide an in depth look at the major challenges facing indigenous communities, through the lens of Indonesia's experience.
here are approximately 370 million indigenous peoples comprising around 5,000 tribes in more than ninety countries around the world. While indigenous peoples make up only 6 percent of the world's population, indigenous territories hold around 80 percent of the world's remaining biodiversity. Yet, despite this natural wealth, the majority of indigenous populations suffer from economic hardship and poverty, as well as political marginalization by majority groups and discrimination at the hands of their governments.
The plight of indigenous populations was first seriously considered at the international level during the first and second International Decades of the World's Indigenous Peoples which began in 1994. By 2007, the UN had established a Special Rapporteur on the Rights of Indigenous Peoples, the Expert Mechanism on the Rights of Indigenous Peoples and the Permanent Forum on Indigenous Issues. And in 2007, the UN General Assembly adopted the historic United Nations Declaration on the Rights of Indigenous Peoples. This convention sets a minimum standard for the protection of human rights of indigenous populations, as well as their rights to self-determination; spirituality; territories; resources; language; lands; and free, prior and informed consent.
Building on this progress, the UN General Assembly will hold the first UN World Conference on Indigenous Peoples on September 22 and 23, 2014, in New York. This meeting provides a significant forum for indigenous populations and their governments, as well as the private sector, to develop best practices on the realization of the rights of indigenous peoples. The conference will be attended by over 1,000 indigenous representatives, among which will be the Masyarakat Adat communities of Indonesia, including groups such as the Dayak Benuaq, the Orang Tengger, and the Orang Badui.
Indonesia represents a worthy case study for countries struggling to adjust policies to help indigenous peoples. Approximately 50-70 million people in Indonesia could be classified as indigenous and they live in almost every province. The upcoming conference presents an important opportunity for Indonesia's indigenous population to be heard, and for the incoming government to recognize the rights of its indigenous peoples while enacting a reformed strategy to ensure their rights.
Indonesia's Indigenous Peoples
Indonesia—a country with more than 13,000 islands spanning over 7 million square km—has a population of 253 million comprising more than 1000 ethnic and sub ethnic groups. While Indonesia has a single national language, Bahasa Indonesia, there are at least 700 local languages spoken throughout the country's thirty-four provinces. Indonesia's diversity and multiculturalism form the nation's rich heritage, but also present significant challenges, particularly relating to the existence of indigenous peoples.
Indigenous peoples are often associated with negative labels in Indonesia, such as "living in poverty," "disadvantaged," "marginalized," or "extinct." Yet, compared to their status during the authoritarian rule in the 1970s through the late 1990s, indigenous peoples tend to be relatively better off in the current democratic era. And they have become engaged in the struggle for their rights, building up their organizational capacity, receiving support from civil society, and pushing for the state to acknowledge indigenous groups through policies, regulations, and the ratification of international treaties. At the forefront of these efforts, the Aliansi Masyarakat Adat Nusantara (Indigenous Peoples Alliance of the Archipelago or AMAN) is a nongovernmental organization that acts as a representative of the indigenous peoples in their struggle for the right to exist and their right to sovereignty in managing their lives and natural resources. AMAN, which is supported by other NGOs such as Forest Watch Indonesia and Friends of the Earth of Indonesia, fronted a major victory in May 2013 when Indonesia's Constitutional Court adopted a law submitted by the group, effectively handing control of more than sixty million of hectares of government-controlled forest land back to indigenous communities.
Despite such progress, indigenous groups still face significant challenges to maintaining their rights vis-a-vis state policies, regulations, and development processes. The outgoing administration of President Yudhoyono has faltered on his election promises to uphold the rights of indigenous peoples. The May 2013 law to return control of forest lands to indigenous groups, for instance, has yet to be implemented by the government, and in May 2014 the government launched a national inquiry due to the continued violation of indigenous groups' rights, especially related to the rejection or violation of the law by extractives companies and others working under the guise of conservation efforts.
In 2012 Indonesia received a troubling assessment in the UN's first Universal Periodic Review—a report assessing the state of human rights in the UN's 193 member countries over the course of four years. Commenting on this review, Survival International summed up the continued violation of indigenous communities' right, noting frankly that "Indonesia treats its indigenous and tribal people…worse than any other country in the world." The continued denial of the very existence of indigenous peoples in Indonesia is symptomatic of the government's disregard for indigenous rights.
Challenges Facing Indonesia's Indigenous Peoples
There is indeed complexity when talking about the challenges faced by indigenous peoples in Indonesia. The lack of accurate data about the number and locations of indigenous peoples in the country impedes efforts to fully understand their current state. Despite the lack of data, it is commonly understood that indigenous peoples are facing hardship, and widespread poverty is one of the main indicators. Indigenous people frequently lose the rights to their land and other natural resources in the name of development. In addition, the state continues to transfer land ownership to private industrial companies without implementing the process of free, prior, and informed consent. In this case, impoverishment of indigenous peoples is due to the lack of legal recognition of their right to adat (local) and natural resources.
In an era of decentralization and increased regional autonomy, governor and heads of district have significant power over land use and the transfer of natural resources. Due to practices of collusion and nepotism made by local elites with national or foreign investors, indigenous communities tend to be disadvantaged. A 2012 report from the International Fund for Agricultural Development (IFAD) points to the example of East Kalimantan, where, due to the lack of legal recognition and protection of customary rights over land and natural resources, "the local government took lands and forests of indigenous peoples and allocated it for logging concessions, mining, and plantations without prior consultation with or adequate compensation to the affected communities."
Due to poverty and remoteness, many indigenous peoples do not have access to proper health and education services. Lack of infrastructure and transportation also poses a barrier that hampers indigenous peoples' ability to pursue a better life. Another problem is the inability to sell their lands due to the loss of legal rights. The IFAD report notes that "structural inequities and inequalities were further reinforced by the legislation of discriminatory and oppressive land laws which ignored indigenous peoples' customary land tenure systems and laws. In Indonesia, the indigenous peoples are limited by government policies that do not acknowledge their rights to their traditional lands and natural resources." In addition, massive logging, plantation, and mining activities have caused pollution and destruction—the UN Environmental Programme estimates that around 98 percent of Indonesia's natural rainforests could be lost by 2022. This degradation of indigenous peoples' land and natural resources furthers the cycle of oppression and hardship. The government's ambitious fifteen-year economic plan (Master Plan for Acceleration and Expansion of Indonesia's Economic Development) unveiled in 2011 has provoked strong resistance from indigenous peoples and local communities. This includes, the Merauke indigenous community's opposition to the Merauke Integrated Food and Energy Estate at Urumuka and Mamberamo hydropower stations in Papua, as well as the indigenous community of Central Kalimantan's opposition to that province becoming a center for large-scale mining. Such projects tend to aggravate conflicts between indigenous or rural communities, and companies or the government. In 2012 alone, HuMa (a local NGO) recorded seventy-two ongoing cases of forestry-related conflicts in an area of more than two million hectares; the conflicts have already resulted in many deaths.
The Regulatory Dimensions
From a regulatory standpoint, there has been some progress in recognizing indigenous peoples' rights and sovereignty on paper, but most of these legal conventions have yet to be implemented or enforced by the government in reality. The Second Amendment to the 1945 Indonesian Constitution, for instance, ensures state recognition and respect for societies that live by customary law (that is according to the customs or usual practices of the indigenous communities). Another—the People's Consultative Assembly Decree No 9/2001 on Agrarian Reform and Natural Resources Management—acknowledges societies that live by customary law with respect to agrarian reform and the management of natural resources. And the Basic Agrarian Law No 5/1960 and Indonesian Forestry Act No 41/1999, both regulate customary law on land, water, and forests.
Just as important and related to regional autonomy is Local Government Act No. 32, Year 2004 (which replaced Act No. 22, Year 1999), which states that "Villages, or other forms of settlement henceforth called villages, are units of law-based society which have the authority to manage and take care of local communities' interests based on their origins and local customs, within district territory and as recognized by the national government system." It also states that "local government regulations…must recognize and respect villages' rights, origins and customs". Act No 39 of 1999 on Human Rights clearly provides an explicit formulation of the recognition and protection of indigenous peoples and their cultural identity. It also recognized property rights and acquisition of property rights, respectively, which become relevant in the framework of protection of indigenous rights. Finally there is also Act No 27/2007 on Coastal and Small Islands Management which recognizes the rights of indigenous peoples to manage coastal and small islands.
Indonesia has adopted the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights which were ratified by the government in 2006. In 2007, the Indonesian government supported the UN General Assembly's adoption of the Declaration on the Rights of Indigenous Peoples (UNDRIP), which sets the international minimum standard for the protection, respect, and fulfilment of the rights of indigenous peoples, but noted that the text did not apply in the context of Indonesia. Yet the Indonesian government has ratified a number of international conventions on human rights relating to indigenous peoples in the past, including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. In addition, the government ratified Law No 29/1999 on the Ratification of the International Convention on the Elimination of all Forms of Racial Discrimination 1965and Law No 7/1984 on the Ratification of the Convention on the Elimination of All Forms of Discrimination against Women.
Many regulations concerning indigenous peoples often lack clarity. For instance, Act No 32 on the Management and the Protection of Environment says "the State admits and respect the unity of indigenous peoples and their traditional rights as long as they are still existing and in accordance with the society development and based on the foundation of Unitary States of the Republic of Indonesia. "And a formal definition of "indigenous peoples" is hard to find in Indonesian laws. National laws use many terms instead of "indigenous peoples," such as alien tribal communities, neglected communities, remote communities, customary law communities, and communities governed by custom.
Moreover, the development of economic policies on the allocation and management of natural resources have often been tailored to benefit the private sector, and have led to environmental and ecological abuses and damage. The victims of these environmental damages are more often than not the indigenous communities that reside near the forests or mining locations. And even though Indonesia has ratified the UN Declaration on the Rights of the Indigenous People, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights, they have not yet been implemented, and no formal state recognition of indigenous peoples exists.
In addition to the regulatory issues, there are some recent developments that could support indigenous rights, but which fail to do so in practice. The National Parliament, for instance, has adopted a draft of the Indigenous Peoples Law (RUU PRHMA). Unfortunately the Ministry of Forestry, designated to coordinate the four ministries within the national parliament to finalize RUU PPHMA for adoption, appears to be deliberately delaying the process. If the law is adopted, it will be a significant step toward the recognition and protection of the constitutional rights of Indonesia's indigenous peoples and will present an opportunity for reconciliation by eliminating discrimination of indigenous groups. However, an initial observation on the RUU PPHMA indicates that the law does not resolve the structural conflicts emerging in Indonesia that concern indigenous peoples.
In addition, the new Village Law No 6/2014 was initially expected to present new opportunities and benefits for indigenous peoples in the context of decentralization, since they mostly reside at the village level. However, this law only concerns the governing system without addressing the rights of indigenous peoples.
Finally, the previously mentioned constitutional court ruling that customary forest is not state forest means that indigenous peoples of the archipelago will get back their rights over their customary forests, seized by the state through forestry law, which could potentially secure land tenure for up to seventy million indigenous peoples in Indonesia. However, as with many legal matters concerning indigenous peoples, this ruling has yet to be implemented.
There is still a long way to go in securing the rights of indigenous peoples. Existing regulations that address the rights of indigenous peoples tend to be cosmetic in nature and lack enforcement capacity. Such regulations tend to focus almost exclusively on economic development, while neglecting indigenous peoples as the subject of that development. In addition, many of these regulations are highly fragmented.
In Indonesia, the election of Joko Widodo in July 2014 presents an opportunity to enact change. The president-elect should ensure state recognition of the existence of Indonesia's indigenous population, while leading legal reforms synergize, coordinate, and integrate laws regarding indigenous populations. In addition, the new government should implement the Indigenous Peoples Law (RUU PPHMA), while incorporating the rights of indigenous peoples into the law and harmonizing RUU PPHMA with existing legislation. Finally, the new government should include the condition of indigenous peoples in their State Report and Universal Periodic report.
At the international level, countries should take action to implement the recommendations set out by the UN Declaration on the Rights of Indigenous Peoples to ensure the civil, political, social, economic, and cultural rights of their indigenous populations. It is important to recognize that the upcoming World Conference on Indigenous Peoples, while an important platform to highlight indigenous people's issues, is just a forum. Real change will require actionable goals from indigenous populations' governments. To that end, countries should help their indigenous populations achieve the development goals specified in the conference's forthcoming outcome document, as well as committing to specific and actionable goals to achieve the recommended human rights standards.