Decentralization of Forest Administration in Indonesia, Implications ...

Moira Moeliono and Ahmad Dermawan 111
Indirectly, however, the small-scale concession licenses have become a critical instrument
for acquiring land and forest tenure. In many regions, district timber and forest conversion
permits have included in their titles a statement about the location of the land where logs
are to be harvested. In 32 out of the 38 small-scale concessions that had been issued in
Malinau by May 2001, ‘ownership’ and location were conflated, such that the licenses
state that logging permission was granted. The small-scale concessions have provided
villagers with enough confidence to feel that these rights supersede those of the HPH
timber concessions operating in the area. In Malinau, people used a small-scale concession
license to procure benefits from timber cutting in the Malinau concession of Inhutani II,
a large state-owned concession. Most small-scale concessions have been located within
the territory of a particular village, although a few small-scale concessions have also been
issued as enclaves within village territories (Barr et al. 2001).
As yet, none of these claims is legally formalized and few local governments are
in fact ready to formally recognize local community rights on a systematic or wholesale
basis. Some local governments, however, have issued decrees recognizing adat forests
despite there being no national guidance on how such a classification is to be applied.
In practice, local governments do take into account the presence and rights of local
communities.
6.3 Adat as a Vehicle to Claim Rights
The breakdown of central government authority during the reform period has provided
opportunities for local political elites throughout the country to build their own local
power bases (Simarmata and Masiun 2002). Adat has been one channel through which
they have done so. As Kusumanto (2001) observed, government officials, parliament,
NGOs and academics as well as adat groups themselves are going through a process of
reinterpreting adat and customary rights.
One significant result of these efforts emerged through Law 41/1999 and Decree
of the People’s Consultative Assembly (Ketetapan MPR, TAP MPR) IX of 2001, which
gave explicit recognition of customary or adat rights. While recognized on paper,
however, such recognition has yet to be realized in the field. Indeed, state recognition of
customary rights is, in many respects, not so easy. One may consider two extremes: at one
end, customary rights are recognized for lands excised from the formally delineated state
forest zone; at the other extreme, customary rights are secured within the state-controlled
forest as use rights (Kusumanto 2001). The Ministry of Forestry has recently decided
on a path towards compromise. Under the Ministry’s current policy, no change in forest
status is allowed except through the National Social Forestry Program, and communities
and adat communities are allowed management and use rights within a fixed framework
of the Ministry (MoF 2003). A draft regulation on customary or adat forests has been in
discussion since 1999, however there is no indication that it will be finalized soon.
The reforms of the late 1990s followed by decentralization led to increased
awareness of local peoples’ rights to forests and other natural resources, as well as the
value of these resources. Impatient with the slow movement of the legal reform process,
many people claimed their rights by negating the rights of timber concessionaires and/or
simply occupying state-controlled forest land. Having for years passively suffered the
presence of logging companies exploiting their forests, local and adat communities are