Final Land Acquisition Book English.indd - Forest Peoples Programme

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The Forestry Law (UU Kehutanan): likewise places a limitation on adat rights through Article 4 paragraph 3, Article 5 paragraph 3 and Article 67 paragraphs 1 and 2. These state that customary law communities have rights to utilize and manage forest ‘if they still exist and their existance is verified in accordance with certain local regulations’. Finally, the Plantation Law (UU Perkebunan) limits adat rights in the process of land acquisition for plantation purposes in Article 9 paragraph 2. According to this clause, there are five requirements in which a certain community can be claimed as adat law community: (1) adat communities still organize themselves exclusively under customary association (rechtsgemeinschaft); (2) the presence of structured customary institutions; (3) the presence of a clear legal territory of adat communities; (4) adat communities still practice their daily activities according to the existing adat law and institutions; and (5) the local government has recognised the existence of such adat comunities in accordance with any local regulation on such a recognition. The laws, in effect, give various government agencies discretion to recognise (or not) the existence of adat communities and their rights, and thus substantially limit the ability of adat communities to exercise their rights over land and natural resources. This kind of recognition weakens adat communities’ position, particularly when they seek to defend their ulayat lands against government or company’s expropriation. Regulations on land acquisition therefore should be reformed to ensure effective recognition of adat communities and provide legal protection to their adat rights. 6.1.3 Protect and Respect Customary Law and Indigenous Peoples’ Rights through Issuing a Law on the Protection of Indigenous Peoples (UU Perlindungan Masyarakat Adat) Up to now, there is no law specifically designed to protect indigenous peoples and their rights in Indonesia, even though the Constitution of Indonesia, particularly Article 18B gives ample scope for having such a law.. Although some district governments have issued District Regulations on adat communities, the content of these regulations tend to formalize customary institutions and do not clearly discuss adat rights over land and natural resources. A specific law on adat communities has thus been proposed by indigenous peoples’ organisations and supportive lawyers in order to clarify and justify the protection of adat communities and their customary rights. Thereby, adat communities would obtain legal protection and their customary rights would be effectively recognized. This would guarantee the recognition and protecttion of people’s rights whenever the government or companies plan development projects on people’s lands. 176 Palm Oil and Land Acquisition in Indonesia
6.1.4 Revoke Presidential Decree on Land Acquisition to Support Development Projects for Public Purposes. As noted above, to date, the Government of Indonesia has issued three regulations on land acquisition for development purposes that include Ministry of Home Affairs Regulation No.15 of 1975 that was replaced with Presidential Decree No. 55 of 1993. The last revision was made in the early 2006 by issuing Presidential Decree No. 36 of 2006 to replace the previous decree. This revision has given rise to controversy and critiques from various stakeholders. Indonesian NGOs have called for a Judicial Review of Presidential Decree No.36 of 2006, claiming that the revised decree was not appropriate and infringes human rights principles, by facilitating both physical loss (financial and natural resources damage) and psychological loss (threatened and unsafe lives, as well as intimidation), loss of properties and even death. These regulations and decrees are based on the assumption that national interests should be allowed to override individual or group interests. Such an assumption could potentially endanger the enforcement of human right principles. As described in the Article 4 Law No. 39 of 1999 on Human Rights and Article 28I Constitution Law of 1945, the rights to life and the right to protection are non-derogable rights that should be restored. Hence, laws and regulations that could potentially harm individuals’ and peoples’ rights should be revoked. Instead, the state needs to formulate regulations on land acquisition for public purposes based on respect for human rights and the principle of Free, Prior and Informed Consent, as well as provide suitable payment and compensation for any losses or damages caused by utilization of people’s land for development purpose. Only in this way can development projects in the national interest be made compatible with securing the welfare of local communities. 6.2 Procedural Reform In addition to reform of the laws and regulations, it is also necessary to reform the procedures related to palm oil plantation development. The following are priorities. 6.2.1 Stricter Controls on Forest Conversion As revealed by the case studies investigated in this research, the majority of palm oil plantations have been established in State forest areas that have been legally converted into non forest areas and then planted as oil palm estates. However, a closer analysis shows that the ‘State forest areas’, which were then slated for conversion, were only recently designated as ‘forest areas’ and most have not yet been delineated and gazetted as ‘State forest aras’ according to legally required procedures. This implies that these areas should Implications and Recommendations 177
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Promised Land: Palm Oil and Land Ac
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Acknowledgements The authors would
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Contents Executive Summary 11 Chapt
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Acronyms ADB AMDAL ANDAL APL BAL BA
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SKT SPPT TGHK UN UPSB UPSBM UPSBK U
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mainly so speculators can get acces
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Policies Favour Large-scale Plantat
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In effect the government is failing
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Chapter 1 Introduction 1.1 Reasons
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Notwithstanding these limitations,
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6 5 4 3 Million Hectares 2 1 0 1968
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figures, in the past five years, an
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Table 1.2. Provincial Government Pl
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Figure 1.5 Areas of current oil pal
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Endnotes: 1 Foe 2004; Wakker 2004;
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Chapter 2 Towards Responsible Palm
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The 25 persons were selected from a
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Details about negotiated agreements
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A simplified version of the TNC/DfI
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Negotiating acceptable standards fo
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Chapter 3 The Normative Framework -
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3.2 Government Policy on Palm Oil D
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evaluate proposals for conversion o
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Moreover, although the Act emphasiz
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corresponding customary law communi
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Although the application of this pr
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were part of national development p
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electricity. 52 It is not clear tha
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ISSUANCE PROCEDURE STAGES FOR PLANT
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Translation Section for the table a
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According to the Decree, to obtain
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Article 8 of this decree states tha
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Table 3.1: Indonesian Forest Area b
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option available. The overarching l
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several times the last being Staatb
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Chapter 4 Case Studies As part of t
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In the 1990s, the coastal adat comm
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In the New Order era, communities w
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project participants, who have not
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Testimony of Mr. Ajan, from Ngaras,
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On 10 December 1993, the land offic
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fact that the compensation being pr
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Figure 4.2 Map of Kampung & Adat ar
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Figure 4.3 Map of Plasma & Nucleus
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6,260 ha. of land in Bengkunat. Lik
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4.1.6 Land Redistribution: Marga Re
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international transportation linkin
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The government of Sanggau district
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Table 4.4: Land Use of Proposed PT
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These changes have also had their c
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4.3 PTPN XIII 4.3.1 Background to P
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lands were allocated to the company
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through the required process of lan
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▪ ▪ ▪ ▪ ▪ ▪ ▪ ▪ PTP
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▪ ▪ ▪ ▪ ▪ Smallholder fam
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transmigration uniform, with passio
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Testimony of a third Transmigrant I
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widely publicised Decree of the Min
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The Environmental Impact Assessment
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Official in the Provincial Regional
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Mr. Ir. Pontas Sihotang, Head of Pl
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of executive members. In this situa
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Page 128 and 129: Local people strongly rejected the
Page 130 and 131: Under the still vigorous customary
Page 132 and 133: authority to decide. In some cases,
Page 134 and 135: Since 1992, Pasaman District has be
Page 136 and 137: Those arrested from Kapar were late
Page 138 and 139: Picture 4. Recommendation Letter of
Page 140 and 141: ▪ ▪ ▪ ▪ Land acquisition sh
Page 142 and 143: 1) 2) 3) 4) 5) 6) Accept migrants c
Page 144 and 145: Picture 6. A letter of ulayat land
Page 146 and 147: Local community members of Kapar re
Page 148 and 149: 4.6.8 A history of Land Disputes in
Page 150 and 151: distinct from other community membe
Page 152 and 153: not written. The formal validation
Page 154 and 155: According to the Head of BPN in Wes
Page 156 and 157: Endnotes: 1 LeBar (1972) refers to
Page 158 and 159: Mulang Maya (Choiruddin); Village h
Page 160 and 161: activist and legal adviser to this
Page 162 and 163: Ministry of Industry and Trade, Ria
Page 164 and 165: 147 In accordance with Law No. 56 o
Page 166 and 167: Chapter 5 Legal Analysis Chapter 3
Page 168 and 169: 5.1.1 Land Ownership As noted, a ba
Page 170 and 171: We can see these elements in confli
Page 172 and 173: 2. The second model is an agreement
Page 174 and 175: environmental impacts, could place
Page 178 and 179: not have been categorized as State
Page 180 and 181: ▪ ▪ ▪ ▪ At the stage when a
Page 182 and 183: estate labourers, out-growers or di
Page 184 and 185: ▪ ▪ ▪ Establishment of open a
Page 186 and 187: ▪ If RSPO adopted lowered standar
Page 188 and 189: Boomgard (1998) Between Sovereign D
Page 190 and 191: ICBS (1997: 88) Kalimantan Review (
Page 192 and 193: Sargent, Howard J (2001) Vegetation
Page 194 and 195: Appendix Total 8 Principles and 39
Page 196 and 197: promote the positive ones are made,
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Final Land Acquisition Book English.indd - Forest Peoples Programme

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