Final Land Acquisition Book English.indd - Forest Peoples Programme

Moreover, although the Act emphasizes autonomy at the district level, the West Sumatra
provincial legislature enacted a law re-establishing Nagari as self-governing entities. 23
Some of these new laws explicitly confer on indigenous peoples the right to control their
natural resources. The new laws in West Sumatra, for example, recognise Nagari control
of Nagari territory, Nagari governance and Nagari ‘properties’. 24
After being implemented for more than five years, Law No. 22 of 1999 was replaced
by Law No. 32 of 2004 regarding Regional Autonomy. The new Law was passed hastily
without real debate or prior evaluation of what had been achieved under the law it replaced.
The new law somewhat restricts the scope for community self-governance and has been
interpreted as an attempt to re-centralize government authority at the village level by
subordinating the authority of village-level representative bodies (Badan Perwakilan Desa)
to the village head (Kepala Desa), in turn clarifying that they are subject to the district regent
(bupati). 25 Under this revised law, the village head and village secretary again become civil
servants, but it is not clear how this law now relates to areas where the desa structure
has now been replaced by customary institutions. Furthermore, although this law has
subordinated customary institutions to the local administration, it does not question their
existence.
3.4 Laws Relating To Customary Rights In Land
The highest law regulating agrarian and natural resources management is Article 28H of
the constitution which protects the right to property. Paragraph 4 notes:
Every person has the right to own property and this property can not be
taken… from them by anybody.
Moreover, Article 28I of the constitution specifically protects the right of customary
communities. Paragraph 3 notes:
The cultural identity and the rights of traditional societies shall be respected in
accordance with this age of progress and human civilisation
These two articles can be understood as explicitly protecting the rights of indigenous
peoples to their lands and resources but is in tension with Article 33 of the Indonesian
Constitution of 1945, which legitimates the right of the State to regulate and manage
natural resource use. Article 33 states:
1.
Economic matters are managed as common efforts based on family
principles.
48 Palm Oil and Land Acquisition in Indonesia