At their acquittal, the Alliance of Indigenous Peoples of the Archipelago/Aliansi Masyarakat Adat Nusantara (AMAN), the nation’s sole indigenous organisation at the national level, was quick to express their gratitude to the lawyers who represented the farmers in court. AMAN was equally grateful to the sound decision of the Sintang District Court upholding the right of the Dayak community to practice their traditional occupation.
But the victory of the six farmers turned out to be an anomaly. On 25 November 2019, two farmers from West Kotawaringin district in Central Kalimantan were prosecuted at the Pangkalanbun District Court for a similar concern. They, too, were accused for causing karhutla. But unlike the six farmers, they were found guilty and sentenced to 5 months in jail. They were charged for violating a number of laws namely, Article 108 of the 2009 Law Concerning Protection and Management of the Environment, Article 78 of the 2013 Law on The Prevention and Eradication of Forest Destruction, Article 187 Part 1 of the Indonesian Penal Code, and lastly, Article 188 of the Criminal Law.
Article 62 of the 2009 Law Concerning Protection and Management of the Environment actually “allows indigenous communities to carry out fire-fallow cultivation on a maximum area of 2 hectares per family for planting local crop varieties and by building a ditch to prevent fire spread.” But this clause fails to protect indigenous peoples and smallholders from being arrested and prosecuted for practicing berladang.
Indonesia’s national approach to controlling forest fires
In 2016, Mongabay mentioned 454 individuals arrested in connection with the forest fire that spread over Sumatra and Kalimantan. That number increased at the end of the year making the count significantly higher compared to the year before when Indonesia recorded its worst haze crisis in recent history. The 2015 haze altered the air quality causing serious health risks that even affected Indonesia’s neighbouring countries, particularly Malaysia and Singapore.
Mongabay noted in their article that a police officer claimed “there was insufficient evidence to prove firms were culpable for starting fires.” But going after hundreds of indigenous farmers and smallholders who practice berladang did not seem to pose them any issue.
The 2015 haze saw a repeat in 2019 that led to Indonesia’s ministries blaming each other, even suggesting divine intervention. But there are actually more mundane gaps that can be addressed through practical means. Activists and experts have been pointing out “ineffective enforcement of fines for companies found guilty in court of setting fires; lack of coordination between government agencies responsible for various aspects of fire prevention and mitigation; and lack of transparency over a government program to restore degraded peatland across the country.”
In one of their bulletin issues in 2018, World Rainforest Movement (WRM) pointed out that the development of palm oil plantation of Kotawaringin Barat and Kotawaringin Timur Regency in Central Kalimantan coincided with forest fires recorded in 1992. WRM specified three interconnected major factors in the worsening of karhutla and haze each year, “namely 1) deforestation and degraded land due to logging, 2) uncontrolled oil palm plantation expansion and 3) corporation’s control over an expanding area of land.”
Majority of these karhutla were documented to have started within the concessions of big companies. But these companies are seldom closely investigated, let alone prosecuted. WRM echoed the revealing finding of a 2015 research by a lecturer at the Forestry Department of Bogor Agriculture Institute. “[I]n 2015 many corporations employed local people to clear land using fire. Companies are using them as a ‘human shield’ to prevent legal consequences from using fire to clear the land and forest.” It illustrated the “systematic attempt to portray corporate crime as individual crime by putting the blame on indigenous or local communities.”
Targeting indigenous farmers and smallholders to incriminate in Indonesia’s karhutla is not an isolated reflection. In his 2016 article, No fire, no food: tribe clings to slash-and-burn amid haze crackdown, Cory Rogers of Mongabay quoted a village head from West Kalimantan. “For hundreds of years we’ve all burned ladang. We didn’t have a haze problem before, and now they say the farmers are the ones responsible. This is false. Indigenous peoples are not the cause of the haze in the republic, and we can’t let them become the scapegoat for it.”
President Jokowi Widodo’s blanket approach to ban burning including berladang made the indigenous farmers and smallholders more vulnerable to prosecution and arrest. His directive reveals a lack of understanding to an indigenous agricultural practice that existed for centuries. It also misses the other underlying causes of karhutla such as impoverishment in villages, which was posited in a 2019 < a href=”https://doi.org/10.1016/j.worlddev.2019.104717″>multi-scalar study entitled Causes of Indonesia’s forest fires, and the apparent consequence of food crisis, which Rogers’ article also highlighted.
His recent claim of success in reducing forest fire amidst the Covid19 pandemic is again quite narrowly focused on the use of artificial rains and weather modification technology to monitor fire hotspots. He stressed that 99 percent of the fires are caused by human activities. It was, however, unclear if there was any discernment between those done by companies and those practiced by individuals from indigenous communities. Or, if there is any attempt to recognise the gaps in his approach to prevent and manage karhutla that activists and experts have long been pointing out.
Indonesia’s ambiguous recognition of indigenous rights
Indigenous peoples’ customary rights and right to cultural identity are stipulated in Articles 18-b and 28-I respectively, of Indonesia’s Constitution. Several other legal frameworks, namely: Act No. 5/1960 on Basic Agrarian Regulation, Act No. 39/1999 on Human Rights, and MPR Decree No. X/2001 on Agrarian Reform, Act No. 27/2007 on Management of Coastal and Small Islands and Act No. 32/2010 on Environment, have clauses that implicitly recognise some of their indigenous rights. Also, in May 2013, the Constitutional Court affirmed indigenous peoples’ rights to their customary forests when AMAN filed a case in court to clarify the status of customary forest in relation to public forest controlled and managed by the States. But these institutional progressions with regards to advancing indigenous peoples’ rights are not always acknowledged by the government. At international arenas, the government stands firm on their view that all Indonesians are indigenous peoples with the exception of the ethnic Chinese. For the government officials, the indigenous peoples rights stipulated in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) are entitled to every single one of its constituents. However, at the national arena, each ministry, despite using varying terms such as Masyarakat Hukum Adat, Komunitas Adat Terpencil, etc. to refer to indigenous peoples, know very well that these terms do not apply to all Indonesians. Such ambiguous perception affects formulation and implementation of specific policies and programmes to properly capture the particular, condition, needs and aspiration indigenous peoples as distinct groups with inherent collective from the rest of the national population.
In 2007, the Committee on the Elimination of Racial Discrimination (CERD) had already raised concerns with Indonesia’s recognition of indigenous rights. “The Committee notes that the State party recognizes the existence of indigenous peoples on its territory, while using several terms to designate them. It is concerned, however, that under domestic law these peoples are recognized “as long as they remain in existence”, without appropriate safeguards guaranteeing respect for the fundamental principle of self-identification in the determination of indigenous peoples.” It also raised concerns that, “in practice the rights of indigenous peoples have been compromised, due to the interpretations adopted by the State party of national interest, modernisation and economic and social development.” Also, in the 3rd cycle of the Universal Periodic Review in 2017, Indonesia merely noted the recommendation on “[e]valuating the establishment of mechanisms that allow indigenous peoples to be guaranteed the right to their ancestral lands.”
Recent developments add more threats to the protection of indigenous peoples’ rights
The Investment Omnibus Bill is the latest disappointment to President Widodo’s administration. The Bill, which is set to make 1,200 amendments to at least 80 existing laws, threatens indigenous peoples as it is expected to spark more conflicts related to lands and resources. Hans Nicholas Jong of Mongabay noted some of the particularly alarming proposed changes. Among them are “scrapping of environmental impact assessments and environmental permits as prerequisites for business permits to be issued for various kinds of projects, possible removal of criminal charges for businesses violating environmental regulations, depriving indigenous communities of a say in projects that would affect them, and redesignate forest areas, which would allow illegal plantations and mines to whitewash their operations.”
The Bill is meant to create jobs and boost Indonesia’s economy and investment. But the ASEAN Parliamentarians for Human Rights flagged its lack of guarantees that the proposed changes will uphold the international human rights standards. For AMAN, the violence and conflicts that indigenous peoples have been enduring way before the threat of the Omnibus Bill is enough to raise red flags. They are resolute to stand against the passing of this Bill. Notwithstanding the President has ignored the bill on the Rights of Indigenous Peoples, which AMAN have been lobbying to be adopted since 2013.
During his first term as president in 2014, Widodo promised AMAN that he will facilitate the adoption of a bill on the Rights of Indigenous Peoples but that never happened. There has been a strong opposition by the ruling elite, including key officials of Widodo’s political party. In winning the presidency, he expanded the potentials of democracy in Indonesia. He had also constructively engaged with civil society leaders and organisations during his first term. But his potential to make strong policy changes to recognise and protect indigenous peoples’ rights never came into fruition. Unlike in 2014, AMAN did not declare their support for his re-election in 2019.
Currently, three-quarters of seats in parliament is under President Widodo’s ruling coalition. This would have made passing of any bill highly likely unopposed. But based from his previous actions, it would not be surprising for the Omnibus Bill to be signed into law while the Bill on Indigenous Peoples’ Rights completely forgotten. If that happens, any hope pinned on President Widodo to transform Indonesia’s governance into a more democratic, responsible and accountable institution goes up in smoke. The indigenous peoples can only brace themselves for more severe consequences to their rights, particularly to claiming their collective rights to their lands and territories.
[IPRI gives thanks to Monica Ndoen for extending her help in this article.]
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