International Covenant on Economic, Social and Cultural Rights (icescr) Alternative Report Indonesia



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International Covenant on Economic, Social and Cultural Rights

(ICESCR)


Alternative Report

Indonesia

52nd Session

Committee on the on Economic, Social and Cultural Rights

April/May 2014


A joint submission by

Aliansi Masyarakat Adat Nusantara, YMC, HUMA, Paradisea, and the Rainforest Foundation Norway

Introduction

1. This report is a joint submission by Aliansi Masyarakat Adat Nusantara (AMAN), YMC, HUMA, Paradisea and the Rainforest Foundation Norway, based on information and input from several other partners in Indonesia. The report highlights key concerns related to the application of the Covenant of Economic, Social and Cultural rights by the state of Indonesia in relation to indigenous peoples. The report is structured based on the list of issues for Indonesia’s examination under the Committee on Economic, Social and Cultural rights.


Article 1 paragraph 2 – Free disposal of natural wealth and resources

Issue 3.Please provide information on the framework for the protection of the right of indigenous populations, including Masyarakat Adat, to their customary lands as well as the process through which their customary lands and forests are officially recognized. Please also provide information on concrete measures taken by the State party to address the increasing incidence of land grabbing, as well as examples of cases where such measures have been effective at preventing land grabbing.
The recognition of the right to self determination for indigenous peoples, within the sovereignty of the Republic of Indonesia, remains a concern. While the revised Indonesian Constitution of 1945 recognises the existence of indigenous communities and their traditional rights as stipulated in article 18B (2), the Government of Indonesia does not recognise the terminology and definition of indigenous peoples as stipulated in international frameworks, like the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).1 While Indonesia is one of the signatories to the UNDRIP, the government has argued that the concept of indigenous peoples as stipulated in the UNDRIP is not applicable, as all Indonesians (with the exception of the ethnic Chinese) are indigenous. The non-recognition of the existence of indigenous peoples in the country has led to massive violations of their rights.

It can be said that 2013 was a landmark year in the history of the recognition of the rights of indigenous peoples in Indonesia, as it saw the Constitutional Court Decision No. 35/PUU-X/2012 on the judicial review of Law No. 41 Year 1999 on Forestry, and the adoption of RUU PPHMHA as the House of Representatives’ Initiative Bill. Yet despite these important events, indigenous peoples in Indonesia continue to face conflicts of territory, land and natural resources. The Law on Forestry of 1999 gives the Government, and the Ministry of Forestry, the right to regulate the legal relationship between peoples and land, and between groups of indigenous peoples. As a result, there are many overlapping land claims. At present, according to data from the Ministry of Forestry and Statistics-Indonesia of 2007 and 2009, there are 31,957 villages located inside or bordering the forest areas. Over 70 % of these communities depend on the natural resources of the forest.2The State’s right to control and manage natural resources leads to deprivation of indigenous people's means of subsistence and inflicts upon many basic human rights, as expressed in the ICESCR. Deprivation of land means loss of the right to adequate housing and livelihood, and, thus, oftentimes the right to food and right to water. The customary land of indigenous peoples is also the source of their culture and identity, and both their physical and mental health is dependent on it.

Indigenous peoples are often criminalized when trying to defend their rights. In the period between September 2012 and March 2013, at least 218 indigenous peoples around the country have been arrested. Their charges vary from entering the forest without permission (as in the case of Datu Pekasa, the leader of Pekasa indigenous community jailed in Sumbawa, West Nusa Tenggara) to fighting against state apparatus (as in the case of the indigenous people of Pandumaan Sipituhuta who are struggling to protect their ancestral forest). Hundreds of conflicts have been recorded between indigenous communities, the Government and businesses that operate on indigenous people’s lands3. The business sector and companies receive protection from the State through deployment of police and military forces.

The Government of Indonesia is preparing the Draft Law on Recognition and Protection on the Rights of Indigenous Peoples (Rancangan Undang–Undang Pengakuan dan Perlindungan Hak – Hak Masyarakat Adat – RUU PPHMHA) to be considered for adoption by the parliament. When such an adoption will take place is however uncertain. Civil society organisations continue to raise their concerns on the Draft Law, especially concerning the definition of indigenous peoples and the discriminatory terms. The Draft Law does not use the definition of indigenous peoples as stipulated by the UNDRIP. Instead, the Draft Law uses the constitutional clause’s recognition of indigenous peoples, which is limited to customary governance and justice systems and in specific context to rights over territories and natural resources. Adopting the same term means adopting a purely functional approach, whereas any legislation on indigenous peoples should combine both a functional and human rights approach. Having ratified the ICESCR, it is of utmost importance that Indonesia recognizes customary laws, justice systems and institutions in the country, especially in the RUU PPHMA currently being reviewed.



Examples:

The impact of this issue can be seen in many cases:



  1. The Law number 18/2013 has recently been used against Semende Banding Agung indigenous community. The community was subjected to forced eviction and was prohibited from entering their ancestral territories. The area was claimed by the government as Bukit Barisan Selatan National Park. The designation of the National Park area had been decided without considering and respecting the existence and rights of the indigenous community. Despite strong resistance from the people, the forced eviction took place between the 21st and 24th of December 2013. It caused great negative impacts on the livelihood of 378 households which are threatened by starvation. Hundreds of indigenous children are in danger of having their right to education taken from them.



  1. The case of the Matteko indigenous peoples, from the village of Erelambang, Gowa district, South Sulawesi. The indigenous peoples of Matteko have lived in the area since 1933. From the end of the 1970s, the Forest Service Office forced the Matteko to plant pine trees in settlement areas. They never received information that the Ministry of Agriculture (at that time the Ministry of Forestry had not been established yet) had issued Decision Letter number: 760/Kpts/Um/10/1982 dated 12 October 1982, concerning the designation of forest areas of the South Sulawesi Province. The indigenous land of the Matteko was designated as part of a limited production forest area. In 2007, the Head of the Gowa District issued Decree No.522.2/25/V/2007, dated 14 May 2007, which provides permission for pine tapping on the Matteko’s land to PT. AdimitraPinusUtama until 2018. The indigenous peoples are deprived of the benefits from the pine trees which they planted on their own land. The Matteko have tried to protest the grabbing of their lands, but the company, thatholds Head of District's permit, has reacted by treating them as criminals.

  2. In KelurahanBattang Barat, the Palopo district, South Sulawesi, about 500 ha of that area is managed by the Ba’tan indigenous peoples, which have settlements located inside the area. This area is, however, also claimed by the nature conservation agency (BalaiKonservasiSumberDayaAlam/BKSDA), as part of the protected forests of the Nanggala III nature tourism park (Taman WisataAlam/TWA), which existence is based on the Decision of the Minister of Forestry and Plantation No. 890/Kpts-II/1999. On the basis of said policy, BKSDA often forces the community to leave by the use of threats.



  1. Eleven villagers of BontoKatute village in Sinjai district in South Sulawesi were brought to court in 2013 for occupying the forest area illegally.



  1. In 2011 we saw the forced eviction of Suku Anak Dalam (SAD). PT Asiatic Persada, a palm oil company, claimed that their indigenous lands were located inside the concession area of the company. They acted by burning villagers' houses and bulldozed their plantations in Sungai Beruang, Jambi.



  1. The conflict between the Arfak indigenous peoples and PT. Perkebunan Nusantara II in PrafiManokwari in West Papua province. The Arfak have been forced to leave their lands.



  1. The Uraso village, Mapedecceng sub-district, Luwu Utara district, have seen their village and land turned into palm oil plantation by the PTPN XVI.


8. Recommendations:

  1. The Government of Indonesia should swiftly improve, enact and implement RUU PPHMA to comprehensively recognize, protect and promote the rights of indigenous peoples in full accordance with relevant international human rights laws, standards and instruments, including the UNDRIP.

  2. The Government of Indonesia should form a National Commission on Indigenous Peoples.

  3. The Government of Indonesia should conduct, with full and effective participation of indigenous peoples, mapping of the territories of all indigenous peoples existing in the country, based on their self-identification, in order to protect and respect the ownership of indigenous peoples over their territories.

Issue 4.Please indicate how the principle of free and prior informed consent is guaranteed in law and in practice in decisions on and the implementation of development and extractive projects affecting communities.

The absence of well-conducted FPIC (free, prior, and informed consent) processes has resulted in repeated invasions and grabbing of indigenous territories over generations. The impact of this is clear when one realizes that the land that is being taken away is the main source of indigenous peoples’ livelihood. Indigenous peoples aren’t given the option to reject projects to be carried out on their territory, even though those projects potentially affect their lives in various ways. Indigenous peoples are not provided with a space or a means to pursue dialog with the government, or with private parties that obtain concession licenses to manage indigenous territories. Those who oppose these developments will face an oppressive reaction from the government, in most cases supported by security forces, either the military or the police. Land grabbing continues in the name of development.



Examples:

  1. Pekasa indigenous community, located in West Nusa Tenggara province was forcibly evicted in December 2011, whereby about 30 members of heavily armed military forces burned down 63 houses of the Pekasa community. The action was carried out and people were forcibly displaced with the argument that Pekasa territory is a protected forest area.4 Recently on 30th May 2013, more than 500 security guards hired by National Plantation Company (PTPN II) destroyed houses and more than 50 hectares farming land of Rakyat Penunggu community located in Klumpang village, North Sumatera province. In this incident, the villagers were beaten and heavily injured; one of them was stabbed in the head.5



  1. Despite the massive agrarian conflicts throughout Indonesia, concessions given to private companies without respect for indigenous peoples rights are still taking place on a large scale. In North Moluccas, the rivers of the Pagu indigenous community have been affected by the mining activities of PT. Nusa Halmahera Minerals (PT. NHM). PT. NHM started its activity in 1997, without any consultation or notification given to the Pagu people. As of 2013, the total concession area of PT. NHM is 29,622 hectares, from the around 50,000 hectare-territory of the Pagu community. In addition, the entire territory - not only of the part of it operated by PT. NHM – has been severely impacted by the pollution caused by the activity of the company. Cyanide and mercury are found in several rivers and ocean areas in the territory of the Pagu. Furthermore, repeated leaks from the sewage pipes of PT. NHM in 2010, 2011, 2012 caused contamination of the rivers of Kobok and Ake Tabobo, the main water sources of the respective community. Also, water contamination has made it close to impossible for the fishery community to uphold their traditional source of food.



  1. Recently, on the 7th of December 2013, a joint operation by police and military forces, along with the security forces of PT. Asiatic Persada (PT. AP), destroyed 256 houses in the Suku Anak Dalam Padang Salak indigenous community, located in Bungku and Pompa Air villages, Batanghari district, Jambi province. The respective indigenous community has been subjected to forced displacement.

  2. The provincial spatial planning (RTRW-P) was done without the involvement of indigenous peoples. For example, decisions made in 2013 about the convergence of forest areas in the Arfak mountain area in Minyambouw district, West Papua, to non-forest areas, was made without the FPIC of the Arfak tribe.

  3. The 850 ha of forest land in Plabai, inhabited by the Rejang's indigenous peoples, as well as 700 ha in Kota BaruSantan village, Plabai sub-district, Lebong district, are claimed as part of the protected forest and limited production forest. Plabai village is one of the oldest villages inhabited by the Rejangs, where they have lived since the 6th century. Boundary markers were suddenly set up in the forest without any prior information given to village officials and community leaders. The Rejangs are being deprived of access to hundred hectares of plantation, as well as resources such as rubber, durian and coffee. These resources are their sources of livelihood. The area is claimed to be part of the limited production forest area by decision No. 643/Menhut-II/2011 by the Ministry of Forestry.

  4. In West Kalimantan, in the Sintang district, the District Government has issued location permit No. 445 to PT. SinarSawitAndalan and Plantation Business Permit No. 1232 to PT. SumberHasil Prima. Each company receives 20,000 ha, including areas belonging to the indigenous peoples of Kampung Sungai Garung, a part of the DayakMelahui's tribe. The indigenous peoples of Kampung Sungai Garung use natural resources for their subsistence, likeswidden agriculture/cultivation/beumo (in hills area/high-land and low-land), rubber tapping, rattan gathering, animal hunting in the forest, fishing and collecting of timber to build their own houses, in the area where the palm oil companies operate. Around 20,000 ready-to-harvest rubber trees owned by the indigenous peoples and 400 Tengkawang trees, endemic to this area, are being destroyed by the companies.

13. Recommendations:


  1. The Government of Indonesia should ensure participation and representation of indigenous peoples in all levels and stages of political and economic decision-making processes that affect their lives

  2. The Government of Indonesia should ensure that the free, prior and informed consent of indigenous peoples are given in all matters affecting their land, territories and resources.

  3. The Government of Indonesia should immediately take all necessary measures to prevent conflicts affecting indigenous peoples. This includes ending the issuances of licenses and concessions for operations on indigenous territories to private actors, unless free, prior and informed consent is given by, and adequate compensation and reparation are guaranteed to, indigenous peoples.



  1. The Government of Indonesia should take all possible measures to ensure the access to justice for indigenous peoples. This includes respecting indigenous justice systems and integrating them, wherever possible and appropriate, in the national judicial system through comprehensive consultation with indigenous peoples.

Issue 5. Please provide information on the existing regulatory framework and processes for ensuring that development and extractive projects bring tangible benefits to communities. Please also provide information on the process by which the State party responds to reports of human rights violations, loss of means of livelihood and environmental degradation caused by development and extractive projects. Please give concrete examples of cases where the State party has taken measures to ensure that affected communities receive reparations.

Regulatory Framework

Article 18B of the Indonesian Constitution stipulates the recognition and the respect for traditional communities, along with their traditional customary rights, with the condition that the State has the controlling power over the lands and natural resources. Since 2011, the Indonesian People’s Representative Council has considered a draft law on the Recognition and Protection of the Rights of Indigenous Peoples, in which the principle of free, prior and informed consent has been proposed. The adoption is scheduled to take place in 2014. However, due to the political climate before the parliamentarian- and presidential elections in 2014, the adoption of the bill does not receive political priority.

On 16 May 2013, the Indonesian Constitutional Court adopted decision No. 35/PUU-X/2012 on the review of the Forestry Law No 41/1999. The decision drew two significant conclusions: The first relates to indigenous peoples’ rights over indigenous territories, or in this case, customary forest. Within that context, the Constitutional Court found in favor of the plaintiff (AMAN, jointly with Kasepuhan Cisitu and Kenegerian Kuntu indigenous communities). Where Article 1 Paragraph (6) of Law No. 41 Year 1999 on Forestry states “customary forest is State forest located in the areas of traditional-law society”, the Court found this contrary to Article 18B Paragraph (2) of The 1945 Constitution of the Republic of Indonesia recognizing the existence of indigenous peoples and their rights, including over customary forest in their indigenous territory. Accepting the argumentation, the Constitutional Court ruled that the word “State” in the Article 1 Paragraph (6) of the Law No. 41 Year 1999 on Forestry contradicted the 1945 Constitution, thus rendering it legally void. Interpreting and enacting concrete results from the deletion of the word “State” from the paragraph remains challenging.

Indonesia’s National Commission on Human Rights (Komnas HAM) argued that numerous human rights violations are caused by the absence of clarity regarding customary forest’s legal status in the Law on Forestry. Komnas HAM perceives the Constitutional Court Decision No. 35/PUU-X/2012 as a ruling that marks a new era of indigenous peoples’ recognition in Indonesia. Using this momentum, Komnas HAM proposed a National Inquiry on indigenous peoples’ right over customary forest within forest area. The proposal has gained support from civil society organizations. However, the slow response of the Government to the Constitutional Court Decision No. 35/PUU-X/2012, in terms of carrying it through to implementation, can be perceived as demonstrating an intention to continue denying indigenous peoples’ rights over their indigenous territories, including their customary forests. Further evidence of this can be found in a circular letter issued by the Ministry of Forestry deemed as an attempt to extend demarcation between customary forest and State forest. This means that forest degradation continues and concession rights for timber companies and palm oil plantations limit indigenous people’s access to available forest products as their local food source and means of subsistence. The loss and lack of livelihood sources is causing health problems, such as malnutrition, malaria and psychological health issues, among indigenous communities. In communities that receive food through social support programs, there has been a shift in culture from a productive working culture, to a consumptive culture where communities have become dependent on unhealthy food stuffs such as supermi, beras Miskin (instant noodles and poor-rice).



To the extent that the Indonesian government does undertake environmental and human rights impact assessments, they are inadequate.

Examples:

  1. The Crude Palm Oil factory owned by PT. Perkebunan Nusantara II in PrafiManokwari, West Papua, has disposed waste into the river and thereby polluted it. This has affected indigenous people’s access to water, as well as resulted in health issues such as skin diseases and other diseases caused by the pollution.

  2. The Trans Manokwari–Sorongin West Papua Province, a development and infrastructure project, has disregarded the environmental impact analysis (AMDAL) and thereby damaged the water sources of indigenous communities.

  3. The building of PLTA Larona and PLTAKarebbe , as part of the Hydro Power Plant (PLTA) project to provide power supply to “PT. Inco/ PT. Vale”, has decreased the lake’s water debt with 4-6 meters, leading to unproductive fish ponds and farms.

  4. The Crude Palm Oil waste disposal from PTPN XIV and palm oil plantation in Burau, LuwuTimur has polluted the river, causing the loss of fishing waters for indigenous communities.

  5. The indigenous community of To Karunsie of Dongi Village in LuwuTimur district, South Sulawesi, were forced to evacuate their lands in 1953 during the DI/TII political uprising. When they returned to their village, the indigenous people of KampungDongi found that their land had been grabbed by the state, which had issued concession to PT. Inco (later: PT. Vale), one of the world’s biggest nickel mining companies. The indigenous peoples were still able to rebuild their settlements when they returned in 1999. Today, the indigenous peoples of KampungDongi are regarded as an illegal community. Because if this, the Dongi people are being deprived of their right to access several public services, like water, electricity, health and education services. The company insists that the Dongi relocate because their lands are scheduled to be turned into a Nature Park /Nature Conservation Area.


33. Recommendations:

  1. The Government of Indonesia should ensure swift implementation of the Constitutional Court Decision No. 35/PUU-X/2012 and Constitutional Court Decision No. 45/PUU-IX/2011, as well as the revision of the Law No. 41 Year 1999 on Forestry, which is based on these court decisions;

  2. The Government of Indonesia should conduct adequate reform of the current forest tenure system, as well as related laws and regulations, in order to fully protect and respect the rights of indigenous peoples;

  3. The Government of Indonesia, together with relevant State organs, in particular the Ministry of Forestry, the Ministry of Mining and the Ministry of Agriculture as well as provincial and regency governments, should conduct environmental and human rights impact assessments on development and extractive projects through effective involvement of affected communities, especially indigenous peoples;

  4. The Government of Indonesia should review licenses that have been issued to private enterprises, in particular those under the Law No. 41 Year 1999 on Forestry, and revoke such licenses in cases where companies are reported to violate the human rights of affected indigenous peoples and ensure that adequate compensations or reparation are provided for the community concerned;


Article 15 - Cultural rights

Issue 32. Please provide information on the measures taken to protect the cultural heritage of ethnic and linguistic minorities and of indigenous populations in the State party, and to create favourable conditions for them to preserve, develop, express and disseminate their identity, history, culture, language, traditions and customs.

Article 15(1) of the ICESCR guarantees the right of all persons to ‘take part in cultural life’ and to benefit from the ‘moral and material interests of any scientific, literary or artistic production’ authored by them, which raises the possibility of protection of traditional knowledge and intellectual and cultural heritage rights under the Covenant, as well as in domestic laws implementing the Covenant.6 Article 15(2) provides that States must take steps to achieve the full realization of the right to culture. In several places in Indonesia, indigenous culture is not respected and protected by the government. Many indigenous groups are not recognised, and manifestations of their culture have been suppressed.

Right to culture of indigenous peoples means not only preservation of their local languages, but also their sacred sites and customary practices. There are many ethnicities in Indonesia that are almost extinct as a result of development processes. Examples of such indigenous groups are Orang Rimba, Talang Mamak, and Sakai in Sumatera, Dayak Punan, Tubu, Agabaq, and Merab in Kalimantan, the Togutil in North Moluccas, the Malind in Papua, and so on.

Example:


  1. In 2007, the Government of Indonesia granted a permit to a private tourism company, PT. Maluku Diving and Tourism, to operate on the land of the Paperu village, located in Central Moluccas District, in the province of Moluccas. The company prohibits Paperu villagers from conducting any activities in the sea area of their trritories. In fact, the area, which is known as Tanjung Paperu, has been not only the last and biggest source of their livelihood but also their conservation area and a sacred site to conduct ritual ceremonies, including Sasi.

Sasi is a traditional sustainable management system for natural resources and biodiversity that has existed in the Paperu community since the time of ancestors. The Sasi is based on a collective decision-making process among the people, based on customary laws that regulate the relationships between people and the nature, as well as between peoples and other peoples. It represents the cultural integrity of indigenous peoples in Paperu.

As a result of the prohibition by PT. Maluku Diving and Tourism, the Paperu community no longer conducts the Sasi ceremony. This clearly threatens their cultural integrity, which will potentially lead to the extinction of their indigenous identity.



58. Recommendations:

  1. The Government of Indonesia should adopt a comprehensive statutory definition of indigenous peoples based on international standards such as the UNDRIP. The principle of self-identification is of utmost importance to the definition of indigeneity, and must be applied in all relevant laws, regulations and practices affecting indigenous peoples.

  2. The Government of Indonesia should swiftly and comprehensively recognize the existence of indigenous peoples and their rights, especially their economic, social and cultural rights, in full accordance with all relevant international standards.

  3. The Government of Indonesia should establish effective mechanisms for prevention of, and redress for, any action which has the aim or effect of depriving indigenous peoples of their integrity as distinct peoples, or of their cultural values or ethnic identities.

  4. The Government of Indonesia should take all appropriate measures to ensure the access of indigenous peoples to all public services including education, health care and social welfare.



1See the statement of the Government of Indonesia on the recommendation of the Human Rights Council’s Universal Periodic Review (UPR) A/HRC/21/7/Add.1, para 6.3.

2 P.51/Menhut-II/2010 on Forestry Strategic Plan 2010-2014.

3http://huma.or.id/pusat-database-dan-informasi/outlook-konflik-sumberdaya-alam-dan-agraria-2012-3.html and https://www.humawin.org/

4 Fact sheet on indigenous peoples rights violation, Pekasa indigenous community, Aliansi Masyarakat Adat Nusantara, 2012.

5 Report: Violation against indigenous peoples rights, Klumpang village, Aliansi Masyarakat Adat Nusantara, 2013.

6 The CESCR held a Day of Discussion on 27 November 2000, during which members stated that traditional knowledge and intellectual and cultural heritage, both as individual and collective rights, could be addressed in relation to Article 15(1)(c). See CESCR Report on the 22nd, 23rd and 24th Sessions, UN doc. E/C.12/2000/21, paras 578-635.


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