Constitutional Court Annuls Government Ownership of Customary Forests

 

An aerial picture made available on 10 May 2013 shows an excavator loading logs into a boat at a canal in Indragiri Hulu, Riau province, Indonesia, 04 May 2013. According to Greenpeace, Indonesia is implementing a forest moratorium, but in fact the deforestation is still happening, with customary forests, community forests, protected forests and national parks also being slated. (EPA Photo/Bagus Indahono)

An aerial picture made available on May 10, 2013 shows an excavator loading logs into a boat at a canal in Indragiri Hulu, Riau province, Indonesia, May 4, 2013. The government on Thursday declared that the state no longer has control of customary forests in Indonesia. (EPA Photo/Bagus Indahono)

In a landmark decision for indigenous rights, the Constitutional Court decided on Thursday to make null and void the government’s ownership of customary forest areas.

The court eliminated the word “state” from Article 1f of the 1999 Law on Forestry, which previously declared that “customary forests are state forests located in the areas of custom-based communities.” Also revised was Article 5 of the law, which said that state forests include customary forests.

“Members of customary societies have the right to clear forests belonging to them and use the land to fulfill their personal and family needs. The rights of indigenous communities will not be eradicated, as long as they’re protected under Article 18b of the Constitution,” justice Muhammad Alim said on Thursday as quoted by the state-run Antara news agency.

Sumarto, a spokesman for the Ministry of Forestry, told the Jakarta Globe on Friday that the court’s decision was in line with the ministry’s policies.

“The Ministry of Forestry considers indigenous peoples living in a certain area as being part of the forest itself. They cannot be separated,” Sumarto said. “Custom-based societies are on the front lines of forest management.”

In its decision, the court affirmed that a clear distinction must be made between customary forests and state-owned forests. While the government still has the right to manage state forests, its authority is now limited in dealing with the forest lands of indigenous peoples.

“If there’s an issue with forest management, indigenous communities will have their own mechanisms to deal with it. We’re sure that these communities are environmentally friendly, concerned with sustainable economic practices and devoted to environmental protection,” Sumarto said.

The Alliance of Indigenous Peoples of the Archipelago (AMAN) filed a judicial review with the Constitutional Court in March 2012. AMAN accused the government of several times violating the rights of indigenous peoples by taking over customary forests and turning them into state-controlled lands. The state repeatedly granted concessions to business people to establish plantations or construct mines while ignoring the rights of customary communities.

We’re sure that these communities are environmentally friendly, concerned with sustainable economic practices and devoted to environmental protection.
Sumarto, Spokesman for the Ministry of Forestry

The alliance pointed to an instance when the government claimed the lands of the Kasepuhan people in Lebak, Banten in 1992 and converted it into a conservation area.

Sumarto explained that the Kasepuhan community may have not completed the process to be considered a custom-based community at the time. “There are certain requirements that are needed in order to claim [that status],” he said.

“They were probably still in the process when the government converted the forest into a conservation area.”

However, in 2012, the local government asked the central to change the status of the area into a production forest. The Ministry of Forestry is still mulling over whether or not to open up the land to miners and plantation managers.

Zenzi Suhadi, a campaigner with the Indonesian Forum for the Environment (Walhi) and Friends of the Earth, told the Jakarta Globe on Friday that the government should urge regional governments to issue bylaws acknowledging custom-based communities and their lands as soon as possible.

“Regional governments [should draft bylaws] in order to specify which areas belong to indigenous societies,” Zenzi advised. “The House of Representatives should also issue laws to support the ruling.”

Without clear legal acknowledgment, Zenzi believes that local governments and customary communities may disagree on which areas belong to the which group.

He also added that in many cases, customary forests are better managed than protected forests owned by the government.

“In Samosir, North Sumatra, the customary forest is well maintained. The government’s protected forest, however, is cleared.”