Local customary law theoretically establishes land rights in many parts of Indonesia. However, the central government has historically ignored indigenous ownership and stewardship as it gave away indigenous land to corporations for palm oil and mining operations. Recently, the central government has adopted various land reform policies that allegedly expand local communities’ power over their land by granting them formal ownership.
Traditionally, indigenous groups have acted as stewards of their ancestral lands without having formal titles to them, which has led to land rights disputes with the government in addition to poverty and inequality. The International Convention on Economic, Social, and Cultural Rights (ICESCR) provides guidance in Article 15, which requires states to recognize the right of everyone to participate in cultural life. For many indigenous peoples in Indonesia, this right manifests itself as and depends on the right to use and inhabit their customary lands.
Aliansi Masyarakat Adat Nusantara (AMAN), or the Indigenous Peoples Alliance of the Archipelago, estimates there are fifty to seventy million indigenous peoples in Indonesia, where the total population is 250 million. AMAN currently represents over seventeen million members from 2,332 indigenous communities. The Indonesian government has only recognized 1,128 of these indigenous groups.
In 2013, the Indonesian Constitutional Court ruled that indigenous peoples in Indonesia own their customary forests, not the state. Despite this decision, the government continues to support large corporations using the land rather than standing up for indigenous groups’ rights. Customary land is land that is used by indigenous groups, often without any formal ownership or permission other than tradition. Historically, the government has often exploited this “unowned” land by granting it, without consulting indigenous groups, to foreign corporations in the name of economic development. Indigenous groups have had no formal control of the cultivation and development of their ancestral land. While Indonesia has tried to create effective land reform policies since 1960, a renewed international focus on deforestation and climate change brought increased attention to Indonesia’s policies. President Joko “Jokowi” Widodo has taken steps to provide titles for customary lands and forests to indigenous groups and pledged to formally register all land in the country by 2025.
The government recently passed Presidential Regulation 86/2018, which instructs the implementation of recent agrarian reform policy. Its stated purpose is to reduce inequalities in land ownership and empower communities through redistribution, ownership, legalization, and control over land. It sets out two paths through which to do this: asset arrangement and access arrangement. Asset arrangement grants ownership and control of land, while access arrangement focuses on community empowerment by providing infrastructure to build skills, increase technology use, and facilitate access to capital and marketing. The regulation sets up a special task force to address issues, delegates funding to national and regional income sources, and requires local city- and province-level task forces to report once every three months.
The land that will be redistributed or legalized includes expired building rights and cultivation rights titles (titles to use state owned land but not to own it), forest land released from the government’s ownership, formerly disputed land, and former mining areas, among others. The government pledged to distribute titles for 127,000 square kilometers of forest to indigenous groups, and nineteen thousand square kilometers were distributed as of 2017. However, the progress is limited. In Indonesia, indigenous groups (masyarakat hukum adat) must be officially recognized by the government in order to qualify as recipients of the land titles, which means a significant portion of customary land owners, primarily in Papua, are excluded from the regulation’s benefits.
Despite activism and UN pressure to pass a bill that would remove the recognition requirement and acknowledge the existence of indigenous populations, the legislature stalled in moving the draft bill to discussion or even a vote. The government continues to insist that the UN Declaration on the Rights of Indigenous Peoples does not apply to Indonesia’s masyarakat hukum adat communities because it considers all Indonesians to be indigenous and therefore have indigenous rights, with the exception of the ethnic Chinese population. This approach marginalizes certain groups and erases histories of conquest and colonialism amongst the ethnic groups of the archipelago.
Land reform is a crucial step in guaranteeing and protecting indigenous rights, even only as required by the ICESCR. The government must move forward with the indigenous peoples bill to fairly implement the new land reform regulations. While it would be easy to say that the renewed focus on land reform and development, especially from international actors, will push the government towards passing the bill, next year’s presidential election is looming. Land rights and human rights are not a strategic focus of either campaign. Political tensions surrounding religion and the economy will probably remain the focus, resulting in continued inaction on land rights, despite Jokowi’s alleged commitment to reform.