Land Tenure and Natural Resource Conflict in Indonesia

Land tenure arrangements have undoubtedly influenced the way in which natural resources are controlled by the state and indigenous communities in Indonesia. They reflect the imposition of Western tenure systems on existing customary systems. In many cases, these arrangements replace the diverse and complex tenure systems used by local communities with a unified and simplified framework developed by the Dutch. Conflict over land or natural resources has increased as a consequence of the contradiction between these arrangements. The following sections describe state land-tenure systems in Indonesia and indigenous customary land-tenure systems in Kalimantan to shed further light on this issue.

State-Imposed Tenure Systems in Indonesia

Even though the state did not formally own all of the ‘free’ land, the notion of state-controlled land was interpreted, during the Suharto period, as an exclusive authority over any territories classified as kawasan hutan (forest area) — including all aspects of human activities within it (McCarthy 2000: 93). In other words, the state had an authority to divide forest areas into several land use categories with different policy objectives, such as timber production and conversion of the forest area into agricultural land, using the Basic Forestry Law (No. 5/1967) as a legal framework. As a result, a Forest Land Use Consensus Plan (Tata Guna Hutan Kesepakatan) was established in 1982. This land use plan classified 75 per cent (or 144 million hectares) of Indonesia’s land as forest areas (Evers 1995: 6), and still wields influence over the planning process for such areas, although the Land Use Management Act (No. 24/1992) gave the National Development Planning Agency (Badan Pembangunan dan Perencanaan Nasional or BAPPENAS), the Ministry of Home Affairs and the Ministry of Environment (Kementrian Lingkungan Hidup) more possibilities to play a key role in spatial planning (McCarthy 2000: 94–5). During this period, adat and hak ulayat were not fully recognised or understood, especially in the outer islands of Indonesia (outside Java and Bali).

When Suharto resigned in mid-1998, the Habibie government was forced to address problems arising from the Basic Forestry Law of 1967, and a new Basic Forestry Law (No. 41/1999) was released in late 1999. However, while this law recognises and understands adat and hak ulayat, it only provides possibilities for the adat community to manage and use adat forest ‘as long as they are evidently in place and their presence is acknowledged’ (Article 67). In other words, the adat community can only obtain rights to use and manage adat land or forest if the state acknowledges their existence. They are not able to own land.

Moreover, Article 5 of the new Basic Forestry Law states that the Indonesian state will only recognise community rights to forest land if it can be proven that:

  • the adat community in question is still in a group form (paguyuban or rechtsgemeenschap) and live in their own adat area;

  • the adat community still follow their adat institutions;

  • the adat community forest area has clear boundaries, approved and acknowledged by their neighbours;

  • there is an adat law framework related to forest that is still practised; and

  • the adat community still relies on the forest for subsistence, religion and social activities based on adat rule.

While this new regulation may give some new opportunities to adat communities, a management plan for adat forest has to be approved by the Ministry of Forestry (Article 10) and the plan must consider existing land use planning determined by the Regional Land Use Plan (Rencana Tata Ruang Wilayah).

In other words, the Indonesian state only acknowledges the rights of adat communities in principle rather than in practice. In principle, all forest area is controlled directly by the state framework, which gives the adat community the right to use and manage their adat forest area, but not to own it. However, the Basic Agrarian Law states that existing hak ulayat cannot be acknowledged as ‘land controlled directly by the State’ (Evers 1995: 5). Adat rights are not, therefore, explicitly clear in forest law, although they have been clarified further in Regulation No. 5/1999, which provides guidelines on how to solve problems related to the hak ulayat of adat communities. This attention to the adat community seems to be compatible with the idea of regional autonomy at the district level, which is governed by Law No. 22/1999 and Law No. 25/1999, and allows district governments to secure revenues from their own natural resource base.

Nevertheless, the new Basic Forestry Law gives adat communities some recognition of their rights to land and natural resources. Therefore, there is an opportunity for community mapping to play a crucial role in helping indigenous or adat communities to document their adat area, including the rights that are attached to it, and to help them create adat management plans to promote their own community-based natural resource management.

Adat Tenure Changes in East Kalimantan

East Kalimantan is one of the richest natural resource provinces in Indonesia. The province, which has a population of around two million, covers 211 440 square kilometres or 10.55 per cent of the Indonesian land area (Safitri et al. 1997: 26). The diversity of ethnic groups and sub-ethnic groups that live in this area reflects the diversity of resource control and tenure systems. Generally, within a community, resources concentrated in a particular area (such as bird nest caves) can be considered private property. Some wild resources, such as rattan, are also domesticated and planted by villagers in areas where it is abundant (see Eghenter, this volume). On the other hand, scattered resources, such as gaharu (agar wood) tend to become common property because it is difficult to privatise these resources or allocate them to individuals (Momberg et al.1997: 170).

Most adat communities in East Kalimantan have formal control over territorial claims to forest areas, which have been marked geographically on natural features such as mountain ranges and rivers by past warfare or negotiations among different tribal groups (Fox 1993: 306; Momberg et al. 1997: 170). This control has long been governed by customary law (hukum adat) — a web of access rules which govern the use, exploitation and conversion of particular forest products (Fox 1993: 305). The largest territory covers ‘continuous villages’ with the same language, and the second largest territory covers three or four villages using a ‘lieutenant customary law’ (temenggung adat). Although villages and tribal groups are diverse, they share common land and tree tenure systems. Outsiders have to apply for permission to access these areas or resources. Sanctions are also applied as a form of customary law, or adat fines apply if violations occur in relation to resource use (Momberg et al. 1996: 6). These adat communities usually practize rotational swidden cultivation and harvest timber and non-timber forest products using their adat management systems. These systems may differ from one adat community to another but, in general, adat communities have traditionally used their local knowledge of ecosystems and soil properties to manage natural resources (Sorensen 1997: 247).

In recent years, a range of internal and external pressures has weakened indigenous tenure systems. The weakening of cultural, social and family ties is usually a response to external pressures. Less cohesion and social control within communities causes ‘individualisation of communal rights’. The absorption of communal rights within an adat community creates a situation where outsiders, including government, have unlimited access to adat land for agriculture, mining, logging, road construction and other ‘land hungry’ development activities. Conflicts arise between these large-scale developments and local people because the state has failed to acknowledge adat rights when allocating concessions and development permits. Moreover, adat communal lands have been threatened by ‘unofficial’ encroachment, such as illegal land purchases and illegal logging, which are often supported by police, armed forces or local government staff (Evers 1995: 12; Eghenter 2000a).

Sometimes, adat institutions also break down when community members seek to gain quick profits from particular resources, such as agar wood, rattan or timber (Sorensen 1997: 249). In the past, noble families in communities with social stratification, like the Kenyah for example, more or less willingly devolved their lands to the larger community. However, a desire to accumulate wealth and engage with the modern world has driven many of these élites to exploit natural resources for personal gain. For instance, after the fall of Suharto many élites benefited from timber harvesting after Permits to Use and Harvest Timber (Ijin Pemanfaatan dan Pemungutan Kayu) based on Forest Product Harvesting Rights (Hak Pemungutan Hasil Hutan or HPHH) were allocated to individuals, primarily members of the élite within a given community. This is despite the fact that legislation governing these permits (Regulation No. 6/1999) stipulated that these rights should be allocated to adat communities through cooperatives.[2] Dramatic environmental change resulting from natural disasters, such as the 1997–98 forest fires, has also threatened adat resource management systems as these tend to break down when the resources become scarce and more valuable.