Agus Sumule

Recognition of customaryRecognition of customaryrights in Papuarights in Papua

Creating the basis for povertyCreating the basis for povertyreduction and growth in thereduction and growth in the

forest sectorforest sector

INDONESIAINDONESIA

FUNGSI KAWASAN PAPUA PROV. PAPUA PAPUA BARATHutan Lindung 10.619.090 7.638.676 2.980.414KSA/KPA (Konservasi) 9.704.300 7.070.346 2.633.954Hutan Produksi 10.585.210 8.354.283 2.230.927Hutan Produksi Terbatas 2.054.110 1.856.685 197.425Hutan Produksi Konversi 9.262.130 6.486.673 2.775.457TOTAL 42.224.840 31.406.664 10.818.176

Forests exploitation andForests exploitation andcustomary peoples in Papuacustomary peoples in Papua• De facto, almost the whole of Papua is regulated

by customary law communities, spanningapproximately 262 language groups.

• Customary ownership consists of clearly definedterritorial units, held in common by communityinstitutional structures with their ownmanagement systems.

• Customary peoples remain highly dependent onforest resources. Fieldwork by the ProvincialForest Office shows that around 40% of cash and30% of subsistence needs are met by forests.

Forests exploitation andForests exploitation andcustomary peoples in Papuacustomary peoples in Papua

• 70% (or ~39 million hectares) of Papua isclassified as National Forest Estate.

• However, forest law and policy does notrecognise the existence of or work withcustomary peoples as de facto owners ofthe forest resource.

• Customary rights have been overridden inthe allocation of land for commercialconcessions, conservation areas as well asconversion.

Korindo

Intimpura Co

Wapoga Mutiara IndustriesKodeco

Prabu Alaska

Agoda Rimba Irian

Forest concessions covermuch of the Papuan lowlands

Forest Dept map indicates a‘forest conversion’ area in pink.(Designated for commercial tree-crop plantations e.g. oil-palm).

But the overlaid participatory mapshows secondary forest activelyretained for preferred uses: sagopalm cultivation, forest,agriculture, fishing, and hunting.

Inequitable benefitInequitable benefit--sharingsharing

• Weak transparency with respect to forestsector revenues mean that few of theprofits from the timber industry feed backto communities on the ground.

• Timber concessions are required toprovide mandatory compensation (perm3) and community development(PMDH). But weak monitoring means thatonly a few people benefit and manycommunities are left disappointed.

Poverty in the midst ofPoverty in the midst ofwealthwealth……

• The forestry sector is Papua’s secondbiggest revenue earner at 5.24% of totalexport values (or 59,43% of export valueswithout the Freeport mine).

• Yet forest areas in Papua arecharacterised by the highest per capitarates of poverty in Indonesia

• 90% of villages in forest areas can becategorised as poor in terms of villageinfrastructure (health, education etc),compared to 76% of villages outsideforest areas) (BPS 2003)

Persentase Rumah Tangga Miskin per Desa (Data BKKBN)menurut Letak Desa terhadap Hutan, 2003

0

10

20

30

40

50

60

70

80

pers

en

Hutan (%) 36.92 41.74 66.09 40.09 46.29 69.69

Luar Hutan (%) 31.98 32.82 63.58 29.49 39.40 55.00

Propinsi (%) 32.94 33.90 64.15 31.89 40.89 62.27

Sumatera Jawa NT Kalimantan Sulawesi Papua

69.69% of households inside forest areas are69.69% of households inside forest areas areestimated to be poor compared to 55% outsideestimated to be poor compared to 55% outside

(BKKBN, 2003)(BKKBN, 2003)

Growing forestGrowing forest--sectorsectorconflictconflict

• Customary peoples remain marginalised fromforest-sector development; fuelling escalatingand (often violent) conflict.

• Partly as a result of conflict, of 68 concessions in1984, only 23 are now active.

• Without recognition of adat rights, support forcommunity empowerment and monitoring ofbenefit-sharing, companies and communities arefinding it hard to reach agreement.

• The ultimate victims are local communities, dueto environmental degradation and loss of long-term income-generating opportunities.

The need to recogniseThe need to recognisecustomary (customary (adatadat) rights) rights

• The mechanisms for negotiating land-useallocation with de facto customary owners are notyet in place.

• The Basic Agrarian Law (1960) and Resolution ofthe Indonesian Upper House TAP MPR IX/1999provide for communal titling of customarylands. This has never been implemented.

• Law 41/1999 on Forests considers customary(adat) forest as just one part of the NationalForest Estate. It only recognises private forestsas those with private individual title.

• Art 67 of Law 41/1999 mandates a regulation onadat forests to be passed. Again, this has neverbeen implemented.

Opportunities presented byOpportunities presented bySpecial AutonomySpecial Autonomy

• Special Autonomy granted to Papua in 2001• Articles 38 and 42 of Law 21/2001 on Special

Autonomy mandates the protection and economicempowerment of customary law communities.

• It also requires natural resource mangaement toto be regulated through the issuance of ProvincialSpecial Legislation (Perdasus)

• Implementation had been delayed by politicalfoot-dragging. The Papua People’s Council(necessary to approve Perdasus legislation) wasonly established in December 2004.

Attempts to recogniseAttempts to recognise adatadatrightsrights -- IPKMAIPKMA

• In 2002, the Provincial Government of Papua used itsSpecial Autonomy powers to begin issuing 1000ha annualcommunity logging licenses (IPKMA)

• Its intentions were good: (i) tackle growing conflict; (ii)allow communities to transact directly with the privatesector – a position which they had never enjoyed before.

• However, IPKMA was designed without proper legal analysisand an enabling Perdasus, and without adequate social andenvironmental safeguards.

• Failed to provide a long-term solution. 1000ha annuallicenses were beyond the capacity of many communities tomanage.

• IPKMA were licenses were easily ‘captured’ by externaltimber syndicates, leaving customary communities aspassive by-standers.

‘‘OperasiOperasi HutanHutan LestariLestari’’• The Environmental Investigation Agency exposed massive

abuse of IPKMA licenses by illegal logging syndicates (‘TheLast Frontier’, 2005).

• In March 2005, IPKMAs were declared illegal by the Ministryof Forests in Jakarta.

• A massive law enforcement crackdown ‘Operasi HutanLestari’ targeted both illegal logging syndicates as well aslocal communities with valid IPKMA licenses.

• The Ministry of Forest did not provide customarycommunities with a viable alternative, and once again existin a legal vacuum without access to legal timber markets.

• Where dependency on forest resources is high this hasserious implications for poverty reduction.

New solutionsNew solutions• Following the withdrawal IPKMA in March 2005,

the Provincial Government of Papua has beenworking actively to seek new solutions underSpecial Autonomy for recognition of customaryrights to manage forest resources.

• The Provincial Government is now developing aSpecial Provincial Law (Perdasus) on SustainableForest Management with Papuan Customary LawCommunities.

• This provides a more secure, sustainable basis forcommunity-based forest management.

The Special Provincial LawThe Special Provincial Law (Perdasus)(Perdasus) onon‘‘Sustainable Forest Management with PapuaSustainable Forest Management with Papua

Customary Law CommunitiesCustomary Law Communities’’

• Adapts the national legal framework onforests (Forest Law 41/1999 andRegulation PP6/2007) to the requirementsof Special Autonomy.

• Mandates the recognition of customaryland rights as the basis for long-terminvestment security and a fairer share ofbenefits for customary peoples.

• Regards customary peoples as long-termforest managers, with rights andresponsibilities to plan, implement andmonitor forest management.

Important aspects regulated by theImportant aspects regulated by thePerdasusPerdasus on Forestson Forests

1. Participatory mapping as a tool for determiningownership and land-use negotiation

2. Community forestry management units (KPH-HKM),managed using the ‘ecoforestry’ approach developed inPNG as an alternative to IPKMA

3. Re-designation of commercial concessions (HPH) in linewith customary land-use and forest potential to tacklelong-term conflict

4. Development of home industries (increasing value-addedfor customary forest managers)

5. Public control mechanisms (access to informationombudsman, third-party auditors, involvement ofcustomary communities in monitoring, a Papuan ForestryCouncil including customary representatives)

HL

HL

HPK

APL

HP

HP

Tdk layakHPH

Tdk layakHPH

• PT. BINA BALANTAK UTAMA• Luas SK : Nomor 40/Kpts-

II/91• Luas : 325.300 ha• JPT : 5.471 ha/tahun

(TPTI)• AAC maks. : 146.230 m3/tahun• Kondisi Fisik :

Example REDESIGN OF PT. BINA BALANTAK UTAMA CONCESSIONExample REDESIGN OF PT. BINA BALANTAK UTAMA CONCESSION(Areas outlines in red are not suitable and should be excised)(Areas outlines in red are not suitable and should be excised)

REKALKULASI KAWASANDAN

REDESAIN PENATAANHUTAN

• Tidak Layak : 126.281 ha• Layak/WA : 199.019 ha• Lindung : 31.843 ha• Sar-pras : 7.961 ha• Efektif : 159.215 ha -E

16,057

3,545

12,512D

74,407-

19,256

20,548

34,604C

29,719-

1798,063

21,478B

78,835

8,998

64,8114,333693A

APLHPKHPHPT

TOTAL LAYAKHPH

146

9,801--

3,577

6,224E

88,841-

8,935

23,778

56,129D

19,587

6,728

12,858C

2,868

625

2,243B

5,184-

5,184A

APLHPKHPHPTLerengAreal Dikeluarkan

325.3008,99887,79180.584

131.639

9.801--3.5776.224E

104.89

8-

12.48023.77868.640D

93.994-25.98433.90634,604C

32.587-80410.30521,478B

84.0208,99864,8119.518693A

TotalAPLHPKHPHPT

DELINASI AREAL HPH

}}

HP*

KL*

Mitigating the effects ofMitigating the effects ofbiofuelsbiofuels developmentdevelopment

• In light of previous experience with illegallogging, the timber sector is seen as high risk

• Investors are shifting their interests to biofuels,with planned large-scale land conversion forbiofuels (over 1 million ha for oil palm, sago andcassava).

• The Perdasus on Forests will play a key role inmitigating its effects by providing a basis for:

Recognition of customary land rights.Negotiation of land allocation and use with customaryowners.Enhanced social and environmental due diligence.

ConclusionConclusion

• There is an urgent need to begin pilotingimplementation of the Perdasus; five keysites have been identified, including thoseaffected by biofuels development.

• Its success depends on the support ofboth Central Government and theinternational donor community.

• If there is no genuine political will toimplement Special Autonomy for Papua,customary communities will remain poorand marginalised.

Thank youThank you