Abdon Nababan**)
October 2002

INDIGENOUS FORESTS, the heart of indigenous peoples' livelihood is destroyed

An Archipelago comprising of around 17,000 islands, Indonesia is also known as a country of "mega-biodiversity," with 47 different main ecosystem types and which is also referred to as a country of "mega cultural diversity," comprising more than 250 ethnic groups and more than 500 different languages.

This cultural and bio-diversity is supported by indigenous peoples who live in and are spread out over every corner of the Indonesian archipelago. AMAN estimates that of Indonesia's estimated 210 million population, between 50 to 70 million are indigenous peoples, that is "people who live in community units based upon a common ancestry and descent in a traditional/customary territory, who have sovereignty/rights over land and natural resources, social and cultural life which is regulated by customary laws, and an indigenous council that oversees the continuation of community life" (KMAN 1999).

Of the number mentioned above, AMAN estimates that 30 to 50 million of the indigenous peoples are still dependent on traditional forests, that is the forest ecosystem found in their customary territory. The customary forest cannot be separated from the life-cycle of its indigenous inhabitants. In general, indigenous communities living in Indonesia's forests hold the view that people are a part of the environment that must protect and conserve balance and harmony between these two components of the ecosystem. In order to ensure harmony between people and the forest, a concept of communal tenure or ownership of the forest has usually been developed which is exclusive to a particular area within the customary forest. In order to support management of the customary forest as part of communal property, indigenous peoples have developed a system of knowledge, customary laws and an indigenous administrative structure that enables the community to resolve problems they face together in regard to forest and natural resource management. Customary laws and indigenous belief systems concerning the forest represent the most fundamentally important social regulations and institutions available to indigenous communities in order to protect the natural resources found within the customary forest area from over-exploitation both by the indigenous communities themselves as well as by outsiders.

These customary regulations and institutions concerning forest management have been systematically and deliberately destroyed by a variety of laws and policies implemented over the three decades of the New Order Regime. Up to the beginning of the 1970s, indigenous knowledge, rich in its variety, dominated forestry management systems in all corners of the archipelago, particularly outside Java. Indigenous peoples, who had yet to suffer from the interventionist policies of an exploitative central government, continued to manage their traditional forests autonomously in order to ensure sustainability of their day to day lives. Forests were well protected, with the exception of the eastern part of North Sumatra where much of the forest had been converted into large-scale plantations since the days of the Dutch Colonial administration. Drastic change began to take place during the early 1970s when the New Order Regime, though still in its infancy, issued a number of commercial logging policies by means of the HPH (Hak Penebang Hutan - Logging Rights) concession system.

Effective to July 2000, the Department of Forestry and Plantations data records that there were 652 HPH concessions issued, covering a total concession area of 69.4 million hectares. The largest area of forest given over in concessions by the government to both private and state-owned companies (BUMN) is located within traditional or customary forest territories. The implementation of the HPH system represents an act of theft of indigenous rights over forest located in their customary territories. Based on the interpretation of satellite imagery HPH concessions from the period April 1997 up to and including January 2000, of the 320 active HPH concessions covering a total area of 41.2 hectares, it has been identified that 28% (11.7 million hectares) of the forest has been destroyed, has been left empty or has been converted into farm land. Under such conditions it is certain that large scale logging has already destroyed customary forests - central to the livelihoods of the majority of indigenous peoples of the archipelago. Results of a forest mapping exercise carried out by the government with aid from the World Bank (1999) indicate that over the period 1986 - 1997, Indonesia's forests were destroyed at a speed of an average of 1.7 hectares per annum. During that period the worst destruction took place in Sumatra with the loss of 30% (almost 6.7 million hectares) of its forest. Forest Watch Indonesia and Global Forest Watch (2002) estimate that if this trend continues, then lowland, non-marsh/swamp forest in Sumatra will be completely destroyed before 2005, whilst the forests of Kalimantan are estimated to suffer the same fate by 2010.

UPHOLDING CUSTOMARY LAW, Indonesia's forests' last defence

Despite facing great pressure, many studies have already proven that the majority of Indonesia's indigenous peoples still possess indigenous knowledge and wisdom in the management of natural resources. These local systems differ from one another and develop and evolve in accordance with social-cultural conditions and local ecosystem type. In many customary territories all over the archipelago, natural indigenous forest may still be found, free from large-scale logging activities, resisting other kinds of natural resource exploitation, with the application of customary laws.

There are many success stories from all over the archipelago where indigenous peoples have been able to evict development projects which threaten customary forests. In North Lombok, indigenous peoples fiercely opposed and succeeded in evicting HPH concession holder, PT Angka Wijaya, because this company carried out illegal logging in a small area of the forest which was sacred according to customary law. Moreover, the concern and solidarity which united the indigenous community to save this customary forest resulted in the founding of an indigenous peoples organisation - The Alliance of North Lombok Indigenous Peoples (PEREKAT OMBARA - Persekutuan Masyarakat Adat Lombok Utara) established in order to implement customary village autonomy. In addition, using this organisation, the indigenous peoples are preparing to establish their own District or Regency (Kabupaten) separate from the existing West Lombok District.

In West Kalimantan for example, the NGO PPSHK (SHK Kalbar) and Ethno-Agro Forest (EAF) have found many Dayak villages that still possess and protect the original nature of sacred forest. The strength of indigenous belief in the sacred nature of the forest is one very important factor which curbs and prevents the destruction of the forest, as is demonstrated by the indigenous community of Kampung Pendaun, Ketapang District. The indigenous people of this village are not only persistent in protecting the sacred forest from the activities of official logging companies, but also from the activities of the illegal loggers.

CUSTOMARY REGULATIONS, main pillar for the protection of the forest

This kind of experiences from the field offer up hope in the midst of the ever increasing destruction of and changes in the function of natural forest in Indonesia. Many indigenous communities have proven themselves capable of supporting their lives and saving themselves as a community, whilst supporting traditional socio-ecological activities to meet the needs of all other creatures too.

Compared with other interested parties, indigenous peoples have the strongest motives for protecting their customary forests. For indigenous peoples who live in and around the forest, protecting the forest from destruction is the most important aspect of their efforts to ensure the sustainability of their customary communities. This motivation is based on two matters. Firstly, the belief in inherited rights handed down to them by their ancestors. Indigenous peoples are different from other community groups not because they resist intervention/hegemony from outside, but because they have inherited or traditional rights. Preserving the customary forest is more than a conservation effort, rather it is an effort to preserve their customary/inherited/traditional rights. Secondly, aside from preserving their rights, indigenous peoples are also aware of their position as those who have the greatest incentive for maintaining and conserving the forest. As communities whose lives mostly depend on the indigenous forest, a protected indigenous forest will guarantee food security, medicines, clean water, building materials and other primary resources of indigenous peoples. For those indigenous peoples whose lives have already been integrated with the money economy, the indigenous forest represents a resource for a number of forest products, both timber and non-timber, which have a high value in order to pay for necessities such as schooling their children, paying taxes, buying faster transport, televisions and other material goods that they are not able to produce themselves. In many indigenous communities, the forest also plays an important role in their cultural and religious lives. However, if the forest is destroyed, either by their own hand or the hand of others, it is the indigenous peoples who suffer the most.

Research has also proven that indigenous peoples possess an indigenous knowledge system which is effective in conserving and sustainably exploiting natural resources found within their customary territory. These indigenous knowledge systems are the foundation for the variety of different natural resource management practices and forestry customary laws which are specific and different from community to community.

Indigenous peoples possess customary laws which may be upheld in the event of any activities that may result in the destruction or damage of the indigenous forest. Some of this customary law has already been weakened and has become vague, necessitating efforts to revitalise and strengthen it.

Indigenous peoples have customary institutions that oversee, organise, strengthen and protect the sustainability of harmonious interaction between indigenous peoples and the forest ecosystem.

Through customary regulations and institutions they still possess, indigenous peoples have the ability to rehabilitate and restore the damage done to the forest in former HPH concession locations and degraded forests, by using commercial indigenous tree species (community based reforestation and rehabilitation). By enriching customary regulations in order to attain economic aims, indigenous peoples are capable of managing commercial economic activities based on forest natural resources within their customary territory (community logging/portable sawmills, community forestry, credit unions etc.). In so doing, they can also rein in illegal logging funded by timber agents, reduce legal clear cutting activities by IPK (clear-cutting) permit holders and prevent the 'legal' logging of forest which damages the forest and which oppresses indigenous communities, such as the IHPHH (small-scale logging permit).

ANTI-ILLEGAL LOGGING CAMPAIGN: threat or an opportunity for indigenous peoples?

Illegal logging has become the most prominent environmental issue over the last three years. A number of organisations, particularly environmental NGOs at national and international level as well as certain government departments involved in conservation or charged with handling environmental degradation, continue to campaign for and take action which calls for implementing the law against illegal loggers. These efforts have not been effective thus far, and indeed a number of environmental activists are deemed to have failed to stop or even reduce the pace at which illegal logging takes place. Moreover, representing different interests, logging companies under the Association of Indonesian Logging Companies (APHI) have also been calling for an end to illegal logging. The issue of illegal logging has also been used by those in favour of government centralisation to scapegoat regional autonomy and the complicity of local communities as the reason for the intensification of illegal logging. If campaigns such as these continue, the decentralisation process is threatened, including the possibility of a loss of credibility of indigenous community-based forest management in the eyes of the public.

An important matter that should be noted from the campaign calling for an end to illegal logging in conservation areas under the initiative of EIA-Telapak, is the positive response from the international community and donor countries. This campaign succeeded in creating a political climate at international level supporting serious efforts to deal with illegal logging. Beginning in 1999 with Tanjung Putting and Leuseur National Parks, this campaign succeeded in placing ramin - a kind of timber greatly sought after by the illegal loggers - into Appendix III of CITES. This campaign also played a central role in the demand for multilateral agreements such as the Ministerial Declaration at the Forest Law Enforcement and Governance Conference in Bali in September 2001, followed by the European Commission and the Workshop on Forest Law Enforcement, Governance and Trade, in Brussels, April 2002, the results of which as still being processed in order to create new policies applicable to all of the European Union's members states. Under these new policies, all timber which is imported into European Union member states must be complete with a certificate stating that the timber has been legally cut and produced. Similar action is planned for the United States. Moreover, the United Kingdom has already gone one step further with a bilateral agreement with Indonesia in April 2002. It is also possible that other countries such as the United States and Japan will also follow the example of the United Kingdom-Indonesia bilateral agreement. But despite this positive response at international level, effective law enforcement in order to prevent or even reduce illegal logging is still a long way off.

A critical problem emerged when the campaign to stop "illegal logging," eventually led to the question of legality of the timber, where the determining factor was whether the NATIONAL LAW of the country of origin had been violated or not. At this juncture the campaign to stop illegal logging may become a threat to indigenous peoples all over the world, particularly in countries that do not adhere to pluralism nor acknowledge, respect and protect the rights of indigenous peoples to organise and administer themselves through their own customary laws (right to self determination). The question is: where do campaigns and other related efforts to stop "illegal logging" place customary law?

Indigenous Rights and the Place of Customary Law in the Indonesian Nation-State

In order to respond to the question above, we must first examine the position of indigenous peoples within the structure of the Indonesian nation-state. The founders of the Indonesian nation-state were aware from the outset that this state is a plural island state. The slogan, "Bhinneka Tunggal Ika," Unity in Diversity, in a philosophical way demonstrates the Indonesian peoples' respect for plurality or social, cultural and political diversity. By means of this slogan, the founders of the nation placed indigenous peoples as a fundamental element within the structure of the Indonesian nation-state.

The second amendment to the 1945 Founding Constitution, Article 18B section (2) in chapter VI which relates to regional administration emphasises that: "The state acknowledges and respects customary law communities together with their traditional rights as long as they still exist and are in accordance with the development of the people and principles of the Unitary State of the Republic of Indonesia as regulated under legislation." This article, despite needing further legislation to be implemented, places indigenous communities in a strong and important position within the life of the Indonesian nation-state. This article represents the constitutional basis for the rights of indigenous peoples to organise and administer themselves and uphold their customary laws.

The second amendment to the 1945 Founding Constitution article 28I, section (3) in Chapter X A which relates to Human Rights further strengthens the position of indigenous peoples by stating that: "cultural identity and rights of traditional communities is respected in harmony with the age and civilisation," and is a human right that must be respect by the State. With this article, it is clear that if an indigenous community declares itself to still exist, then the Unitary State of the Republic of Indonesia is obligated to protect its customary rights. With this clause, the constitution underlines that the definition of a community as an indigenous community lies entirely in the hands of the community in question (self-identification and self-claiming), and not determined by the government or by academics/intellectuals/researchers. This means that if an indigenous community can demonstrate its cultural identity and inherited traditional rights (clarification of article 18 of 1945 Founding Constitution which has already been amended to refer to this right as right of origin) in harmony with the developments of the age and civilisation, then the state must respect this claim.

The People's Consultative Council Decision TAP MPR No. IX/2001 which is intended to redraft and reposition legislation relating to agrarian resources and natural resources emphasises the fact that one of the principles in the management of natural resources is the acknowledgement, respect and protection of indigenous communities by the state to the management of their natural resources. [Note: the Indonesian term used is masyarakat hukum adat = "peoples following customary law" - ed].

On the other hand, Forestry Legislation (UU) No. 41/1999, which is below the constitution and the TAP MPR in the legal hierarchy, doesn't acknowledge or respect the rights of indigenous peoples over the control and ownership of customary forest, that is forest which is located within their customary territory. Articles that refer to indigenous rights within this piece of legislation are in contradiction with legal thinking as outlined above, namely: 1945 Founding Constitution and TAP MPR No. IX/2001. The degree of acknowledgement of indigenous rights to customary forest in this piece of legislation is limited and reductive, that is it only give rights of use whereas ownership is still placed in the hands of the state. Thus TAP MPR IX/2001 instructs the President and the National Assembly (DPR) to amend Legislation (UU) No. 41/1999 with the result that this piece of legislation and all of its implementing regulations that are related to indigenous rights to customary forest are no longer appropriate as a legal product for determining the LEGALITY of the logging of the forest.

Based on the Second Amendment of the 1945 Founding Constitution and TAP MPR IX/2001 (state acknowledgement, respect for and protection of customary law and institutions) ILLEGAL LOGGING is therefore logging of the forest that violates both customary and national law.

By applying this definition, "illegal loggers" are:

• Official companies and others that obtain logging licenses from the government, include HPH concessionaires, contractors, IPK and IHPHH permit holders etc. Most areas where licenses have been granted by the government overlap with customary forest which results in many cases of legal conflict between customary law used by indigenous communities and the Forestry Legislation on which the granting of licenses is founded. During the Suharto regime (before 1998), most claims to customary rights by indigenous peoples were dealt with by using repressive action and sometimes with violence by the military and the police. At the time, the upholding of customary law by indigenous peoples against official companies and others who had obtained logging licenses was very difficult. Reformasi (reform) which started to make an impact in Indonesia's interior from 1998 has created political space in which indigenous peoples can uphold customary law and discuss forest boundaries. A number of the companies charged under customary law have eventually acknowledged indigenous claims and have paid customary fines. However, a number went as far as shutting down their operations.
• Companies and others who do not possess logging licenses, but who engage in logging and the timber trade. Illegal logging operations such as these almost always involve local companies or businessmen known as "cukong." They usually own legitimate sawmill operations, but do not possess concession licenses. Logging operations such as these are mobile, well organised and involve local thugs' organisations and receive strong support from the military and/or police, government officials and politicians in the area of operation. It is very dangerous for indigenous peoples to try and uphold customary law against these forms of logging practices, particularly when these businesses implicate customary leaders, or when many of them are members of the community in question.
• Members of indigenous communities, in some cases including customary leaders, are also involved in illegal logging operations. Because of market pressures facilitated by illegal logging mafia they, either consciously or unconsciously, take part in the violation of their own customary laws. Indigenous leaders or community members that log their customary forest, but in violation with customary procedures and mechanisms, are also counted as illegal loggers. The involvement of indigenous peoples in various illegal logging operations has grown parallel to the weakening of customary institutions at community level as a result of the passing and implementation of Legislation (UU) No. 5 1979 in respect of Village Administration. With this policy, village administrations throughout Indonesia were streamlined with the aim of strengthening central government control over all aspects of village life. One such example of the negative impact of this piece of legislation may be seen by the intensification of illegal logging in the customary forest of the indigenous peoples of Manggamat-Kluet in South Aceh.

How to revitalise the strategic role of indigenous peoples in order to eliminate "illegal logging" in Indonesia?

Continue ongoing legal and political reform….

With the amendment of the 1945 Founding Constitution and with the issuing of the TAP MPR IX/2001 which clearly acknowledge, respect and protect the rights of indigenous peoples to natural resources, the articles under Legislation (UU) No. 41/1999 in respect of Forestry and all of its implementing regulations must be amended and revised so that they fall in line with more recent legal developments. Revisions must be made in order to guarantee legal certainty of indigenous ownership rights and control over customary forests, which in turn are a pre-requisite to encouraging indigenous peoples to eliminate illegal logging operations in their respective customary territories.

The MPR 2001 Annual Assembly decision in respect of presidential elections represents the first stage of political restructuring towards participatory democracy which must be continued by revising the laws on GENERAL ELECTIONS and STRUCTURE AND ROLE OF THE LEGISLATURE in order that: 1. governors and district heads (bupati) are also chosen directly and allowing for the possibility of independent candidates outside of the party political system and; 2. the direct election of peoples' representatives at local and national assembly level (DPR and DPRD) using a district system - in combination with a proportional system in order to accommodate the aspirations of minority groups - which will enable independent candidates to stand. A political structure such as this will better guarantee participation by indigenous peoples in the drafting of policies, regulations and legislation, particularly in relation to the allocation and management of the forest.

Strengthen current decentralisation policies by returning full power and authority of autonomy to the level of indigenous community administration ("indigenous autonomy").

Develop "voluntary" schemes in order to obtain direct support (as an incentive) of indigenous communities in order to eliminate illegal logging in their customary territories.

The process for obtaining mandatory acknowledgement and protection of indigenous rights over customary forest on a national scale is a long one. Thus it is necessary to introduce voluntary schemes in order that indigenous initiatives in the protection of their forest and the elimination of illegal logging in their customary territories are given an incentive from various supporting organisations, including the government. Such incentives would take the form of programme funding made directly to the appropriate indigenous communities.

With such voluntary schemes, indigenous communities can seek verification from independent sources in order to evaluate/prove that the forest within their customary territory is free from illegal logging. If the result of independent verification proves that their customary forest is free from illegal logging, thus the indigenous community in question has the right to receive programme funding as an incentive. The use of such programme funding must be limited to the management of customary forest, including to: 1. Rehabilitate and renew damaged forest in former HPH concession areas - community-based reforestation and rehabilitation, using indigenous commercial varieties and; 2. Develop commercial economic enterprises based on forest resources available within their customary territory (community logging/portable sawmill, community forestry, credit union etc).

There are 2 (two) alternative sources of funding for such a scheme, namely: The Indonesian Government, via the Department of Forestry allocated within the national budget (APBN) as Special Allocation of Funds (DAK) and; 2. Donor States that have a commitment to the elimination of illegal logging by setting up a JOINT FUND managed by an independent organisation formed specifically for this purpose, or by choosing from amongst existing donor organisations.

[end]
*)Edited translation of Indonesian language paper presented at the Seminar and Workshop in respect of, "Illegal Logging a Challenge in the Efforts to Save the Forests of Sumatra." Hosted by the Hakiki Foundation (Yayasan Hakiki), the Department of Foresty and MFP-DFID on 7-9 October 2002 at the Mutiara Hotel, Pekanbaru. The main points in this paper were first put forward in "Forest Law Enforcement & Governance-East Asia: A Ministerial Conference", September 11-13, 2001, Denpasar, Indonesia, and "EC-Forest Law Enforcement, Governance and Trade", Brussels, 22 April 2002.

**)Currently Executive Secretary of AMAN (the Alliance of Indigenous Peoples of the Archipelago), member of Telapak.