Discussion Decentralization of Property Right in Marine Fisheries : Indonesia Perspective

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4. Discussion

Decentralization of resources management can be meant as decentralization of property rights Agrawal and Ostrom, 2001. In property rights perspective, as a type of decentralization, CBFM contains the local people’s fishery rights that include operational-choices rights access and withdrawal-rights or simply called use-rights, and collective-choice management and exclusion-rights. The further question is: to what extent is the recognition of the legal products to CBFM? To answer this question, we need to identify levels of recognition to the fishery rights, whether in operational-choice access and withdrawal-rights or collective-choice management and exclusion-rights. For the next analysis, we call use-rights for operational-choice rights and management-rights for collective-choice rights. The result shows that most of legal products address fishery rights in terms of use-rights see Table 6. Use-rights are rights to access and to withdraw the marine resources, called use-rights, on particular areas. Meanwhile, there are around five legal products that implicitly address management-rights. Those legal products are produced over periods except in the New Order period. The fisheries management can be called CBFM if management-rights are granted. Based on Table 6 we can conclude that CBFM legally take place in the colonization and post-independence period. Most of fisheries regulations established by the colonizer were still valid in the post-independence period, and the central government had issued Agrarian Law in trying to harmonize or make coherence between national laws and customary laws. Unfortunately, this Agrarian Law has never been “rule in-use” because Peraturan Pemerintah Central Government Decree, which should be issued to spell out how Agrarian Law should be practiced, has never been 15 made. Meanwhile, in the New Order period, devolution to the local people has never taken place. What was ruled by Minister of Agriculture Decree No 6071976 and Minister of Agriculture Decree No51kptsIK.250197 was about rights to access and withdraw the marine resources in a particular area. The former concerns zoning system while the latter is about operational choice-rights, by which traditional fishers are eligible to fish in deep-water fish aggregating devices FAD area. Management-rights were not granted to the local people during the New Order period because fisheries management was highly centralized. In the legal framework of the Reform period, decentralization to the local government seems not accompanied by decentralization to the local people. Therefore, decentralization to the local people can be categorized as de facto decentralization instead of de jure decentralization. This is because decentralization to the local people is not strongly recognized by the formal laws yet, though the central government has already called for CBFM. In the beginning of Reform period, the Minister of Agriculture decree No 3921999 was issued as a revision of the Minister of Agriculture decree No 607KPTSUM91976 on fishing zone. There are three zones, as follows: a Zone I.a 0-3 miles is allocated for traditional fishers with non-engine boat, whereas Zone I.b. 3-6 is for traditional fishers with outboard engine or less than 5 GT fishing boat, b Zone II 6-12 miles is allocated for fishers with less than 60 GT fishing boat, c Zone II 6-12 miles is allocated for fishers with less than 200 GT fishing boat, This regulation that aims at protecting small scale fishers contains use-rights instead of management-rights. Nevertheless, the limitation of traditional fishers’ rights 16 to access and withdraw the resources within Zone 1 only ignores the likelihood of the traditional fishing ground beyond Zone 1 Saad, 2003. The newest formal laws are the revised Fisheries Law No 312004 and the revised Local Government Law No 322004 popularly called Local Autonomy Law. The Fisheries Law 312004 is very meaningful in terms of commitment to empower and develop small-scale fisheries as the government is responsible to provide financial support and promote fisheries cooperative. The establishment of the revised Fisheries Law No 312004 sounds positive for the CBFM. In article 61, the revised Fisheries Law No 312004 addresses the access and withdrawal rights of the small scale fishers. It is stated that “small scale fishers are free to go fishing in all fisheries management area of Republic of Indonesia” . This article is inspired by the Local Autonomy Law No 221999 elucidation of article 10 and its revised version No 322004 elucidation of article 18. By this elucidation of article 18, “small scale fishers are defined as traditional fishers who engage in fishing using traditional fishing technology and on whom enterprise certificate and tax are not imposed, and are free to go fishing in all fisheries management area of Republic of Indonesia” . This means that small scale fishers gain rights to access and withdraw marine resources in all areas. There are two critical issues regarding fishing right as stated within the revised Fisheries Law and the revised Local Autonomy Law in the Reform Period. First, these articles that address fishing rights for small-scale fishers ignore de facto property rights system. Generally, many fishing communities develop property-rights system based on either their own local rules or customary law. These de facto traditional rules address management-rights by which they have the right to manage a portion of marine resources and to exclude intruders who want to fish in designated areas. Thus, if all 17 small scale fishers are free to go fishing to where they want without any prerequisites, horizontal conflicts may occur. This is because they may break the local operational rules devised by the local fishers as a consequence of limited communication process. What was ruled by the local fishers may not be known or recognized by the intruders. Second , even though, the revised Fisheries Law No 312004 is better than Fisheries Law 91985, there is no article within the revised Fisheries Law that explicitly addresses management-rights, though they de facto exist over hundred of years. This means that the local fishers have to follow the rules devised formally from outside either from the central government or the local government. The critical issue is if the formal rules do not coincide to some degree with social norms or perceived unfair, it leads as incentives to break those rules. Eventually, the rules are likely less-enforceable, therefore marine fisheries resources may be not be managed well. However, three guidelines issued by the Minister of Marine Affairs and Fisheries contain recognition to the CBFM and encourage the practice of co-management in small island development Minister of Marine Affairs and Fisheries Decree No : 412000, marine and fisheries surveillance Ministry of Marine Affairs and Fisheries Decree No 582001, and integrated coastal management planning Minister of Marine Affair and Fisheries Decree No Kep.10Men2002. Firstly , the Minister of Marine Affairs and Fisheries Decree No: 412000 states that community-based management shall mean management that places the community as manager of natural resources and environmental services and who is supported by the government and business sector. Community-based small islands management must consider traditions, norms, andor social culture as well as the interest of local community. Moreover, in Chapter 4 Section A1-3, the state recognizes and protects 18 customary rightstraditional rightsbasic rights over the control of lands and waters of small islands based on local customary law in addition to other rights governed by prevailing legislative regulations. Furthermore, it is clearly confirmed that for small islands and waters controlledownedmanaged by customary law, their management shall be fully based on customary law, according to prevailing legislative regulations. This means that the management-rights are explicitly granted to the local people. Any collaboration in managing small islands between local customary law society and third party must be based on mutual agreement in due observance with the environment and conservation of natural resources. Any collaboration in managing small islands between the customary law society and foreign third party must obtain approval from the RegencyCity Government in due observance with the national interests. In Chapter 4.C, the central, provincial, RegencyCity government must guarantee that small islands’ coasts and waters are accessible to the people. This means that use-rights are granted to the local people. Secondly , the Ministry of Marine Affairs and Fisheries Decree No 582001 on Guidelines for Implementation of Community Surveillance System in Marine and Fisheries Management recognizes the role of local institutions that concern marine resources sustainability. Such institutions must be involved in surveillance system held by Kelompok Masyarakat Pengawas or Pokmaswas Community Group for Surveillance. This decree doesn’t grant rights for the local people to conduct adjudication process, but rather to do day-to-day surveillance through collaboration with formal authorities. Nevertheless, the local people have the right to elect members of Pokmaswas. Those kinds of rights can be categorized as management-rights. Thirdly , the Minister of Marine Affair and Fisheries Decree No 19 Kep.10Men2002 on the guideline for implementation of integrated coastal management planning recognizes the spirit of decentralization in coastal management. Decentralization to the local government is mentioned as one principle in integrated coastal management planning. Furthermore, the people shall be given an access to express their opinion, objection, perception, suggestion during the process of integrated coastal management planning, and shall be involved in all the stages from preparation, initiation, planning, certification, implementation, and institutionalization process. This participation process shows that the government shall grant management-rights to the local people. Nevertheless, CBFM is not addressed by such laws as the Fisheries Law level, but rather by the lower legal status like ministerial decrees. In Indonesia, there is legal hierarchy from the highest to the lowest as follows Figure 2: Undang-Undang Dasar Constitution, TAP MPR People Assembly Decree, Undang-Undang LawAct, Peraturan Pemerintah Central Government Decree, Instruksi Presiden President Instruction, Keputusan Presiden President Decree, and Keputusan Menteri Ministry Decree. Accordingly, the recognition of the CBFM seems weak because the ministry decree is easy to be neglected by the higher legal products. The weakness of CBFM’s legal position may lead to the existence of de facto vulnerable CBFM system. Thus, this CBFM system becomes too dependent on the local government policy. If the local governments are willing to recognize and develop CBFM, it will be positive for the future of CBFM. Otherwise, such may threaten CBFM.

5. Conclusion