The Dynamics of the Protection of Indigenous People Protection of Indigenous Peoplenifer Presentation-Indegenous Rights
THE DYNAMICS OF THE
PROTECTION OF
INDIGENOUS PEOPLE’S
RIGHTS IN INDONESIA
Joeni A. Kurniawan
Center for Legal Pluralism Studies (CLeP)
University of Airlangga School of Law
Who are the “Indigenous People”?
• ILO Convention 169, Art. 1 point 1:
“IP are people in independent countries who have
descent from the populations which inhabited the
country, or a geographical region to which the
country belongs, at the time of conquest or
colonization or the establishment of present state
boundaries and who, irrespective of their legal
status, retain some or all of their own social,
economic, cultural, and political institutions.”
Who are the “Indigenous People”?
• ILO Convention 169, Art. 1 point 1:
“Tribal people are people in independent countries
whose social, cultural, and economic conditions
distinguish them from other sections of the national
community, and whose status is regulated wholly or
partially by their own customs or traditions or by
special laws and regulations.”
The Developing Context of Indigenous
People in Indonesia
• Indigenous People = “Masyarakat (Hukum) Adat.”
• Colonialism context
• Independence context
The Developing Context of Indigenous
People in Indonesia
Colonialism Context:
• Differentiation of inhabitants into three groups:
1. Europeans.
2. Foreign Orientals.
3. Indigenous People (pribumi/bumi putra).
•
Each group was ruled by different laws, where the IP
was ruled by their adat laws (customary law). That’s
why, in term of their structural form, they are also called
as persekutuan hukum adat / masyarakat hukum
adat (the adat law entities).
The Developing Context of Indigenous
People in Indonesia
Independence Context:
• There is no more differentiation of inhabitants.
• The inhabitants are simply categorized into: the citizens
and the foreigners.
• All inhabitants are ruled by the Indonesian Law (a state
legal system).
• There are some groups of Indonesian citizen who still
retain their adat (laws) as the basis of their life, and they
are called as masyarakat (hukum) adat.
The Developing Context of Indigenous
People in Indonesia
Some Facts Regarding the Indigenous
People in Indonesia
• According to AMAN (Aliansi Masyarakat Adat Nusantara /
The Alliance of the Indigenous Communities of
Nusantara), there are at least 2.244 indigenous
communities existing in Indonesia in 2014.
• Indonesia is listed as one of countries refusing to sign
the ILO Convention 169 in 1989.
• Indonesia is listed as one of countries supporting the
UNDRIP.
Some Basic IP’s Rights according to
UNDRIP
• Right to self-determination (Art. 3).
• Rights of political authority (Art. 4-5).
• Tenurial rights (Art. 10, 25-26, 28-29, 32).
The Dynamic of the Protection of IP’s
Rights in Indonesia
• The rights of the IP is firmly regulated by the Indonesian
Constitution (the UUD 1945), which is in the article
18B(2).
• The Article 18B(2) of the UUD 1945:
“The state recognizes and respects individual adat law
communities and their traditional rights, in as far as
they are still alive and in line with the evolution of society
and the principle of the Unitary State of Indonesia, as
regulated by the Act of Parliament.”
The Dynamic of the Protection of IP’s
Rights in Indonesia
• There is no coherence of the laws regulating the IP in
Indonesia. So, there are still plenty of laws contradicting
with the principle of the Art. 18B(2) of UUD 1945, such as
the Basic Agrarian Law (Law 5/1960), the Forestry Law
(Law 41/1999), etc.
• However, the Article 18B(2) of UUD 1945 has also been
the basis of some laws considered in favor of the IP,
such as the Village Law (Law 6/2014) and the verdict of
Indonesian Constitutional Court numb. 35/PUU-X/2012 as
the judicial review over the Forestry Law, and also some
local regulations which gives recognition to the existence
and the rights of IP.
The Dynamic of the Protection of IP’s
Rights in Indonesia
• The Village Law (Law 6/2014):
Establishing the so-called “Desa Adat (the Adat Village)”,
as part of the (lowest) governmental institution.
• The Verdict of Constitutional Court Numb. 35/2012:
Establishing the so-called “Hutan Adat (the Adat Forest)”
as the forest belongs to the Masyarakat Adat (the
indigenous people).
The Legal Problems Regarding the
Protection of IP’s Rights in Indonesia
• The Art.18B(2) of UUD 1945 is still a conditional recognition.
• The rejection of right to self-determination.
• The Basic Agrarian Law (Law 5/1960), as the major offense
to the tenurial rights of the IP, is still in force.
• The contradiction between the Basic Agrarian Law and the
Post-Amendment of Forestry Law.
• The Village Law does not include the IP which is not formed
as a village.
The Legal Problems Regarding the
Protection of IP’s Rights in Indonesia
The Conditional Recognition of the Art. 18B(2) UUD 1945:
A community of IP has to be: factually existing, in line with the development of the
society, in line with the principle of the unitary state of Indonesia, and regulated by
the Act of Parliament.
There are some requirements which need to be met for a community in order to
be declared as a “factually existing IP” (look: the Verdict of Constitutional Court
Numb. 31/PUU-V/2007 pp.155-156, 165-166) contradictory with the principle of
self-identification.
The Art. 18B(2) of UUD 1945 is only for the indigenous communities who
successfully defend their existence until nowadays. Those who previously have
been dispersed are considered not eligible to be regulated by the Art. 18B(2)
(look: the Verdict of Constitutional Court Numb. 35/PUU-X/2012 pp.177).
The right to self-determination is excluded from the rights of IP because it is
considered as something contradictory with the principle of the unitary state of
Indonesia (look: the Verdict of Constitutional Court Numb. 35/PUU-X/2012
pp.178).
The Legal Problems Regarding the
Protection of IP’s Rights in Indonesia
The Regulation of Basic Agrarian Law (Law 5/1960):
• Art. 3:
“Given the article 1 and article 2, the implementation of the
ulayat right and any similar right of the adat legal entities, as
long as it factually exists, has to be in accordance with the
state and national interest, according to the unity of the
nation, and not contradictory with any higher legislation.”
conditional recognition.
• The IP is not allowed to reject any issuance of permit given by
the government to any third party on particular piece of land
within the territory of the IP (look: Point A of General Elucidation
of Law 5/1960, Section II point (3), paragraph two).
The Legal Problems Regarding the
Protection of IP’s Rights in Indonesia
Post-amendment Forestry Law:
• The Forestry Law uses Basic Agrarian Law as its basis,
while the Basic Agrarian Law has not been amended.
• A big legal-question: How can a community of IP enjoy a
right over forest if the tenurial rights, as the basis of right
over natural resource of IP, regulated by the BAL, is still
unprotected?
The Legal Problems Regarding the
Protection of IP’s Rights in Indonesia
Village Law (Law 6/2014):
• Still giving conditionality to a community of IP in order to
be an adat village.
• The position of an adat village as the lowest level of state
institution
• The VL does not include all kind of indigenous
communities and only giving attention to the territorial
based community.
• The “Bali problem.”
Conclusions…
• The existence and the rights of IP in Indonesia is
recognized, but not in the sense of human rights
protection, especially as regulated by the UNDRIP.
• The rights of IP is recognized conditionally, since the
recognition of the existence of IP in its fullest sense is still
perceived as a threat to the state’s sovereignty (“There
must not be a state within a state”).
PROTECTION OF
INDIGENOUS PEOPLE’S
RIGHTS IN INDONESIA
Joeni A. Kurniawan
Center for Legal Pluralism Studies (CLeP)
University of Airlangga School of Law
Who are the “Indigenous People”?
• ILO Convention 169, Art. 1 point 1:
“IP are people in independent countries who have
descent from the populations which inhabited the
country, or a geographical region to which the
country belongs, at the time of conquest or
colonization or the establishment of present state
boundaries and who, irrespective of their legal
status, retain some or all of their own social,
economic, cultural, and political institutions.”
Who are the “Indigenous People”?
• ILO Convention 169, Art. 1 point 1:
“Tribal people are people in independent countries
whose social, cultural, and economic conditions
distinguish them from other sections of the national
community, and whose status is regulated wholly or
partially by their own customs or traditions or by
special laws and regulations.”
The Developing Context of Indigenous
People in Indonesia
• Indigenous People = “Masyarakat (Hukum) Adat.”
• Colonialism context
• Independence context
The Developing Context of Indigenous
People in Indonesia
Colonialism Context:
• Differentiation of inhabitants into three groups:
1. Europeans.
2. Foreign Orientals.
3. Indigenous People (pribumi/bumi putra).
•
Each group was ruled by different laws, where the IP
was ruled by their adat laws (customary law). That’s
why, in term of their structural form, they are also called
as persekutuan hukum adat / masyarakat hukum
adat (the adat law entities).
The Developing Context of Indigenous
People in Indonesia
Independence Context:
• There is no more differentiation of inhabitants.
• The inhabitants are simply categorized into: the citizens
and the foreigners.
• All inhabitants are ruled by the Indonesian Law (a state
legal system).
• There are some groups of Indonesian citizen who still
retain their adat (laws) as the basis of their life, and they
are called as masyarakat (hukum) adat.
The Developing Context of Indigenous
People in Indonesia
Some Facts Regarding the Indigenous
People in Indonesia
• According to AMAN (Aliansi Masyarakat Adat Nusantara /
The Alliance of the Indigenous Communities of
Nusantara), there are at least 2.244 indigenous
communities existing in Indonesia in 2014.
• Indonesia is listed as one of countries refusing to sign
the ILO Convention 169 in 1989.
• Indonesia is listed as one of countries supporting the
UNDRIP.
Some Basic IP’s Rights according to
UNDRIP
• Right to self-determination (Art. 3).
• Rights of political authority (Art. 4-5).
• Tenurial rights (Art. 10, 25-26, 28-29, 32).
The Dynamic of the Protection of IP’s
Rights in Indonesia
• The rights of the IP is firmly regulated by the Indonesian
Constitution (the UUD 1945), which is in the article
18B(2).
• The Article 18B(2) of the UUD 1945:
“The state recognizes and respects individual adat law
communities and their traditional rights, in as far as
they are still alive and in line with the evolution of society
and the principle of the Unitary State of Indonesia, as
regulated by the Act of Parliament.”
The Dynamic of the Protection of IP’s
Rights in Indonesia
• There is no coherence of the laws regulating the IP in
Indonesia. So, there are still plenty of laws contradicting
with the principle of the Art. 18B(2) of UUD 1945, such as
the Basic Agrarian Law (Law 5/1960), the Forestry Law
(Law 41/1999), etc.
• However, the Article 18B(2) of UUD 1945 has also been
the basis of some laws considered in favor of the IP,
such as the Village Law (Law 6/2014) and the verdict of
Indonesian Constitutional Court numb. 35/PUU-X/2012 as
the judicial review over the Forestry Law, and also some
local regulations which gives recognition to the existence
and the rights of IP.
The Dynamic of the Protection of IP’s
Rights in Indonesia
• The Village Law (Law 6/2014):
Establishing the so-called “Desa Adat (the Adat Village)”,
as part of the (lowest) governmental institution.
• The Verdict of Constitutional Court Numb. 35/2012:
Establishing the so-called “Hutan Adat (the Adat Forest)”
as the forest belongs to the Masyarakat Adat (the
indigenous people).
The Legal Problems Regarding the
Protection of IP’s Rights in Indonesia
• The Art.18B(2) of UUD 1945 is still a conditional recognition.
• The rejection of right to self-determination.
• The Basic Agrarian Law (Law 5/1960), as the major offense
to the tenurial rights of the IP, is still in force.
• The contradiction between the Basic Agrarian Law and the
Post-Amendment of Forestry Law.
• The Village Law does not include the IP which is not formed
as a village.
The Legal Problems Regarding the
Protection of IP’s Rights in Indonesia
The Conditional Recognition of the Art. 18B(2) UUD 1945:
A community of IP has to be: factually existing, in line with the development of the
society, in line with the principle of the unitary state of Indonesia, and regulated by
the Act of Parliament.
There are some requirements which need to be met for a community in order to
be declared as a “factually existing IP” (look: the Verdict of Constitutional Court
Numb. 31/PUU-V/2007 pp.155-156, 165-166) contradictory with the principle of
self-identification.
The Art. 18B(2) of UUD 1945 is only for the indigenous communities who
successfully defend their existence until nowadays. Those who previously have
been dispersed are considered not eligible to be regulated by the Art. 18B(2)
(look: the Verdict of Constitutional Court Numb. 35/PUU-X/2012 pp.177).
The right to self-determination is excluded from the rights of IP because it is
considered as something contradictory with the principle of the unitary state of
Indonesia (look: the Verdict of Constitutional Court Numb. 35/PUU-X/2012
pp.178).
The Legal Problems Regarding the
Protection of IP’s Rights in Indonesia
The Regulation of Basic Agrarian Law (Law 5/1960):
• Art. 3:
“Given the article 1 and article 2, the implementation of the
ulayat right and any similar right of the adat legal entities, as
long as it factually exists, has to be in accordance with the
state and national interest, according to the unity of the
nation, and not contradictory with any higher legislation.”
conditional recognition.
• The IP is not allowed to reject any issuance of permit given by
the government to any third party on particular piece of land
within the territory of the IP (look: Point A of General Elucidation
of Law 5/1960, Section II point (3), paragraph two).
The Legal Problems Regarding the
Protection of IP’s Rights in Indonesia
Post-amendment Forestry Law:
• The Forestry Law uses Basic Agrarian Law as its basis,
while the Basic Agrarian Law has not been amended.
• A big legal-question: How can a community of IP enjoy a
right over forest if the tenurial rights, as the basis of right
over natural resource of IP, regulated by the BAL, is still
unprotected?
The Legal Problems Regarding the
Protection of IP’s Rights in Indonesia
Village Law (Law 6/2014):
• Still giving conditionality to a community of IP in order to
be an adat village.
• The position of an adat village as the lowest level of state
institution
• The VL does not include all kind of indigenous
communities and only giving attention to the territorial
based community.
• The “Bali problem.”
Conclusions…
• The existence and the rights of IP in Indonesia is
recognized, but not in the sense of human rights
protection, especially as regulated by the UNDRIP.
• The rights of IP is recognized conditionally, since the
recognition of the existence of IP in its fullest sense is still
perceived as a threat to the state’s sovereignty (“There
must not be a state within a state”).