The World Bank and Recognising Indigenous Title in Indonesia

By Ben Needleman

Ben attended the 2015 World Bank and International Monetary Fund (IMF) Annual Meetings in Peru. 

Abstract

In contravention of international law, Indonesia’s domestic legal system does not adequately respect Indigenous land rights. Although said rights are nominally acknowledged, they cannot be registered. Since the state claims ownership of all unregistered land, it can expropriate Indigenous land without justification or the provision of compensation. This regularly occurs and is one of the primary causes of poverty in Indigenous communities.

This paper proposes that given recent legal and political changes, scope now exists for the World Bank to assist local governments implement legislative reform on Indigenous title. Such reform should be accompanied by the establishment of an Indigenous Legal Aid Program to ensure Indigenous people benefit from the change.

By improving the tenure security of Indigenous communities, the Bank will promote its objectives of shared prosperity and sustainability. It will also strengthen the requirement for Free, Prior and Informed Consent in its new Environmental and Social Framework.

Recommendations

The World Bank should:

1. Identify suitable districts in which to implement the following program

2. Assist district governments draft and implement legislation that:

a. Defines and recognises adat law communities

b. Defines and recognises adat interests in land, including ulayat (collective) rights

c. Defines a process by which adat communities can register their interests with the National Land Agency

3. Help establish an Indigenous Legal Aid Program to guarantee Indigenous communities the full benefit of legislative reform.

Introduction

Thesis Statement: The future prosperity of Indonesia’s Indigenous peoples requires recognition of their land rights. The World Bank is well positioned to facilitate this reform.

Indonesia is a rapidly growing middle income country of 250 million citizens.[1] Its national poverty rate of 12% masks the fact that nearly half the population is clustered marginally above the poverty line.[2] The rural population, which accounts for half the nation’s total, is disproportionately affected.[3] One of Indonesia’s primary drivers of poverty is widespread land insecurity.[4] This mostly affects smallholder farmers and indigenous communities.[5] The fact only 30% of agricultural land is formally registered with the National Land Agency (NLA) illustrates this.[6] Landowners are deterred from registering title by the expensive, cumbersome and at times corrupt process.[7] Past initiatives, including a World Bank financed project, have achieved mixed success in developing and implementing streamlined policies to encourage greater land registration.[8] Nevertheless, these efforts have consistently failed to address the tenure insecurity faced by Indonesia’s Indigenous communities. This is especially regrettable given their situation is even more precarious.

In Indigenous communities, land ownership is governed by adat (customary) law.[9] Reflecting Indonesia’s diversity, adat law varies from community to community.[10] It commonly features ulayat rights, namely, communal ownership of land.[11] Indigenous communities are wholly unable to register these interests, despite nominal recognition of adat law and recent changes to its legal status.[12] This has made Indigenous communities vulnerable to dispossession by the state and corporations.

The World Bank’s objective of promoting shared prosperity coalesces with recognition of adat land rights in Indonesia.[13] Facilitating Indigenous title would prevent the further dispossession of Indigenous peoples and improve their access to finance. It would also enhance their right to Free, Prior and Informed Consent (FPIC) over activities on their land. To fulfil this aim, the World Bank could pursue a pilot program to draft and implement legislation recognising Indigenous title. Accompanying this should be the establishment of an Indigenous Legal Aid program, modelled on similar Australian programs, to assist Indigenous peoples in the registration of their territorial interest.

This paper consists of four sections: section two provides an overview of Indonesia’s Indigenous peoples; section three discusses both the international and domestic legal frameworks on Indigenous land rights; section four explains why the World Bank should pursue the recognition of Indigenous title and section five suggests a possible project that could achieve this goal.

Profile of Indonesia’s Indigenous Communities


Demographics

Indigenous issues in Indonesia were underdeveloped until the 1998 fall of Suharto’s ‘New Order’ regime.[14] This was partly due to fears that recognition of Indigenous rights, particularly land rights, would undermine national integration.[15] Despite the recent resurgence of Indigenous issues, an absence of national consensus in defining indigeneity persists. Indonesia’s culturally distinct Indigenous communities are rarely referred to as such, reflecting the colonialist Dutch perspective that all non-Europeans are bumi putera (native people).[16] This does not mean their existence has been completely ignored. Instead, they are officially identified by a variety of names, including: neglected communities, remote communities and masyarakat adat (customary law communities).[17] Echoing this terminology, the Indonesian national Indigenous peoples’ organisation, Aliansi Masyarakat Adat Nusantara (AMAN), uses Indigenous community interchangeably with adat community.[18]

Currently, the government recognises approximately 1.1 million people as belonging to customary communities.[19] However, the absence of comprehensive data on the practices of isolated communities means this figure is likely under-representative.[20] AMAN estimates there could be as many as 50 million Indigenous people.[21]  This is based on their definition of Indigenous peoples as communities living inter-generationally on ancestral adat land, subject to adat law and institutions that manage the communities’ lives.[22] Additional characteristics include self-identification as a distinct Indigenous cultural group; traditional means of economic production; linguistic differences from the majority; and a unique spiritual relationship with the land in which they live.[23]

Location

The lack of comprehensive data on adat communities makes it challenging to accurately identify their geographic distribution. Nevertheless, AMAN claims most of these communities live in rural environments, particularly forested areas.[24] This reflects the Asian Development Bank’s (ADB) findings that adat institutions, core to AMAN’s definition of indigeneity, have weakened in urban areas exposed to majority Indonesian culture.[25] The strong presence of Indigenous communities in forested areas is understandable given forests account for approximately 50% of Indonesia’s total land mass.[26]

Poverty

The extent of poverty in Indigenous communities has also been difficult to quantify. The ADB examined poverty rates in rural villages to approximate the poverty in adat communities.[27] At 16%, the rural poverty rate was markedly higher than the urban rate of 10%.[28] Additionally, provinces with large Indigenous communities, such as Papua, West Papua and Nangroe Aceh Darussalam have Indonesia’s highest poverty rates of 40%, 39% and 27% respectively.[29] The evidence suggests high levels of poverty amongst the millions of forest dwelling Indigenous peoples.

There are a number of factors which account for this poverty. Indigenous people identify lack of official recognition for their rights over land and natural resources as a key cause.[30] The insecure tenure of adat communities often results in the dispossession of their lands by the state.[31]  This was the case for the Ngata Toro people in Central Sulawesi. Parts of their territory, including a sacred area on a mountain peak and secondary forest used for agriculture, have been incorporated into the Lore Lindu National Park.[32] Territorial dispossession undermines Indigenous communities’ prosperity as it restricts their ability to grow crops and source resources that are used to both satisfy their own needs and for trade.[33]

A further source of poverty is the struggle adat communities’ face in accessing essential services such as education, health facilities and roads.[34] While various groups have begun addressing the issue of access to essential services, there has been little progress regarding the recognition of Indigenous land rights. However, the recent legal and political changes, explored in the following chapters, suggest future opportunities for remediation.

Indigenous Title and the Law

Indonesia’s compliance with International law on Indigenous Peoples

Since the end of the Second World War, the United Nations (‘UN’) has been the principle vehicle for establishing universally recognised human rights law.[35] It has also played a central role in creating international law pertaining to Indigenous peoples. At the UN, Indigenous issues have been addressed within both the broader context of general human rights law and Indigenous specific instruments.[36]

The two generalist human rights law instruments which dominated the development of international standards on Indigenous issues were the International Covenant on Civil and Political Rights (ICCPR) and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).[37]

Having ratified ICERD,[38] Indonesia has committed itself to ‘pursue ... a policy of eliminating racial discrimination in all its forms and promoting understanding among all races’.[39] Tasked with overseeing ICERD’s application, the Committee on the Elimination of Racial Discrimination (CERD) clarified its role for Indigenous peoples by acknowledging it is ‘conscious ... Indigenous peoples have been, and are still being, discriminated against, deprived of their... land and resources’.[40] Indigenous peoples’ rights are addressed through CERD’s release of periodic reports monitoring countries’ implementation of ICERD.[41] In response to the 2007 report submitted by Indonesia in compliance with ICERD’s reporting guidelines, CERD noted that the convention is not self-executing in Indonesian law and that insufficient information was provided on the extent to which it has been incorporated into domestic law.[42] CERD was also concerned that ‘the rights...of traditional communities contained in domestic laws...are not sufficient to effectively guarantee their rights’.[43]

Indonesia has also ratified ICCPR.[44] Particularly relevant to Indigenous peoples are articles 1 and 27 which respectively grant ‘all people...the right of self-determination’ and entitle ‘minorities...to enjoy their own culture’.[45] Although framed for general application, the Human Rights Committee (‘HCR’) noted that an aspect of enjoying a culture under article 27 ‘may consist in a way of life... closely associated with territory and use of its resources ... [something that may be] particularly... true of members of Indigenous communities’.[46] Weakening the effectiveness of ICCPR is the fact that these rights are not absolute.[47] They may be subject to limitation where it is deemed necessary to limit a right in order to protect national security or public order in a democracy.[48]

Despite ratifying both ICERD and ICCPR, Indonesia has not complied with its obligation to respect the territorial rights of Indigenous people. This was highlighted in Indonesia’s first and only Universal Periodic Review (UPR) in 2012.[49] The UPR is administered by the UN’s Human Rights Council and assesses states’ human rights record.[50] In the review, it was submitted that Indonesia is unsatisfactorily ensuring the rights of indigenous and forest dependent peoples, particularly, with respect to their rights to land and resources.[51] Regrettably, Indonesia’s response was to deny the very existence of its Indigenous people.[52] Since the bodies tasked with upholding these conventions are merely empowered to ‘name and shame’ states for their human rights abuses, the legal consequences for Indonesia have been negligible.[53]

In 2007, the UN adopted the Declaration on the Rights of Indigenous Peoples (DRIP), its first standard focusing primarily on Indigenous rights.[54] One of its core principles, particularly relevant to safeguarding Indigenous title, is the right to make decisions based on Free, Prior and Informed Consent.[55] FPIC is a right which has only recently emerged in the international law discourse.[56] It compels states to consult in good faith with Indigenous peoples, through their own representative institutions, to obtain their approval over any project affecting their land.[57] Each element is understood as follows: Free is the absence of coercion, intimidation or manipulation; Prior means before the project is approved and leaving sufficient time for an Indigenous decision making process; Informed requires those affected to have access to sufficient information to facilitate a considered decision (such as notice of the activity’s nature and its expected impacts); and Consent signifies that the community can veto the project.[58] DRIP’s advantage over other instruments is that by requiring ‘consent’ rather than ‘consult’, Indigenous communities are able to definitively reject proposals.[59] However, it remains unclear how exactly ‘consent’ is manifested by a community.[60]

Although Indonesia is a DRIP signatory, it is not compelled to implement it given the Declarations’ non-binding status.[61] Moreover, Indonesia issued a reservation that noted DRIP did not apply to it, since it claimed the country does not have a distinctly Indigenous population.[62]

Although there is abundant support for Indigenous title under various instruments of international law, Indonesia has either excluded itself their purview (as in the case of DRIP), or inadequately incorporated their relevant provisions (as in the case of ICCPR and ICERD). Therefore, Indonesia’s Indigenous community is not afforded the protections to which it is entitled under international law.

Indigenous Title under Indonesian Law

Indonesia has no overarching law that specifically and comprehensively deals with adat communities.[63] Instead, their rights are spread throughout various instruments.

Adat communities are directly referenced in articles 18B(2) and 28I(3) of the Constitution.[64] The former requires the state to ‘recognise and respect adat law communities along with their traditional customary rights’.[65] However, this is subject to the communities ‘remain[ing] in existence’ and their recognition ‘accord[ing] with societal development and the principles of the Unitary State of the Republic of Indonesia’.[66] This implies Indonesian law promotes the integration and assimilation of adat communities.[67] Such sentiment is echoed in article 28I(3) which states ‘the cultural identities and rights of traditional communities shall be respected in accordance with the development of times and civilisations’.[68] Therefore, the Constitutional recognition of Indigenous peoples is undermined by limitations of uncertain application.

Indigenous communities’ collective ulayat rights to land are most explicitly articulated in Act No. 39 of 1999 on Human Rights. Article 6(2) requires the ‘cultural identity of adat law communities, including rights to ulayat land be protected’.[69] The caveat that respect for these rights is subject to the ‘evolvement of time’ reaffirms the primacy of national development.[70] Recognising that land rights fall within the scope of cultural integrity aligns with ICCPR article 27. Furthermore, the right to collective ownership of property is recognised by article 17 of the Universal Declaration of Human Rights.[71]

Despite these examples of recognition for the rights of adat communities, Indonesia’s so-called ‘sectoral’ laws make the practical recognition of Indigenous land rights impossible. The sectoral laws govern the administration of land defined by their topographical features. Those most relevant to adat communities in forested areas are the 1960 Basic Agrarian Law (BAL) and the 1999 Forestry Law (FL).

Prior to the BAL’s introduction, land ownership in Indonesia was subject to the colonial Dutch concept of Domein.[72] Under Domein, the state held all land not alienated by the colonial government. Therefore, the pre-existing adat rights were not regarded as ownership rights, rather as mere usufructuary rights.[73] Similarly, under the BAL, the state has radical title (i.e. sovereignty) over all land and beneficial use (i.e. direct control) of all land not privately owned.[74] Private ownership can only be established through registration of title pursuant to the BAL’s provisions.[75]

Diverging from Domein, article 5 of the BAL declares adat law to be the primary source of land law.[76] This is subject to adat not conflicting with national interests or other provisions in the BAL.[77] Despite this aspiration, the BAL’s practical effect undermines the very existence of adat law. Customary law expresses how different communities’ regulate individual and communal rights to land. Reflecting Indonesia’s cultural and ethnic diversity, adat law can be extremely varied.  It is also a dynamic system which changes with time. In contrast, the BAL is a western system which only recognises seven forms of individualistic tenure. They include: hak milik, ownership for an unlimited time and hak pakai, a right to use land for limited.[78] Therefore, for adat law to bestow ownership, it must be converted into one of the recognised western forms of tenure that lack the nuance of customary law.[79] Furthermore, although article 3 of the BAL nominally recognises the existence of hak ulayat (communal rights to land), it is not included as one of the seven forms of registrable tenure.[80] Therefore, despite ulayat rights not being technically extinguished, they do not bestow any substantive rights on their claimants. Far from upholding adat law, the BAL seeks to absorb and replace it with a fundamentally foreign construct.[81]

Whereas the BAL at least respects the principle of adat law and hak ulayat, the FL completely sidelines them. The FL empowers the Ministry of Forestry to administer Indonesia’s Kawasan Hutan (forest zone).[82] Currently, 69% of Indonesia’s land mass is gazetted as Kawasan Hutan despite the fact only 48% of it is actually covered by forest.[83] The classification of all non-agricultural land as forest, accompanied by extensive deforestation (estimated at 2.4 million hectares per year) accounts for this discrepancy.[84] The FL divides Kawasan Hutan into two distinct forests: State Forest (Kawasan Hutan Negara) and Private Forest (Hutan Hak).[85] State and private forests are defined as forest situated on ‘land not covered by any proprietary rights’ and ‘land covered by proprietary rights’ respectively.[86] Two particular FL articles posed challenges to Indigenous communities. Article 1(6) defined ‘adat forest [as] state forest situated in the territory of adat communities’ while the explanatory memorandum to article 1(4) stated that ‘included in... [state forest] are forests formerly controlled by adat law communities known as ulayat forest’.[87] These provisions effectively handed control of adat land to the state, meaning it could grant companies’ concessions to deforest, mine or establish palm oil plantations over Indigenous lands.[88] This has given rise to numerous conflicts, often violent, between corporations and adat communities.[89]

In response, AMAN petitioned Indonesia’s Constitutional Court to declare the FL categorisation of adat land as state forest as unconstitutional.[90] Constitutional Court Decision No. 35 of 2012 found in favour of AMAN. It was held this classification was contrary to article 18B(2) of the Constitution that guaranteed recognition of adat territorial rights.[91] This finding removed a direct impediment to the land ownership of Indigenous communities. Per article 1(4) of the FL, adat forests remain categorised as state forest under state control until registered under the BAL with the NLA. Whereas previously, adat lands would remain classified as state forest even upon recognition, now, adat forests registered with the NLA fall under the domain of Hutan Hak (private forest) and are the legal property of Indigenous communities. Despite this critical change, Indigenous communities are nonetheless still prevented from obtaining title over adat forest. As discussed, the BAL does not accommodate the registration of adat rights including ulayat rights. Instead, indigenous people are only capable of registering private individual title in one of the seven recognised forms of tenure.

The capacity to rectify this rests with local governments. Following Suharto’s fall, Indonesia pursued a policy of decentralising powers to provinces (provinsi) and the districts (kabupaten) beneath them. Under Laws 22 of 1999 and 32 of 2004, district governments assumed powers previously held by the central government. These include authority over policy making, the verification of adat forest and the issuance of land rights.[92] The NLA remains responsible for registering land while the provinces manage inter-district land administration.[93] The Ministry of Forestry acknowledged the role of district governments in a ministerial letter (surat edaran) circulated in July 2013 and in the subsequent P62 decree issued by the Ministry of Forestry on 19 November 2013.[94] In these, the Ministry affirmed it would release adat forest from under state control if district laws were passed which recognised indigenous peoples and their claims of ownership. AMAN opposed this effort by the Ministry to shift responsibility from the national to the local level because district authorities often lack the resources to adequately respond to Indigenous peoples’ needs.[95] The fact only a handful of Indonesia’s 300 districts have passed regulation recognising Indigenous peoples, and even fewer recognised ulayat rights, gives this concern credence.[96]

The legal protection afforded by Indonesia’s domestic legal framework to its Indigenous community is insufficient to satisfy the rights to which they are entitled under international law. Although their rights are nominally recognised by the constitution, the Human Rights Act of 1999 and the BAL, Indigenous communities are still prevented from claiming customary title over their ancestral forests. Fortunately, the appropriation of Indigenous land by the FL was deemed unconstitutional. However, without district governments’ passing laws recognising Indigenous communities and facilitating the registration of their adat and ulayat rights, customary forest will remain classified as state forest.

The Relevance of Affirming Indigenous Title in Indonesia to the World Bank

The World Bank is the world’s largest multilateral development institution. Its current aims are to end extreme poverty, promote shared prosperity and foster sustainability.[97] The Bank has already identified land insecurity in Indonesia as a critical issue. In 2011, it concluded the ‘Land Management and Policy Development Project’ (LMPDP) which succeeded in registering 2.3 million land titles in Indonesia.[98] However, claims by Indigenous peoples were not included within the project’s scope.[99] By now working to increase the tenure security of Indonesia’s Indigenous community, the World Bank will directly facilitate its aim of promoting shared prosperity and sustainability.

Shared Prosperity

To facilitate shared prosperity, the World Bank is working towards income growth for the poorest 40% of a nation’s population.[100] Given Indonesia’s adat communities are disproportionately affected by poverty, it would be reasonable to infer that many of them would fall within category. Facilitating their economic growth would thereby further this objective.

To advance Indigenous communities, it is recommended that the World Bank address their inability to obtain legal title over their customary forests. This lack of recognition for Indigenous ownership is a primary cause of poverty. Because the state claims ownership over unregistered forest, it is able to grant corporations’ licenses to deforest, mine and establish palm oil plantations on adat land. By facilitating the recognition and registration of Indigenous title, the World Bank would assist Indigenous communities challenge the legality of these concessions over their territories. Since adat communities depend on land for their livelihoods, preventing territorial dispossession would avert their further impoverishment.

Nevertheless, Presidential Regulations No. 36 of 2005 and No. 65 of 2006 would still empower the state to expropriate private land for a limited number of public purposes.[101] Since they do not require unregistered owners be compensated, adat communities are currently unable to avail themselves of this recourse. Were the World Bank to assist with the affirmation of their land rights, these communities would at least be entitled to compensation in cases of state expropriation, even if in practice the amount paid is often low and arbitrary.[102]

Importantly, recognising Indigenous title has additional economic benefits for adat communities. First, if they believe their tenure to be secure, the disincentive to invest in their land is lessened.[103] An increased willingness to devote resources to improve agricultural efficiency, such as by adopting more advanced techniques and machinery, would strengthen adat communities’ earning power. Second, possession of formal title would improve adat communities’ access to finance. Holding registered interests in land would enable them to obtain formal bank loans using their land as security.  Currently, members of customary communities primarily obtain loans through short term informal arrangements that carry higher interest rates than loans from commercial banks.[104] Therefore, recognising Indigenous title would free up large amounts of ‘dead capital’ and enable communities to finance social projects or invest in improving agricultural efficiency. Registration of title also facilitates the development of a market in land by lowering transactional costs.[105] However, this is unlikely to benefit many adat communities given adat law often prohibits the sale of land to outsiders.[106] Therefore, to alleviate Indigenous poverty and promote shared prosperity, the World Bank should support the recognition of Indigenous title.

Sustainability

The Bank has identified sustainability as an overarching theme to frame its goals.[107] This is due to the understanding that failure to manage the planet’s resources will not only threaten the planet’s future, but also economic growth and poverty reduction.[108] Poverty reduction is tied to sustainability because poor people are particularly vulnerable to ecosystem degradation and climate change.[109]

By supporting Indigenous title in Indonesia, the Bank will promote sustainability through protecting Indonesia’s vast rainforests. Indonesia’s rainforest, the world’s third largest,[110] is being deforested at an annual rate of 2%.[111] Deforestation is primarily caused by logging, at least 73% of which is done illegally, and the establishment of palm oil plantations.[112] It also accounts for 75% of Indonesia’s greenhouse gas emissions.[113] Since Indigenous people rely on forests for their livelihoods, their customary laws ensure sustainable forest management.[114] It is for this reason that Indonesia’s Reducing Emissions for Deforestation and Degradation Plus (REDD+) program has identified recognising Indigenous land rights over an estimated 40 million hectares of adat forest as integral to tackling deforestation and climate change.[115] 

Strengthening the Bank’s Proposed Environmental and Social Standard

There is increased significance in the Bank addressing the issue of Indigenous land rights given its planned adoption of a new ‘Environmental and Social Framework’. The framework’s second draft was released in July 2015 and consultations are currently being undertaken. Standard seven of the framework is specifically devoted to Indigenous peoples, and partly aims to avoid them suffering from the adverse impact of development projects.[116] If identified that Indigenous people will be affected by a given project, the borrower must obtain their FPIC before commencing.[117] The requirement that consent be obtained, and not merely consultation occur, agrees with the standard set by UNDRIP.[118] It is stipulated that consent ‘does not require unanimity and may be achieved even where individuals or groups with or among affected Indigenous peoples explicitly disagree’.[119] Where the Bank cannot ascertain that FPIC has been obtained, it will cease its financial support.[120]

A potential weakness of the standard is that the onus rests on the borrower to establish FPIC has been acquired.[121] The borrower is even tasked with managing the grievance mechanism for Indigenous peoples.[122] This allocation of responsibility may be problematic, as the borrower’s interest as proponent of the project may conflict with their obligations under the framework. This could undermine the proper administration of FPIC processes.

Significantly, paragraph 21 of this standard directly advocates for the promotion of Indigenous title recognition.[123] Where projects involve the acquisition of Indigenous people’s lands, it requires borrowers to ‘prepare a plan for legal recognition of Indigenous ownership’. Where this option is not possible, the borrower’s plan must ‘include measures for the legal recognition of Indigenous peoples’... custodial or use rights’.[124] Given the aforementioned conflict of interest, this provision’s proper implementation would be better accomplished were the Bank to itself initiate the process for legal recognition.

Moreover, the effectiveness of the standard’s FPIC provisions depends on the prior recognition of Indigenous title. The lack of recognition for customary law communities’ rights in Indonesia has been cited as an obstacle to companies respecting their rights to FPIC.[125] If companies are unable to identify the presence of Indigenous communities, such as by checking the land registry, it is less likely they will be aware of their obligation to obtain FPIC. Even if the presence of such communities is identified, the lack of official data or agreement as to the boundaries of customary land may mean FPIC is not sought. Therefore, to ensure that the Bank’s ambitious Indigenous Peoples Standard is respected in practice, especially in Indonesia, it should uphold the recognition and registration of Indigenous title.

Suggested World Bank Action

To affirm Indonesia’s Indigenous peoples’ land rights, the World Bank should partner with both the state and adat communities. Cooperation with the state is essential because the obstacles that currently prevent the registration of adat rights are legislative. Following Constitution Court Case No.35 of 2012, adat land can be gazetted as title forest pursuant to the BAL. Despite nominally recognising adat law, the BAL undermines it by only accommodating the registration of western forms of tenure. Crucially, communities cannot register ulayat rights. To overcome these impediments, the state will need to adopt legislation that: (a) defines and recognises the existence of adat law communities; (b) defines and recognises adat interests in land including ulayat rights; and (c) provides a mechanism by which adat communities can register these interests with the NLA. The World Bank is in a strong position to provide the technical support needed to accomplish this reform given it already possesses extensive experience in land administration and management.[126]

As the program’s primary beneficiaries, it is also crucial that Indigenous people be involved. First, the Bank and its state partners should consult with Indigenous groups on the design of legislative changes in order to ensure their needs are properly met. It is recommended that an Indigenous Advisory Committee be established to provide ongoing review of the project. Although legislative reform is a necessary first step, for Indigenous people to fully uphold their land rights, further action is needed. Many adat communities are unfamiliar with the legal system. Without assistance they will struggle to satisfy the legal requirements for recognition and registration of their territorial claims. Consequently, for Indigenous communities to derive the full benefit of any legislative change, the World Bank should support the establishment of an Indigenous Legal Aid Program.

Legislative Reform: A National or Local Approach?

Given Indonesia’s decentralisation of powers, both national and district authorities are potential partners in implementing land administration reform. To maximise efficiency, the Bank should consider restricting its support to either the national or district governments.

There are two primary advantages to contemplating a national approach. First, a national framework would have wider application than district level reform.  While a national bill would instantly recognise the Indigenous title of all adat communities across the archipelago, a district law would only benefit the communities of that district. Second, the national government is more capable of preparing legislative reform than local ones. This is partly due to the former’s superior fiscal position. Since districts are highly dependent on fund transfers from the central government, they have little opportunity to initiate reform.[127] Further, local governments are hampered by their lack the technical ability.[128] Nevertheless, financial and technical assistance from the Bank can overcome these challenges of weaker capacity.

A limitation of the national approach is the unwillingness of certain ministries within the central government to implement Indigenous title reform. The journey of AMAN’s draft national law on the Recognition and Protection of the Rights of Indigenous Peoples (PPHMA) highlights this. In June 2013, President Yudhoyono issued a Presidential Mandate appointing four ministries, including the Ministry of Forestry, to discuss the PPHMA law with the House of Representative’s Special Committee.[129] However, the bill’s progress was stalled by delaying tactics of the Ministry of Forestry.[130] In response, Yudhoyono inaugurated a new Indigenous development program late in his presidency. The program required nine ministries and agencies to develop a plan for recognising Indigenous rights based on PPHMA when undertaking REDD+ activities.[131] Unfortunately, the future of PPHMA is now unclear following President Widodo’s decree in January 2015 that incorporated REDD+ into the Ministry of Forestry.[132]

The barriers to implementing national reform extend to other ministries. One of the main components of the recently concluded World Bank LMPDP was the development of a national land policy framework (NLPF).[133] Despite successfully drafting a NLPF, the government did not formally adopt it.[134] A key reason was the NLA’s reluctance to commit to progress on land reform.[135]

On the other hand, district governments appear to be more agreeable to reforms they see as addressing the needs of their communities.[136] The handful of local governments that have already recognised the land rights of adat communities demonstrate this point.[137] The fact district governments, unlike national ministries, are directly accountable to their constituents, may explain their greater appetite for reform.

To increase the likelihood of a successful program, the World Bank could consider partnering with local governments rather than ministries within the central government. This may avoid the challenge encountered by the Bank’s previous land reform program of working with uncommitted agencies such as the NLA. To maximise efficiency, the Bank could identify a handful of districts in which to pilot this reform program. The most suitable districts would be those with large populations of adat communities and a government open to reform. Ultimately, if the pilot program proves effective, it can be replicated in other districts.

To ensure this project’s viability, the Bank should also ensure support of the national government. Recent promises made by President Widodo to move towards reconciliation and recognition of Indigenous rights to land suggest this is feasible.[138] Nevertheless, it is foreseeable that support could be contingent on the program not extending to certain politically sensitive regions such as West Papua. Considering the critical effect this reform could have on those regions, such a condition would be far from ideal. Nevertheless there is immense value in the Bank pursuing this program in other regions too. Beyond simply improving the situation of Indigenous communities in the pilot regions, this program could also build domestic momentum within Indonesia for national reform on Indigenous issues.

Indigenous Community Legal Centres

A challenge facing adat communities is the inaccessibility of basic legal services.[139] According to a World Bank survey, there are only 1000 legal aid lawyers available to the 120 million Indonesians living on less than $2 per day.[140] The situation has only recently begun to improve with the 2013 establishment of a government funded national legal aid program.[141] Nevertheless, most of the funding services Indonesia’s urban population.[142] Without improved access to justice, Indigenous communities will struggle to register title under the proposed legislative reforms. To address this, the World Bank could help establish Indigenous Legal Aid Centres in the chosen pilot districts.

These centres could offer two primary services. First, to brief communities on both the criteria and process for registering adat title and its social and legal ramifications. Second, to undertake a preliminary assessment of individuals’ and communities’ claims. If determined to be valid, the lawyers would then assist in registering the title with the NLA. It is essential that women, who are marginalised in some adat communities, are also able to access these services.[143]

A successful model on which to partly base these centres is Australia’s Indigenous Legal Assistance Programme (ILAP). The unique feature of this program is that it aims to ‘deliver culturally sensitive...and effective legal assistance...to Indigenous Australians’.[144] This sensitivity is essential given the financial, cultural and linguistic barriers Aboriginal people face.[145] To offer this quality of service, those working at the centres are often Indigenous themselves, or provided with cultural training.[146] It is suggested this aspect be included as a pillar of the Bank’s program.

Furthermore, the program could be informed by the partnerships between Australian law schools and community legal centres. As part of universities’ curriculum, law students have the opportunity to work at community legal centres under the supervision of the centre’s lawyers.[147] This arrangement benefits both parties. The centre is supported by a regular supply of volunteer paralegals while the students are enriched by practical experience.[148] Employing this model would not only reduce the Bank’s project costs, but also instil young Indonesian law students with respect and appreciation for the country’s Indigenous community.

Although the Bank would be working to establish these centres with district authorities, it could potentially coordinate efforts with other similar programs. One such program is the Australia Indonesia Partnership for Justice (AIPJ), which works with key Indonesian civil society partners to increase access to justice for marginalised groups.[149] The Bank could benefit from the AIPJ’s experience in supporting legal aid services for other vulnerable communities, namely women and children.[150] Given Australia’s World Bank Engagement Strategy prioritises the Bank better meeting the needs of middle income countries such as Indonesia, its support would hopefully be forthcoming.[151]

Conclusion

The Indigenous population of Indonesia has been impoverished by decades of state sanctioned territorial dispossession. This treatment contravenes Indonesia’s obligations under ICCPR and ICERD. Ultimately, the sources of these breaches lie in Indonesia’s domestic legal framework. Despite the 2012 Constitutional Court ruling invalidating the FL’s classification of adat forest as state forest, challenges to Indigenous title recognition remain. Indigenous communities cannot register adat interests such as ulayat ownership due to the limited forms of tenure recognised by the BAL.

By facilitating recognition of Indigenous title, the World Bank would not only prevent the further dispossession of adat communities but also improve their access to finance. Moreover, it would help combat Indonesia’s rampant deforestation. These benefits would promote the Bank’s goals of shared prosperity and sustainability. This compels Bank involvement in the reformation of Indonesia’s treatment of Indigenous title. Given the central government’s reluctance to advance such legislation, the Bank could partner with select districts to pilot legislative reform. Additionally, it could support the establishment of Indigenous Legal Centres to assist adat communities register claims.

Therefore, to secure a better future for some of Indonesia’s poorest communities, the World Bank should consider promoting the recognition of Indigenous title in Indonesia in a future project.

Full Footnotes and Bibliography can be found here or by copying the following URL into your browser: http://bit.ly/Ben-Needleman-2015