Chapter 7 The Recognition of Customary Land Rights at the Constitutional Court of Indonesia: A Critical Assessment of the Jurisprudence

In: Courts and Diversity
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Yance Arizona
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Miriam Cohen
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Abstract

This chapter analyzes the legal recognition of indigenous peoples’ rights in Indonesia through a comparative and international law framework. The focus is on landmark cases from the Constitutional Court of Indonesia, which has had a significant role in defining the contours of indigenous peoples’ rights within the country. The chapter discusses the development of jurisprudence concerning customary land rights and the impact of international law on indigenous rights in Indonesia. The examination includes the legal frameworks that protect indigenous peoples’ rights internationally, including the International Covenant on Civil and Political Rights (ICCPR), the International Labor Organization Convention 169, and the United Nations Declaration on the Rights of Indigenous Peoples. In Indonesia, indigenous organizations have been advocating for a special law on indigenous peoples’ rights since 2011. However, political support for such legislation has been lacking in Parliament. Through the analysis of landmark decisions, it becomes apparent that judicial rulings have a significant impact on the development of indigenous rights. The Constitutional Court of Indonesia has confirmed the need for a special law regarding indigenous peoples, but until such legislation is enacted, scattered laws in various sectoral areas, such as mining, forestry, and coastal fields, can be justified. The chapter concludes that international law has had a positive impact on the development of the Court’s jurisprudence and the recognition of customary land rights within Indonesia. The Court’s rulings have been inspired by international environmental law and the UNDRIP, and the Court looks to international law to further protect the rights of indigenous peoples. The Court’s decisions have also generated legal reform and altered the concept of colonial law that is still inherent in national forestry law, strengthening the rights of indigenous peoples in Indonesia. Although the influence of landmark court decisions is still limited in Indonesia, the chapter finds that the Court’s decisions have played a significant role in recognizing the customary rights of indigenous peoples in the country.

1 Introduction

Many states recognise indigenous rights in their laws or within their constitutional framework.1 In Indonesia, however, the legal recognition of indigenous peoples’ rights is problematic. At international meetings in the United Nations, the Indonesian Government consistently rejects the applicability of the concept of indigenous peoples in Indonesia. In fact, the Indonesian Constitution recognises customary law communities (masyarakat hukum adat) along with their traditional rights. Some derivative legislation also regulates various rights of customary law communities, including land and forest rights, cultures, education, and traditional Government.

The courts have become an important legal institution to settle actual problems encountered by indigenous peoples. Moreover, they also play a significant role in generating policy reform. A notable example is the High Court of Australia ruling in the case of Eddy Mabo v Queensland, involving indigenous peoples from Murray Island in 1992.2 This court ruling refuted the Terra Nullius doctrine of the British colonialists by recognising the land rights of aboriginal peoples and Torres Strait islanders.3 The decision marked a turning point, fostering a new political awareness within the Australian Government toward indigenous peoples. The Court decision was followed by the enactment of the Native Title Act in 1994 and the establishment of the Native Title Tribunal.4 Over a decade later, on February 13, 2008, Australian Prime Minister Kevin Rudd delivered a national apology for the forced removal of aboriginal children from their families, commonly referred to as the stolen generation.5

Meanwhile, international law also protects the rights of minorities and provides some recognition for traditional indigenous titles.6 The development of international law regarding indigenous peoples was initiated by the International Labour Organisation (ilo). Two conventions relevant to this issue are ilo Convention Number 107 on Indigenous and Tribal Populations (1957) and ilo Convention Number 169 on Indigenous and Tribal Peoples (1989).7 The two conventions distinguish between indigenous peoples and tribal peoples, but they never received a great number of State ratification.8 In the Indonesian context, the concept of tribal peoples better describes the condition of non-dominant cultural groups in society, a common occurrence in Asia and Africa. However, as international law has developed, the terms indigenous peoples (and indigenous rights) are used as a general term in many contexts.

The development of international law on indigenous peoples is also present in the realm of environmental law. The Rio Declaration on Environment and Development in 1992 substantiated the importance of the role of indigenous peoples in environmental protection. International agreements on climate change and biological diversity also emphasise the role and participation of indigenous peoples in climate change mitigation and conservation administration. Finally, the Conference of the Parties (cop15) to the UN Convention on Biological Diversity (cbd), which took place in Montreal, Canada, in December 2022, formulated several biological diversity conservation goals, one of which is targeting 30% of the earth’s territory as conservation areas by 2030 with due recognition and involvement of indigenous peoples in conservation activities.9 Additionally, regional human rights conventions and jurisprudence also recognise land titles.10

The most advanced development in international law regarding indigenous peoples is the United Nations Declaration on the Rights of Indigenous Peoples (undrip), adopted by the United Nations in 2007. undrip provides an international framework for indigenous rights. Indonesia supported the undrip, although it refused the applicability of the concept of ‘indigenous peoples’ to the Indonesian context.

This chapter reflects on the contribution of the Constitutional Court of Indonesia (cci) to the recognition of the rights of indigenous peoples, particularly regarding their customary land rights. Adopting a comparative approach, this chapter provides specific comments on three landmark judgements of the cci while drawing references to international law. It also discusses how the cci rulings correspond to international law on indigenous peoples’ rights. This chapter thus analyses Indonesian law regarding indigenous peoples’ rights from a critical assessment of the relevant jurisprudence.

2 The Constitutional Court and Customary Land Rights in Indonesia

2.1 Indigenous Rights in Indonesia: A Background

The Indonesian Government is inconsistent in the application and understanding of indigenous peoples within the Indonesian context. In international meetings, the Indonesian Government has repeatedly refused to state that indigenous peoples exist in Indonesia.11 Governments from other Asian countries, such as India and Thailand, constantly repeat the same strategy.12 In our view, this denial occurs because the Indonesian Government considers indigenous peoples a static concept that only fits into colonial settler countries. In fact, the development of international law has established the meaning of indigenous peoples so as to accommodate various subjects with different names and characteristics in different countries.

In the Indonesian context, the 1945 Constitution recognises a particular subject called customary law communities (masyarakat hukum adat), defined as a group of people who come from the same lineage, live in a particular geographical area, and have their own institutions and customary laws. Indigenous organisations and activists from Indonesia interpret customary law communities as indigenous peoples in the Indonesian context.13 However, the Indonesian Government has never expressly justified such an interpretation. The Indonesian Government’s denial of the concept of indigenous peoples is due to two main reasons. The first reason has to do with politics. It is feared that recognition of indigenous peoples may undermine the state’s territorial integrity because one of the primary rights of indigenous peoples is self-determination. The second reason has to do with competition for natural resources. Recognition of indigenous peoples bears the implications of sharing resources. Meanwhile, the state wants to control natural resources’ potential for national development fully.

The denial of the definition and concept of indigenous peoples leads to the lack of fulfilment of their rights, especially concerning the right to self-determination and the right to natural resources in their territories. In the Indonesian context, this has been happening systematically since the Dutch colonial era. This has been evident in Dutch colonial forestry regulations 1865 and Agrarian Law 1870.14 The regulation introduced the principle that if land ownership cannot be proven by a person, then the land becomes state land. This is what is known as the domein declaration. Most of these lands are forest lands. In addition, the Forestry Law also criminalises and restricts indigenous communities’ access to live within forest areas.15 Many people have experienced expulsion.16 The colonial ruler only believed that government officials could control and manage forest areas and resources. Local people were considered a threat, even though most of them have lived in the forest areas for generations.

Although Indonesia became an independent country in 1945, the new Forestry Law created in 1967 inherited the colonial forestry legal regime against communities, particularly against indigenous communities who lived and depended on forest resources. Similarly, when the Government enacted a new forestry law in 1999, this law began to mention the existence of customary forests for indigenous peoples but still considered that customary forests were part of state forests, not as a separate category of rights.

Such forestry regulations have caused many forest and land tenure conflicts in Indonesia. This problem was never resolved because of the lack of legal protection for indigenous peoples’ rights. At the same time, the Government continuously used state law as a base to expand its land claim toward indigenous territories. New hope came after the amendment of the 1945 Constitution (1999–2002). Political reforms in Indonesia in 1998 prompted the implementation of constitutional amendments. The People’s Consultative Assembly, as the constitution-making body, added several new clauses that strengthened indigenous peoples’ rights into the Constitution.

The second amendment to the 1945 Constitution in 2000 began to regulate indigenous peoples’ rights more explicitly. Article 18B Paragraph (2) of the 1945 Constitution states that: “The State recognises and respects the customary law community units and their traditional rights as long as they are alive and following the development of society and the principles of the Unitary State of the Republic of Indonesia, which are regulated in law.” In addition, Article 28I Paragraph (3) of the 1945 Constitution uses the term ‘traditional communities’: “The cultural identity and rights of traditional communities are respected in line with the development of times and civilisations.” Although both provisions recognise the existence and rights of indigenous peoples with different names and some conditions, currently, the Constitution adopts indigenous rights provisions that can be used as a basis for reviewing national legislation.17

The case study on Indonesia in this chapter will focus on the definition and recognition of indigenous peoples’ rights in the forestry and plantation sectors.18 This is because the development of the Forestry Law is strongly influenced by colonial laws that discriminated against indigenous communities. While the Plantation Law is important because the current Government provides significant support to the establishment of plantation estate, especially for palm oil, this land expansion supported by the Plantation Law generates pervasive land conflict involving many indigenous peoples. Many forestry and plantation conflicts occur between indigenous communities against state agencies and corporations. Local communities involved in such conflicts refer to indigeneity as the basis for their land claims. Several Constitutional Court decisions have become landmark decisions related to the legal status and rights of indigenous peoples in these fields, which will be discussed in the following section.

2.2 The Contribution of the Indonesian Constitutional Court to the Recognition of Indigenous Rights: An Overview of Leading Cases

Two Constitutional Court rulings against the Forestry Law are landmark decisions whose significant influence goes beyond the realm of forestry issues. These two rulings generate a fundamental change in the core of colonial forestry law that has persisted in an independent Indonesia for decades. The first ruling is related to the status of customary forests, which the Government has ignored for many centuries. Meanwhile, the other ruling is related to eliminating the applicability of forestry crimes to communities living in forest areas for a long time and using forest resources for their subsistence needs. A Constitutional Court ruling related to plantations is also discussed in this section. This ruling limits the criminal provisions of the Plantation Law if the conflicted plantation land is attributed to the customary rights of indigenous peoples. The Constitutional Court suggested that in situations of land conflicts, criminal approaches must be set aside first to resolve conflicts over plantation land claims.

2.1.1 Separation of Customary Forest and State Forest (Case Number No. 35/puu-x/2012)

The applicants in Case No. 35/puu-x/2012 consisted of aman (the Alliance of Indigenous Peoples of the Archipelago), the Kuntu community and the Cisitu Kasepuhan community. aman is Indonesia’s largest indigenous community organisation, consisting of more than 2,000 communities across the country. The main concern of this case is the legal status of customary forests within the scope of the Forestry Law. Historically, customary forests have been neglected by the colonial and subsequent national governments for centuries. The newest Forestry Law (Number 41/1999) began recognising customary forests, albeit with problematic provisions. Article 1 point 6 of the Forestry Law states, “Customary forests are state forests located within the territory of indigenous peoples.” The provision stating that customary forests are part of the state’s forests created a denial of the existence of customary forests. In fact, before the case was decided by the Constitutional Court, none of the customary forests had been granted recognition by the Government.

The applicants argued that the customary forests should be separated into a special forest category in contrast to state forests and rights forests (i.e., forest located in other type of land rights such as ownership rights and land use rights). In doing so, they asked the Constitutional Court to erase the word ‘state’ in Article 1 point 6 above, demanding the revision of the definition of customary forest. The applicants and the Government brought experts and witnesses to testify before the Court. In 2013, the Constitutional Court granted the application and redefined customary forest by establishing a clear separation between customary forests and state forests.

Table 7.1
Constitutional Court ruling number 35/puu-x/2012

Before the Constitutional Court ruling

After the Constitutional Court ruling

Article 1 point 6 of the Forestry Law

“Customary forests are state forests located within the territory of indigenous peoples.”

Article 1 point 6 of the Forestry Law

“Customary forests are forests located within the territory of indigenous peoples.”

In its legal considerations, the Constitutional Court examined the Forestry Law provisions in light of the Constitution and international law. The Constitutional Court argued that the provision in question contradicted Article 18B (2) of the Constitution. Moreover, the Constitutional Court cited the 1992 Rio Declaration on Environment and Development, especially Principle 22, which states the importance of the role of indigenous communities in environmental management and protection. Consequently, the Government is required to support indigenous communities in their active participation in sustainable development. By referencing international instruments, the Constitutional Court aligned the concept of indigenous peoples used in international law with the customary law communities recognized in the Indonesian Constitution.

For aman and indigenous communities in Indonesia, the Constitutional Court’s ruling is a significant victory. Hundreds of indigenous communities in various places put up signposts in the forests they traditionally occupy, bearing the inscription: “Based on the Constitutional Court Decision Number 35/puu-x/2012, this customary forest is no longer a state forest.” Indigenous peoples are demanding that the Government return about 40 million hectares of indigenous territories that the Government has already claimed as state forests.19 The Minister of Environment and Forestry followed the Constitutional Court’s decision by issuing a Ministerial Regulation on Customary Forests. However, the process for the return or determination of customary forests is not an easy one. The determination of customary forests by the Minister of Forestry entails a long and complex procedure.

As of 2022, the Minister of Environment and Forestry has only designated 148,488 hectares of customary forests for 105 indigenous communities. This is still very far from the target and the actual condition of customary forests. The Customary Territory Registration Agency (brwa), an ngo that collects participatory maps made by indigenous communities, had recorded 26 million indigenous territories in Indonesia as of 2022. When comparing these figures, it is evident that the Government’s efforts to establish customary forests as a follow-up to the Constitutional Court’s decision remain very limited.

2.1.2 Exemption of Criminal Provisions for Indigenous and Local Communities (Case Number 95/puu-xii/2014)

The second case is related to the judicial review of criminal provisions in the Forestry Law (Number 41/1999) and the Law on the Prevention and Eradication of Forest Destruction (Number 18/2013). The applicants, in this case, were ten parties consisting of indigenous communities, individuals, and ngos. The applicants argued that the enactment of criminal provisions in the Forestry Law and the Law on Prevention and Eradication of Forest Destruction led to the criminalisation of communities living within and around forest areas. In Indonesia, many indigenous and local communities live around forest areas, which is illegal according to the Forestry Law. Statistics Indonesia (Badan Pusat Statistik, bps) released census results stating that 31,957 (or 71.06%) of villages in Indonesia are located in the vicinity of forest areas. In 2014, the Ministry of Environment and Forestry (MoEF) conducted a forestry survey that found 32,447,851 people depend on forest resources for their livelihoods. Most of them are living in poverty. According to their local customs, they have been cultivating land and gathering products from the forests.

In Indonesia, land conflict is omnipresent. The ngo Agrarian Reform Consortium (Konsorsium Pembaruan Agraria, kpa) recorded 2,047 land conflict cases from 2015 to 2019. In 2019 alone, there were 279 land conflicts covering an estimated area of 734,239 hectares, affecting around 109,042 households in 420 villages across Indonesia. In 2021, the MoEF received 500 reports on land conflicts in the forestry sector. Only 54 of these have been solved between the conflicting parties.20 The forestry tenure conflicts arise because of the Forestry Law, which ignores the existence of indigenous and local communities who have long inhabited the land that the Government later designated as forest areas.21

The applicants, in this case, asked the Constitutional Court to annul Article 50 paragraph (3) points e and i of the Forestry Law. However, the Constitutional Court decided that Article 50 paragraph (3) points e and i of the Forestry Law would be exempted for people who have lived in forest areas for generations and engage in activities such as tree cutting, harvesting, collecting forest products, and raising livestock in forest areas for non-commercial purposes. The Constitutional Court argued that people who live for generations in the forest need clothing, food, and shelter for their daily needs, and they must be protected by the state, rather than being threatened with criminal penalties.

Table 7.2
The Constitutional Court ruling number 95/puu-xii/2014

Before the Constitutional Court ruling

After the Constitutional Court ruling

Article 50 paragraph (3) letter e and letter i of the Forestry Law

Article 50 paragraph (3) Every person is prohibited from:

e. cutting down trees or harvesting or collecting forest products in the forest without holding any rights or license issued by the authorised agency;

i. herding livestock within forest areas not specifically designated for such purposes by the authorised agency;

Article 50 paragraph (3) letter e and letter i of the Forestry Law

Article 50 paragraph (3) Every person is prohibited from:

e. cutting down trees or harvesting or collecting forest products in the forest without holding any rights or license issued by the authorised agency, except for people who live for generations in the forest and if not intended for commercial purposes.

i. herding livestock within forest areas not specifically designated for such purposes by authorised officials, except for people who live for generations in the forest and if not intended for commercial purposes;

People who have lived in forest areas for generations, known as heredity communities, are not subjected to the criminal provision in the Forestry Law. The Constitutional Court stated that this exemption applies to people living within the forest, rather than communities located “around the forest area.” The Constitutional Court did not specify the difference between people who “live within the forest” and people who are “around the forest area.” However, to provide a clear understanding, the definition of “people living within the forest” must be linked to their livelihood, especially their dependence on the forest for their basic needs such as clothing, food, and shelter, as considered by the Constitutional Court. Therefore, people who live within the forest do not have to be a community whose houses are built within the forest but local community members whose livelihoods depend on forest land and resources. In short, only people with a strong life relationship with the forest, beyond economic relations, are exempted from the criminal provisions. Another criterion for the exemption is that local communities only use forest land and resources for non-commercial activities. This condition is essential to avoid the over-exploitation of forest resources by local community members, which can lead to forest degradation.

2.1.3 Restricting Criminal Provisions in Situations of Land Conflict between Indigenous Communities and Plantation Companies (Case Number 55/puu-viii/2010)

The petitioners in this case were four farmers and indigenous peoples: Japin, Vitalis Andi, Sakri and Ngatimin. The subject of the petition, in this case, relates to plantation criminal provisions in the Plantation Law (Number 18/2004) that are often imposed on indigenous and local communities in conflict with plantation companies. A common condition in Indonesia is that the Government grants concessions to plantation companies on land claimed by indigenous peoples. Granting plantation concessions is usually conducted without the consent and compensation of indigenous peoples. The problem is that when indigenous peoples fight for their rights, they are subject to criminal provisions because they disturb plantation activities carried out by companies.

The petitioners challenged the constitutionality of Article 21 of the Plantation Law, which stated that: “Everyone is prohibited from taking actions that result in damage to plantations and/or other assets, use of plantation land without permission and/or other actions that result in disruption of plantation business.” As well as Article 47, which provides a penalty of 5 years in prison for people who violate Article 21 of the Plantation Law.

The Constitutional Court concluded that Article 21 and Article 47 of the Plantation Law, which have been used as the basis for criminalizing local and indigenous peoples who conflict with plantation companies, have the potential to be misused arbitrarily. In particular, the phrase “disturbing plantation business” in Article 21 of the Plantation Law can be interpreted very broadly by the police to arrest local and indigenous peoples. According to the Constitutional Court, this provision is contrary to the principles of a just rule of law, legal certainty, the principle of legality and the principle of predictability, as well as the protection of human rights in general.22

The Constitutional Court then decided that the implementation of criminal provisions in the Plantation Law must consider the context of plantation conflicts that occur between communities and plantation companies. Thus, if there are indigenous peoples’ claims to conflicting land, what needs to be completed first is to resolve the conflict claims, not impose criminal provisions on the community. Regarding the legality of plantation land, the Constitutional Court encourages the identification and mapping of customary territories claimed by indigenous peoples by the Government in advance. In other words, the actual confirmation of the existence of indigenous communities must first be carried out before haphazardly applying criminalization provisions in handling plantation conflicts.

3 A Comparative Assessment of Indigenous Rights

This section provides a comparative lens through which situate the contribution of the cci in the recognition of indigenous title and customary law. The purpose here is not to conduct a thorough analysis of Canadian and international legal frameworks, but rather to provide a comparative prism through which the leading jurisprudence of the cci on the topic can be viewed.

3.1 Indigenous Rights in Canada: A General Overview of the Legal Framework

“Indigenous peoples” in Canada include the Mi’kmaq, Mohawk, Anishnabe, Cree, Dakota, Piikani, Kainaiwa, Inuit, Dene, Haida nations.23 The early Canadian settlers were mostly from France and England. Before the arrival of the settlers, the indigenous peoples had their respective laws, practices, customs, and traditions.24 Over time, the relationship of coexistence evolved from trade alliances to land treaties. The land treaties were considered “private purchases of land from the Indigenous peoples” in the name of the British Crown, as noted in the Royal Proclamation, 1763 after the conquest of New France.25

The Constitution Act, 1867 (i.e., British North America Act) was based on a division of powers between the federal and provincial legislatures. Section 91(24) provides for “the exclusive Legislative Authority of the Parliament of Canada” over “Indians, and Lands reserved for the Indians.” In doing so, the Indian Act, 1876 dealt primarily with reserve lands and “Indian” status. From 1871 to 1921, the federal Government contracted a series of eleven treaties, commonly called the Numbered Treaties,26 to acquire land of the indigenous peoples, mainly from the Prairies.27 These treaties have been controversial because the latter claim they never intended “to surrender title to their lands.”28

The Canadian judicial system first recognized “the binding force of treaty rights and Aboriginal title” in contemporary Canadian law.29 Section 35(1) of the Constitution Act, 1982 stipulates that “the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”

Section 35(2) defines “aboriginal peoples” as including “Indian, Inuit and Métis peoples,” while Section 35(3) provides that “‘treaty’ rights includes rights that now exist by way of land claim agreements or [that] may be so acquired.” The Act also introduces a commitment by the provincial and federal governments to “invite representatives of the aboriginal peoples of Canada to participate” in the constitutional conference concerning the amendment of Section 91(24) of the Constitution Act, 1867 or Sections 25 and 35 of the Constitution Act, 1982 (Section 35.1). While Section 35 does not expressly define indigenous rights, the evolving jurisprudence of the Supreme Court of Canada has clarified those rights to include the right to land, to hunt and fish, to establish treaties as well as a range of economic, cultural and political rights.30

Ravna and Bankes explain the approach to the recognition of aboriginal title as:

the tribes, Indians, First Nations and Inuit have long been the subject of a special legal status in Canada. This is reflected in the terms of the Royal Proclamation of 1763, the pre-confederation (1867) version of the Indian Act, the “Indians” provision of the British North America Act, 1867 (which afforded the federal parliament the power to make laws in relation to Indians and land reserved for Indians), and the post-confederation versions of the Indian Act. Thus there is a long tradition of crafting special legislative regimes and applying them to indigenous communities. A sui generis approach to the recognition of aboriginal title may fit well within this approach to law making and this intellectual tradition.31

Ravna and Bankes explain that “[d]eeply embedded in the modern aboriginal rights jurisprudence of the Canadian courts is the recognition that traditional lands were not just occupied at the time of settlement but they were occupied by indigenous societies living in accordance with their own laws.”32

More recently, the Government of Canada has adopted the “Principles respecting the Government of Canada’s relationship with Indigenous peoples” and an “Indigenous Justice Strategy”33 to address systemic discrimination, in consultation with indigenous partners. Furthermore, the United Nations Declaration on the Rights of Indigenous Peoples Act received Royal Assent and came into force in Canada in 2021.34 In June 2023, the Canadian Government released the UN Declaration Action Plan, which was developed in cooperation with First Nations, Inuit and Métis from across Canada.35

4 The International Legal Framework as Applied in the Indonesian Context

Indigenous peoples’ rights are recognised within the framework of international law through various regional and international conventions and declarations. The international framework comprises the International Covenant on Civil and Political Rights (iccpr) and the International Labour Organization Convention 169 concerning Indigenous and Tribal Peoples and Independent Countries (ilo 169), which provide protections for traditional aboriginal lands.

Indigenous rights have also been recognised gradually under the larger framework of international human rights conventions and mechanisms. Article 27 of the iccpr recognises that ethnic, religious and linguistic minorities have the right to enjoy their culture. The Human Rights Committee, in its General Comment No. 23 (Art. 27, CCPR/C/21, 8 April 1994), has held that the right to culture includes access to land, natural resources and fisheries essential for the livelihood of minorities. Indonesia and Canada are parties to the iccpr, while ilo 169, which they have not ratified, imposes an obligation on states parties to recognize indigenous peoples’ traditional land ownership.

Furthermore, regional human rights conventions have been interpreted to include the obligation for states to demarcate and grant legal titles to the lands of indigenous peoples within their territories.36 In regional contexts, within the Inter-American system of human rights protection, the American Convention on Human Rights37 as well as the American Declaration on the Rights and Duties of Man38 have been interpreted by both the Inter-American Court of Human Rights and the Inter-American Commission of Human Rights in the context of recognising indigenous rights.39 As such, the Inter-American Court of Human Rights has delivered significant decisions on indigenous rights.40 Furthermore, as Newman states, there have been regional recognition of Indigenous rights, “with regional treaties on Indigenous rights being able to focus on issues that escape international attention and thus [are] ongoing complements to the globalized international body of Indigenous rights law, with the American Declaration on the Rights of Indigenous Peoples (adrip) being a key example.”41 More recently, the United Nations Declaration on the Rights of Indigenous Peoples recognized the rights of Indigenous peoples to their traditional lands, territories and resources, as stated in Article 26. The Declaration also addresses the recognition and adjudication of traditional indigenous lands claims.

The development of international law on indigenous peoples became the inspiration for indigenous peoples activists to encourage national legislative reform. In Indonesia, indigenous organizations are advocating the Government to create a special law on indigenous peoples’ rights. They have been urging the Parliament since 2011,42 and discussions on the bill addressing indigenous peoples’ rights have been taking place for more than a decade. Up until now, a special law on indigenous peoples’ rights has not materialized because of a lack of political support in the Parliament. Indigenous peoples’ organizations hope that the Indigenous Peoples Bill will become a means to incorporate the latest advancements concerning indigenous peoples contained in international law.

In Decision Number 35/puu-x/2012 regarding the Forestry Law, discussed in section 2 of this chapter, the cci confirmed the need for the establishment of a special law on indigenous peoples as mandated by Article 18B (2) of the Indonesian Constitution. However, according to the Constitutional Court, the existing fragmented legislation on indigenous peoples, found in various sectoral laws, such as mining, forestry, and coastal regulations, could be deemed valid until the enactment of the special law.

The cci also refers to international environmental law to strengthen the rights of indigenous peoples that have been included in the national Constitution. Furthermore, the Constitutional Court confirmed that the concept of indigenous peoples is commensurate with customary law communities in the Indonesian context. This cci ruling gives a different notion to the general attitude of the Indonesian Ministry of Foreign Affairs when attending international meetings discussing indigenous peoples. The use of international environmental law instruments to strengthen indigenous peoples’ rights is in line with the assumption that indigenous peoples are guardians of the environment.43

5 Conclusion

This chapter provided an assessment of Indonesian law concerning indigenous communities and land rights. Using international law as the lens through which the Indonesian leading cases were analysed, it can be seen that the judicial rulings have a major impact on the development of indigenous rights.

Developments in international law regarding indigenous rights have also had a significant impact in Indonesia. The jurisprudence of the cci is inspired by international environmental law and the undrip. Interestingly, the cci looks to international law to further protect the rights of indigenous peoples which are protected in the Indonesian Constitution.

The Constitutional Court altered the concept of colonial law that is still inherent in national forestry law. In doing so, the Constitutional Court decolonized the inherent colonial elements in the law by strengthening the rights of indigenous peoples in Indonesia. The Constitutional Court resolved not only the concrete problems of injustice encountered by indigenous peoples but also generated legal reform. While in some countries, landmark court decisions can be followed up by the enactment of new legislation and institutions to realize indigenous peoples’ rights, in Indonesia, such influences are still very limited.

The chapter has traced the major role that the cci has had in defining the contours of indigenous peoples’ rights within Indonesian society. It analyses the landmark decisions of the cci, and concludes that international law has had a positive impact on the development of the Court’s jurisprudence and the recognition of customary land rights within Indonesia.

1

Kirsty Gover and Benedict Kingsbury, “Editorial Note in Indigenous Groups and the Politics of Recognition in Asia: Cases from Japan, Taiwan, West Papua, Bali, the Republic of China, and Gilgit,” International Journal of Minority and Group Rights 11, no. 1–2 (2004): 1; James Anaya, Indigenous Peoples in International Law (New York: Oxford University Press, 2004), 57; Patrick Thornberry, Indigenous Peoples and Human Rights (Manchester: Manchester University Press, 2013), 317.

2

Sean Brennan, Megan Davis, Brendan Edgeworth, and Leon Terrill, “The Idea of Native Title as a Vehicle for Change and Indigenous Empowerment,” in Native Title from Mabo to Akiba: A Vehicle for Change and Empowerment?, eds. Brendan Edgeworth, Leon Terrill, Megan David, and Sean Brennan (Sydney: Federation Press, 2015), 2.

3

Brendan Edgeworth, “The Mabo ‘Vibe’ and Its Many Resonances in Australian Property Law,” in Native Title from Mabo to Akiba: A Vehicle for Change and Empowerment?, ed. Brendan Edgeworth, Leon Terrill, Megan Davis, and Sean Brennan (Sydney: Federation Press, 2015), 75–98.

4

Ibid.

5

Full text of the national apology can be found here: “Text of the Apology to the Stolen Generations,” Australian Government Department of Foreign Affairs and Trade, accessed February 22, 2023, https://www.dfat.gov.au/people-to -people/public-diplomacy/programs-activities/Pages/text-of-the-apology-to-the-stolen-generation.

6

Ronald Niezen, The Origins of Indigenism: Human Rights and the Politics of Identity (Berkeley, CA: University of California Press, 2003), 138; Kathleen Birrell, Indigeneity: Before and Beyond the Law (New York: Routledge, 2016), 75.

7

Anaya, Indigenous Peoples, 47.

8

Dwight Newman, “Chapter 1: Internationalization of the Law of Indigenous Rights,” in Research Handbook on the International Law of Indigenous Rights (Cheltenham, UK: Edward Elgar Publishing, 2022), 2–8; see also, Ken Coates and Carin Holroyd, Chapter 4: The Emergence and Evolution of the Global Indigenous Rights Movement,” ibid.

9

See “cop15: Nations Adopt Four Goals, 23 Targets for 2030 In Landmark UN Biodiversity Agreement,” Convention on Biological Diversity (cbd.int), accessed February 22, 2023, https://www.cbd.int/article/cop15-cbd-press-release-final-19dec2022.

10

Øyvind Ravna and Nigel Bankes, “Recognition of Indigenous Land Rights in Norway and Canada,” International Journal on Minority and Group Rights 24, no. 1 (2017): 72.

11

The Government of Indonesia’s denial of the applicability of the concept ‘indigenous peoples’ appeared in its ambiguous response to the United Nations in 2012, stating that: “The Government of Indonesia supports the promotion and protection of indigenous people worldwide. Given its demographic composition, Indonesia, however, does not recognise the application of the indigenous people concept as defined in the UN Declaration on the Rights of Indigenous Peoples in the country.” See: Adriaan Bedner and Stijn van Huis, “The Return of the Native in Indonesian Law: Indigenous Communities in Indonesian Legislation,” Bijdragen tot de taal-, land- en volkenkunde [Journal of the Humanities and Social Sciences of Southeast Asia] 164, no. 2 (2008): 165–193.

12

Gerard Persoon, “Isolated Groups or Indigenous Peoples; Indonesia and the International Discourse,” Bijdragen tot de Taal-, Land- en Volkenkunde [Journal of the Humanities and Social Sciences of Southeast Asia and Oceania] 154, no. 2 (1998): 281–304; Gover and Kingsbury, “Editorial Note in Indigenous,” 1; Christian Erni (ed.), The Concept of Indigenous Peoples in Asia: Resource Book, iwgia Document No. 123 (Copenhagen: International Work Group for Indigenous Affairs (iwgia) and Asia Indigenous Peoples Pact Foundation (aipp), 2008), n.p.; Rhett A. Butler, “In Landmark Ruling, Indonesia’s Indigenous People Win Right to Millions of Hectares of Forest,” Mongabay, accessed February 2, 2023, https://news.mongabay.com/2013/05/in-landmark-ruling-indonesias-indigenous- people-win-right-to-millions-of-hectares-of-forest/.

13

Adriaan Bedner and Yance Arizona, “Adat in Indonesian Land Law: A Promise for the Future or a Dead End?” The Asia Pacific Journal of Anthropology 20, no. 5 (2019): 416–434.

14

Nancy Lee Peluso, Rich Forests, Poor People: Forest Access Control and Resistance in Java (Los Angeles: University of California Press, 1992), 50.

15

Ibid., 44.

16

Ibid.

17

Yance Arizona, “Indigeneity in the Indonesian Constitution,” in Constitutional Democracy in Indonesia, ed. Melissa Crouch (Oxford: Oxford University Press, 2022), 197–216.

18

We did not include the mining sector in the chapter. Although ngos advocacy related to mining problems that violate indigenous community rights is common in Indonesia, no case in the Constitutional Court that supports the protection of indigenous peoples’ rights in the mining sector has ever been granted. Conflicts between indigenous peoples, companies and governments are more prevalent in the forestry and plantation sectors.

19

See Butler, “In Landmark Ruling.”

20

“Jumlah Penanganan Pengaduan [Number of Complaint Handling],” Direktorat Jenderal Perhutanan Sosial dan Kemitraan Lingkungan Kementerian Lingkungan Hidup dan Kehutanan [Directorate General of Social Forestry and Environmental Partnerships Ministry of Environment and Forestry], accessed November 30, 2021, http://pskl.menlhk.go.id/pktha/pengaduan/frontend/web/index.php?r=site%2Fjumlahpenanganan-pengaduan.

21

Peluso, Rich Forests, Poor People, 44.

22

Yance Arizona, Konstitutionalisme Agraria (stpn Press, 2014), p. 253–9.

23

oecd, “Overview of Indigenous Governance in Canada: Evolving Relations and Key Issues and Debates,” in Linking Indigenous Communities with Regional Development in Canada, ed. oecd (Paris: oecd Publishing, 2020), 37–65.

24

John Borrows, “Indigenous Constitutionalism: Pre-Existing Legal Genealogies in Canada,” in The Oxford Handbook of the Canadian Constitution, eds. Peter Oliver, Patrick Macklem, and Nathalie Des Rosiers, 1st ed. (Oxford University Press, 2017), 13–44.

25

Sébastien Grammond, “Treaties as Constitutional Agreements,” in The Oxford Handbook of the Canadian Constitution, eds. Peter Oliver, Patrick Macklem, and Nathalie Des Rosiers, 1st ed. (Oxford University Press, 2017), 308–309.

26

Government of Canada, Crown-Indigenous Relations and Northern Affairs, “Indigenous Peoples and Communities,” published January 12, 2009, https://www.rcaanc-cirnac.gc.ca/eng/1100100013785/1529102490303.

27

Grammond, “Treaties,” 310–311.

28

Ibid, 311.

29

Jeremy Webber, “Contending Sovereignties,” in The Oxford Handbook of the Canadian Constitution, eds. Peter Oliver, Patrick Macklem, and Nathalie Des Rosiers (Oxford University Press, 2017), 282.

30

Borrows, “Indigenous Constitutionalism,” 35.

31

Ravna and Banks, “Recogniton of Indigenous,” 115.

32

Ibid., 116-117.

33

Government of Canada, Department of Justice, “Indigenous Justice Strategy,” accessed August 10, 2023, https://www.justice.gc.ca/eng/csj-sjc/ijr-dja/ijs-sja/index.html.

34

Government of Canada, “Implementing the United Nations,” accessed May 10, 2023, https://www.justice.gc.ca/eng/declaration/index.html.

35

Ibid.

36

Ravna and Bankes, “Recognition of Indigenous,” 71–72.

37

Adopted at the Inter-American Specialized Conference on Human Rights, San José, Costa Rica, 22 November 1969, 1144 unts 123.

38

Adopted by the Ninth International Conference of American States, Bogotá, Columbia, 2 May 1948, oas Doc. oea/Ser.L.V/ii.82 doc.6 rev.1 (1992), p. 17.

39

Ravna and Bankes, “Recognition of Indigenous,” 71–72.

40

See Tom Antkowiak, “Rights, Resources and Rhetoric: Indigenous Peoples and the Inter-American Court” (2013) 35 U Penn J Int’l L 113.

41

Newman, “Chapter 1: Internationalization of the Law of Indigenous Rights,” 3. See American Declaration on the Rights of Indigenous Peoples, oas ag/res.2888 (xlvi-o/16), adopted at the Organisation of American States 3rd plenary session, 15 June 2016.

42

Yance Arizona and Erasmus Cahyadi, “The Revival of Indigenous Peoples: Contestations over a Special Legislation on Indigenous Peoples,” in Adat and Indigeneity in Indonesia: Culture and Entitlements between Heteronomy and Self-Ascription, ed. Brigitta Hauser-Schäublin, Göttingen Studies in Cultural Property, vol. 7 (Göttingen: Göttingen University, 2013).

43

Anna L. Tsing, “Indigenous Voice,” in Indigenous Experience Today, eds. Marisol de La Cadena and Orin Starn (London: Routledge, 2007), 48.

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Courts and Diversity

Twenty Years of the Constitutional Court of Indonesia

Series:  Brill's Asian Law Series, Volume: 12