REFLECTING on the 25 years since the initiation of reform in 1998, Indonesia has made significant strides in establishing laws and regulations to acknowledge and uphold the rights of customary law communities. This legislative framework encompasses a variety of scopes, ranging from the country’s constitution to local village regulations, focusing on land ownership, natural resources, and fundamental rights.
In the Indonesian Constitution of 1945, Article 18B, paragraph (2), explicitly recognizes and respects customary law communities and their traditional rights, conditional on their ongoing existence and alignment with societal development, while adhering to the principles of the Unitary State of the Republic of Indonesia. This provision solidifies the state’s recognition of customary law communities.
This recognition is further reinforced by Article 28I, paragraph (3), which emphasizes the importance of respecting the cultural identity and traditions of customary law communities in line with evolving societal norms and civilization. These provisions serve as constitutional safeguards for customary law communities and their rights.
Beyond the constitution, various sector-specific laws have also been enacted, particularly those related to natural resources, further guaranteeing the rights of customary law communities. These laws contain clear recognitions and provisions that bolster the existence and entitlements of customary law communities, strengthening their legal status and ensuring their rights are upheld.
However, the journey of these communities has not been entirely smooth. Despite the existence of numerous laws and regulations, the State has implemented policies that have adversely impacted the traditional and historical rights of customary law communities. These policies, encompassing reductions, hindrances, limitations, and even revocations of rights, essentially infringe upon human rights.
These infringements have not been met with silence. Protests, criticisms, and even open resistance have emerged from customary law communities across Indonesia, demonstrating their resilience and determination to defend their existence and traditional rights.
However, these efforts have not fully halted the systematic marginalization and denial of rights experienced by customary law communities since the inception of the reform in 1998. During the Reform era, a gradual legal framework was established to formally recognize the existence and traditional rights of customary law communities.
However, the recent enactment of the Job Creation Law is viewed by many as a detrimental move for Indonesia’s customary law communities. This law is seen as undermining environmental protection efforts, threatening the access of customary law communities to their lands, and perpetuating the degradation of tropical forests. This legislation starkly contrasts the 2012 decision of the Constitutional Court, which affirmed that customary law communities should exercise control over customary forests and that the government should limit its control.
In summary, the customary law communities, often referred to as Indigenous communities, continue to face a challenging situation marked by persistent marginalization and denial of their rights. This predicament is further complicated by the negative impacts of the Job Creation Law, adding to their struggles and potentially jeopardizing their well-being. Even with the recognition post-reform, the journey of the customary law communities in Maluku, as well as in the broader Indonesian context, continues to be fraught with challenges.
Under the weight of current circumstances, notably the implementation of the Job Creation Law, the living space for customary law communities has contracted significantly. customary law communities feel a mounting threat within their own lands. This plight is sharply visible in Eastern Indonesia, where customary law communities are embroiled in a painstaking battle to shield their ancestral lands from both corporate entities and the government.
Take the instance of Sabuai, situated on Seram Island in Maluku. Here, customary law communities are engaged in a tireless struggle to guard their forests and ancestral lands, a struggle that often places them in legal disputes with investors suspected of illegal logging. A similar struggle is mirrored in Minamin, East Halmahera, North Maluku. In their efforts to defend their lands, customary forests, and the nomadic communities that inhabit these forests, customary law communities are forced to confront state authorities.
These two cases serve as potent examples of the intensifying threats faced by customary law communities in post-Reform Indonesia. They are grappling with external forces encroaching on their territories and are further challenged by legal disputes and bureaucratic hurdles.
A parallel struggle is faced by the Indigenous Tobelo Boeng Heleworuru Togutil/O Hongana Manyawa community in their efforts to protect their region’s environment.
Novenia Ambeua, an Indigenous woman from the Tobelo Boeng Heleworuru (Togutil/O Hongana Manyawa) tribe, shares insights into the post-reform existence of Indigenous communities in Halmahera, especially those descended from the Tobelo Boeng Heleworuru. Novenia paints a rather grim picture of the reform era, noting that the past 25 years of reform have not yielded positive impacts for Indigenous communities in the region.
She sheds light on the environmental issues in their area, revealing that permits tied to the environment, such as timber company (HPH) permits, have long been established and were linked with those in power during that time. Disturbingly, some of these permits persist to this day.
Novenia further explains that their experience during the New Order era was one of stagnation, a sentiment echoed by many Indigenous community groups in North Maluku. Their experiences emphasize the enduring struggles of the Indigenous Tobelo Boeng Heleworuru Togutil/O Hongana Manyawa community, particularly in the context of environmental issues, set against the backdrop of Indonesia’s historical and political developments.
“Up to now,” Novenia states, “we continue to witness the encroachment on our living space by various nickel mining corporations.” This is particularly ironic, as these corporations hold permits originating from the New Order era. She points to PT. WBN as a key example, noting that its operations have expanded massively, causing significant environmental destruction during the reform era.
“We had hoped,” Novenia says, “that with the advent of the reform era, Indigenous communities, including ours, would receive the protection and recognition they deserved from the government. Sadly, the reality has proven to be far from what we had hoped for.”
Novenia further highlights the prolonged delay in the ratification of the Indigenous Peoples Bill, a crucial piece of legislation for protecting the rights of Indigenous communities. This delay has grave consequences for Indigenous communities living in areas designated for nickel mining. Even as they strive to defend their customary territories, they confront reform-era regulations that prioritize investor interests, such as the Job Creation Law (UUCK). This is viewed as an affront to justice for Indigenous communities, adding to their plight and reaffirming their struggle for recognition and protection.
Novenia asserts that every permit issued by the government blatantly overlooks the existence and rights of Indigenous communities. Such disregard carries a menacing potential of leading to a gradual erasure of ethnic identities — a process termed ethnocide — amongst the tribes inhabiting the heart of the Halmahera Tobelo Dalam (O Hongana Manyawa) forest.
These observations bring to the fore the persistent struggles faced by the Tobelo-descended Indigenous community. Their challenges include encroachment on their living spaces by mining corporations, stagnation in the ratification of the Indigenous Peoples Bill, and adverse impacts from regulations favouring investors. These issues, coupled with a systemic disregard for their existence in permit issuances, amplify the risk of cultural erasure for tribes inhabiting the Halmahera Tobelo Dalam (O Hongana Manyawa) forest.
“We, the Tobelo Boeng Heleworuru Indigenous community, have inhabited our region for thousands of years, nurturing and preserving our natural surroundings with the ancestral wisdom passed down through generations,” Novenia states passionately.
“Our approach has always prioritized the preservation of the environment, respecting the landscapes created by God, the creator of the universe. However, the presence of extractive corporations is now devastating what we have diligently safeguarded and protected.”
According to Novenia, these distressing circumstances are perpetuated by government policies that consistently overlook the inherent rights of Indigenous communities and neglect to involve them in essential decision-making processes.
“The rights to land justice, access to public information openness/Free, Prior and Informed Consent (FPIC), and environmental justice, which encompass the rights to be involved in the Environmental Impact Assessment (EIA) process,” she emphasizes.
Moreover, Novenia highlights the unjust reality that local Indigenous communities do not receive fair compensation when their garden lands or forests are seized due to corporate land control.
She emphasizes that the determination of village administrative boundaries by local governments is performed without the involvement of Indigenous communities and fails to align with their historical context as stipulated in the governing regulations. This discrepancy often leads to the generation of boundary maps between villages within their customary territories, igniting conflicts between neighbouring villages.
Adding to the complexities, the issuance of Mining Business Permits (IUP) raises serious concerns. These permits not only provide opportunities but also create a breeding ground for unscrupulous security forces (TNI/POLRI) and local community groups who lack customary rights ownership. This situation allows them to encroach upon, sell, or even transfer customary territories to corporations that hold permits in those areas.
“The Tobelo Boeng Heleworuru Indigenous community in East Halmahera, North Maluku, experiences this injustice at all levels, from the village to the state level,” Novenia laments. “Despite the promises made by reform movements to bring meaningful change, Indigenous communities like ours have not felt any significant change.”
This grim reality underlines the relentless struggles faced by Indigenous communities, demanding urgent redressal and change.
The experiences of the Sabuai community in Seram Island, Maluku, further underline the significant challenges faced by Indigenous communities across Indonesia. They grapple with exploitation, illegal activities by companies, and even faced legal action and criminalization in their efforts to protect their ancestral lands.
The case of illegal logging by CV. Sumber Berkat Makmur (CV.SBM) in the Ahwale forest, despite it not being included in the approved usage areas (APL) permitted by the Maluku Provincial Forestry Service, is a significant instance of such misconduct.
This breach of permission, combined with disregard for the Indigenous community’s rights, has led to conflict and considerable distress for the Sabuai community.
The arrest of Kaleb Yamarua and 26 other Sabuai community members for their efforts to protect their forest demonstrates a stark injustice faced by these communities. These individuals were taken into custody for attempting to halt the illegal activities infringing upon their ancestral lands, effectively criminalizing their defence of their heritage.
Despite numerous attempts to resolve the issue through dialogue and appeals to halt the logging, as well as employing local custom in the form of “Sasi adat,” the community’s efforts were largely ignored. The lack of progress on their 2019 report to the Maluku Regional Police Criminal Investigation Department further exacerbates this sense of injustice.
The Sabuai community’s experiences highlight their ongoing struggle to protect their lands and assert their rights. They are continually navigating challenges, seeking peaceful resolutions, and advocating for justice in their actions.
Reflecting on their efforts, Kaleb says, “We submitted a written complaint on August 6, 2019, but the process only advanced as far as summoning the witnesses… Despite our limitations, we made every effort to attend the summons at the Maluku Regional Police Criminal Investigation Department. Each witness underwent over 6 hours of examination and faced seventy to eighty questions regarding the case. Unfortunately, there was no clear progress regarding our report.
“This recollection brings to the fore the substantial efforts undertaken by the Sabuai community to seek justice, the significant demands placed on them during the process, and their relentless pursuit of justice, despite a lack of meaningful progress. It underscores the urgent need for redress and recognition of their rights and their struggle against exploitation.
The ongoing struggle of the Sabuai community and their pursuit for justice continues to face substantial challenges. Kaleb’s recounting of the events and the legal hurdles they’ve had to deal with underscores the severity of these difficulties.
Not receiving a response to their letter of request questioning the progress of their case in November 2019 adds to their frustrations and the perception of unequal treatment in the eyes of law enforcement. The Director of CV.SBM appears, in their view, to be immune from legal consequences, which exacerbates the sense of injustice among the Sabuai community.
The incident at ‘Siwe’ mountain within the Ahwale forest area, where they encountered CV.SBM operators unloading wood using a logging truck, was a significant breaking point. The subsequent protest leading to the destruction of heavy equipment’s glass was an expression of their accumulated disappointment over the ongoing illegal logging activities. This incident resulted in the Director of CV. SBM reporting 26 residents, including Kaleb, to the police.
Kaleb and the other residents were detained for five days and then released. However, he and Stefanus Ahwalan were named as suspects, charged with property damage and collective violence against property. The legal process appears to be skewed against them, with their pretrial request to challenge the legality of their arrest, detention, and being named as suspects being rejected.
These occurrences highlight the persistent legal challenges faced by the Sabuai indigenous community in their struggle to protect their ancestral lands from illegal logging. Despite their efforts to seek justice, they encounter significant obstacles, further exacerbating their situation. It emphasizes the urgent need for more equitable processes and recognition of Indigenous rights within legal systems.
Kaleb’s account underscores the persistent struggles that the Sabuai community and many other indigenous communities face as they strive to protect their customary lands and resources. The legal system appears to be weaponized against them, with actions aimed at defending their lands being misconstrued as delinquency or property damage.
The concept of a SLAPP (Strategic Lawsuit Against Public Participation), as Kaleb pointed out, seems to be in effect here. The action taken by CV.SBM to report the Sabuai community can be interpreted as an attempt to suppress their efforts in preserving their environment. Anti-SLAPP measures, like Article 66 of Law Number 32 of 2009 concerning Environmental Protection and Management in Indonesia, exist to protect those who advocate for a clean and healthy environment. However, in practice, it appears that these provisions are not effectively safeguarding the rights of the Sabuai community and similar groups.
Despite the conditional criminal sentence of 6 months in prison with a 1-year probation period, Kaleb and the Sabuai community remain steadfast in their belief that their actions were justified as they sought to protect their customary forest. Their experience underscores the critical importance of ensuring that the rights of those defending their environment and traditional lands are recognized and protected.
In conclusion, Kaleb’s reflections on the current situation in Indonesia paint a picture of a nation that is failing to live up to its ideals. Despite the initial aspirations of creating a just society, the reality seems to be one of growing oligarchy, rampant corruption, exploitative development practices, and oppressive policies that undermine the rights of the people. This suggests an urgent need for substantive reforms to rectify these systemic issues and ensure the rights and livelihoods of indigenous communities like the Sabuai.
As Kaleb rightly points out, indigenous communities in Indonesia find themselves persistently defending their rights in a socio-political landscape that seems to undermine the very concept of reform. Despite four amendments to the 1945 NRI Constitution, which have been instituted to better reflect the recognition of indigenous peoples, the guarantees promised, including those in Article 18b paragraph 2, often fail to materialize. The indigenous communities, rather than experiencing an evolution in their rights and protections, often find themselves increasingly marginalized and caught in an array of new conflicts and dilemmas.
Indeed, Kaleb’s observations highlight the challenges faced by these communities as they strive to navigate a system where constitutional recognition and the promise of reform still fall short in preserving their rights and cultural heritage. The fruits of these much-anticipated reforms have yet to fully ripen, leaving the communities grappling with a range of issues and an escalating sense of marginalization.
Furthermore, the promises of national protests and the downfall of the New Order regime have, disappointingly, yielded little more than empty rhetoric. Across the Indonesian archipelago, indigenous peoples face myriad challenges that obstruct their ability to live safely and comfortably within the Unitary State of the Republic of Indonesia. These challenges manifest themselves through land seizures, deforestation, repressive actions, and even criminalization of those advocating for the rights of Indigenous peoples.
In Maluku, the plight of indigenous communities is starkly exemplified. The Marafenfen Indigenous people are in conflict with the Indonesian Navy, asserting their rights over their customary land that is believed to have been seized by the navy, who plan to construct an airport and other facilities on the 689-hectare area in Marafenfen Village, South Aru District, Aru Islands Regency, Maluku Province.
In 2022, similar struggles were apparent with the Bati Indigenous people demanding that PT Balam Energy Limited and PT Bureau Geophysical Prospecting cease exploration activities on their customary land in Kian Darat District, Seram Bagian Timur Regency, Maluku Province.
Concurrently, an alliance known as ANTARA (Taniwel Raya Alliance) in the Taniwel Subdistrict urged marble mining company PT. Gunung Makmur Indah to halt mining exploration to preserve their land and mitigate environmental damage.
Even the Indigenous people of West Seram, through the Sakamese Nusa Indigenous Student Association, initiated a resistance movement in 2018 against CV. Titian Hijrah and PT. Tanjung Wana Sejahtera (TWS), who were threatening to exploit their customary forest.
These cases serve to underscore the ongoing battles that Indigenous communities across Indonesia face, as they strive to assert their rights, protect their ancestral lands, and guard their cultural heritage from intrusive external forces. The struggle for the true recognition of their rights and protections remains a significant challenge in contemporary Indonesia.
These accounts illuminate the unwavering commitment of Indigenous communities in Maluku, who, despite the odds, relentlessly strive to shield their ancestral lands and conserve their cherished natural resources from the encroachment of external corporations’ intent on exploitation. These acts of resistance are not mere skirmishes, but an embodiment of an enduring spirit of collective resilience, a testament to an indomitable will determined to uphold their cultural heritage, preserve their traditional ways of life, and ensure the safeguarding of their environment, our environment, for generations yet unborn. In their fight, we see the noblest aspects of human endeavour, a manifestation of our collective obligation to respect and protect the Earth that sustains us all.
Source:
- Kaleb Yamarua, Representative of the Sabuai Indigenous Community, Seram Island, Maluku
- Novenia Ambeua, Representative of the Tobelo Boeng Heleworuru Togutil Indigenous Community (O Hongana Manyawa)
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