Expropriation and Protection of Indigenous Peoples

HaRI notes that there are 48 indigenous communities that are still in conflict with plantation companies and industrial plantation forests. Around Lake Toba, there are 23 indigenous communities still being in conflict with the industrial plantation forest Company PT. Toba Pulp Lestari. Furthermore HaRI states these conflicts are in indigenous territories reaching 35,616.43 hectares and 4 other indigenous communities around Lake Toba are in conflict with forestry and plantations.

On the coast of East Sumatra, the indigenous people of the Rakyat Penunggu were victims of land grabbing by PTPN II. Of the approximately 76 villages of the indigenous peoples’, 20 Kampong Rakyat Penunggu have reclaimed their customary territories, even though only a small portion has been managed by them. Even so they are still often considered trespasser by PTPN II. The existence of the Rakyat Penunggu is still marginalized by the State.

Expropriation of the Indigenous Territory

The process of recognition and protection of indigenous peoples is certainly inseparable from forestry and plantation, whether it is managed directly by the state or the private sector, which has so far expropriated indigenous peoples of their living space. State claims, especially forestry, have started since the implementation of the Forestry Sectoral Law in 1967. This law later claimed 70% of Indonesia’s land area were forest areas. The road grabbing project has been open ever since then. Forests which have basically been managed by indigenous peoples throughout the Republic of Indonesia since ancient times with their respective customary laws are slowly disappearing due to these rules, where the State fully has the right to manage the forest. State claims for these forest areas then made forest areas an object of investment, both mining investment (which also accommodated the Mining Law in 1967), plantation, and industrial plantation forests. As a result, the indigenous people who were victims of investments seemed to have fallen on the stairs again. The state converted customary territory into a forest area and then gave it to extractive industries, industrial plantations, and plantations for investments.

Through the Forestry sectoral law which claims 70% of Indonesia’s territory as forest area, it has designated customary forests in the North Sumatra highlands such as Toba Samosir, Simalungun, North Tapanuli, and so on state forest areas. In fact, many huta, nagori, or kuta and residential areas are included in the state forest area. Law No. 5 of 1979 concerning the village government has uniformed the smallest form of government in the community. As a result, local government systems based on customary law across the Indonesian territory slowly disappeared. The state has changed it, generalized it into a village. Generalization efforts by the government at that time contributed greatly to the increasingly waning forms of community law. Not only in this respect, the waning of customary law, customary institutions that govern ethical matters, community behavior patterns, value systems, norms, etc. are also accompanied by the waning of the customary territorial system, including forests, settlements, cultivation and so on. Moreover, the state is indeed not reluctant to provide objects of indigenous territories that have been claimed as forest areas for capital investments. In North Sumatra this also happened. In 1983, the state granted a concession to an industrial timber plantation (HTI; Hutan Tanaman Industri) company PT. IIU (Inti Indorayon Utama) which has now changed its name to PT. TPL (Toba Pulp Lestari) with a concession area of ​​approximately 245,000 ha.

In the eastern part of North Sumatra, the seizure of indigenous territories has been going on since the inclusion of plantation investment since the Dutch era, after the Dutch East Indies Government issued a colonial agrarian law in the late 19th century, precisely in 1870. The law led to a domein statement (Domein Veerklarring) labeling land that is considered abandoned and no man’s land for plantation concessions. The law started the process of legalizing land grabbing, massive forest clearing. It became a carriage of global capitalism which plundered the land of the archipelago with the entry of capital through large-scale plantation investments especially in East Sumatra. The presence of investment has changed and usurped the indigenous territories of indigenous peoples in East Sumatra, namely the Rakyat Penunggu.

Rakyat Penonggol (as stated in the Van Consessi deed) who are also called the Penunggu (watchman) peoples are waiting for the rest of their tobacco plantation to be planted with crops. While the land where it is planted is called the land plot. Therefore, this is the cause of changes in the management system of indigenous peoples living between the Wampu River and the Ular River in East Sumatra. The entry of plantation investment into the East Sumatra Region has changed the Penunggu people’s farming system from farming reba (the local term for the shifting cultivation system) to farming the path.

In the era of Indonesian independence, the government nationalized Dutch heritage plantations. Agenda for redistribution of land began to be carried out, especially since the issuance of UUPA (Basic Agrarian Law). However, the political events in 1965 had a major influence on the non-implementation of the agrarian reform agenda in Indonesia. The “Orde Baru” government emerged, initiating the birth of sectoral forestry and mining laws that facilitate local and foreign investment in the forest area. The idea of the law is not much different from wet agrarian, both facilitating investment. In the plantation sector, there have been recaptures of plantation companies’ lands which have previously been the object of redistribution. For plantations, on July 16, 1969, the North Sumatra provincial government excluded through Decree. No. 370 / III / gsu / 1968 all land cultivation that was carried out by farmers, PNP employees, ABRI and PNS in the PNP IX concession area. This policy means that PNP IX can manage and cultivate used tobacco plantations using techniques and self-management. Through this, the plantation expanded its area again, seizing the customary rights / ulayat of the Rakyat Penunggu.

Post-reform, various efforts to recognize indigenous peoples’ rights began to be discussed. The conversation became livelier with the decision of the Constitutional Court No. 35 / PUU-X / 2012 (MK 35). The MK 35 ruling asserts that the customary territory (ulayat) is an inseparable part of indigenous peoples and is the right of indigenous peoples. This decision is a test of Law 41 of 1999 concerning forestry with a ruling that customary forests are forests within the territory of indigenous peoples. But this ruling states that there must be regional regulations at the local (district) level that recognize the existence of indigenous peoples. This is a challenge because of the unique and varied indigenous communities in each region.

Challenges for the Local Regulation Planning (Ranperda) of Recognition and Protection Indigenous Peoples in North Sumatra

At the provincial level, the indigenous peoples’ regulations have been running for 2 years since 2017. So far, indigenous peoples in North Sumatra along with their supporting coalitions (civil society, NGO, and indigenous people organization such as HaRI, KSPPM, BPRPI, BAKUMSU, AMAN North Sumatra, AMAN Tano Batak, and WALHI Sumut) pay full attention to the agenda. The provincial regulation is not only an legal protection  related to the rights of indigenous peoples, but also a regional regulation for indigenous peoples. Certainly this has become a debate with the Legislator (DPRD) in North Sumatra as well as among indigenous peoples’ coalitions, about how provincial regulation regulate and establish a community as the subject of indigenous peoples and regulate their objects.

In recognition of indigenous peoples, the historical aspect is the basis of strong claims, beside the existence of shared interests, costumary law and genealogical. The constitution has ordered the government to make laws on the recognition of indigenous peoples. In each region the local regulation (perda) will regulates and protect indigenous peoples. In legal theory there are two categories, those which are fixed and regulating. If perda regulate about, in this case the implentation proccess of local regulation (perda) must involve community participation. In this case, there are four main things that indigenous peoples must show in the process of recognition and protection of indigenous peoples through local regulations: firstly, the history of the origin of indigenous peoples’ teritory; secondly, mapping of indigenous territories, characteristics of the region concerned; thirdly, there proof interaction within the indigenous community, and fourthly, there are institutions that run the rules in indigenous peoples.

Indigenous people do not expect that the regulations of recognition and protection of indigenous peoples in both the province and the regency level will have the opportunity for the rise of feudal, royal and other parties acting on behalf of indigenous peoples. Therefore, elements of indigenous peoples and supporting coalitions consisting of several elements of civil society such as HaRI, KSPPM, BPRPI, BAKUMSU, AMAN Sumut, AMAN Tano Batak, and WALHI Sumut encouraged the regional recognition and protection regulations to be ratified immediately. In 2019, the local regulation planning (Ranperda) of indigenous peoples in North Sumatra was again included in the agenda of the regional government and North Sumatra DPRD, to form a special committee team for indigenous peoples’ ranperda. Hopefully the good intentions of the DPRD can accelerate the ratification of indigenous peoples’ ranperda in North Sumatera. (DM)