[Kabar-indonesia] 2 of 2: DtE: Forest Policy and Indonesia's Natural Resources Crisis

[Joyo at aol.com]

-2 of 2-

Down to Earth -- the newsletter of the International
Campaign for Ecological Justice in Indonesia
Newsletter No. 70, August 2006 

Forests

Forest policy and Indonesia's natural resources
crisis: a view from Jakarta

This article is based on an interview with Andiko,
Coordinator of the Legal Reform Programme of HuMA, the
Association for Community and Ecology-Based Legal
Reform, in Jakarta.  Andiko is actively involved in
various legal reform discussions and campaigns on
natural resources management. HuMA supports
Indonesia's indigenous peoples and their struggle for
the recognition of their rights.

Indonesian forest policy development: a chronic and
acute disease

There have been a lot of policy developments in
natural resources management during the past few
years. The forestry sector has been especially busy,
with developments including Government Regulation No.
34/2002 on Forestry and the Formulation of Plans on
the Management, Exploitation and Use of Forest Lands;
Government Regulation No. 35/2002 on the Reforestation
Fund; revisions to Law No. 41 on Forestry and the
Draft Law on the Eradication of Criminal Acts of
Illegal Tree-Felling In Forests (better known as the
Draft Law on Illegal Logging). These two last
initiatives are part of the Indonesian parliament's
2004-2009 National Legislation Programme. 

However, the many changes to forestry sector
legislation do not address the deeper paradigm shift
that is needed. Instead, these regulations and laws
retain a narrow focus and a short-term orientation.
    
Concern about the uncertain future of Indonesia's
forests is justified. The high deforestation rate (3.2
million hectares a year), over-capacity in the wood
industries, weak law enforcement, policy distortion,
corruption and conflict paint a bleak portrait of
forest management in Indonesia. The various measures
aimed at addressing the problems merely respond to
superficial issues, without reaching the root of
forestry problems. Forestry policies are like
medicines which deal with the symptoms, not the
disease.

The Draft Illegal Logging Law: painkiller for the
forestry sector

The Draft Law on Illegal Logging is an example of how
the government (forestry department) reacts to the
symptoms of disease in Indonesian forest management,
without addressing the root of the problems. It is
true that illegal logging causes losses to the state
and threatens the forests, but the question is how did
this happen and how did it get so bad? The drafters of
the Illegal Logging Law failed to take into account
conflicts over tenure in forest areas, as if all
forests in Indonesia belonged to the state. They gave
no clear indication of what is and what isn't legally
produced. Implicitly, the legality of forest products,
according to the draft law, is determined by the
national 'positive law' arrangements for forests,
which regard them as state forests, not encumbered by
conflicts over tenure. This, of course, means that
indigenous communities' rights to their forests are
not recognised and that their use of the forests
according to customary law become a soft target of
this law. The same goes for local communities living
in forest areas claimed as state forests.

Forestry Law No.41, passed in 1999, acknowledges the
existence of forests subject to rights/proprietary
forests (Hutan Hak/Milik), customary forests (Hutan
Adat)1 and state forests (Hutan Negara). In fact, only
15% of the total state forests claimed have been
gazetted2, meaning that the government's claim over
state forests is only 15% valid. At the same time,
customary forests are treated as practically
non-existent because they overlap with areas claimed
as state forests. This situation, plus the fact that
the drafters of the Illegal Logging Law deny that
there is conflict over tenure, is bound to lead to yet
more conflict. And it is the forest-dependent
communities living in and around forests who will
suffer the most.

Another implication of the draft law is that a large
number of loggers will be arrested in the effort to
enforce it. If each case of a person suspected of
illegally logging is brought to court, and each court
session requires an ad hoc panel of judges (one of
whom must come from a forestry background) just
imagine the difficulties and inefficiencies in the
legal system, procedures and process that will result.


The draft Illegal Logging Law versus the Legality
Standard

As mentioned before, a major flaw in the Draft Illegal
Logging Law is the failure to set out clearly the
difference between legal and illegal. Whereas a whole
series of acts are grouped as 'illegal', there is no
clear reference to what is considered legal under this
law. The Legality Standard3, which does define what is
legal, ought to be completed first. Having no clear
definition is very dangerous. Again, it is like
treating the symptoms while ignoring the disease. 

Moreover, the public consultation on the Draft Illegal
Logging Law was inadequate. People who will feel its
impact - communities living in and around forests,
especially those in areas where there are conflicts
over tenure - were not asked their opinion. The public
consultation was only held in several large towns such
as Jakarta, Jambi, Makasar, Pontianak and Jayapura.
Was this a true and legitimate representation of
public opinion? 

Put simply, unless the main problems in forestry are
addressed, any initiative will have the potential to
create new conflicts. Those drafting the illegal
logging law are over-simplifying the problems.

According a decree issued 5 years ago by the People's
Consultative Assembly (Indonesia's highest legislative
body) - TAP MPR IX/2001 -  there should be an overhaul
of all legislation related to natural resources
management, including a requirement to bring all
sectoral laws in line with the decree4. This is still
needed to assess whether the paradigm of all laws and
draft laws is still appropriate with the situation
today.

Indonesia's natural resources management crisis

In recent weeks, the headlines have been full of
floods and landslides in Kalimantan and Sulawesi and,
on the other hand, droughts, dried-up reservoirs and
failed harvests in various parts of Sumatra, Java and
East Nusa Tenggara. Meanwhile, the hot mud flow
disaster in East Java caused by human error at a gas
drilling well, is getting newspaper and TV coverage,
and the issue of human rights violations associated
with natural resource management is being widely
reported.

These are signals that natural resources management is
in a critical condition and show just how urgently
policies and laws governing natural resources need to
be overhauled. While the laws are reviewed and in
order to maintain legal certainty for natural
resources management, interim legislation needs to be
created for the transition period. The Perpu
(Government Regulation In Lieu of a Law, designed for
use in a national crisis or emergency) is a mechanism
that could be brought in during this transition.
However, the Perpu has not always been used properly,
with 'crisis' conditions often translated unilaterally
by the government. This happened in the case of Perpu
No 1/2004 on Changes to Law No.41 on Forestry, which
legitimised the opening of protected areas to mining.
By contrast, a series of natural disasters (due to
mismanagement) and destruction caused by resources
exploitation is not considered a national emergency.

It is evident from Indonesia's degraded resources,
disasters and conflicts, that natural resource
management is in a state of dire emergency, but not
everyone wants to pay proper attention to this, least
of all the government. Even the intelligentsia are not
doing much to raise awareness of this issue.

It is the people who suffer the impacts themselves who
must take action and speak out, and civil society
ought to be more focused on strengthening communities
at grass roots level. On the other hand, in campaigns
work there needs to be a greater focus on
decision-makers, in the Indonesian parliament, for
instance. If these efforts don't get the results, we
may need to make improvements in how we work, how we
assess target groups and where we put our energies.
Consistency is extremely important - in focusing on
the target, and continuously evaluating our
achievements. 

For campaigning NGOs, determination is not enough: we
need to keep expanding our capacity so that we can
speak and debate eloquently and with conviction. Many
NGO ideas do reach a wider audience so its necessary
to move on from just playing a watchdog role to
offering positive ideas for changes. 

HuMA's approach

HuMA works with partners in the field to understand
what is going on on the ground and to find alternative
solutions. If this also relates to policy, then the
changes recommended must be based on the needs of the
affected community. HuMA is beginning to develop
campaign activities and build dialogue directly with
parliament. HuMA tries to maximise its work in certain
areas: current activities include documenting the
practices of adat (customary) justice; documenting
local regulations (Perda) relating to protection and
recognition of indigenous peoples; adat law and adat
areas; carrying out and compiling research on the
implementation (and the practice of distorting) Law
No. 41 on Forestry to support the case for revising
this law; and supporting community efforts to draft
village regulations (Perdes) on natural resources
management.

Although the prospects for natural resource management
are far from bright and there will be more conflicts
in future, there is some hope because there are still
people who are endeavouring to make things better
(including people in the government and in national
and regional parliaments). Information about natural
resources and environmental destruction and the role
of the media is vitally important to educate the
public and raise awareness.  At the same time, rescue
attempts, however small, and campaigns which reach key
policy-makers directly also have a wide impact, if
these are done in a sustained manner.

Notes: 

1.  There has still been no clarification of the terms
Hutan Adat (customary forest) and Hak Ulayat
(customary right/ right of usufruct) in Forestry Law
No. 41 because the required government regulations
have not yet been issued.

2.  Gazetted means the forests are classified, their
boundaries surveyed, agreed interdepartmentally, and
then officially registered as state forests
3.  This was drafted as part of the follow-up to the
2002 MoU to combat illegal logging and the illegal
timber trade, signed by the Indonesian and British
governments - see DTE 67,
http://dte.gn.apc.org/67for.htm

4.  See DTE 52, http://dte.gn.apc.org/52MPR.htm and 57,
http://dte.gn.apc.org/57MPR.htm for more background to
TAP MPR IX/2001.

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Joyo Indonesia News Service
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