A BRIEF OVERVIEW OF FOREST TENURE REFORM IN INDONESIA

Mia Siscawati, Ph.D. University of Indonesia

Inception Workshop GCS-Tenure Security and forest-dependent communities: A Global comparative study

Hotel Menara Peninsula, Jakarta, 3 Juli 2014

CATEGORIES OF FOREST TENURE (RRI 2014)

Category 1: Forest land administered by governments This category includes all forest land that is legally claimed as exclusively

belonging to the state.

Category 2: Forest land designated by governments for Indigenous Peoples and local communities

Ownership of forest land under this category remains claimed by the state but some rights have been recognized by governments on a conditional basis for Indigenous Peoples and local communities.

Category 3: Forest land owned by Indigenous Peoples and local communities:

Forests are considered to be “owned” where communities have full legal rights to secure their claims to forests, defined in this analysis as areas where community tenure is unlimited in duration, they have the legal right to exclude outsiders from using their resources,2 and they are entitled to due process and compensation in the face of potential extinguishment by the state of some or all of their rights.

Category 4:Forest land owned by individuals and firms: In these areas, individuals and firms have full legal rights of ownership of

forest land. Concessionaires are not included in this category.

All lands in Indonesia fall into one of two categories:

(i) forest zone (kawasan hutan); around 70 % of the land mass, under the administration of the Ministry of Forestry

Around 31,957 villages located within and around this forest zone (36,17 % of total villages in Indonesia)

(ii) non-forest area also known as the area for other

purposes (Areal Penggunaan Lain, APL), under the administration of the National Land Agency

Around 30 % of this non-forest area is formally titled

BRIEF OVERVIEW ON LAND AND FOREST TENURE IN INDONESIA

GENDER DIMENSION IN FOREST TENURE

In many forest areas in Indonesia, women of different community groups, social status and classes have certain forms of relationship with forest lands and resources while performing critical roles in managing forest lands and resources.

One woman may have a variety of access to different plots of forest lands, started from her own land(s), her husband’s land(s), her conjugal land(s), her relative’s or neighbor’s land(s), communal lands, as well as other lands including state lands

Adat women and local women gain and maintain access to lands and forest resources through those who have control via various mechanisms, processes, and social relations.

In many cases, those with control are mostly male actors (male customary leaders, male members of the family, male neighbors, male state forest guards, etc.) that occupy different positions in relation to the lands at certain periods.

FORESTRY LAW NO. 41 1999

In defining “forest zone” (kawasan hutan), Article 1 of Forestry Law No. 41 of 1999 refers to “any particular area determined or designated by the government to be permanent forest.

Based on the status of the forest, Article 5 of Forestry Law No. 41 of 1999 asserts two categories of the forest: state forest (hutan negara) and forest subject to rights (hutan hak).

State forest refers to any forest on a land not charged with land title. The other category, known as hutan hak refer to any forest situated on land charged with land title. This category commonly translated as privately-owned forest (hutan milik).

This law recognizes the existence of customary forest (hutan adat), however it categorizes customary forest as state forest. Article 1 of this law mentions that “adat forest is a state forest that is located in the territory of masyarakat hukum adat.”

The forestry law No. 41 of 1999 serves as the legal basis for Government Regulation (PP) No 6/2007 on “Forest Allocation, Forest Management Plan and Land Utilization,” later revised and replaced by government regulation namely PP No. 3/2008.

This regulation provides a legal basis for managing conservation forest, protected forest, and production forest through the integrated forest management system, known as Kesatuan Pengelolaan Hutan (KPH or Forest Management Unit).

At the same time, this regulation provides a legal basis for state-sponsored community forestry, such as village forest (hutan desa), community-based forestry (hutan kemasyarakatan/HKm), community-based timber plantation (hutan tanaman rakyat/HTR), and partnership (kemitraan).

HUTAN KEMASYARAKATAN (HKM)

Policy references of HKm are PP No. 6/2007 which was revised into PP No. 3/2008.

Tenurial status of the forest that can be given HKm permit is state forest.

HKm permits can be issued for certain areas located within the boundaries two zones of state forest lands, which are production forest and protected forest. Main purposes of HKm: 1)rehabilitation of state forestland; 2)state sponsored community empowerment through community groups.

Government Agency (within Ministry of Forestry) that is in charge is the Directore General of Land Rehabilitation and Social Forestry (Ditjen RLPS).

Duration of permit: 35 years

COMMUNITY-BASED TIMBER PLANTATION (HUTAN TANAMAN RAKYAT/HTR)

Purposes of HTR are: 1)establishment of community-based forest estate/timber plantation in order to provide materials for timber-based industries (including pulp and paper industries); 2)development of welfare of community groups.

Policy base for this program is PP No. 6/2007, which was revised by PP No. 3/2008.

Tenurial Status: State Forest, zone: production forest.

Government agency that is in charge is Directorate General of forestry production (Ditjen BPK) at the Ministry of Forestry.

Duration of permit: 35 years.

Forest product: timber. Community Groups can apply for HTR license.

PARTNERSHIP (KEMITRAAN)

This program is a partnership form is between company (both state-owned and private ones) and local community.

Purposes:1)facilitation of collaboration between forest-based companies and community groups in the management of forest resources 2)state-sponsored community empowerment in state forest areas in which government has issued forestry licenses for companies

Policy base: PP No. 6/2007; PP No. 3/2008. It was revised again in 2013.

Status: state forest, zone: production forest.

Government agency that is in charge is Directorate General of forestry production (Ditjen BPK) at the Ministry of Forestry.

State-owned and private companies are now obliged to implement this program.

VILLAGE FOREST (HUTAN DESA) Policy references of Village Forest are PP No. 6/2007, which was revised by PP

No. 3/2008.

Main purposes: 1)management and protection of state forestlands which have not been managed by logging companies (in terms of production forests) or government agencies (in terms of protection forest); 2)state-sponsored community empowerment through village-based institutions.

Status of the forest that can be given Village forest permit is state forest. Village forest permits can be issued for areas located within the boundaries of production forest and protected Forest.

Government agency that is in charge is Directorate General of Land Rehabilitation and Social Forestry at the Ministry of Forestry (Ditjen RLPS). Duration of permit: 35 years. Forest products that can be accessed within the village forest permit is non-timber forest products and environmental services.

Those who can apply are village government or other village-based institution (could be customary institution).

REVIEW PROCESS OF APPLICATIONS OF HKM AND HUTAN DESA

1. Pre verification:a. Review of the documents (5 tables)b. Establishment of verification team (6 tables)

2. Verification (0 table)

3. Post Verificationa. Preparation of the map and related documents (8 tables)b. SK penetapan (7 meja)

Overall, the establishment of HKM and Hutan Desa must go through 26 tables located in Dirjen RLPS, Planologi, Sekjen, Biro Hukum and the office of the Ministry of Forestry

KEY BOTTLE NECKS (WORKING GROUP PEMBERDAYAAN, 2010)

Number of processing “tables” (26 table + 3 table) Review process of the documents submited with the

application Coordination among units within Ministry of Forestry Limited resources Limited knowledge on HKM and Hutan Desa in

provincial and disrict levels Limited government budget Limited availability of digital basic maps

IMBALANCE ACCESS TO FOREST LAND AND FOREST RESOURCES

The Ministry of Forestry control state forest lands of around 136 million hectares, allocated for production forests, protected forests, and conservation areas.

Fixed production forests (hutan produksi tetap) cover around 34 million hectares, managed by 537 companies, mostly dominated by private companies that have different types of forestry concessions (logging, industrial timber plantations, and ecosystem restoration).

Production forests that can be converted for other purposes (hutan produksi yang dapat dikonversi) cover around 20 million hectares. Oil palm and mining companies are the ones who mostly access these areas.

Less than 1 million hectares are currently managed by community groups through different schemes of government-sponsored community forestry

Constitutional Court Ruling No. 35/PUU-X/2012 on Customary Forests

Village Law No. 6 of 2014

Draft bill of the Recognition and the Protection of the Rights of Indigenous Peoples

Memorandum of understanding of 12 government agencies and state Institutions on forest-related reform hosted by the National Anti-Corruption Commission (KPK)

One map policy (developed under REDD+ related process)

OTHER LEGAL AND POLICY REFORMS IN FOREST TENURE AND FOREST MANAGEMENT