Suspend FSC certification, says major new study

Completed in February 2002, The Application of FSC Principles 2 & 3 in Indonesia: Obstacles and Possibilities, examines the challenges to the application of the FSC's principles and criteria in Indonesia. It focuses on Principle 2 on Tenure and Use rights and responsibilities and Principle 3 on Indigenous Peoples' Rights (see box). Cases studies cover the state forestry company Perhutani in Java, 'outer island' forest concessionaires PT Diamond Raya in Riau and PT Intracawood Manufacturing in East Kalimantan; and the PT Finnantara Intiga pulpwood plantation (HTI) project in West Kalimantan.

Launched May 8th, the study attempts to answer the key question: can indigenous peoples and local communities legally establish long term tenure and use rights in forests and have their rights to own, use and manage their lands, territories and resources recognised and respected? The authors conclude that legal recognition of communities' land rights within forestry concessions is not possible under current law. Even outside state forests, while the concept of collective land rights (hak ulayat) is recognised under Indonesian law, no effective procedures exist to secure these rights.

Customary rights are treated as weak forms of usufruct (use rights) which are subordinate to the interests of concessionaires.

The study does conclude, however, that some of the community forestry options which offer a measure of management authority to communities may provide a basis for the certification of community forestry, although there are doubts as to whether these options are sufficiently long term to comply with FSC Principle 2.

Free informed consent

The study describes communities' scope for exercising their rights to free and informed consent and to control forest management as "limited", due partly to "a legacy of repression". Remaining obstacles include the desa village administration system, imposed in 1979, which disempowered customary institutions. The 1979 village administration act was revoked in 1999, but the majority of rural villages in Indonesia continue to be administered through this system. However, where reforms have led to the authority of customary institutions being restored to the satisfaction of communities, the study says that the basis for more equitable negotiations between communities and private sector companies may now exist.

The general finding is that Indonesia's development model, administrative system and legal framework continue to deny customary rights, disempower customary institutions, and encourage top-down forestry, all in violation of internationally recognised norms. The report concludes that: "The current Indonesian forest policy environment is difficult for, even hostile to, certification to FSC standards."

Reforms

At the same time, there are some signs of hope for the future. Reforms include constitutional provisions (agreed in 1998) which explicitly recognise the rights of indigenous peoples in Indonesia; the November 2001 MPR decree which opens the way for far-reaching reforms in land tenure and natural resource management (see also separate article below); and the possibility for local recognition of customary institutions and customary rights to forests under regional autonomy. Nevertheless, the study concludes that the reform process is not yet far advanced enough to provide a secure basis for certification, except in some specific locales.

The study states that, according to a "strong reading" of FSC Principles 2 & 3 and their literal application, certification to FSC standards in Indonesia is currently not possible. However, the authors make it clear that they are not convinced that this strong reading is the best approach. Instead they recommend that a more flexible and locally-adapted interpretation of FSC Principles 2 & 3 should allow certifications even in the absence of unambiguous, legally defined rights, "if forest managers, certification bodies, indigenous peoples and local communities agree on how to interpret the Principles and Criteria to suit local realities and if clear measures are taken to go beyond what the law currently allows or requires."

The authors say that, in order to do this, a national dialogue on whether or not to promote FSC certification in Indonesia must be held. If this dialogue decides to go ahead, the FSC should support the setting up of a national FSC initiative (as it has in other countries). Until a national consensus on how certification should be conducted in Indonesia has been reached through this process, FSC certification processes in Indonesia should be suspended.

Specific recommendations to the Indonesian government include participatory legal reform to:

• recognise the rights of local communities and indigenous peoples to own, manage and control their lands and forests;
• Recognise their rights to self-governance;
• Implement the agrarian and natural resource management reforms in accordance with the MPR decree (IX/2001).

The study is also a mine of information on a range of issues relevant to indigenous peoples rights and Indonesian forests. These include:

• A summary of relevant international law relating to key elements of Principles 2 & 3;
• Which pieces of international law Indonesia has ratified;
• Experiences with Principles 2 & 3 in other countries (Bolivia, Sweden, Canada, Brazil);
• An overview of Indonesian government policy towards indigenous peoples, including recent interviews with government officials, an analysis of recent policy changes, and definitions of indigenous peoples in Indonesia;
• An overview of the legal situation regarding land tenure and resources rights in Indonesia (including a useful table summarising twelve types of tenure);
• An analysis of Indonesia's forestry law, gazettement of forest land and obligations of concession-holders;
• Prospects for reform: update on TAP MPR IX/2001; regional autonomy and local measures, including a list of local government regulations (Perda) passed or under preparation which aim for legal recognition of indigenous peoples' rights to manage their own resources.

The Application of FSC Principles 2 & 3 in Indonesia: Obstacles and Possibilities, by Marcus Colchester, director of the UK-based Forest Peoples Programme; Martua Sirait from the International Centre for Research in Agroforestry, Bogor; and Boedhi Wijardjo, executive director of RACA in Jakarta, with contributions by Silvester Tomas Daliman and Herbert Pane.

Electronic copies are on the WALHI website at http://www.walhi.or.id.
A pre-publication version of the document is on the GTZ website at http://www.gtz.de/forest_certification/english/brandaktuell.asp