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Statement of concern by the Papua Adat Community Federation (DPMA) regarding the investigations of Tim Terpadu Operasi Hutan Lestari II.
9th March 2005
We have serious concerns about the slow progress to investigate or detain military and police officers named as culprits in the EIA-Telapak illegal logging report.
We have serious concerns about prosecuting local forestry authorities issuing community logging licenses which the decentralization and autonomy law allows; thus directly subverting adat community rights to benefit from forest resources.
The Decentralization Law No. 22/99 and Special Autonomy Law No. 21/01 allows the Governor of Papua to issue small-scale adat community timber concessions or Ijin Pemengutan Kayu Masyarakat Adat (IPKMA) for up to 1000ha (SK 522.2/3386/SET of 22 August 2002). IPKMAs are issued to Customary Legal Authorities (Lembaga Masyarakat Hukum Adat), as recognised by District Heads and/or to their partners (private operators or cooperatives). IPKMAs are intended to improve local welfare in and near forest areas, and to ensure that adat communities see a fairer share of forest revenues. An IPKMA can only be issued with the authorisation of the Head of the Provincial Forestry Department with recommendations from Head of Kabupaten/ Kota Forestry Departments, and with requirement to replant.
IPKMAs can be justified on basis of the following legal authority.
Law 22/99 on Decentralisation as revised by Law 32/2004, and Law 21/01 on Special Authority for Papua, grants the Provincial Government of Papua the authority to license forest exploitation. Further to Law 22, Implementing Regulation 25 gives the provincial authority, as an autonomous region, the power to:
Article 38 para 2 of UU21/01 on Papuan Special Autonomy respects adat community rights over natural resources and provides legal certainty for businesses and the principles of environmental sustainability and sustainable development. Article 42 para 4 provides that adat communities should have maximum opportunities to benefit from community-based economic development. Article 43 para 1 states that the Provincial Government must acknowledge, honour, protect, empower and develop the rights of adat communities.
Law 41/99 governing sectoral authority for forest management, states that sustainable forest management is ultimately intended to achieve the welfare of the people. As such it is consistent with Law 22/99 on Decentralisation and Chapter 33 para 3 of the 1945 Constitution. Chapter 67 of Law 41/99 also recognises the rights of adat community who are able to prove and secure recognition of their existence to manage forests.
Under Implementing Regulation 6 to Law 41/99, Bupatis were permitted to issue HPH Kecil (small timber concessions), in forest areas limited to 5000ha. This was followed by IPPK limited to 100ha under the same implementing regulation. This regulation is still valid for rights that have set in under existing IPKMA permits.
Implementing Regulation 34 under Law 41/99 (PP34) replaces the right of regional governments to issue timber extraction licenses or Izin Usaha Pemanfaatan Hutan Kayu (IUPHHK) directly, making it only recommendatory on the basis of authorisation by the Minister. On the basis of this, the Ministry of Forests instructed the Provincial Government of Papua to stop issuing IPKMAs, but without clarifying their legal status.
This is contrary to provisions governing regional authority for natural resource management under Law 22/99 on decentralisation, and Law 21/01 on Special Autonomy. It is also contrary to the spirit of Law 41/99 and Chapter 33 Para 3 of the 1945 Constitution on community welfare. Furthermore, PP 34 as an implementing regulation of Law 41 (forest sectoral authority) cannot replace PP25 as an implementing regulation of Law 22 (administrative authority); and does not foreclose the right to issue timber licenses of the regions. In any case, IPKMA could still arguably be accommodated within the licences which the regions are still able to issue under PP34. This includes licences for limited timber cutting or Izin Pemungutan Hasil Hutan Kayu (IPHHK).
It is therefore misplaced for the current investigation to question the legality of community logging rights, as these are clearly accommodated under Law 22 as revised by Law 32/2004, Provincial Authority Regulation PP25, Law 21/2001, Law 41/99 and even Implementing Regulation 34. The Provincial forestry authorities in Papua have a legal basis for issuing IPKMA permits, and Tim Terpadu Operasi Hutan Lestari II have acted wrongly in accusing the Provincial Forestry Heads of violating Law 41/99 in issuing these permits. If they are culpable of anything, it is preempting administrative steps and thus do not deserve criminal prosecution.
Rather the investigation must now focus on how IPKMAs have been abused by business interests and local elites, as a mechanism both to secure access to the resource and to legalise timber cut in excess of volume and area limits, as highlighted by the recent EIA - Telapak Report `The Last Frontier'. Communities have been intimidated, and received paltry compensation (just Rp100,000 per m3 of merbau compared to US$2288 retail price in UK or USA.).
We are concerned that the valuable work of EIA Telapak is now being used to subvert community rights and to undermine the well-intentioned efforts of the Provincial Government of Papua prioritize community economic empowerment.
We urge all government agencies involved in the current investigations into illegal logging in Papua to review their conclusions on the legality of IPKMA. Otherwise we have little option but to resort to the Constitutional Court.
We also agree that, in the future, the licensing and management criteria for IPKMA should be strengthened to guarantee community welfare in the long term.
Zadrak Wamebu
Board of Advisers, Association of Indigenous Peoples Study and Empowerment
Member of the Papuan Adat Council
[Translated by DOWN TO EARTH]