Adat and the forests

Down to Earth No 51 November 2001

In April this year a series of workshops on adat (customary community organisation) and agroforestry were organised by the International Centre for Research in Agroforestry (ICRAF) and the Indonesian indigenous peoples' alliance AMAN. The workshops were facilitated by Dr Marcus Colchester, director of the UK-based Forest Peoples Programme, and management committee member of DTE. The programme was funded by BSP-Kemala. The following is drawn from his draft report, 'Adat and Agroforestry: Some Reflections'.

Eight informal and interactive workshops were organised with different indigenous communities in East Kalimantan, West Kalimantan and South Sulawesi over a four-week period. The workshops focussed on four questions that have arisen from AMAN's demands formulated at its 1999 Congress*, These included the statement: "We will not recognise the State unless the State recognises us." The questions were:

1. In what way do you expect the State to recognise Masyarakat Adat (Indigenous Peoples)?
2. What rights to you seek over your lands and natural resources?
3. Which person or institution should represent your community in negotiations with outsiders?
4. If you seek self-governance, through which institutions will you govern yourselves? How will you relate to the local government?

A great variety of views were expressed: communities had strong views on these questions, though many had not been a matter of public debate. The programme found that workshop participants knew their own systems but had not thought out in much detail how - legally and institutionally - these should be fitted into reformed state structures and laws. The project's aim was to explore some of the institutional dilemmas of adat communities in Indonesia by referring to examples of how indigenous peoples have dealt with them in other parts of the world.

1) Forms of self-determination: At what political level do Masyarakat Adat seek recognition?

Examples from other parts of the world show that indigenous peoples have adopted a wide range of forms of self-determination: from independent states (eg. Pacific Islands), through 'domestic dependent nations' (USA), autonomous territories (Nunavut, Canada), to autonomous villages and districts (Guyana). Some of the lessons from these examples are that small communities in big states still face the same challenges and that over-large territories with weak institutions face major challenges.

Through the workshops the strong view was expressed that under colonialism Indonesia was colonised but the communities had their freedom. Under independence the country got its freedom but communities were colonised. Reformasi means giving freedom to the adat communities.

Indigenous communities in Indonesia are seeking recognition under the Constitution, Basic Agrarian Law and local regulations through a participatory process of legal reform. They also seek the restoration of legal pluralism, with equal authority for adat and state law within traditional areas and with clarity on how the two interrelate.

Specific demands include the recognition of adat civil authority - to hold weddings etc., the use of traditional names for institutions and places; the recognition of adat territories; the right to self-governance through adat law and adat institutions; and the right to run their own education systems. Autonomy is demanded at varying levels, but firmly within the framework of the State.

2) Land and resource rights

The experience of indigenous peoples in other parts of the world is that the wrong law may be worse than no law. Where indigenous peoples are given individual title to land, this can lead to more rapid loss of land and make it easier to sell (Native Americans and the Maasai). The South American solution is to secure land under untransferable collective titles.

In Indonesia full rights to own, protect, defend, manage, regulate, control, use and inherit land are being asserted. As one participant put it:

"In my community our understanding is that we have rights to our land and the natural resources both above and below the land…Several laws and policies have classified our forests as State forests and the minerals as property of the State. We don't see it like that. I have hair on my arm, on my skin. Both are mine. I also own the flesh and bones beneath…No one has the right to take me apart. But the policy has cut these things apart and thus has cut us into pieces. We want the land back whole."

Masyarakat Adat want the rights to land and territory as mapped by the communities themselves. While they are very clear about what they want, they are less clear about where state land-titling fits in. This is not surprising given the chaotic state of land-titling in Indonesia in general.

Land markets are very prevalent in some areas and customary mechanisms to control land transfers have been weakened by the imposition of the Basic Agrarian Law and the imposition of the desa [village] system. In Toraja, South Sulawesi, 80% of wet rice areas are mortgaged and land speculation is intensifying with pressure to acquire land for hotels and coffee estates. The noble and land-owning classes are increasingly resident in the cities and are less and less subject to adat.

There was a range of views on land sales, with some participants asserting the right to buy and sell land, others wanting land sales to be controlled by adatinstitutions and others thinking that adat land should be inalienable but that transfers within the community should be allowed subject to customary law.

This was identified as a major area for further discussion "if unrealistic land tenure regimes are not to be imposed or chosen unwarily".

On the question of whether adat forests should be taken out of state forests or not, the clear feeling was that they should (although this has not always been the case in other countries). "Basically the overriding impression we got was that people are so mistrustful of government that they want to get out from under the jurisdiction of the Forest Department as fast possible." In Toraja, however, some participants were more open to the idea of securing their forests and agroforests through mechanisms which ensure them exclusive use and management rights in forests.

3) Legal personality: who should represent communities?

Problems in other countries include a lack of precision in the law and the lack of accountability in indigenous institutions.

Although critical of adat leaders who abuse their power, most communities participating in the workshops wanted their own leaders recognised, with varying degrees of emphasis on how far additional measures need to be instituted to control their leaders. Many communities want more inclusive decision-making processes. They agree that outsiders must observe adat if they want to come into adat areas.

The conclusion was that, worryingly, the issue of legal personality has not been given much thought by indigenous communities.

4) Self-governance

Models of direct and indirect rule under colonialism were discussed, plus the danger that direct adat participation in government administrative structures can lead to co-option, where authority deriving from the indigenous community, is replaced by the authority of the state. The lesson was: "keep your options open…Keep your traditional institutions outside the state administrative structure".

Indigenous peoples participating in the workshops want to govern themselves according to adat law and adat institutions. The separation of powers (between legislature, executive and judiciary components of adat institutions) were discussed and the lack of separation of powers was identified as a problem in Dayak social organisation.

The need for mechanisms for resolving disputes - especially over land - was discussed. Communities insisted that adat conflict resolution mechanisms already existed or could be revived. Questions arising included: how do we prevent community members from demanding access to national courts when they find that adat courts have not found in their favour? and: which courts should hear disputes between mixed parties on issues which cross boundaries into non-adat areas?

The future of adat

There was general agreement that adat is under heavy pressure due to it not being recognised, due to imposed state institutions; unclear jurisdiction of remaining adat law, the pressure from the market and changes in local people's values. The damaging impacts of organised religions were stressed in many meetings.

There was also an acceptance that not all adat is good. Participants said adat should be flexible, under community control and subject to constant revision. The idea that adat law should adhere to international human rights standards was widely accepted.

There was recognition of the need to deal with the problems facing adat. As one strong advocate of adat from Kalimantan expressed it:
"We have become heterogeneous. Some want to join the majority 'nationalist' system, while others want to follow adat. Do we force the minority who what want to modernise to follow our traditional system? Do we need to divide our territory? Do we move them out? If we don't deal with this wisely we will have a revolution right here - even, maybe, a physical one."

The report's conclusion was that the very real problems confronting the adat movement need to be addressed if adat communities are not to be again defrauded of their rights and if adat is to be the basis of community based natural resource management.

Marcus ended the report on a positive note, however:
"During this trip my admiration for AMAN has grown profoundly. The willingness of AMAN members to confront these challenges gives me hope that adathas a chance of being a powerful force for ecological justice in Indonesia."

*See DTE Special Issue, October 1999 for more on AMAN and the Congress.