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

Down to Earth No. 70, August 2006

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 adatareas; 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,

⁴ See DTE 52, and DTE 57, for more background to TAP MPR IX/2001.