Including the Excluded: Advancing Indigenous Right in Indonesia’s Environmental Law

September 19, 2023

Setyawati Fitrianggraeni, Fildza Nabila Avianti, Sri Purnama[1]

Research Group Ocean Maritime and Climate and Working Committee Business and Human Right

INTRODUCTION

Indonesia, with its rich tapestry of ethnic groups and tribes, stands as one of the world’s most diverse nations. This rich diversity translates to the presence of thousands of Indigenous Peoples’ communities, each with its unique set of customs and traditions. Recent data from the Ministry of Education and Culture, as of 2021, indicates the existence of 2,061 Indigenous Peoples’ communities dispersed across the vast archipelago of Indonesia.[2] Collectively, these communities preside over an estimated 12.4 million to 18 million hectares of ancestral lands.[3]

Indigenous Peoples are often among the globe’s most marginalized and vulnerable groups. In Indonesia, the progress of solidifying, enjoying, and the realization of their rights remains slow. Despite the Bill on Indigenous Peoples gaining approval from the Legislative Body (Badan Legislasi) of the House of Representatives of the Republic of Indonesia (DPR) in 2020, the Bill still awaits ratification by the DPR. These communities’ challenges are multifaceted, encompassing issues from poverty-induced hunger to health, education, and environmental concerns.[4]

This article narrows its focus on the environmental concerns that Indigenous Peoples grapple with. A profound connection exists between these Indigenous communities and their ancestral lands, which serve not just as their domicile but as a pivotal fulcrum of their cultural, spiritual, and economic lives.[5] Alarmingly, while at least 8.7 million hectares of these ancestral lands remain forested, formal governmental recognition remains elusive.[6]

The rights and responsibilities of Indigenous Peoples vis-à-vis the environment, though outlined in the above bill, remain largely unenforceable, due to its non-ratification. The primary legislation addressing Indigenous environmental rights is Law Number 32 of 2009 on Environmental Protection and Management (UU PPLH). UU PPLH signifies a pivotal moment in Indonesia’s environmental conservation journey. Envisioned to realize the fundamental human right to a fair (adil) environment, as enshrined in Article 28H of the 1945 Constitution of the Republic of Indonesia. This arguably imports the idea that everyone has the right to a fair and equitable use and enjoyment of their environment. The law must therefore attempt to harmonise economic growth with ecological sustainability. It acknowledges the detriments of unchecked industrialization and underscores the imperativeness of a fortified environmental management blueprint.[7]

This article has three principal objectives. Firstly, it will delve into the articles of UU PPLH and examine their repercussions on Indigenous Peoples. Second, propose amendments to the UU PPLH to serve the interests of Indigenous communities better. Finally, it will explore the prospective outcomes arising from the suggested modifications to the UU PPLH.

OVERVIEW OF INDONESIA’S ENVIRONMENTAL LAW AND ITS IMPLICATIONS FOR INDIGENOUS PEOPLES

In general, the problems with UU PPLH in its relation to Indigenous Peoples are two folds, the law is limiting and vague. First, UU PPLH acknowledges the role of Indigenous Peoples in environmental considerations, as evidenced by the delineation of Indigenous Peoples in Article 1, number 31.[8] However, this gesture feels tokenistic. Though the UU PPLH defines Indigenous Peoples in its preliminary sections, it restricts its explicit mention of them to Chapter IX on Duties and Authorities of the Central and Regional Governments, specifically in Article 63 on responsibilities and authorities of central and regional governments. Encapsulated within these duties is the mandate to institute policies that recognize Indigenous Peoples, Local Wisdom, and their corresponding Environmental Protection and Management rights. Although this article appears to support legal recognition and protection of Indigenous Peoples at the regional level, this Article lacks implementing regulations and detailed elucidation, leaving it open-ended. Without the enabling regulations, Article 63 remains no more than words on a dusty page.

Second, the vagueness of UU PPLH amplified and even became a contributing factor in the marginalization of Indigenous communities. Current legal instruments remain deficient in ensuring Indigenous Peoples’ rights. A poignant illustration is the 2012 episode involving the Aru Islands’ Indigenous inhabitants who were perturbed by deforestation for sugarcane plantation purposes by the Consortium of PT Menara Group. Investigations revealed that as early as 2010, the Aru Regent had clandestinely allocated business permits for the Indigenous land of Aru to 28 companies within the consortium. Additionally, the Maluku Governor endorsed and secured principal permits from the Minister of Forestry for 19 firms, collectively spanning an expanse of 305,120 hectares. This covert allocation triggered not only environmental repercussions but also inevitable conflicts. The Aru populace had to vociferously defend their entitlements, resulting in inter-governmental and intra-community conflicts, with some village factions lured by the consortium’s enticements.[9]

Another distressing account emerges from Sima village, Nabire Regency in Papua. Here, villagers constantly grapple with the looming dread of potentially lethal flooding, attributed to the proximal operations of a palm oil enterprise near a crucial river. Moreover, this company’s actions have jeopardised five tributaries that merge into the Sima River, leading to their desiccation and consequent endangerment of aquatic life on Niburi Island. Furthermore, the Indigenous Peoples’ daily hunting activities, pivotal for sustenance, are now fraught with challenges. The final blow to the Indigenous community comes from material losses. The indiscriminate felling of prized timber has occurred without recompense to the legitimate land custodians.[10]

Had the regional governments enacted regional regulations that protect Indigenous Peoples’s rights, Indigenous Peoples could have used their legal rights to fight for their lands and ecosystems. These incidents, without doubt, underscore a glaring gap in the UU PPLH’s protective provisions for Indigenous Peoples. They accentuate the imperative need to embed and involve Indigenous Peoples in the evaluative and permitting phases. This inclusion is crucial, given the profound and immediate repercussions that Indigenous communities face due to developmental and corporate interventions in their ancestral lands.

TOOLS INTRODUCED BY INDONESIA’S ENVIRONMENTAL LAW

The UU PPLH has proactively introduced a suite of instruments to prevent environmental degradation that could ensue from developmental initiatives. Among these instruments are the Environmental Impact Assessments (Amdal)[11], the Strategic Environmental Impact Assessment (KLHS),[12] and the Environmental Management Efforts and Environmental Monitoring (UKL-UPL).[13]

Amdal’s origin can be traced back to the United States legislative action in 1969 with the inception of the National Environmental Policy Act (NEPA). NEPA’s Section 102, paragraph (2)(C) unequivocally stipulates that all legislative blueprints and federal government undertakings with discernible environmental repercussions should be supplemented with an Environmental Impact Assessment (EIA) report. This novel Amdal methodology rapidly gained traction in nations, permeating from developed countries that grasped Amdal’s pivotal role in precluding extensive environmental harm from anthropogenic activities. Echoing the ethos of NEPA, Indonesia enacted Law Number 4 of 1982 on Basic Provisions on Environmental Management, crystallising the nation’s first pledge to synchronise development whilst cognisant of environmental ramifications harmoniously.[14]

Sine then, the Amdal has advanced as an impact-assessment tool with the promulgation of the UU PPLH. Within the ambit of UU PPLH, the Amdal firmly establishes itself as an indispensable criterion for procuring an environmental license—a sine qua non before acquiring a business permit.

In a commendable attempt to refine the instruments at hand, the KLHS emerges as a superlative iteration of the Amdal. Whilst the Amdal predominantly zeros in on discrete projects, the KLHS casts a broader net, enveloping the entire spectrum of Policies, Plans, and/or Programmes (PPP) pertinent to development. The essence of KLHS is to promote policies, schemes, and agendas that are participative, transparent, and accountable, all the while being intertwined with environmental considerations and the overarching theme of sustainability.[15]

However, it is pivotal to underscore the modification to the UU PPLH introduced by the Omnibus Law, Law Number 6 of 2023, concerning the Stipulation of Government Regulations in Lieu of Law Number 2 of 2022 concerning Job Creation into Law (UU CK). This legislation, aimed at drastically simplifying 79 laws into one, sought to create a conducive environment for business and investment, catering to domestic small and medium enterprises and foreign investors. However, amidst the prevailing structural conflicts and the absence of rules that recognise and protect the rights and habitats of indigenous peoples, several clusters of UU CK provisions pose potential threats to these communities, especially in the expropriation of ancestral lands. The UU CK’s overarching pro-investment stance and the curtailment of public participation, notably in drafting Environmental Impact Assessments (Amdal), have further side-lined the interests of indigenous communities. This contraction of public involvement, evidenced by the narrowing scope of community participation in Amdal processes and other provisions, illuminates the need for a more inclusive and comprehensive UU PPLH that integrates indigenous rights within its framework.[16]

PROPOSED REVISIONS TO INDONESIA’S ENVIRONMENTAL LAW

As delineated in prior sections, the current provisions of the UU PPLH pertaining to Indigenous Peoples fall short in providing adequate protection to these groups. These groups are often the most affected by environmental alterations, particularly those emanating from development and industrial operations. Given this lacuna, there is an urgent need to revise the UU PPLH. This article endeavors to proffer several pivotal revisions, primarily emphasizing the incorporation of considerations for and the participation of Indigenous Peoples in every environmental policy that has direct implications on these communities.

Firstly, a thorough re-evaluation of the preventative instruments of environmental degradation—namely, Amdal, KLHS, and UKL-UPL—is paramount. A meticulous perusal of the UU PPLH indicates that the rights and participatory role of Indigenous Peoples could ostensibly be subsumed under various provisions such as the criteria for determining significant impacts of activities, constituents of Amdal documents, principles rooted in local wisdom, among other provisions that potentially serve Indigenous interests. Nevertheless, the stark reality underscores a palpable void in their efficacious engagement. Thus, the ensuing proposed revisions emphasize the explicit inclusion of provisions that resonate with Indigenous Peoples’ concerns.

In the context of Article 22, which mandates that an Amdal must accompany every venture or undertaking that poses a substantial environmental impact, it is suggested that the criteria delineating such impacts should expressly include ‘direct repercussions on Indigenous Peoples’.

Further, Article 23 elucidates specific criteria for businesses or activities with significant impacts necessitating an Amdal. Within this purview is a glaring omission of considerations pertinent to Indigenous Peoples. It is thus imperative to append ‘businesses or projects that may influence or affect the livelihoods of Indigenous Peoples’.

Furthermore, Article 26, paragraphs (1) and (2), underscore the salience of public engagement in the Amdal document’s formulation. It highlights incorporating parties directly affected by the prospective business or activity. It is, therefore, postulated that the phrase “directly affected Indigenous Peoples” be unequivocally included.

Secondly, it is imperative to iterate the inclusion of provisions in the UU PPLH that champion the environmental rights for Indigenous Peoples. While the Bill on Indigenous Peoples, which has been in stasis since 2020, awaits enactment, it houses a provision which, in the author’s assessment, warrants inclusion in the UU PPLH. This provision, anchored in Article 32 of said Bill, delineates the environmental right, stating, “Indigenous Peoples have the right to a good and healthy environment manifested in the form of: a. submitting proposals and/or objections to business plans and/or activities that may have an impact on the environment; b. filing complaints due to alleged pollution and/or environmental damage; and c. benefiting from the use of traditional knowledge related to economically valuable environmental management.”

As elucidated above, the proposed amendment to the UU PPLH would ensure that the considerations, active involvement, and inalienable rights of Indigenous Peoples are enshrined with clarity and precision within Indonesia’s environmental regulatory scaffold. These alterations could mark a paradigm shift towards a more inclusive, just, and sustainable approach to environmental stewardship and preservation in Indonesia.

POTENTIAL IMPACT OF THE PROPOSED REVISIONS

During the UN Stockholm+50 conference held from 2nd to 3rd June 2022, a marked shift in the paradigm concerning the role of Indigenous Peoples in environmental management was evident. These communities are no longer solely perceived as vulnerable cohorts requiring protection but are increasingly recognized as custodians of traditional and sustainable environmental knowledge. This evolution accentuates the criticality of Indigenous Peoples’ involvement in environmental conservation and pertinent decision-making processes.[17] The Stockholm+50 Indigenous Peoples Declaration, emanating from the conference, poignantly observes, “…conservation is often orchestrated for us and around us, not in concert with us…”. This assertion implores governments and global institutions to acknowledge and bolster the engagement of Indigenous Peoples in environmental stewardship.[18]

The proposed amendments to the UU PPLH resonate with the cardinal tenets underscored in the conference and its subsequent declaration. The proposed changes seek to augment the safeguards for Indigenous Peoples while championing their active contribution. In doing so, these revisions venerate Indigenous communities as entities intrinsically tethered to their ancestral domains.

Internationally, including Indigenous communities in environmental oversight has demonstrated substantial positive ramifications. For instance, forests under the stewardship of Indigenous Peoples in South America have witnessed deforestation rates plummeting by over 50% compared to alternative regions. A notable example is the Maya Petcacab community in Quintana Roo. Bolstered by technical and monetary aid from the Mexican administration, this community has judiciously practiced sustainable timber harvesting over four decades, presiding over a staggering 51,176 hectares, of which 80% comprises forested expanses. In the fiscal year 2016, this venture reaped profits of USD 1.7 million.[19]

By endorsing regulations that underscore Indigenous communities’ rights and proactive engagement, it is optimistic that similar positive outcomes can be seamlessly transposed to Indonesia’s environmental protection and management realm.

However, beyond the immediate implications for Indigenous Peoples and their environment, the potential ramifications of these proposed revisions should also be viewed from a broader perspective of government politics and national policies beyond the lens of environmental concerns. In its present trajectory, the Indonesian government is fervently endorsing initiatives to bolster the ease of conducting business and encouraging investment, as evinced by the promulgation of the UU CK. Within this milieu, advocacy for the rights and active involvement of Indigenous Peoples has been treated as an impediment to investment. This sentiment possibly elucidates the delayed enactment of the Bill on Indigenous Peoples. However, myriad global precedents underscore that with judicious policies in place, the active participation of Indigenous communities not only redounds to environmental dividends but concurrently galvanizes the nation’s economic vitality. Ergo, the suggested amendments are not merely pivotal; they are believed to augur well for the nation’s environmental milieu and broader critical sectors.

CONCLUSION

With its myriad indigenous communities, Indonesia spans tens of thousands of hectares of ancestral and forested terrains. The nexus between these indigenous communities and their environment is presently delineated within the provisions of the UU PPLH. However, the UU PPLH, in its current incarnation, falls short of robustly shielding these indigenous groups, who invariably bear the brunt of environmental vicissitudes, notably those emanating from developmental and industrial endeavors. There is an earnest aspiration that revisions to the UU PPLH will redress this by ingraining indigenous communities’ perspectives and active participation in every environmental policy that impinges upon them.

The mooted alterations to the UU PPLH can be distilled into two salient dimensions. The first gravitates towards the mechanisms for averting environmental pollution and/or degradation. The second zeroes in on the unequivocal articulation of Environmental Rights tailored for indigenous communities. Refinements to these stipulations are pivotal to ensure that the perspectives, engagement, and entitlements of Indigenous Peoples are indubitably enshrined within Indonesia’s environmental regulatory tapestry.

BIBLIOGRAPHY

Books

Aliansi Masyarakat Adat Nusantara, “Catatan Akhir Tahun 2021, Tangguh di Tengah Krisis”, (2021)

Direktorat Perlindungan dan Kesejahteraan Masyarakat Kementerian Perencanaan Pembangunan Nasional/ Badan Perencanaan Pembangunan Nasional, “Masyarakat Adat di Indonesia: Menuju Perlindungan Sosial yang Inklusif”, (2013).

Food and Agriculture Organization of the United Nations (FAO), Fund for the Development of the Indigenous Peoples of Latin America and the Caribbean (FILAC), “Forest governance by indigenous and tribal peoples. An opportunity for climate action in Latin America and the Caribbean”, 2021. < https://www.fao.org/3/cb2953en/cb2953en.pdf >

Komisi Nasional Hak Asasi Manusia Republik Indonesia, “Inkuiri Nasional Komnas HAM, Hak Masyarakat Hukum Adat atas Wilayahnya di Kawasan Hutan, Konflik Agraria Masyarakat Hukum Adat Atas Wilayahnya di Kwasan Hutan”, (2016)

Pusat Data dan Teknologi Informasi Sekretariat Jenderal Kementerian Pendidikan dan Kebudayaan, “Statistik Kebudayaan 2021”, (2021) <https://repositori.kemdikbud.go.id/22872/1/Statistik%20Kebudayaan%202021.pdf >

Journals

Jay Williams, “The Impact of Climate Change on Indigenous People – the Implications for the Cultural, Spiritual, Economic and Legal Rights of Indigenous People”, International Journal of Human Rights 16, no. 4 (2012).

Satria Sukananda, danag Adi Nugraha, “Urgensi Penerapan Analisis Dampak Lingkungan (AMDAL) sebagai Kontrol Dampak terhadap Lingkungan di Indonesia”, (2020), 1(2), Jurnal Penegakan Hukum dan Keadilan.

Sri Purnama and Fildza Nabila Avianti, “An Overview of The Challenges and Opportunities of Sustainable Business Environment in Indonesia: Safeguarding Indigenous People’s Cultural Heritage from Business-Induced Climate Losses”, The 9th Biennial Conference of the Asian Society of International Law, (2023) Indonesian Journal of International Law.

Widodo B, Ribut L, Donan W, “KLHS untuk Pembangunan Daerah yang Berkelanjutan”, (2012), 4(1), Jurnal Sains dan Teknologi Lingkungan.

Regulations

Law Number 32 of 2009 on Environmental Protection and Management (UU PPLH).

Website

Faisol Rahman, “Peranan Masyarakat Adat dalam Konservasi Lingkungan”, (2022), Pusat Studi Lingkungan Hidup Universitas Gadjah Mada, < https://pslh.ugm.ac.id/peranan-masyarakat-adat-dalam-konservasi-lingkungan/ >

Stockholm+50 Indigenous Peoples Declaration, <https://wedocs.unep.org/bitstream/handle/20.500.11822/40167/STOCKHOLM%2b50%20INDIGENOUS%20PEOPLES%20DECLARATION_FV.pdf?sequence=1&isAllowed=y >

[1] Setyawati Fitrianggraeni holds the position of Managing Partner at Anggraeni and Partners in Indonesia. She also serves as an Assistant Professor at the Faculty of Law, University of Indonesia, and is currently pursuing a PhD at the World Maritime University in Malmo, Sweden. Additionally, Fildza Nabila Avianti is a Senior Research Associate in the Ocean-Climate Research Group and Sri Purnama is a Junior Legal Research Analyst at Anggraeni and Partners, while at the same institution. The writers express their gratitude to Dr. Hary Elias for generously dedicating his time to provide valuable feedback on their article.

[2] Pusat Data dan Teknologi Informasi Sekretariat Jenderal Kementerian Pendidikan dan Kebudayaan, “Statistik Kebudayaan 2021”, (2021), 43, <https://repositori.kemdikbud.go.id/22872/1/Statistik%20Kebudayaan%202021.pdf>, accessed on 25 Agustus 2023

[3] Faisol Rahman, “Peranan Masyarakat Adat dalam Konservasi Lingkungan”, (2022), Pusat Studi Lingkungan Hidup Universitas Gadjah Mada, <https://pslh.ugm.ac.id/peranan-masyarakat-adat-dalam-konservasi-lingkungan/>, accessed on 26 Agustus 2023

[4] Direktorat Perlindungan dan Kesejahteraan Masyarakat Kementerian Perencanaan Pembangunan Nasional/ Badan Perencanaan Pembangunan Nasional, “Masyarakat Adat di Indonesia: Menuju Perlindungan Sosial yang Inklusif”, (2013).

[5] Jay Williams, “The Impact of Climate Change on Indigenous People – the Implications for the Cultural, Spiritual, Economic and Legal Rights of Indigenous People”, International Journal of Human Rights 16, no. 4 (2012): 648–688, in Sri Purnama and Fildza Nabila Avianti, “An Overview of The Challenges and Opportunities of Sustainable Business Environment in Indonesia: Safeguarding Indigenous People’s Cultural Heritage from Business-Induced Climate Losses”, The 9th Biennial Conference of the Asian Society of International Law, (2023), 2.

[6] Aliansi Masyarakat Adat Nusantara, “Catatan Akhir Tahun 2021, Tangguh di Tengah Krisis”, (2021), 12

[7] Sri Purnama dan Fildza Nabila Avianti, Op.Cit., 17

[8] UU PPLH Art 1 Number 31: “Indigenous peoples are a group of public living traditionally in a specific geographic area because of binding in origin of ancestor, strong relations with the environment as well as system of values determining economic, political, social and legal structures.”

[9] Komisi Nasional Hak Asasi Manusia Republik Indonesia, “Inkuiri Nasional Komnas HAM, Hak Masyarakat Hukum Adat atas Wilayahnya di Kawasan Hutan, Konflik Agraria Masyarakat Hukum Adat Atas Wilayahnya di Kwasan Hutan”, (2016), 613-642.

[10] Komisi Nasional Hak Asasi Manusia Republik Indonesia, Op. Cit., 957-958.

[11] UU PPLH Art 1 number 11: “Analisis Mengenai Dampak Lingkungan Hidup is an assessment of the significant environmental impacts of a planned project and/or activity, intended to be used as a prerequisite for decision-making regarding the implementation of the project and/or activity, and included in Business Licensing or approvals from the Central Government or Local Government.”

[12] UU PPLH Art 1 number 10: “Kajian Lingkungan Hidup Strategis is a systematic, comprehensive, and participatory analysis framework to ensure that the principles of Sustainable Development have become the foundation and integrated into the development of a region and/or policy, plan, and/or program.”

[13] UU PPLH Art 1 number 12: “Upaya Pengelolaan Lingkungan Hidup and Upaya Pemantauan Lingkungan Hidup is a series of processes for environmental management and monitoring, presented in the form of standards, to be used as a prerequisite for decision-making and included in Business Licensing or approvals from the Central Government or Local Government.”

[14] Satria Sukananda, Danang Adi Nugraha, “Urgensi Penerapan Analisis Dampak Lingkungan (AMDAL) sebagai Kontrol Dampak terhadap Lingkungan di Indonesia”, (2020), 1(2), Jurnal Penegakan Hukum dan Keadilan, 125.

[15] Widodo B, Ribut L, Donan W, “KLHS untuk Pembangunan Daerah yang Berkelanjutan”, (2012), 4(1), Jurnal Sains dan Teknologi Lingkungan, 43.

[16] Ferian Fajar, “Tanggung Jawab Pemerintah dalam Pemenuhan Hak Masyarakat Adat Pasca Undang-Undang Cipta Kerja”, (2023), 4, Jurnal Hukum Lex Generalis, 260, https://ojs.rewangrencang.com/index.php/JHLG/article/view/299/211 accessed on 12 September 2023.

[17] United Nations Environment Programme, “Biocultural stewardship for healing the planet: Indigenous peoples at Stockholm+50 as powerful agents of change”, (2022), <https://www.stockholm50.global/participate/stakeholder-engagement/indigenous-peoples-and-local-communities>

[18] Stockholm+50 Indigenous Peoples Declaration, <https://wedocs.unep.org/bitstream/handle/20.500.11822/40167/STOCKHOLM%2b50%20INDIGENOUS%20PEOPLES%20DECLARATION_FV.pdf?sequence=1&isAllowed=y>

[19] Food and Agriculture Organization of the United Nations (FAO), Fund for the Development of the Indigenous Peoples of Latin America and the Caribbean (FILAC), “Forest governance by indigenous and tribal peoples. An opportunity for climate action in Latin America and the Caribbean”, 2021. <https://www.fao.org/3/cb2953en/cb2953en.pdf> in Faisol Rahman, Op. Cit.

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