Brazil Aims to Prevent Land Grabs in Amazon

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By ALEXEI BARRIONUEVO

VILA DOS CRENTES, Brazil — Raimundo Teixeira de Souza came to this sweltering Amazon outpost 15 years ago, looking for land. He bought 20 acres, he said, but more powerful farmers, who roam this Wild West territory with rifles strapped to their backs, forced him to sell much of it for a pittance.

Then someone shot and killed Mr. de Souza’s 23-year-old stepson in the middle of a village road two years ago, residents said. No one has been arrested. In fact, the new police chief has no record that the crime was even investigated by his predecessor. It is hardly surprising, the chief said, considering that he has only four investigators to cover an area of rampant land-grabbing and deforestation the size of Austria.

“We are being massacred,” said Mr. de Souza, 44, who leads the local residents’ association. “We just want to work and raise our children.”

It has been this way for decades, residents say. Throughout this huge stretch of the Amazon, the state has been virtually nonexistent, whether in the form of police officers or clear records of land ownership, giving way to a brazen culture of illegal land seizures, often at the tip of a gun barrel.

But using a new law, Brazil’s government is trying to impose order on this often lawless territory, and in the process, possibly nip away at a broader global concern: deforestation and the threat of climate change that comes with it.

For the first time, the Brazilian government is formally establishing who owns tens of millions of acres across the Amazon, enabling it to track who is responsible for clearing forests for logging and cattle — and who should be held accountable when it is done illegally.

“The government will finally know whose land it is, and who is responsible for what goes on there,” said Thomas E. Lovejoy, the biodiversity chair for the Heinz Center for Science, Economics and the Environment in Washington.

This county in the state of Pará is the worst place for forest destruction in Brazil, and environmentalists say they hope that the new law, approved by Brazil’s Congress in June, will help the government finally enforce its official limits on clearing land.

Image by World Bank Photo Collection via Flickr

But it is a huge and messy undertaking. Clear ownership records exist for less than 4 percent of the land in private hands throughout the Brazilian Amazon, government officials said. Here in Pará, officials have discovered false titles for about 320 million acres, almost double the amount of land that actually exists, according to federal officials.

And while small farmers like Mr. de Souza are pinning their hopes on the law, many larger-scale land holders say they have sacrificed too much blood and sweat for bureaucrats in Brasília, the capital, to force new rules upon them.

“Everything we have today was built from our own desire to work,” said Jorgiano Alves de Oliveira, 68, who raises cattle and grows cocoa on about 600 acres.

The problem began with the military dictatorship in the 1960s and 1970s, which invited settlers to occupy the Amazon but required them to clear forests to gain access to land and credit.

Growing criticism of Brazil’s Amazon policies pushed the civilian government of the 1980s to develop laws that, on paper at least, were among the world’s most protective of forests. But with scant presence of authorities to enforce them, the laws did little to stop the widespread grabbing of land.

“This chaos of legal insecurity was the most important basis for the perverse incentives in the Amazon to pillage rather than to preserve or to develop, and constant incitement to violence,” said Roberto Mangabeira Unger, the former minister for strategic affairs who helped develop the new land law.

Under the law, which applies to more than 150 million acres, the government will award plots up to 250 acres free to settlers. Bigger plots will be sold at varying prices, with or without public auctions, depending on their size. Those larger than about 6,000 acres cannot be sold without an explicit act of Congress. So far, settlers have registered about 4 percent of the land singled out under the law, according to government officials.

Since the days of the dictatorship, this huge county in Pará State, known as São Félix do Xingu, has drawn hardy settlers and prospectors in search of cheap land, good soil, a rich array of minerals and rare Amazon fruits.

But notorious criminals have also found refuge. Leonardo Dias Mendonça ran a vast criminal enterprise from São Félix, which included a fleet of planes used to deliver weapons to the Colombian rebels in exchange for drugs, before being convicted in 2003.

Disputes in São Félix were traditionally settled with “a lot of death,” said Waldemir de Oliveira, the leader of the São Félix agricultural association. “It was the law of the strongest,” Mr. de Oliveira said. “Farmers put guards on the perimeter of their land and no one went in. Those that did were told to ‘Get out or die.’ ”

Mr. de Oliveira and other residents say the violence is diminishing but is still a major worry. In November, a local bar owner turned the tables on four men who came to kill him in broad daylight, killing all of them, said João Gross, an architect in the area.

In Vila dos Crentes, the loud roar of a generator nearly drowned out a recent meeting of residents gathered in a church. “We are beginning to understand that we have to get engaged in reforestation and stop deforestation,” Mr. de Souza said.

But those goals are clouded by the constant threat of violence. Residents said workers on a nearby farm had been carrying out a campaign of violence and intimidation to try to force them out, and even dumped a poisonous chemical from a plane over the area, killing fish and animals.

In May 2007, residents found Mr. de Souza’s stepson dead in the road, shot multiple times.

“No one should make enemies here,” said Eder Rodrigues de Oliveira, 26, who said he grew up with Mr. de Souza’s stepson. “Everyone here must be humble.”

At the closest police station, more than 100 miles away, Chief Álvaro Ikeda said killing was common here, touching a stack of files containing information about 11 suspected homicides under investigation.

Witnesses often are too afraid to come forward. “I cannot guarantee the witnesses’ life,” Chief Ikeda said. “I cannot even guarantee my own life.”

To that end, the police chief decided to live in the police station. He keeps a 12-gauge shotgun and an assault rifle at the ready.

“Here we do not let go of our guns,” he said.

Mery Galanternick contributed reporting from Rio de Janeiro.

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Inside Indonesia - Land titles do not equal agrarian reform

Activists split with Indonesia’s government over whether land registration helps the rural poor

Noer Fauzi

Land is a justice issue Danu Primanto

In a speech on 31 January 2007 President Susilo Bambang Yudhoyono said that agrarian reform would be a priority for his government. Since that time, Indonesia’s National Land Agency (BPN, Badan Pertanahan Nasional) has dramatically increased the rate at which it registers land title. But land rights activists are sharply critical of the government’s policy. Despite, the increase in registrations, we think the BPN has set aside its original agrarian reform goal of redistributing land to the poor. This is a goal that is mandated by Indonesia’s 1960 Basic Agrarian Law, as well as the 2001 legislative Decree No 9, on Agrarian Reform and Natural Resource Management. Providing individual land titles does not necessarily help the poor; in fact it can make the livelihoods of struggling rural people and communities even more precarious.

Accelerated land title registration

Under the leadership of Dr. Joyo Winoto, BPN has pursued a process of ‘legalising’ land assets through accelerating the certification of land titles at an astonishing rate. The volume of government sponsored land ‘legalisation’ has risen sharply. In 2004, before Joyo was appointed,, the BPN issued full legal title for only 269,902 land holdings. By 2008 the total had reached 2,172,507 – an increase of over 800 per cent. Adding cases for which individuals, groups, and businesses paid their own processing fees brings the total to 4,627,039 property titles certified.

Since 2004, BPN has used a 500 per cent budget increase to update its institutional procedures. It runs several schemes that aim to certify land titles, including two supported by World Bank loans: LMPDP (Land Management and Program Development Project) and RALAS (Reconstruction of Aceh Land Administration System). BPN has established a mobile Land Certification Service to extend its reach to some 60 per cent of Indonesia’s land area, sending officers to remote areas, and improving data processing and telecommunications.

With tight land and macro-economic conditions that do not favor small farmers, land title certification … without agrarian reform, is a systematic tool that forces farmers to sell their land more quickly

With such accelerated service, Joyo Winoto estimates it will take only 18 years more to title all land holdings in Indonesia. President Yudhoyono’s campaign team celebrated this spectacular success in a full-page advertisement: ‘Land for the People. Not Just Empty Words’ (Pertanahan untuk Rakyat. Bukan Omong Kosong) in the newspaper Media Indonesia of 24 June 2009.

President Yudhoyono touts his agrarian reform achievements

The advertisement appeared as the 188 member organisations of the Consortium for Agrarian Reform (KPA, Konsorsium Pembaruan Agraria) held their fifth national conference in Puncak, West Java. At the meeting KPA leaders introduced a strategic program and targets, results of three years’ work. KPA was founded in 1995 as a nationwide network of NGOs involved in campaigning in favour of a policy of land redistribution for the rural poor.

KPA tackled the Land Agency’s claims of success skeptically. Were BPN’s remarkable figures on land title certification believable? More importantly, will universal land titles fulfill the primary goal of agrarian reform - to help lift poor people out of poverty? Will they protect the rights and livelihoods of poor farmers and marginalised indigenous communities?

As a national advocacy network of civil society organisations, KPA has long criticised the Land Administration Project, which is funded with a World Bank loan backed by AusAID (The Australian government’s overseas aid program). [See Inside Indonesia 47: July-Sept 1996, Noer Fauzi: ‘We Promote Community-based Land Mapping ’, and ‘Australians Help Codify Indonesian Land Titles ’].

In a press release on 3 July 2009, KPA’s new General Secretary Idham Arshad asserted that BPN’s land titling program will cause farmers with small land holdings to lose more land, because individual titles make land easier to sell or to mortgage. ‘With tight land and macro-economic conditions that do not favor small farmers, land title certification … without agrarian reform, is a systematic tool that forces farmers to sell their land more quickly. Land will be transferred toward big capital, so that the existing unequal land distribution will become even worse. That’s why farmland is now increasingly owned by urban non-farming groups, while poor farmers become farm labourers.’

Differing positions, arguments, and visions

Joyo Winoto, the BPN head, is aware that ‘legalising’ assets by certifying land titles often leads poor owners to lose their land, if they cannot use land optimally because they lack capital or other resources. To reduce farmers’ vulnerability, his reforms combine land titling with a range of support and extension services for poor farmers.

KPA activists criticise BPN’s primary focus on land titles, believing that land titles have become an end in themselves, not just a means to achieve broader social justice. Unlike KPA, officials at BPN treat land title certification as equivalent to agrarian reform. BPN agents in the field and district offices do not differentiate between the two major programs they administer to ‘legalise’ land assets: land registration through ‘adjudication’ (land titling through the World Bank-funded Land Management and Program Development Project) and ‘land redistribution’ (through the National Agrarian Reform Project, paid through the routine national budget). From 2005 to 2008, BPN registered some 651,000 land certificates through ‘adjudication’, while nearly 333,000 titles were registered through ‘land redistribution’ schemes. Both programs result in similar land title certificates with the same full legal force, despite the two programs’ differing goals, funding sources, budget mechanisms, and administrative procedures.

Yet these two program approaches recognise very different legal bases for land ownership. Legal titles granted through the ‘adjudication’ process certify property based on evidence of customary ownership, inheritance, purchase, donation/bequest, or other land transactions recognised by local practices. By contrast, BPN’s ‘redistribution’ process deals with ‘state land’ (tanah negara), that has been designated for redistribution by BPN, targeting approximately 1.1 million hectares of such land for eventual redistribution.

KPA contends that it is necessary to differentiate between land ‘legalisation’ and redistribution because of the very different origins, agendas, and visions of these two approaches. KPA asserts that BPN’s underlying purpose in certifying, or legalising, land titles is to foster a global agenda to expand the land market. In line with the World Bank’s economic liberalisation agenda, clarifying land rights by issuing land certificates in huge numbers furthers economic development.

In fact, BPN’s land title certification program is one tool in President Yudhoyono’s and Joyo Winoto’s embrace of an ideological vision promoted by Peruvian economist Hernando de Soto, the most recent in a long line of neo-liberal modernisation proponents to gain disciples in Indonesia. De Soto presented his thoughts to President Yudhoyono and ten cabinet-level ministers in November 2006 (see the report on the presidential website ).

De Soto’s reputation as a ‘global guru of neo-liberal populism’, as Mike Davis dubbed him in his 2006 book Planet of Slums, is based on de Soto’s promotion of a simple and highly seductive prescription: the solution to poverty lies in providing secure property rights to the poor, and integrating their land assets into the market system. The policy tool to achieve this is a massive government land registration and titling effort.

KPA’s alternative agrarian reform agenda starts from the evidence we see all around us of the suffering experienced by victims of land expropriation and land-grabbing, and the concentration of wealth by people who control extensive lands

De Soto believes that most rules that govern landed property and transactions in non-western nations like Indonesia operate outside the formal legal system, in customary and informal practices. Modernisation must transform all of these extra-legal rules into a single, integrated system of property rights and contracts accepted by all parties. Only in this way can the peoples’ land, now wasted as ‘dead capital’ beyond the formal legal system, be brought to life through land titling, and enter the economic system. Poor landowners will then be able to use their title as collateral in securing loans to assist their entrepreneurship. In this way, de Soto promotes a capitalist market system as the instrument to lift the people out of poverty.

In contrast to Joyo Winoto’s eager embrace of de Soto’s approach, KPA rejects the notion that integrating all land into the market system will overcome poverty in Indonesia. De Soto’s thinking merely softens, even hides, the greedy and predatory character of a capitalist economy based on universal private property and on commodification of everything through market mechanisms. KPA’s alternative agrarian reform agenda starts from the evidence we see all around us of the suffering experienced by victims of land expropriation and land-grabbing, and the concentration of wealth by people who control extensive lands.

In Indonesia, the underlying legal mechanism for pervasive land expropriation is what I call ‘state-isation of peoples’ land’ (negaraisasi tanah-tanah rakyat). In this process, the state legalises and legitimates its expropriation of peoples’ land, then turns it over to private companies for exploitation or ‘investment’. KPA rejects not only the transfer of control over land to private corporations, but also the ‘state-isation’ process that enables it.

KPA insists that the central intentions of the 1960 Basic Agrarian Law were to redistribute extensive land areas controlled by the state and by private companies, to give land to landless and impoverished farmers, and to raise their productivity by providing them with credit, education and appropriate technology. Managing land with regard to its ecological functions, rather than just profits, was also key in the Basic Agrarian Law. KPA supporters believe that only by reviving this agenda can we surmount the major causes of chronic rural poverty today.

Over the past five years, KPA’s leaders have worked closely with BPN’s policy reform process from conception to implementation. KPA took this course because the president had charged BPN to carry out an agrarian reform agenda, as spelled out in Presidential Decree No. 10/2006 and in other places. KPA hoped to see a genuine government agrarian reform program, dedicated to overcoming poverty and protecting human rights as its fundamental values. But, after four years of implementation, land rights activists including KPA have concluded that President Yudhoyono’s Program for Agrarian Reform has moved too far from the experiences of the victims of land expropriation and the day-to-day struggles of poor rural people.

Where are we going?

Government agencies are still a long way away from formulating a convincing approach to agrarian reform. Agrarian reformers in civil society must carefully consider our own future direction.

State land ‘reform’ policies legitimate a new model of land grabbing for food production, energy and biofuels, and the production of industrial raw materials

In the agrarian dialogue at KPA’s recent national conference, participants were troubled by more than just the problems of land titling. State land ‘reform’ policies also legitimate a new model of land grabbing for food production, energy and biofuels, and the production of industrial raw materials. If this model prevails, it will turn Indonesia into merely a source of land, natural resources, and cheap labour for the global market. Constant vigilance is required to accurately understand this, even more to resist it.

After almost ten years of democratic politics in Indonesia, now is a time for introspection and renewed resolve for those of us, like KPA, who struggle for agrarian justice. Where are we going? It will be a long, steep climb without clear direction unless we understand what has occurred, what is taking place now, and what is likely happen if current directions continue. ii

Noer Fauzi (noer@berkeley.edu) is a member of the KPA Expert Council, and is a PhD candidate in the Department of Environmental Science, Policy and Management (ESPM) at the University of California, Berkeley. He served two terms as Chairperson of KPA (1995-1998 and 1999-2002). He thanks his KPA colleagues, Usep Setiawan, Idham Arsyad, Dede Shineba, and Dewi Kartika for their efforts, as well as Laksmi Savitri, Mohamad Shohib, Adriana, and Ann Hawkins, for their feedback. Judith Mayer translated and adapted this article for Inside Indonesia.

Inside Indonesia - Fighting over the land and forest

Century-old conflicts persist in the vast tracts of Indonesia that are designated as state forest

Sandra Moniaga

Well-maintained irrigated ricefields located in one of the Ministry of Forestry’s claimed ‘state forest areas’ Sandra Moniaga

Citorek Kasepuhan is a adat (customary) community in Lebak district, Banten, some 200 kilometres from Jakarta. Community members consider the 7400 hectares of land they live on to be theirs, adat land by right. But the Ministry of Forestry regards a large part of that area as state forest, because it is located within the boundaries of Mount Halimun-Salak National Park. The area has been contested since the early 1900s, when the Dutch colonial government gazetted two-thirds of Kasepuhan’s adat land as state forest, and designated the other third as enclaves of private land for the community within the park.

Today, the Citorek Kasepuhan adat community still has little land tenure security. For their livelihood, most community members conduct farming, fishery and forestry activities on lands that are formally state forest areas. Some fear losing these lands; others face intimidation and legal judgments on charges of illegal logging. Some village residents would like to make substantial investments in land improvements, but refrain because they lack the necessary tenure security.

As well as forestry, fishery and farming, some Kasepuhan community members secretively engage in gold and lead mining, an activity which is not regulated in their own adat, but considered illegal under state law. The officers of the National Park have an ambiguous attitude toward the Citorek Kasepuhan community, sometimes trying to restrict their activities, at other times recognising their customary rights. This ambiguity makes it difficult for the park managers to draw up park management plans. The legal status and future of activities in this national park are full of uncertainty for all stakeholders.

The Lebak district government and legislature are familiar with the issue. The community has asked them to recognise their adat land rights. However, overlapping government authorities and gaps in political will make it hard to resolve the problem. Some laws and regulations empower the district government to solve these land conflicts, while others assign that authority to the Ministry of Forestry. Because the bulk of Citorek’s adat lands overlap with state forest, the district government asserts that the Ministry of Forestry holds the authority to resolve land conflicts. Meanwhile, the Ministry of Forestry says it has to wait for a provincial or district regulation on adat communities and their lands.

Forests and land rights

There are many ways to define what is a ‘forest’. If asked to do so, most of us immediately think of a place with a lot of trees. But many areas in Indonesia that government agencies classify as forests are actually village home sites, irrigated rice fields, fruit groves, upland rainfed farms, fishponds, or grazing lands.

Why do government agencies claim these agricultural lands as state forest areas? The formal legal answer is that according to the 1999 Forestry Law, ‘forest area’ means a certain area designated or stipulated by the government to be retained as permanent forest, and ‘state forest’ means a forest located on ‘lands bearing no ownership rights’ (the Indonesian phrase is ‘tanah yang tidak dibebani hak atas tanah’). The Ministry of Forestry uses these legal definitions to continue claiming 134 million hectares across Indonesia as ‘state forest’. The Center for International Forestry Research (CIFOR) estimates that in 2004 some 49 million people in Indonesia lived on lands classified as state forest.

Many areas in Indonesia that government agencies classify as forests are actually village home sites, irrigated rice fields, fruit groves, upland rainfed farms, fishponds, or grazing lands

Many adat communities in Indonesia have little tenure security for lands they have been living on, managing, or cultivating for generations. After the fall of the authoritarian Suharto regime in 1998, Indonesian reform advocates hoped the democratisation process would open up opportunities for formal recognition of adat communities’ customary land rights. Achievements by several adat communities in some districts, and by indigenous peoples in other countries, were a source of inspiration to the adat communities and their supporters. Yet, the government continues to consider many adat lands as state domain, state forest areas, or as no-man’s-land. Such centuries-old policies, dating to colonial times and even before in some cases, have resulted in adat communities losing control over their lands.

Why do adat communities still not enjoy legally secure rights over their lands? As part of Indonesia’s post-Suharto reforms, both human rights and adat rights were recognised in the constitution (the latter happened in 2002). This recognition should flow though to formal legal recognition of adat communities’ rights to their lands. Provisions in new legislation on human rights, regional autonomy and natural resources should have the same effect. In fact, little progress has been made. Why is this so, and what more must be done to provide secure land rights for Indonesia’s adat communities?

Colonial legacy and authoritarian continuity

Map of Lebak district showing the location of Citorek Kasepuhan Imam Hanafi

The state has ignored the land rights of adat communities since Dutch colonial times. The colonial government wanted land for commercial and conservation purposes, and appropriated land ‘that was not used by the local population’. The 1865 Forest Law gave the colonial state exclusive rights over forests, as did the Agrarian Law of 1870. Agrarian Decree No. 118 was the crucial implementing regulation of this law, and is still well known for its domein verklaring (declaration of state domain). The 1865 Forest Law was later replaced by the Forestry Decree of 1927 on Forestry in Java and Madura, which became the legal basis for delineating state forest and for gazetting state forest land in Java. This 1927 Forestry Decree legitimised turning adat community lands into state forest areas.

The Japanese colonial government during World War II did not restrict the use of state forest areas in Java by local populations. Communities used this moment of weakened control over forest areas to reclaim their lands, and they often did so with the support of local authorities. However, reclaimed lands were never legally registered. After Indonesia declared Independence in 1945, impoverished villagers continued to encroach into forest areas to grow crops and cut wood. In 1949, at least 400,000 hectares, or 14 per cent of Java’s state forest areas, were occupied by peasants, or deforested by civilian and military wood thieves.

The Center for International Forestry Research (CIFOR) estimates that in 2004 some 49 million people in Indonesia lived on lands classified as state forest

The Basic Agrarian Law No. 5/1960 recognised the existence of adat law communities and communal adat land rights. However, in practice this did not have any effect on the status of adat lands or on people’s activities in the forest, as there were no implementing regulations for the Basic Agrarian Law that acknowledged adat lands. Implementing regulations that recognise adat lands were not issued until 1999, almost 40 years later.

Under the Suharto regime, Indonesia’s forestry administration became more powerful and centralised. The forest was a major source of revenue for the state, and for private businesses which cultivated close relationship with the powerholders. Law No. 5/1967 on Forestry and its implementing regulations set up a system of forest use designation and timber concessions that remained in place for over 30 years, reinforcing government claims to state forest areas. The Suharto regime then established the Ministry of Forestry and gave it administrative control over all state forest lands within a context of authoritarian rule and state-led economic growth. The Basic Agrarian Law, with its promises of redistribution and community control could only be applied outside of state forest areas. The 1967 Forestry Law, administered by the Ministry of Forestry, covered all the state forest areas the government claimed, some 61 per cent of Indonesia’s total land area.

Contrary to the spirit of reformasi, the new law explicitly validated the status of forest areas that had been designated before the 1999 law was enacted, thus confirming the Ministry of Forestry’s control over huge tracts of Indonesia

Community land rights supporters hoped for change after Suharto, especially during the early days of reformasi in the late 1990s. The 1945 Constitution was amended between 1999 and 2002. It recognised the existence of adat law communities and their rights (with conditions). A new Forestry Law (No. 41/1999) delegated the authority to identify adat communities and their rights to provincial governments and district legislatures. It turned recognition of customary communities and their land rights from a human right into a political decision. Contrary to the spirit of reformasi, the new law explicitly validated the status of forest areas that had been designated before the 1999 law was enacted, thus confirming the Ministry of Forestry’s control over huge tracts of Indonesia, including areas where customary communities and millions of farmers live.

Lesson learned

Since 1998, the Citorek Kasepuhan community and other adat communities in Lebak have had greater opportunity for advocacy and to put forward legal arguments for recognition of their land rights. But they have had little success. They have learned that laws that recognise customary land rights are inconsistent, unclear and incomplete, even after the constitutional amendments of 2002. These legal realities, together with political and economic changes within the district and lack of political will on the part of the central government, constitute major challenges for them. Other adat communities throughout Indonesia who seek formal legal recognition of their land rights face similar challenges.

But weak internal capacity and organisation also limit many groups’ ability to engage in political legal and advocacy. Some adat communities are not very good at promoting their cause to the wider public. This is certainly the case with the Kasepuhan adat community, including the Citorek. Local politicians and community leaders in Banten often comment that the Kasepuhan lack the public profile of other adat communities, like the Baduy. Because there is little sympathy for the Kasepuhan in the wider public, local politicians feel no sense of urgency in responding to their needs.

Adat communities and other forest peoples are some of Indonesia’s poorest and most marginalised people. They need support to enhance their livelihoods and one way to give them that support is through restitution of their land rights. At the same time, state institutions need a clear mandate to implement democratic governance in a way that benefits local communities, including those living is so-called ‘state forests’. And everyone knows that Indonesia’s natural resources are degrading quickly, and need to be managed properly by all parties.

These efforts require a critical review of all relevant laws and regulations, with revision or replacement where necessary. Government agencies, at the central, provincial and regional levels, need to talk to adat communities about how to find a common vision for such a thorough-going legal review.

However, reform of state law is not the only solution. Adat needs to be transformed as well, and adat communities should receive legal education and services in accordance with their wishes. Adat institutions and community economic resources need to be strengthened.

The challenges of preventing environmental degradation and promoting community empowerment in Indonesia’s so-called state forests are enormous. They require nothing less than the development of a new legal paradigm within the state apparatus and society at large. ii

Sandra Moniaga (sandram@cbn.net.id) is a scholar and activist who focuses on environmental justice and community rights advocacy. She works with various organizations in Indonesia. She joined the Van Vollenhoven Institute in the Faculty of Law, University of Leiden in 2003-2008, and is currently completing her Ph.D. with the same institution. It includes the Lebak research reported in this article.

Inside Indonesia - Land and social justice

Communities struggle for access while reforms run aground

Judith Mayer

Land rights are crucial for social justice Judith Mayer

Questions of who controls land and how – and of who profits and who suffers as a result – are among the most contentious social and political issues facing Indonesia. Conflicts over land have seethed and erupted in Indonesia for decades. Successive governments have prioritised state development projects and the interests of corporate investors, plantations, timber and mining companies over local communities’ concerns for their own livelihoods and land heritage. Indonesia’s basic legal framework has often failed to protect the rights of local communities. The 1945 Constitution, for example, asserts that the nation’s land must be used for the benefit of Indonesia’s people, but fails to specify which people should benefit, or how the government will guarantee that promise.

The promise of reform

A decade ago the collapse of the Suharto regime and the subsequent reformasi period raised hopes that a new Indonesia would prioritise social justice and reinvigorate the land reform goals that had animated so many Indonesians during the country’s first years of independence. Reformers also hoped that new regional autonomy policies, which devolve revenue and administrative power to local governments, would create space for local people to influence decisions on who has access to land and natural resources.

There have been some real success stories. Experiments in local control and management of land, from urban riversides and sacred mountains in Java to forests and plantations in Kalimantan and Sumatra, draw on a mixture of contemporary interpretations of local adat (customary law), new models of community participation, and new enabling legislation, both national and regional.

Yet regional autonomy not only brought devolution of authority over land use and land allocation. It also shifted the locus of political patronage from the central government to the regional level. Many reforms that affect land ownership and land use are now ensnared in complex webs of local collusion, corruption and nepotism. Thousands of communities remain vulnerable to government-licensed appropriation of their lands, and to land and resource exploitation by private companies. Social movements across Indonesia have emerged to resist displacement and to promote a vision of land use that puts local communities first.

National issues, local struggles

This issue of Inside Indonesia presents a broad picture of recent struggles over land and social justice in Indonesia. The articles describe a range of local cases, and highlight some of the many social movements that aim to advance community land rights.

The first two articles, written by two of Indonesia’s most prominent activists on land and social justice issues, illustrate the interweaving of national context and local struggles that characterise most controversies over land in today’s Indonesia. Sandra Moniaga traces a century-old struggle for local land rights in rural Lebak (West Java) from colonial land laws through ongoing reforms, finding more continuity than change in state attitudes. Her article also introduces a basic history of structures, institutions and reform in Indonesian land law. Noer Fauzi calls for Indonesia to return to the fundamental goal of redistributing land to poor farmers that was proclaimed in the Basic Agrarian Law of 1960. Drawing attention to the government’s new efficiency in issuing land title certificates, he urges agrarian reform advocates not to confuse universal private land titles with the redistributive land reforms that poor people need.

Next are three accounts of local struggles. Alexandra Crosby recounts the Saminist movement’s resistance to efforts by a state-owned cement company to gain control of Central Java’s Kendeng Mountain as the site for a new cement factory and gravel quarries. Laurens Bakker moves the focus to East Kalimantan, showing how devolution of authority to make land use decisions has become an important source of political patronage for local elites. With inter-island immigrants added to East Kalimantan’s multi-ethnic ‘indigenous’ mix, ethnicity plays a key role in the complex politics of land in the province. Even so, Bakker is guardedly optimistic that decentralisation will contribute to land tenure security.

Afrizal presents contrasting pictures of government and company attempts to deal with local opposition to corporate oil palm plantations in the Sumatra provinces of West Sumatra and Riau. In West Sumatra, the provincial government’s recognition of local adat land rights appears to be helping companies and their government supporters negotiate with local communities and quell their opposition to plantation developments. By contrast, Riau officials’ failure to recognise adat land rights continues to frustrate local communities confronting oil palm corporations.

Urban land

The last four articles focus on social justice issues in urban and urbanising areas. Gustav Reerink and Tristam Moeliono both focus on controversies surrounding the recent development of elite gated communities in the outskirts of Bandung. These developments are similar to hundreds of others that are taking over huge swathes of recently-rural land surrounding dozens of Indonesian cities. Gated communities are both reactions against urban sprawl and perpetrators of it. The articles decry the failure of spatial planning to safeguard environmental quality in Bandung’s watershed area, and the rights of the farmers and slum dwellers evicted by these huge private developments. Spatial planning reforms, in these accounts, have been hijacked to generate government revenues and political patronage.

Deden Rukmana explains Jakarta’s paradoxical approach of expanding the city’s green spaces while failing to control the massive construction that is a major cause of the city’s notorious floods. Jakarta’s leaders have designated open space areas along the banks of several rivers, streams, and catchment basins to protect against floods. Thousands of poor people have been evicted from their homes and sources of livelihood in the process. Yet the city has allowed new fuel stations to operate in ‘green’ areas and developers of luxury apartment complexes, shopping centres, and office blocks disregard the land use designations in Jakarta’s spatial plan with impunity.

However, there are some signs of hope for both social justice and improved environmental quality in Indonesia’s cities. Architect Antonio Ismael Risianto works with disadvantaged urban communities around Indonesia to improve their living and working conditions, their broader physical environments and their security in the face of both physical hazards like flooding and threats of expropriation. While most architects follow an easier path toward money, Antonio Ismael Risianto facilitates participatory processes and trains ‘barefoot architects’ emphasising social justice rather than developers’ profits.

In urban and rural areas, in Java and beyond, the articles in this edition of Inside Indonesia show that struggles for social justice throughout Indonesia continue to focus on demands for equitable access to land. They suggest that a land reform agenda must remain a central concern for all people who want to advance progressive social and political change in Indonesia. ii

Judith Mayer (jmayer@humboldt1.com) is an environmental planner in northern California, USA. Currently Coordinator of The Borneo Project of Earth Island Institute, her recent research in Indonesia has focused on community based resource management in Kalimantan. Judith holds Masters and PhD degrees in planning, and has taught at Virginia Tech and Humboldt State University. She would like to acknowledge the assistance of Blair Palmer in editing this edition of Inside Indonesia.

Govt’s land policy failing most vulnerable - Phnom Penh Post

Monday, 28 September 2009 15:04 Sebastian Stragio and Meas Sokchea

Photo by: Sovan Philong

Chab Bunleang, 49, who lives along rail lines in the north of Phnom Penh in a home she said she has owned for two decades, belongs to one of 23 households facing eviction. Three families have agreed to government compensation since last week.

VULNERABLE communities are still being subjected to land-tenure insecurity and forced displacement despite a seven-year, multimillion-dollar effort to reform the land sector, according to a report to be released today.

The report, produced by a coalition of local and international housing rights groups, says the donor-funded US$38.4 million Land Management and Administration Project (LMAP) has failed the country’s poor by “entrenching inequality”, signalling a potentially dark future for land rights in Cambodia.

LMAP was established in 2002 with funding from international donors including the World Bank with a goal of establishing an “efficient and transparent land administration system” within five years.


The 81-page report acknowledges that the project has notched up some significant achievements, including issuing legal titles for more than 1 million pieces of land nationwide, but it argues that sporadic successes have been overshadowed by an increase in forced evictions and the project’s failure to protect those most vulnerable to exploitation.

“Despite significant successes in some areas, LMAP is not improving tenure security for segments of Cambodian society that are most vulnerable to displacement,” the report states.

“Vulnerable groups that have legitimate claims to land are routinely and arbitrarily denied access to land-titling and dispute-resolution mechanisms, which undermines the project’s aim of reducing poverty and promoting social stability.”

A key defect identified by the report is the fact that LMAP’s land-titling system has excluded areas that are “likely to be disputed” or of “unclear status”, cutting tens of thousands of families off from access to land titles under the Kingdom’s 2001 Land Law.

The area around Phnom Penh’s Boeung Kak lake, where more than 4,000 families have been unable to apply for land titles because the lake lies in a “development zone”, is cited as a key example. It also expresses concerns for the protection of indigenous land rights and argues that LMAP’s land-dispute resolution mechanism has failed to create a “fairly accessible, efficient and impartial” means of resolving conflicts.

“If the system continues to exclude vulnerable groups, the benefits of the programme will be overshadowed by the harms,” said David Pred, country director of international rights group Bridges Across Borders, which contributed to the report.

“The experience of LMAP has demonstrated that many of the intended benefits of titling do not materialise in the absence of the rule of law and functioning dispute-resolution mechanisms to protect people’s rights.”

Yeng Virak, executive director of the Community Legal Education Centre, said LMAP’s land-registration drive had made significant achievements, but that the project is restricted by the “rigidity” of its design and implementation.

Particularly, he said, the fact that LMAP’s land-titling programme is not carried out in at-risk areas means that many strong legal claims – including those from Phnom Penh’s

Boeung Kak, Group 78 and Dey Krahorm areas – had not been rewarded with land titles.

“[The] existing legal instruments are sufficient,” he said. “Their possession rights should be recognised and respected.”

Land Management Minister Im Chhun Lim could not be reached for comment Sunday, but Phnom Penh Deputy Governor Mann Chhoeun rejected the contents of the report, saying dispute-resolution mechanisms at district and provincial levels had been successfully enforced by governors.

“Both bodies have helped balance the work so that it is better and … responds to the people’s need more effectively. This is [an example of]
good governance,” he told the Post.

Rights groups on Sunday expressed fears the successor programmes to LMAP – the Land Administration Sub-Sector Programme and Land Management Sub-Sector Programme – will do little to improve the situation.

“We hope to see both development partners and the government do a better job of fulfilling their responsibilities under the successor programmes,” said Natalie Bugalski, a legal officer from the Centre of Housing Rights and Evictions, which also contributed to the report.
Pred said the success of future programmes relied on more than the good intentions of one or two stakeholders.

“The most serious problems that we document in the report are beyond the capacity of LMAP and the Ministry of Land to address, and require better interministerial cooperation and political will that has so far been sorely lacking,” he said.