Indonesia’s stretch of territory is made up of over 17, 500 islands and is the world’s largest archipelago. The nation is dense in tropical forest and has the third largest coverage in the world (behind Brazil and the Democratic republic of Congo), of approximately 100 million hectares of tropical forest. Due to this wide geographical spread, different types of forests can be found, such as the evergreen lowland dipterocarp in Sumatra and Kalimantan, seasonal monsoon forests and savannah grasslands in Nusa Tenggara, nondipterocarp lowland forests/alpine areas in Papua and extensive mangrove regions nationwide. Within the different sub zones lives an amazing diversity of wildlife including the iconic red haired Indonesian orang-hutans (forest men), proboscis monkeys, gibbons, tigers, rhinoceros, elephants, cassowaries, birds of paradise and numerous other rare insect, bird, reptile and mammal species. Indonesia has a precious and unique ecosystem, but as exploitative forest practices are on the rise, many animals dependent on forest ecosystems have become endangered and face very real threats of extinction.
It is not just animals that are affected by detrimental forest practices, many indigenous Indonesians (warganegara pribumi) are facing major upheavals in their lives as these practices increase. Those most affected are the isolated indigenous communities living deep in the jungle (masyarakat terasing) who depend entirely on forest resources to support their survival,livelihood, traditional culture and lifestyles. It is these masyarakat terasing who are most vulnerable to detrimental impacts of forest management decisions that determine their access and ownership rights to land. In an era of increased outside interest in Indonesian forests by parties involved in a number of fields including Reducing Emissions from Deforestation and Forest Degradation (REDD) projects, mining companies, oil and logging companies, plantation projects, industrial developments (both government and private) and other interested industries, there has never been a more arresting need for confident legal protection of indigenous people’s land and human rights.
Although discussions, debates and internal negotiations regarding indigenous rights have been on the UN table for three decades, it was not until the 13th September, 2007 that an official Declaration on the Rights of Indigenous Peoples (DRIP) was adopted by the United Nations General Assembly by a majority of 144 states in favour and 4 votes against (out of interest, those states against were Australia, Canada, New Zealand and the United States). The fact that this declaration has been adopted for less than four years reflects an historical poor state of protection and a startlingly delayed rights-based representation of indigenous sovereignty worldwide. The declaration codifies and articulates a series of rights relating to customary law, natural resource use, land ownership, self-determination and lastly, indigenous autonomy in decision making processes under the principle of Free, Prior and Informed Consent (FPIC).
Article 19 of UNDRIP states that:
States shall consult and cooperate in good faith with the Indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.
While Article 32(2) outlines that:
States shall consult and cooperate in good faith with the Indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.
As a declaration, UNDRIP does not have the status of binding International law and as is, Free, Prior and Informed Consent (FPIC) can only be considered a principle of best practice. Although FPIC is not a legal requirement, many private companies and governments recognise the vital importance of this realisation and are working towards implementing meaningful FPIC with Indigenous communities. FPIC is a rights based model that has been designed to give more autonomy and ownership to Indigenous populations. It is not a set of consultations with already established outputs that is ‘presented’ to a said community; it is a process of informed and mutual negotiations that benefit counterparts and stakeholders involved in an ethical fashion.
To gain a deeper understanding of the issues, let’s take a closer look at what each of these principles entail.
- FREE. Indigenous people exercise free choice void of coercion, force, manipulation, bribes or alcohol to come to a consensus. Independent bodies not related financially or politically to the project developers should conduct negotiations to eliminate bias, act as a safeguard against misconduct and provide judicial remedies if conflict arises.
- PRIOR: Clear and sufficient notification is given to the community so that people have space to comprehend the project, request additional information, seek advice, clarify points and ask questions. In Australia this is 12 months, however time frames vary according to communities and projects worldwide.
- INFORMED: All relevant project information is provided in local languages and people have access to independent legal or technical advice from an outside party. Information can include preliminary assessment of the likely impact of the project, stakeholders involved in construction and operational phases (including local people, researchers, sponsors, commercial interests and partners), potential risks involved eg spiritual land concerns or pollution and projections of foreseen implications eg commercial, economic, environmental, cultural and conditions for 3rd party involvement.
- CONSENT: Approval of the project happens when negotiations are complete and legal documents produced that do or do not give permission for a project to go ahead. Indigenous people have the right to say YES or NO to a presented project and if the community says NO then projects cannot go ahead.
Because FPIC is ‘relatively’ new there are still many roadblocks involved in implementing and fulfilling indigenous people’s rights in practice. As you can imagine, if the negotiating party has private, for profit interests in forest resources, there is a real danger of manipulation or lack of transparency in the negotiating process, particularly considering the unequal levels of power between counterparts. If FPIC is to be a principle of delivered dignity and real equity, monitoring needs to be consistent and impartial to ensure fairness and authentic representation of indigenous rights holders.
In Indonesia, complications in delivering FPIC can arise because it is difficult to establish legal ownership of lands by indigenous communities living in and with the forests. It is difficult to claim rights if land ownership is not even in community hands. In a recent Forest Dialogue in Riau province, one of the root causes of problems discussed was state land. “Most communities in agricultural lands are considered to be on State land and almost all forests are classed as State Forest Areas. As a result, State agencies are granting leaseholds to palm oil companies on agricultural lands and to forestry companies in State Forests without taking community rights or views into account.” This issue is not an isolated or one off concern for Indonesia. One government representative from the National Land Bureau declared that there are over 3,500 land disputes associated with the palm oil industry in Indonesia, most of which stem from land acquisition processes that take indigenous land without allowing for customary rights or FPIC processes to be.
FPIC is a right of prime importance for indigenous people worldwide. The author has recently developed a keen interest in this field while researching indigenous people’s role in benefit sharing agreements through carbon trading projects in provinces of Indonesia. The author feels that more people should investigate and learn about FPIC as a principle of development and human rights and keep watch of how it is delivered in current and future projects in Indonesia and indeed, worldwide.