Examining the Legal (Un)Certainty of Indigenous Land Rights in Indonesia

Muammar

As land is significantly essential for indigenous people, legal certainty of customary land is a necessity. The lack of legal certainty in the form of certificates as proof of land ownership has led to many cases of indigenous land grabbing. AMAN reported at least 13 cases of expropriation of traditional territories in 2022, affecting 103,717 indigenous people and 251 hectares of traditional territories. This statistic only covers cases that went viral and does not represent many more cases in the field.

Among the examples is the case of the Lembo Reservoir construction in Rendu Village Butowe, East Nusa Tenggara (NTT). The reservoir construction is one of the seven national reservoirs in NTT set by President Jokowi. As reported by Tempo, people from three indigenous communities (Rendu, Ndora, and Lambo), who are directly affected, do not actually refuse the presence of the Lambo Reservoir if the project does not displace their customary land where there are sacred places, schools, traditional ritual places, and ancestral cemeteries.

For indigenous people, the land is important not merely for economic interests such as agriculture, plantations, or residences. Indigenous people have a deeply religious reflection on their land that goes beyond its use as a ritual site. Therefore, considering the religious dimension of land in the indigenous paradigm, this article argues that indigenous land grabbing, as in the case of Lambo Reservoir, is a human rights violation of religious freedom and that the lack of legal certainty over customary land rights is among the roots of the problem.

Human-Land Relationship in Indigenous Religion Paradigm

The world religion paradigm has heavily influenced the understanding of religion, raising boundaries between religion and non-religion and standards for identifying who counts as religious. This perspective then led to the hierarchical concept of three domains in the cosmos: the supernatural, culture, and nature. Supernatural (God, Goddess, and other sacred divine entities) occupies the highest position, while culture is the domain of humans, with nature (animals and plants) in the lowest position. This concept places humans and nature in a subject-object relationship.

This hierarchical relationship becomes problematic when used to determine indigenous traditions that assume human-nature intersubjective relation. Nature is a subject to indigenous people as they are. The indigenous religion paradigm emphasizes an inter-subjective cosmology in which humans and non-humans—including nature—are seen as relational subjects. Hence, the relationship between indigenous people and customary land cannot be simplified as a subject-object relationship. The importance of human-land relations in the indigenous religion paradigm then implies a must to preserve and protect the land. By maintaining this relationality, they are becoming religious.

Unconstitutional Governance of Customary Land

The existence of Indigenous Peoples is recognized by the Indonesian 1945 constitution in Article 18B (2), stating;  “Negara mengakui dan menghormati kesatuan kesatuan masyarakat hukum adat…” (the State recognizes and respects the unities of customary law community). Concerning indigenous places, the Constitutional Court decision 35/2012  insists that traditional territories must be returned to indigenous people because state control over traditional territories is unconstitutional.

There is also ATR/BPN Ministerial Regulation Number 18/2019 concerning Procedures for Administration of Customary Land Units of Customary Law Communities. Despite stipulating that customary land ownership is entitled to the indigenous people, this regulation requires state recognition of indigenous communities in order to have legal certainty over their land.

Nevertheless, the delay in enacting the Indigenous Peoples Bill (RUU Masyarakat Adat) and the lack of legal recognition of indigenous communities made the indigenous peoples’ rights vulnerable. In consequence, although the constitution and regulations clearly state that indigenous peoples have full control of their land, many of them are evicted from the land inherited from their ancestors. This is due to the absence of clear boundaries between customary forests and state-owned land, while the government uses customary land/forests without the indigenous people’s consent.

Expropriation of customary land by the government, viewed through the indigenous religion paradigm, violates the indigenous peoples’ right to religious freedom since land is religiously significant to them. This is unconstitutional because the Constitution and regulations guarantee both religious freedom and the citizenship status and rights of the indigenous people, especially those related to land.

Remaining Challenges

In the case of the Lombo Reservoir, legal uncertainty for customary land lets the state free to do whatever it wants with the land. One used Law Number 2 of 2012 concerning Land Acquisition for Development in the Public Interest to carry out land grabs under the pretext of development. This law indeed has been changed with the Job Creation Law or the Omnibus Law, which could be a breath of fresh air for indigenous peoples since it requires people’s agreement in the use of customary land. However, determining who is recognized as indigenous people has been regulated complicatedly.

The problem is that legal recognition for indigenous peoples is running very slowly in the regions. Meanwhile, the utilization of customary forests and lands for investment and development purposes is progressing rapidly. In short, acknowledging indigenous peoples’ land seems difficult, whereas obtaining business permits for the use of customary land for development and investment is easier.

One of the roots of all these complications is the ideology of modernization in the development of indigenous peoples. Development is always undertaken to reach the standards and characteristics of the so-called modern society. As Mansour Fakih (2002) emphasized, the ideology of modernization adopted by the development agenda in Indonesia is a weak and terrible point because it will only lead to a single point of view about the meaning of civilization.

In the case of Indigenous peoples in the Botowe Ronde, they are stigmatized as the “most backward,” which must be given a modern understanding. Certainly, that is contrary to the community’s needs, traditional values, and religious paradigms. Ritual sites, traditional houses, and their ancestral burials are displaced by the construction of reservoirs in the name of development and investment.

In the end, providing land for economic development purposes, which are mainly the political-economic interests of certain parties, violates the religious freedom and rights of indigenous peoples who are excluded from their territories. In this regard, indigenous peoples have lost the right to maintain their relationship with the land, which is significant for their religiosity and identity.

Muammar is a graduate student in the Center for Religious and Cross-cultural Studies (CRCS), Graduate School, Universitas Gadjah Mada