Papuan Governor Regulation No. 64/2012 and West Papuan Governor Regulation No. 5/2014 Only See Forest as Commodity, Not as Right of Access by Indigenous People

ELSAM, Jakarta – Papuan Governor Regulation No. 64 of 2012 on the Standard Compensation for Timber and Non-Timber Forest Products Collected on the Area of Land Rights of Indigenous People, and West Papuan Governor Regulation No. 5 of 2014 on the Standard Compensation for Timber on the Area of Land Rights of Indigenous People in West Papua Province, are considered to make it easy for companies to pay low amounts of compensation to indigenous people in Papua and West Papua. Both governor regulations (GRs) are also considered to be in opposition of local genius and higher legislations.

To that end, ELSAM and PUSAKA held a Public Examination of Papuan GR No. 64 of 2012 and West Papuan GR No. 5 of 2014 on Tuesday, 29 September 2015. The discussion presented Dr. Tri Hayati, S.H., M.H. (agrarian law expert, University of Indonesia); Imam Koeswahyono, S.H., M.Hum. (agrarian law expert, Brawijaya University); Pastor Anselm Amo (Director of the Office for Justice and Peace of the Archdiocese of Merauke); and Grahat Nagara, S.H., M.H. (researcher, Auriga Foundation) aimed to provide a critical note towards the two GRs.

During the discussion, Pastor Amo expressed deep regret to the development concept that has never favoured the indigenous people or forest-dependent people. According to him, the concept of development is more oriented to economic growth, and ignored welfare.

“When forests are taken, everything in it will be exhausted. We see what is happening in Merauke, development that emphasizes growth rather than empowerment,“ he said.

He also added that compensation given to indigenous or forest-dependent people will never suffice because the land, as source of the livelihood of the people, would be exhausted by development. He cited the Merauke Integrated Food and Energy Estate (MIFEE) megaproject, which he said is very problematic.

Meanwhile, according to Grahat, referring to the terms of Law No. 41 of 1999 on Forestry, the compensation stipulated in the two GRs would create uncertainty in the status of land rights. According to him, this is because the process of claiming of forest areas in Indonesia is still problematic, since it does not involve the community.

“The two GRSs have a different concept on forest rights, the forest rights according to the two GRs refer only to forest commodities instead of right to access. The Forestry Law and Special Regional Regulation 21/2008 talk about access, both agrarian and tenure, not only of timber,“ he said.

According to him, if the two GRs are used as basis in assessing compensation, it will be ambiguous because they do not have adequate legal substance and material.

Imam Koeswahyono considered that there are basic issues on land resources associated with Articles 14 and 15 of Law No. 5 of 1960 on the Basic Agrarian Law. In the Law, he said, land use must be taken into account, in this case forest areas of indigenous people. Moreover, he added, that collecting wood within the framework of exploitation should be able to prevent loss of quality or degradation of the environment.

“Thus, if we relate this with the provisions of Law No. 12/2011 on the Establishment of Legislation, the two Governor Regulations are contrary to higher laws,” he added.

Dr. Tri Hayati said many inconsistencies of the two GRs. One thing worth noting, she said, is Article 6 of the two GRs. There is a difference in determining the payment of compensation in Article 6 by consensus as in Article 5, but there is also the need to pay attention to the opinion/feedback from the district head, holders of IUPHHKHA, IUPHHK-HT, IUPHHBK, GPA and ILS and the local indigenous community.

“This of course requires a lengthy procedure in the absence of consensus, because many parties must be heard. Or even this will cause confusion on which parties must be considered in determining the compensation value,” she added.

The public examination results will be given to the stakeholders, especially the Governors of Papua and West Papua. Hopefully, the GRs will no longer create conflict in the field, which would bring misery to the community.

Writer: Mirwan
Editor: Ari Yurino