Earlier this month, a group of Indonesian and international organisations wrote to the UN Committee on the Elimination of Racial Discrimination about the Merauke Integrated Food and Energy Estate (MIFEE) project in Papua.
The letter provides information on the impacts of the MIFEE project on Indigenous Peoples and notes that the MIFEE project “falls within the paradigm of ‘land-grabbing‘ addressed in some detail by the UN Special Rapporteur on the Right to Food, Olivier de Schutter”.
The letter, which was submitted by 16 Indonesian NGOs and one international NGO, is available here (pdf file, 411 kB). This extract highlights the severity of the problems that the MIFEE project is causing for indigenous peoples in Merauke:
The situation of the indigenous peoples of Merauke continues to be dire and there has been no discernible change in policy or practice with respect to the MIFEE project . . . . Decisions that affect the indigenous peoples of Merauke and Papua more broadly continue to be adopted without their effective participation and without reference to their rights. These decisions are implemented and enforced in a highly prejudicial manner and indigenous Papuans continue to suffer extreme and pervasive discrimination and other serious violations of their human rights. Papua also continues to be heavily militarised and the military is often involved in protecting extractive operations and plantations on indigenous lands, as well as rights-violations more broadly.
The letter also refers to CERD’s previous letters to the Indonesian Ambassador to the United Nations. In addition to MIFEE, CERD’s letters raise the failure Indonesian forest law (including legislation on REDD) to respect Indigenous Peoples’ rights. CERD’s three letters are available here:
- 13 March 2009: Points out that, “it seems that Indonesia’s 2008 ‘Regulation on Implementation Procedures for Reducing Emissions from Deforestation and Forest Degradation’ reiterates Law 41 of 1999 on Forestry that appears to deny any proprietary rights to indigenous peoples in forests”.
- 28 September 2009: Refers to the letter dated 13 March 2009. “In the letter, reference was made in particular to the ‘Regulation on Implementaiton Procedures for Reducing Emissions from Deforestation and Forest Degradation’ (REDD), adopted within the framework of the United Nations Framework Convention for Climate Change. According to information received, the property rights fo indigenous peoples over traditional lands were not appropriately taken into account in the formulation of the Regulation, and financing for implementation is being sought from the World Bank’s Forest Carbon Partnership Facility without having secured the meaningful participation or consent of indigenous peoples. Thus, the Committee, after having preliminarily considered the matter under its early warning and early action procedure, expresses concern that indigenous peoples’ rights to their lands, territories and resources may not be sufficiently recognized and protected in the process.”
- 2 September 2011: This letter focusses on MIFEE. “[I]n the course fo its 79th session, the Committee considered the information on allegations on the threatening and imminent irreparable harm for the Malind and other indigenous people of the District of Marueke, Papua Province, due to the reportedly massive and non-consensual alienation of their traditional lands by the Marueke Integrated Food and Energy Estate project (called the MIFEE project).”
So far, CERD has received no reply to its letters.
The NGO letter to CERD includes the following section on the problems with Indonesia’s Forestry Regulations (the footnotes have been adjusted to start with the number 1 and the paragraph numbers have been deleted – otherwise it is unedited).
[ . . . ]
Discriminatory Forestry Regulations and REDD projects in Indonesia
In its September 2011 communication, the Committee requested that Indonesia respond to its September 2009 letter concerning the Forestry Ministry‘s 2009 REDD regulation, as well as inform it of the State‘s efforts to comply with its detailed 2007 recommendations concerning reform of its forestry, plantations and land legislation. These reforms recommended by the Committee are intended to ensure that these laws no longer discriminate against indigenous peoples. However, Indonesia is yet to revise the relevant laws and is yet to respond to the Committee‘s letter from September 2009 and its other requests for information.
In effect, Indonesia‘s REDD Regulation No.30/2009 and the Law on Forestry (No.41/1999) allow the State to create a massive system of publicly- and privately-held forestry concessions and “carbon sinks” in the forests traditionally owned by indigenous peoples without any regard for their rights or existence. Disregard for the Committee‘s recommendations and indigenous peoples‘ rights more generally in REDD activities entails profound risks, risks that, as discussed below, have already materialised to indigenous peoples‘ detriment in actual REDD projects in Indonesia.
That REDD activities may have severe impacts on indigenous peoples has been acknowledged by the Office of the High Commissioner for Human Rights (“OHCHR”), the Permanent Forum on Indigenous Issues (“PFII”) and by the UN REDD Programme (“UNREDD”). The PFII decided in 2008 that, if they are to avoid harm to indigenous peoples, REDD plans and projects must “respect rights to land, territories and resources, and the rights of self-determination and the free, prior and informed consent of the indigenous peoples concerned.” The OHCHR observes that “indigenous communities fear expropriation of their lands and displacement” in connection with REDD initiatives, and concludes that indigenous peoples require special attention to ensure that their rights are respected. The UNREDD concurs and has formally incorporated the 2007 UN Declaration on the Rights of Indigenous Peoples into its operational policy instruments. It explains that the right to free, prior and informed consent is “a fundamental policy and operational underpinning of the UN-REDD Programme.” Indonesia‘s approach and practice with respect to REDD stands in stark contrast to the positions adopted by these UN bodies.
Indonesia‘s Forestry Ministry has stated that it is planning to conduct a review of its REDD regulations. However, no timeline has been established, no information has been provided to civil society as to how the review will be conducted or whether it will include consideration of how the current regulations discriminate against indigenous peoples. The Forestry Law – one of the laws specifically identified by the Committee in 2007 as lacking adequate protection for indigenous peoples‘ rights – is also included for revision in the National Legislation Program of 2010-2014. So far, however, there has been no effort by the State to move forward on the revision, nor any indication of when or how it may be reviewed.
While the Forestry Ministry repeatedly claims that its REDD Regulation provides an opportunity for indigenous peoples to participate in, and presumably benefit from, REDD projects, the requirements therein are presently impossible for them to fulfill. The current criteria for the inclusion of a “customary forest” (meaning forests located within lands traditionally owned by indigenous peoples) in REDD projects are:
- the enactment of the Forestry Ministry‘s Decree on the Rights to Customary Forest Management;
- obtaining a recommendation from the local government on the implementation of REDD;
- satisfying the criteria and indicators for the REDD project site; and
- submitting an implementation plan for the REDD project.
However, to date, the Forest Ministry has yet to enact the Decree on the Rights to Customary Forest Management, so it is impossible for communities to apply for and obtain a REDD license for their customary forests. Irrespective, this decree is not intended to constitute recognition of rights of ownership and control over traditional forests – as recommended by the Committee in its extensive 2007 concluding observations – but merely a license to obtain a revocable forestry concession in which payments may be made for maintaining forests and the carbon sequestered therein.
Indonesia is pursuing many REDD initiatives and projects in conjunction with various bilateral and multilateral parties. In the case of the World Bank‘s Forest Carbon Partnership Facility (“FCPF”), although the Indonesian Government has been preparing a plan with the FCPF for several years, its attempts to consult with indigenous peoples have been minimal. This is highly disturbing given that the OHCHR explains that “Participation in decision-making is of key importance in efforts to tackle climate change.” To make matters worse, the proposals submitted by Indonesia to the FCPF to date do not provide any indication that Indonesia intends to respect or even consider indigenous peoples‘ rights in relation to REDD, and it is entirely unclear how or whether World Bank safeguard policies will apply to FCPF activities.
Instead, Indonesia‘s submissions to the FCPF are based on a default position that indigenous peoples must accept REDD activities in their traditional territories. According to Indonesia, and as noted above, based on the REDD Regulation, indigenous peoples can be “REDD implementers” where they have some form of State-recognised “forest use rights” or, in cases where they do not, “these groups may be involved in monitoring….” At no point does Indonesia mention a right to participate in decision making and consent to REDD activities, and there is no provision for the protection of their property rights (an omission that is also present in paragraph 17 of the World Bank‘s Operational Policy 4.10 on Indigenous Peoples). This arbitrary distinction between indigenous peoples – a distinction based solely on the discriminatory failure of the State to recognise rights – further entrenches and aggravates Indonesia‘s impairment and nullification of indigenous peoples‘ rights.
Separately, the National Task Force on REDD+ Agency Establishment has developed a draft National Strategy on REDD, which states that REDD developments in Indonesia must respect the right of indigenous peoples to FPIC. The President is expected to issue the final REDD National Strategy in the next months. However, the draft National Strategy does not set out how it will be implemented, it may be changed prior to its adoption, and regulations on how the government and other REDD ‘developers’ should respect FPIC have yet to be drafted. Unless existing laws that discriminate against indigenous peoples are revised and indigenous peoples‘ territories are recognised, demarcated and protected by law, the draft National REDD strategy will be unable to prevent REDD activities further discriminating against and potentially causing harm to indigenous peoples precisely because these laws supersede and directly contradict the draft Strategy.
Such regulations and revisions to existing laws are urgently needed as the approximately 40 REDD pilot projects and “demonstration activities” around the archipelago are presently failing to respect the rights of indigenous peoples to own and control their territories and to FPIC. For instance, in Central Kalimantan, indigenous Dayak communities affected by the Australia-Indonesia Kalimantan Forest Carbon Partnership have been protesting about the failure of this initiative to respect their customary rights. In Jambi, Sumatra Province, coffee farmers have been protesting against their forced eviction to make way for a conservation project that will seek REDD financing. Numerous other examples could be cited. Due to an absence of effective domestic remedies, the affected communities are forced into public protests to seek protection for their rights, protests that are often violently supressed by State agents.
In sum, Indonesia has failed to take any steps to rectify the discriminatory provisions of its 2009 REDD regulation, as recommended by the Committee, and the Forestry Ministry continues to promote the instrument, despite the existence of a number of serious obstacles that preclude its beneficial application to indigenous peoples, and it continues to implement REDD projects that rely on its discriminatory provisions. Predictably, these projects have resulted in violations of indigenous peoples‘ rights, violations that are neither mitigated in fact nor actionable in domestic venues.
The State has indicated that the REDD regulation, and the Forestry Law, will be reviewed, but there is no indication of how this will occur or when and on what basis. While the draft National REDD strategy contains a number of important protections for indigenous peoples‘ rights, it remains a draft and may be changed prior to its adoption. Moreover, the draft National Strategy contradicts existing laws and there is no indication of how it may be implemented when adopted. The exclusion of respect for indigenous peoples‘ rights in Indonesia‘s engagement with the World Bank‘s FCPF is especially troubling, particularly given the lack of clarity about the potential application of World Bank safeguard policies in FCPF activities. Irrespective, the applicable World Bank safeguard policy on indigenous peoples does not require any action aimed at securing indigenous peoples‘ property rights as a prior condition to implementation of FCPF activities.
 ^^ See Regulation on Reduction of Emissions from Deforestation and Forest Degradation Procedures, Ministry of Forestry (No. 30/2009, P.30/Menhut-II/2009), 01 May 2009, at Art. 1(4) and (5); and Law 41, 1999 on Forestry, Art. 1(4) and (6)) (both explaining that “Indigenous forest is state forest located in the area of customary law” and, “state forest” is “forest that is on land that is not burdened by land rights”). Under the Basic Agrarian Law some form of customary rights to lands are recognised. However, these rights will be superseded by any grant of real title or other form of registered property right and the State has wide discretion to determine whether customary rights continue to exist. This legislative scheme was rejected by the Committee in its 2007 concluding observations. See CERD/C/IND/CO/3, at para. 15-7.
 ^^ Report of the Office of the United Nations High Commissioner for Human Rights on the relationship between climate change and human rights. UN Doc. A/HRC/10/61, 15 January 2009, para. 51-4, 68-8.
 ^^ See UN REDD Programme/Tebtebba Foundation, Global indigenous peoples’ consultation on reducing emissions from deforestation and forest degradation (REDD), Baguio City, Philippines, 12–14 November 2008.
 ^^ Operational Guidance: Engagement of Indigenous Peoples & other forest dependent communities, Working Draft, UN REDD Programme, 23 March 2009, p. 7 (stating that “All UN-REDD Programme activities, particularly those that may potentially impact Indigenous Peoples, must follow a human rights based approach and must also adhere to the United Nations Declaration on the Rights of Indigenous Peoples …”). Available at: un-redd.org.
 ^^ In 2010, the Ministry of Forestry held a meeting to consult with NGOs and indigenous peoples about the FCPF, but the invitations for the meeting were issued two days before it was held, few indigenous representatives were invited, and the time for the consultation was less than four hours. The consultation was so poorly organised that NGO and indigenous peoples denounced the event as a non-consultation. See redd-monitor.org. Nonetheless, in November 2011, without the prior knowledge of the participants, a FCPF consultant facilitating a workshop held under the auspices of the National Forestry Congress, attempted to have the workshop discussed above classified as a consultation on the FCPF. The participants at the workshop, however, immediately rejected such a classification.
 ^^ Complaints by the AMAN, the national indigenous peoples‘ organisation, about the lack of indigenous participation in FCPF related activities and the lack of attention for indigenous peoples‘ rights in REDD proposals prepared for the FCPF are available at: forestcarbonpartnership.org. Indonesia has not responded to these complaints, formally or otherwise.
 ^^ On the legitimacy of certain distinctions by states within or between indigenous peoples, see General Recommendation XXIV on Reporting of persons belonging to different races, national/ethnic groups, or indigenous peoples (Art. 1), 27/08/99, at para. 3 (stating that CERD “believes that there is an international standard concerning the specific rights of people belonging to such groups” and; “that the application of different criteria in order to determine ethnic groups or indigenous peoples, leading to the recognition of some and refusal to recognize others, may give rise to differing treatment for various groups within a country‘s population”). See also Guyana: 04/04/2006, CERD/C/GUY/CO/14, at para. 16. (expressing deep concern “about the State party‘s practice of granting land titles … on the basis of numerical and other criteria not necessarily in accordance with the traditions of indigenous communities concerned, thereby depriving untitled and ineligible communities of rights to lands they traditionally occupy)”.