Komnas HAM’s National Inquiry Papua Region: President Should Re-examine MIFEE Program

Inkuiri-Nasional-Komnas-HAM-Wilayah-PapuaIndonesia’s National Human Rights Commission held the testimonial hearing of its National Inquiry for the Papua region in the Law and Human Rights Ministry Regional Office from 26th-28th November 2014. The hearing investigated five cases: PTPN II’s oil palm plantation in Arso, Keerom Regency, PT Nabire Baru and PT Sariwana Unggal Mandiri’s oil palm plantation in Nabire Regency, gold mining in Degeuwo, Paniai regency, MIFEE in Merauke, and finally logging companies PT Darma Mukti Persada and PT Kurniatama Sejahtera in Wondama Bay Regency.

The testimonal hearing, which was lchaired by Commissioner Sandrayati Moniaga, noted several findings where indigenous people’s rights have been ignored, including the state unilaterally classifying and establishing forest status without taking into account the existence of indigenous societies, resulting in a weakening of the link between Papuan indigenous people and their forests.

Another finding was that local government has played a weak role in exerting control over development and has allowed disputes over land and natural resource management to break out. Communities become mere objects, or have faced criminal charges, or when they express opposition to one of those development projects they are called provocateurs or OPM members. They are subject to violence, torture or shot, sometimes killed, creating a climate of trauma and fear.

There are 14 points which the National Inquiry’s testimonial hearing recommended for the Papua region, one of which was to ask the Indonesian President to re-examine the MIFEE program, which is underway in Merauke Regency. The full list of the National Inquiry’s recommendations is as follows:

  1. Central and local governments should speed up the consolidation of indigenous customary communities and their rights based on appropriate laws which incorporate Constitutional Court ruling number 35/PPU-X/2012. The state should swiftly move to devise and take clear, measured and scheduled steps to restore indigenous people’s inherent rights which have already been violated. This restoration, which may take time, should not imply delaying meeting the right to justice inherent for indigenous communities.

  2. The government and all parties must guard against and investigate the assumption that manipulation may take place in the process of releasing land which belongs to indigenous customary communities, including efforts to break the unity of indigenous customary communities so that companies can obtain various permits.

  3. Because of this the Environment and Forestry Ministry, Agrarian and Spatial Planning Ministry, Energy and Mineral Resources Ministry, Village, Development of Disadvantaged Areas and Transmigration ministry, and local governments, to improve the online system for awarding permits and establish a single map which will be transparent, participative and accountable.

  4. There need to be efforts to resolve land rights conflicts which have persisted for many years as soon as possible, peacefully and based on principles of respecting and protecting indigenous customary communities’ human rights, including environmental protection, through a moratorium on permits for activities by companies or other elements of society, which would make an exception for traditional activities.

  5. The president should re-examine the MIFEE program. The Environment and Forestry Ministry and Merauke Regency Government should review the permits which have already been granted.

  6. Review the concept of development in Papua, based on the principles of protecting and respecting human rights, in accordance with the spirit of law 21/2001 concerning Papuan Special Autonomy, where the government, church and indigenous customary communities need to move to redefine a specifically Papuan concept of development. Including resolving existing issues of conflict and rights connected with natural resource management.

  7. There is an urgent need for regional planning, and establishing boundaries that can be agreed between the central and local governments, as well as indigenous customary communities, so that communities understand their rights and obligations concerning forest management. Planning who controls forest lands should be open and accountable, and should also consider the environment’s carrying capacity in each location.

  8. Local government together with the Yerisiam wider ethnic group should identify land, and the resources contained on that land, which are under the control of the Yerisiam ethnic group, respecting the Yerisiam people’s customary law and culture. Any damage to the environment, culture or artefacts that has occurred must be calculated and restored.

  9. In the future, when the government is planning land-use or the intended purpose of communities’ forests, there must be consultation and communication with communities who are directly or indirectly affected. The local government should also be responsible for people’s welfare in such areas by providing basic services, such as access to eduction and healthcare, in order to build capacity as part of a program to improve the community’s economy. If an Environmental Impact Assessment has already been carried out, there should be consultation with communities about its findings including all risks which may emerge from the company’s operations.

  10. The central and local governments should immediately review all mining permits that have been given to companies, especially those in areas designated as forest, to pro-actively confirm the status of permits. This will bring complications on the administrative side, for example operational permits and cultivation rights have to be dealt with thoroughly.

  11. The Indonesian Police should devise standard operating procedures when dealing with natural resource conflicts between indigenous customary communities, the government and companies from a human rights perspective and based on gender. The police should not place criminal charges on indigenous people for defending their customary rights, but should put forward an accountable process for upholding the law, which would mean prioritising material and substantial evidence over ‘formal evidence’.

  12. Companies’ social responsibility programs mast be grounded in human rights and gender considerations. Indigenous customary communities which are impacted by a company’s operations have a right to some kind of corporate social responsibility program, which shouldn’t just mean accepting aid, but instead promote participative, transparent and accountable means of advancing development and building the capacity of indigenous communities.

  13. PTPN II, as a state-owned enterprise, should have a mandate from the state to not only focus on profit-making activities, it should also evaluate how to support Keerom Regency government to build the capacity of indigenous customary communities to manage (agro)industrial land.

  14. There is reasonable evidence to belive that a gross human rights violation occurred during Bloody Wasior events, which Komnas HAM has previously investigated, including killings, denial of freedom, torture, rape and forced disappearances of civilians. Because it occurred on a widespread scale, this kind of action can be categorised as a crime against humanity. A satisfactory resolution of the events of Wasior has yet to be found, either through the court system or other means, and this case has not become a reference for resolving indigenous people’s issues or developing good forest management practices in Indonesia.

The Indonesian Constitution instructs that the rights of indigenous customary communities must be recognised and protected. The fact that these rights have not been formally recognised in policy and legal regulations does not mean that the government should retreat from its obligations to respect, meet and protect the rights of indigenous customary communities.

In the wake of Constitutional Court decision 35/PPU-X/2012, there is an urgent need to move forward and take clear actions to reorganise the management of forested areas, especially indigenous people’s forest, by establishing a clear and just legal framework which respects and recognises indigenous customary communities, and their constitutional rights.

Abepura, 28th November 2014

National Inquiry on the Rights of Indigenous Customary Communities to their Territories in Land Classed as Forest – Papua Regional Team

Chair: Sandrayati Moniaga

Source: Pusaka http://pusaka.or.id/inkuiri-nasional-wilayah-papua-presiden-kaji-ulang-program-mifee/

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