Defining ‘People’ and ‘Indigenous People’ in International Human Rights Law and Its Application in Indonesia

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brill.com/ijgr

Defining ‘People’ and ‘Indigenous People’

in International Human Rights Law and Its Application in Indonesia

M. Ya’kub Aiyub Kadir

Universitas Syiah Kuala, Banda Aceh, Indonesia m.yakub.akadir@unsyiah.ac.id

Abstract

This article investigates the problem of defining ‘people’ and ‘indigenous people’ under the International Human Rights Covenants and their application in the Indone- sian context. Using analyses based on the Third World Approach to International Law (twail), this article shows the problems facing Indonesia in identifying indigenous peoples as traditional peoples, in terms of being isolated peoples (Masyarakat Hukum Adat, hereafter mha), and the non-isolated indigenous peoples who were sovereign before the independence of Indonesia. This interpretation has been confusing in relation to the entitlement to natural resources. Therefore, this article proposes a new understanding of indigenous peoples, in order to arrive at better treatment and recognition and in terms of sharing power and the benefits of natural resources in the Indonesian system.

Keywords

people – indigenous people – international human rights law – Indonesia – Aceh

1 Defining ‘People’ and ‘Indigenous People’

Indigenous groups have been associated for centuries with a certain territory, even before a nation state came into being. They might be a small number of people with their own political structure, ceremonies, religion and customs, often not well-educated in contemporary terms, and territorially marginalised from other communities. This disadvantaged condition has included limited

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access (representation) to national and international decision-making pro- cesses for years.

Since the 1990s, complaints by many indigenous groups in pursuit of their rights that were deprived by unilateral states’ laws and policies, have reached the United Nations (un).1 These movements originated from the marginalised people in developed states who had been alienated from their land,2 natural resources and cultural values. The discrimination had been legalised by the laws of many states, such as Marshall’s formulation in the United States, and the experiences of forced dispossession and impoverishment of indigenous groups in Australia, Canada and New Zealand.3 The term ‘indigenous people’

was introduced internationally through the International Labour Organisa- tion (ilo) Convention No. 169/1989, then reconfirmed in the United Nations Declaration on the Rights of Indigenous Peoples (undrip 2007). The term ‘indigenous people’ was then interpreted within a postcolonial context and associated with the process of decolonisation,4 in which colonised people were in a territory distinct from the colonial power. 5

However, understanding the term ‘people’ as those who could legitimately use the right of self-determination under Article 1 of the International Hu- man Rights (ihr) Covenants becomes questionable in a postcolonial context.6 Duruigbo identified four meanings of ‘people’: “(1) Those under colonial occupation, (2) a portion of the population, especially indigenous people, (3) the whole of the population, or (4) a synonym for the state”.7 The undrip associ- ated self-determination with indigenous people,8 “in exercising their right to self-determination, have the right to autonomy or self-government in matters

1 See Andrew Huff, ‘Indigenous Land Rights and the New Self-Determination’, 16 Colorado Jour- nal of International Environmental Law (2005) pp. 295–324.

2 Theologians of the medieval Roman Catholic Church believed that all non-Christians and their lands fell under the dominion of the church under the doctrine of discovery. See Huff, ibid.

3 Ibid.

4 See further explanation in Ronald Niezen, The Origins of Indigenism: Human Rights and the Politics of Identity (University of California Press, Oakland, ca, 2003) pp. 4–5.

5 See the origin and the evolution of indigenous people in international law in Lillian Aponte Miranda, ‘The Role of International Law in Intrastate Natural Resources Allocation: Sover- eignty, Human Rights, and People based Development’, 45 Vand. J. Transnat’l L. (2012) p. 419.

6 For specific discussion, see M.Y.A. Kadir, ‘Application of the Law of Self-Determination in a Postcolonial Context: A Guideline’, 9 je Asia & Int’l L. (2016) pp 7–28.

7 Emeka Duruigbo, ‘Permanent Sovereignty and Peoples’ Ownership of Natural Resources in International Law’, 38 Geo. Wash. Int’l L. Rev. (2006) p. 52.

8 Article 3 of undrip states that “Indigenous peoples have the right to self-determination. By virtue of that right, they freely determine their political status and freely pursue their economic, social and cultural development” (emphasis added).

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relating to their internal and local affairs, as well as ways and means for financing their autonomous functions” (Article 4 undrip). The term ‘people’

in international law has become associated with indigenous people with an internal meaning of self-determination.9 The term is largely applied to circumstances in colonialist states, such as Australia with its aborigine people10 and the United States with the American Indian population, but it is also relevant to many postcolonial states that have similar problems with indigenous people. The idea of “indigenous people” contributes to the development of “a right over their collective ancestral territories” for “territorial minorities”.11

Indigenous peoples’ right to self-determination in the postcolonial context12 is an internal self-determination, in terms of freedom to express their concerns about politics, the economy and culture, in relation to their land and the resources therein.13 The term ‘colonial people’ replaced ‘indigenous people’ in a colonial context, but when the colonial situation ends, the indigenous remain in the territory. The emergence of newly independent states, which mostly de- pended on the support and recognition of colonialist states introduces some of the indigenous peoples therein to internal self-determination. Due to con- ditions similar to that of a colonial state and newly independent states, there

9 The Special Rapporteur Martinez Cobo provides a definition of indigenous people as;

“indigenous communities, peoples and nations are those which, having a historical con- tinuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or part of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as people, in accordance with their own cultural patterns, social institutions and legal system”. See Jose Martinez Cobo, Study of the Problem of Discrimination Against Indigenous Populations, Sub-Commission on the Prevention of Discrimination and the Protection of Minorities, un Doc.e/cn.4/Sub.2/1986/7/Add.4 (1986).

10 Australia has included self-determination in its Statutory Bill of Rights as internal self- determination. See Dylan Lino, ‘The Politics of Inclusion: The Right of Self-determination, Statutory Bills of Rights and Indigenous Peoples’, 34 Melbourne University Law Review (2010) p. 839.

11 Joshua Castellino and Jeremie Gilbert, ‘Self-determination, Indigenous People and Minorities’, 3 Macquarie Law Journal (2003) p. 168.

12 143 states were in favour of this declaration, 11 abstained and 4 were against (Canada, Australia, New Zealand and the United States). See the United Nations gaor, 61st session, 107th plenary mtg, Supp No. 49, un Doc a/res/61/295 (13 September 2007) p. 19.

13 Article 46 of undrip clearly preserves the territorial integrity of independent states and thereby excludes the possibility of secession. See Benedict Kingsbury, ‘Reconciling Five Competing Conceptual Structures of Indigenous People’s Claims in International and Comparative Law’, in Philip Alston (ed.) People’s Rights (oup, Oxford, 2001) pp. 93–95.

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has been a relational gap between a newly established government of a state and certain of its people therein, which reconfirms the status of an indigenous people as a legal entity within states, but ones who can be politically and economically marginalised.

‘Indigenous people’ might also relate to ‘minorities’, which has a broader meaning, as Article 27 of the International Convention on Civil and Political Rights (1966) declares:

[i]n those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

Minorities constitute distinctive ethnic, religious and linguistic entities within a state territory. The meaning was developed to respond to discrimination within a country against certain ethnic, religious and linguistic peoples. How- ever, minorities or indigenous groups have yet to be considered a collective entity under General Comment 23 on Article 27, which states that the minority right protected is the individual rights of members of a minority group, similar to the treatment of indigenous people.14

Equally, the inclusion of indigenous people within a cultural rights’ framework has limited them to the conservation of ceremonial culture, and does not involve economic rights over land and resources in their ancestral areas.

The promotion of rights aims “to rectify distributional inequities stemming from a lack of recognition of certain ‘people’ as sovereign right holders”.15 Miranda stated that: “[t]oday, human rights jurisprudence treats the issue of intrastate natural resource allocation not as one of sovereignty, but rather as one of culture”.16 Essentially, indigenous people are historically associated with resources,17 as they are considered “similarly situated to the colonial peoples to whom the principle originally applied”.18

Hence, there is no single clear and legitimate interpretation of these peoples under human rights’ law, and Human Rights Committee General Comment 12

14 See hr Committee, General Comment 23: The Right of Minorities (Art 27), un Doc ccpr/c/

21/Rev.1/Add.5 (1984), para. 7.

15 Miranda, supra note 5, p. 812.

16 Ibid., p. 811.

17 Ibid., p. 806.

18 Ibid.

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excludes them from the rights of an individual.19 Thus, without clear identification in international law, it can be argued that the meaning of ‘people’ should include a process of self-ascription and self-identification.20 The essential aspect of a people’s right to resources is that ‘people’ can hold states accountable under international law for the misuse of natural resources21 through human rights mechanisms.

2 Emerging Contest of People and State

There has been a dilemma in defining ‘people’ and ‘indigenous people’ in international human rights law (ihrl). Common Article 1 has placed self- determination as a right of peoples, but the Convention has been signed and ratified by states and therefore becomes the internal affair of a state.22 Significantly, the right refers to ‘people’ under colonisation from a Western power and has been followed by oppressed peoples, such as the indigenous within a state. In other words, it can be rephrased to mean that all colonised peoples have the right to determine their ‘political status’ in a postcolonial context, to be newly independent states. These states, as representatives of colonised peoples, still have a right to pursue their economic development. This right in practice has been interchangeable with the right to natural resources leading to the issue being continuously contested within postcolonial states.23

Moreover, the right of indigenous people to natural resources is disputed under current international law, and is excluded from the un framework as an international obligation, but held to be a state’s obligation instead. Freeman believes that the un is an association of state elites, whose primary purpose is to protect and promote the interests of their states and to maintain the existing order of those states, while commitments to the self-determination of peoples (whatever they are) and the rights of individuals, are subordinate to these purposes.24 On the other hand, Duruigbo argues that international law

19 See the exclusion of people complaint in the hr Committee General Comment 12.

20 See Karen Knop, Diversity and Self-Determination in International Law (cup, Cambridge, 2002).

21 Miranda, supra note 5, p. 805.

22 See James Crawford, ‘The Right of Self-Determination in International Law: Its Develop- ment and Future’, in Alston (ed.), supra note 13, pp. 10–67.

23 See Frederick E. Snyder and Surakiart Sathirathai (eds.), Third World Attitudes towards International Law: An Introduction (Martinus Nijhoff, The Hague, 1987).

24 See Michael Freeman, ‘The Right to Self-Determination in International Politics, Six Theo- ries in Search of Policy’, 25:3 Review of International Studies (1999) pp. 355–370.

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has placed the entitlement to natural resources with the people, with the government as the trustee or custodian.25 However, the state is the only legal subject recognised in international law, so the recognition of people’s associations with natural resources is not defined in international law.

International law tends to put people as the central object, rather than the state. However, states assume that they represent the will of the people in implementing welfare and justice, and the right to self-determination of peoples can be shifted to the right to self-determination of states. Such states have an obligation to ensure protection of their peoples, “to reach a meaningful form of autonomy without feeling a need to break out of an existing state”.26

In the context of decolonisation, the terms ‘people’ and ‘state’ were initially treated together, but gradually a gap has appeared. Colonial peoples have the right to self-determination and then to become newly independent states.

‘People’ then developed into a distinctive entity in relation to the state as a government. There was no clear differentiation between peoples and state in the postcolonial period, and a postcolonial state could be seen as equal to the whole of the people.27 However in practice, the state has gradually moved away from its people, fuelled by the differentiation between peoples and states, particularly when peoples’ rights are marginalised.28

3 The Emergence of the Indigenous Peoples’ Movements

Increasing state power to control resources in postcolonial states has not effectively improved the wellbeing of people. Resources are thus contested between peoples, the state and foreign investors. The governments of postcolonial

25 Duruigbo, supra note 7, p. 37.

26 See Jeffrey Herbst, ‘Global Change and the Future of Existing Nation-States’, in Wolfgang Danspeckgruber (ed.), Self-Determination of Peoples, Community, Nation, and State in an Interdependent World (Lynne Rienner, Boulder, 2002) p. 65; Article 28 of the Universal Declaration of Human Rrights (udhr) states that: “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized”.

27 See the the International Covenant on Civil and Political Rights (iccpr), Human Rights Committee, ‘Consideration of reports submitted by State parties under Article 40 of the Covenant: Initial reports of State parties Indonesia’, 19 January 2012, para. 384 (hereafter cited as the hr Committee 2012).

28 See Miranda, supra note 5, p. 785; Daria Davitti, ‘On the Meanings of International In- vestment Law and International Human Rights Law: The Alternative Narrative of Due Diligence’, 12:3 Human Rights Law Review (2012) pp. 421–453.

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states assume that all natural resources fall under their control and this leads to uncertain benefits for their peoples, particularly indigenous peoples.29 The problem was highlighted by Duruigbo, as “the inability of many countries to convert valuable natural resources into an enhanced standard of living for their citizens”30 and contributed to the negative impact of natural resource exploitation in many resource-rich countries, where “the population received almost no benefit, for example the resources with which their countries have been abundantly endowed”.31

Such systematic marginalisation has fuelled the emergence of peoples’

movements in postcolonial states, which has attracted little attention in international law as it was not initiated by governments, but rather from the basis of a community trying to protect its natural resources for sustainable development and the welfare of its people. Peoples’ movements regarding the national policy on natural resources has a direct or indirect effect over their lives. These peoples’ movements can take various forms, for instance in Indonesia when Suharto unexpectedly succeeded Sukarno in 1966. Under Suharto the centralisation of power was increased and consequently marginalised indigenous people. Much legislation and Bilateral Investment Treaties (bits) in this era were linked to the power of the state to fully control and share with foreign investors, while indigenous peoples were alienated. In this era, the marginalisation of indigenous peoples was legitimised by centralistic legislation that favoured central government and foreign investors.

The widening gap between state power and the benefits for indigenous peoples triggered the emergence of the popular movement to force the Suharto regime to step down in 1998, followed by actions to change hostile legislation concerning natural resources. For example, the multiple movements of disadvantaged peoples, represented by religious and social institutions, disputed Law No. 22/2001 on Oil and Gas at the Constitutional Court (mk) three times, and the Constitutional Court finally annulled the law.32 Similarly, peoples’

petitions have been filed over resource-related legislation, such as for elec- tricity, water resources, coastal resources and the like. Many indigenous peoples are marginalised and criminalised under people-unfriendly legislation.

29 This occurred, for example, in Nigeria and Equatorial Guinea, see Andreanna M. Truelove,

‘Oil, Diamonds, and Sunlight: Fostering Human Rights through Transparency in Revenues from Natural Resources’, 35 Gio. J. Int’l L. (2003) pp. 221–222.

30 Duruigbo, supra note 7, p. 33.

31 Ibid., p. 34.

32 See Constitutional Court Decision No. 002/puu-i/2003, 20/puu-v/2007, and 036/puu- x/2012 on judicial review Law No. 22/2001 on Oil and Gas as regards the 1945 Constitution.

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These indigenous peoples, represented by the National Alliance of Indonesian Indigenous People (aman), have filed a petition to the government to review the existing law and to propose a new bill on the protection of indigenous peoples.33

The popular movements over resources also involved the political self- determination struggle of the Free Aceh Movement (gam) in northern Indo- nesia, which in almost 30 years of armed conflict resulted in the sharing of resources between the Aceh people and the Indonesian government under the MoU Helsinki 2005 and the Law on Aceh Government (lag) 2006.34 The lack of communication with the local communities under Free, Prior and Informed Consent (fpic) principle, regarding natural resources, violated the populations’ rights.

The development of non-state actors to support marginalised people within a state as international legal personalities is important when a state fails to acknowledge the rights of its own people. The state as the primary subject of international law should strongly acknowledge the concerns of the people and ihr Law has an essential role in this context.35

Common Article 1 of the International Human Rights Covenant establish- es the status of ‘indigenous’ people to freely determine their political, social, economic and cultural rights within a state in the international arena, a right legally affirmed by the undrip 2007,36 “guided by the purposes and principles of the Charter of the United Nations, and good faith in the fulfilment of the obligations assumed by States in accordance with the Charter”.37 This Dec- laration stated “that indigenous peoples are equal to all other peoples, while

33 To illustrate some emerging cases in 2013 – Datu Pekasa in West Nusa Tenggara, several companies taking over Aru Island in Maluku Province, the invasion of Suku Anak Dalam in Jambi Province by pt Asiatic Persada, supported by military and police troops, forced eviction of the indigenous Semende from a national park in Bengkulu Province. Aliansi Masyarakat Adat Nusantara (aman), ‘2013: A Year in Review, Legal and Policy Changes’, (2013) pp. 9–10, <http://www.aman.or.id/en/wp-content/plugins/downloads-manager/

upload/2013%20a%20year%20in%20review.pdf>, accessed on 5 February 2015 (hereafter aman 2013).

34 M.Y.A. Kadir, ‘Revisiting Self-Determination Conflicts in Indonesia: An International Law Perspective’, 5 Indonesia Law Review (2015) p. 123.

35 See Halina Ward, ‘Resources Nationalism and Sustainable Development’, Working Pa- per March 2009, (iied, London 2009) p. 5, <pubs.iied.org/pdfs/G02507.pdf>, accessed 13 January 2015.

36 See The General Assembly Resolution on undrip, a/res/61/295 on 13 September 2007.

37 See J. Wright, ‘Minority Groups, Autonomy, and Self-Determination’, 19:4 Oxford Journal of Legal Studies (1999) pp. 605–629.

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recognizing the right of all peoples to be different, to consider themselves different, and to be respected as such”, and that “all peoples contribute to the diversity and richness of civilizations and cultures, which constitute the common heritage of humankind”. This is an international recognition of the equality of treatment of all peoples due to their distinctive cultures and civilizations.

The undrip 2007 has widened international attention on indigenous peoples’ situations in the postcolonial context. The Declaration has 46 Articles specifying the rights and duties of states for ensuring the political, economic, social and cultural rights of indigenous peoples. Article 3 of the undrip states that “Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”. In Article 4 the meaning of self- determination is limited to internal self-determination, as stated by: “Indig- enous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions”.38 Article 1 states that the right should be exercised both “as a collective and as individuals”. This exercise “varies from region to region and from country to country and that the significance of national and regional particularities and various historical and cultural backgrounds should be taken into consideration”.

There remains a tendency to preserve existing states and peoples as a united entity in a postcolonial context, as demands for political self- determination by the indigenous peoples, or the alteration of state-centric resource nationalism, could contribute to instability around the world. This relates to the inviolabil- ity of national borders and the goal of non-interference in the internal affairs of other states, in keeping with the principle of territorial sovereignty.39

This principle led the un to abstain from intervening in peoples’ movements over resource nationalism in postcolonial states, such as the indigenous peoples’ conflict with the central government of Indonesia.40 The governments of many postcolonial states which have peoples’ movements have not fully ac- knowledged their possible role in the potential settlement of such disputes through international human rights approaches. Such failures have worsened the situation through the violation of indigenous peoples’ rights and the crimi- nalisation of members of indigenous groups.

38 See The General Assembly Resolution on undrip, supra note 36.

39 Morton H. Halperin et al., Self-Determination in the New World Order (Carnegie Endow- ment for International Peace, Washington, dc, 1992) p. xi.

40 Ibid.

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As a result, postcolonial states have been cautious in reporting the implementation of Common Article 1 of the ihr Covenant to the Committee on Economic, Social and Cultural Rights (escr), and in protecting such peoples’

movements from international attention. Hence the role of educating people in human rights law should be handed not only to the governments of states and their relevant indigenous peoples’ movements, but also to the international community. The Committee on escr should give a clear assessment of the capacity of people to achieve greater control and benefit from natural resources arrangements. Many groups of indigenous peoples have emerged to claim their rights over natural resources.41 Natural resources’ conflicts between indigenous peoples in various states have led to a violation of human rights;

hence, it is the role of the Committee on escr to design better ways to inform indigenous peoples and their associated states in general. This understanding can be seen in the Indonesian case discussed below.42

4 Indigenous People in the Indonesian Context

The emergence of Indonesia since the Declaration of Independence in 1945 has united various indigenous peoples, sovereign kingdoms, tribes and ethnic groups in opposing Dutch colonialism, and this situation contributed to the complexity of defining indigenous people in contemporary Indonesia.

The term ‘indigenous people’ is known in different languages e.g. as ‘pribumi’

(native), as opposed to ‘orang asing’ (foreigner).

This article investigates two categories of indigenous peoples, isolated peoples called Masyarakat Hukum Adat (mha) and non-isolated peoples, especially autonomous peoples, such as in the sultanate of Aceh, i.e., people in Aceh province. The former are located in various regions in Indonesia, while the latter are specifically located in the north of the island of Sumatra.

41 Compare the number of political self-determination movements in Marc Weller, Escap- ing the Self-Determination Trap (cup, Cambridge, 2008) p. 182.

42 Other countries and regions have similar experiences, such as Sub-Saharan Africa, Nige- ria, Venezuela and Bolivia. See Melaku Geboye Desta and Moshe Hirsch, ‘African Coun- tries in the World Trading System: International Trade, Domestic Institutions and the Role of International Law’, 61 International & Comparative Law Quarterly (January 2012) pp. 127–170; Celestine Bassey and Felix Akpan, ‘Mainstreaming Peace and Security in the Niger Delta: Resource Control, Ethnic Nationalism and Conflict Cessation in a Turbulent System’, 12:6 Global Journal of Human Social Science (March 2012); Jason Pierce, ‘A South American Energy Treaty: How the Region Might Attract Foreign Investment in the Wake of Resource Nationalism’, 44 Cornell Int’l L. J. (2011) p. 440.

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The term ‘isolated’ should be understood in a wider sense as marginalised peoples both in forested and non-forested areas, in relation to the extraction of natural resources. Indigenous peoples historically associated with a territory and its resources are thus struggling against the autonomy of central government and its policies. The term ‘indigenous’ is commonly interchangeable with the term ‘Adat’ within the Indonesian context (see below).

4.1 Constitutional Limitations

There is a restricted legal recognition of indigenous peoples (mha) under Article 18B(2) of the 1945 Constitution:

[t]he State recognizes and respects the mha along with their traditional customary rights as long as they remain existed, in accordance with the contemporary societal development and the principles of the Unitary State of the Republic of Indonesia, and regulated by law.

This has been interpreted under Article 51(1)(b) of the Law on the Constitu- tional Court (mk) concerning the legal standing of the mha in the mk system as follows:43 (a) existed means actual existence, either based on territoriality, genealogy or functionality, in a group feeling, indigenous (Adat) structure, indigenous property, indigenous norms and in a certain territory;44 (b) being developed to the current level of development indicates that there must be a recognition of legislation both in central and regional governments, and in conformity with basic human rights;45 (c) it is under the principle of the Uni- tary State of Indonesia, as it is not against the sovereignty of Indonesia as a state; and (d) the substance of the mha rights are not against the law.46 Article 28 i(3) of the Constitution reconfirms that; “the cultural identities and rights of traditional cultural communities shall be respected in accordance with the contemporary developments and civilizations”. Article 32(1) and (2) also provide assurances as to the promotion of Indonesian communities by “guaran- teeing their freedom in maintaining and developing their cultural values”.47

Implementation laws have repeated this recognition in various expressions.

The Law on Regional Government and Forestry uses similar language to the

43 See Article 51(1) (b) of Law No. 24/2003 and its amendment Law No. 8/2011 on the mk.

44 See mk Decision No. 31/puu-v/2007, (para. 3.15.3).

45 See mk Decision No. 058–059–060–063/puu-ii/2004 and No. 008/puu-iii/2005, p. 503.

46 The legal standing of the mha has been described in mk Decision No. 06/puu-iii/2005, mk Decision No. 11/puu-v/2007, mk Decision No. 31/puu-v/2007, (para. 13.5.5.).

47 The hr Committee 2012, supra note 27.

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Constitution, while the Human Rights Law does not provide a definite definition, but refers to protecting the cultural identity of the mha.48 Similarly, the Basic Agrarian Law recognises and respects the indigenous peoples’ customary lands, as long as they conform to prevailing laws, regulations and national interests.49 The Law on Plantation identifies the mha as distinctive communities in terms of having power structures, custom based dispute settlement (hukum Adat) and requires that they are recognised by local regulations.50 The Law on the Environment considered the mha to be a group of people who have historically inhabited a certain area, are united genetically, have a strong relationship with the environment and value political, economic and social cultures.51 The Law on Coastal Management and Small Islands indicates that the mha covers the communities in Coastal Areas and Small Islands who have their own social, political, legal and economic systems.52

The various wordings in the different laws have contributed to a divergent understanding on the ground of the recognition of the legal status of the mha and their entitlements in the Indonesian legal system. Essentially, In- donesia has limited the mha to the smallest entity of an isolated traditional community beyond the formal structures of government. These peoples are required to self-identify to regain recognition and the power to control and benefit from their ancestral land areas. As they are considered a small number of communities, they lack political and economic access to formal government, which imposes a general regulation to claim their lands and resources therein. Therefore, this recognition has yet to effectively benefit them, as they are still discriminated against, unprotected and their traditional rights remain unfulfilled.53

48 Article 6(2) states: “the cultural identity of the mha including the right of indigenous (Ulayat) to be protected as in line with the development era”. See Article 6(1) of the Human Rights Law No. 39/1999, which states that: “in terms of enforcement of human rights, the differences and the needs of the mha must be respected and protected by the community and government regulation”.

49 Articles 2(4), 3 and 5 of Basic Agrarian Law No. 5/1960. See the Committee on escr, Fifty- second Session Summary Record of the 7th meeting, held at the Palais Wilson, Geneva, on Thursday, 1 May 2014, at 10 a.m., un Economic and Social Council, e/c.12/2014/sr.7, 28 May 2014, para. 8–13. (hereafter cited as the Committee on escr 2014).

50 Article 9(3) of Law No. 18/2004 on Plantation.

51 Article 1(31) of the Law on the Environment.

52 Article 1(33) of Law No. 27/2007 on Management of Coastal Areas and Small Islands (mcasi).

53 The cases mostly concern the establishment of a new region/district based on mha territory. For example case mk Decision No. 31/puu-v/2007 on the judicial review of the Law

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Equally, in practice, it has been difficult for the isolated mha to meet these qualifications, as they do not have a clear structure, or formal evidence for land and territory, or for the representation of their indigenous communities.

Therefore, their claims were rejected as lacking in legal standing.54 In other words, the Constitution and legislation have prevented the mha from legally existing and claiming their rights to a justice system. Such consequence can be seen from the jurisprudence of several national courts. For example, of about 1,400 cases concerning land disputes in the State Court in West Sumatra, all claims from the mha were denied, due to lack of evidence.55 Equally, 17 cases in the mk on the expansion of regional areas concerning the mha have been rejected.56

There is a limitation on the mha falling within the form of ‘Indigenous Vil- lage’ under Law No. 6/2014, but with no satisfactory explanation as to why they are differentiated from regular villages, and whether this entitles them to natural resources. The current situation of the mha is one of being isolated, and they have been forced to leave their own land when the government and investors come to an agreement.57 In one way, the enactment of the Law can be seen as part of the medium for the reformation of the mha communities, but on the other hand,58 it has potentially degraded the mha, which might have structures and areas bigger than a village. For example, the mha or “Mukim” in Aceh, has existed as a collective of villages.

of Regent Tual, 6/puu-vi/2008 on the Establishment of Buol Regent, Morowali and Bang- gai Island, 4/puu-vi/2008 on the Establishment of Regent Samosir.

54 The mk Decision 31/puu-v/2007, paras. 3.15.2; 3.15.3, and 3.15.5.

55 See Asep Yunan Firdaus, Hak Hak Masyarakat Adat (Indigenous People’s Rights) (push- am uii and the Norwegian Centre for Human Rights, 2007) p. 8.

56 See mk Decision No. 127/puu/vii/2009 on the Head of Adat in District Tambrauw, 34/puu/ix/2011 on the Recognition of the Right to the Land Beyond Adat, Land in Pursu- ant to Law No. 41/1995 on Forestry, 55/puu/viii/2010, on the Individual Case of Japin and Vitalis Andi, 3/puu/vii/2010 by the People’s Coalition for Justice (uu number 84/2007).

However this mk Decision accepted the claim when the mha changed its legal status to be personal, rather than as a collective entity.

57 See for example the eviction of the indigenous people ‘Suku Anak Dalam’ in Jambi province, in ‘Indigenous Rights vs Agrarian Reform in Indonesia: A Case Study from Jambi’, 15 April 2014, Institute for Policy Analysis of Conflict (ipac) Report, No. 9, <www .understandingconflict.org>, accessed on 15 November 2016.

58 See I Gusti Bagus Suryawan, ‘Law as a Medium for Community Reformation, a Perspective of Sociology over the Law No. 6/2014 on Village’, 1:1 Hasanuddin Law Review (April 2015) pp. 17–25.

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4.2 The Overlap of Indigenous Peoples and Minorities

There is a problem in distinguishing between the mha and minorities and their entitlement to natural resources. The term ‘minority’ is in opposition to the majority, in terms of identity, religion, language, ethnicity and culture.

The term ‘minority’ becomes significant in the context of human rights violations and becomes pivotal for protection under the human rights law system, as it should be equal to the majority concerning development and welfare. It means a stronger power, a hegemony and superiority, of one entity compared to others.59 Fransesco Capotorty, a un Rapporteur, defines minority as:

A group, numerically inferior to the rest of the population of a state, in a non-dominant position, whose members, being nationals of the state, possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of soli- darity, directed towards preserving their culture, traditions, religion and language.60

In this regard, Indonesia has inserted minority protection in the report to the Human Rights Committee regarding the interpretation of Article 27 of the iccpr on the implementation of “the right of minorities to culture, religion and language”, in terms of “freedom in maintaining and developing their cultural values” and identities.61

Indonesia has yet to clearly define minority, but it may implicitly cover an isolated indigenous community (mha), a non-isolated indigenous community in the form of ethnicity (Malay, Bugis, Batak, Minangkabau, Badui, Dayak, Gayo, etc.), as well as a non-indigenous minority, such as ethnic Chinese and a religious minority e.g. Catholics, Protestants, Hindus, Buddhists. These minorities are mainly protected under the principle of non-discrimination under Article 28 D and 28 I of the Constitution, which states that “every person has the right to equality before the law”, and “free from any discrimination for any reasons, and entitled to be protected from any discriminatory act”. Similarly, Article 3(3) of Human Rights Law No. 39/1999 confirms the right of non-discrimination, but protects on an individual basis rather than a collective one (as for the mha).

59 Yogi Zul Fadhli, ‘The Role of Minority in the Human Rights’ Perspective and Legal Protec- tion in Indonesia’, 11:2 Jurnal Konstitusi (June 2014) pp. 352–368 (in Indonesian).

60 See Hikmat Budiman, ‘Minoritas, Multikulturalisme’, in Hikmat Budiman (ed.), The Right of the Minority, the Dilemma of Multiculturalism in Indonesia (the Interseksi Foundation, Jakarta, 2005) p. 10 (in Indonesian).

61 See the hr Committee 2012, supra note 27, para. 384.

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Indigenous people are commonly considered as a minority within the majority in the state. The relations between the state and minorities in its territory have been considered unfair and unjust. Commonly, a newly postcolonial state expands its power to dominate the indigenous groups politically, economically (land and natural resources) and culturally, without any appropriate consent and compensation for this development. So Indonesia recognises the rights of minorities, including indigenous people, in a non-isolated classification of indigenous people, to maintain or to revive their cultural identities, but not in relation to lands and resources. In the report of the icescr, indigenous people were positioned as part of the understanding of internal self-determination in terms of regional autonomy, and entitled to the right to maintain their culture as minority people under the regional autonomy system.62

The protection of minority rights to some extent overlaps with the protection of the rights of the mha, but the mha has a more specific characteristic in the Indonesian legal system, as described above. The mha is part of the minority in terms of geographically isolated circumstances and its strong relationship to the land and natural resources, while other minorities mainly relate to cultural and religious ceremonies.63

4.3 Indigenous: The Whole Population of Indonesia?

There is ambiguity in the transformation of the meaning of the mha between the colonial and the postcolonial context in Indonesia. Indonesia’s of- ficial report on human rights implementation construed the term ‘people’ in Common Article 1 of the International Covenant on Civil and Political Rights (iccpr) and the International Covenant on Economic, Social and Cultural Rights (icescr) to cover the mha in a colonial context, but which has sub- sequently become a new independent state (the Unitary States of Indonesia.

Thus, Indonesia confirms that it exercises rights over colonial people “after approximately 350 years of Dutch colonization and 3.5 years of Japanese occupation”.64 So no other groups of people can claim this indigenous right within the Indonesian Unitary System:

62 Ibid.

63 See Lillian Aponte Miranda, ‘Uploading the Local: Assessing the Contemporary Relation- ship Between Indigenous Peoples’ Land Tenure Systems and International Human Rights Law Regarding the Allocation of Traditional Lands and Resources in Latin America’, 10 Oregon Review of International Law (2008) p. 420.

64 See the hr Committee 2012, supra note 27, para. 5.

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The Government of Indonesia is of the view that the term ‘self- determination’ as stated in Article 1 of the Covenant does not apply to a section of people within a sovereign and independent State, and cannot be construed as authorizing or encouraging any action which would dis- member or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states.65

The term ‘indigenous people’ thus translates into the entire population of Indonesia, but in reality, contradicts this in internal arrangements and the existence of various ethnic groups, tribes and previously sovereign kingdoms.

The power of the state was held by the central government to control and dis- tribute resources to other areas beyond the island of Java, by which an inher- ited spirit of colonialism marginalised the mha with their historical links to those resources.66 Although Indonesia was formally independent of Dutch colonialism, in practice it was not entirely free from the inheritance of its legal system and the colonial paradigm which existed before.67

During the colonial era, the Dutch government described the indigenous peoples as ‘pribumi’, used as a discriminatory term for colonised peoples in Indonesia, with Western Europeans at the top and Foreign Orientals (Chinese, Indian and Arab) in the middle.68 When all local groups of people were assumed to be indigenous, Indonesia had yet to manifest its rights of resource nationalism for the benefit of specific groups of affected people, whether through special autonomy, or district autonomy. Miranda described this situation as “[l]ike colonial peoples and developing states, indigenous people have been subject to an inequitable distribution of developmental gains”.69

65 See the un Economic and Social Council, Committee on escr 2014, ‘Implementation of the International Covenant on Economic, Social and Cultural Rights’ Initial reports submitted by State parties under Articles 16 and 17 of the Covenant, Indonesia, e/c.12/idn/1, 29 October 2012, para. 10. This is also similar to the Indonesian report in Article 1 for the un iccpr, para. 2.

66 See some examples of human rights violations in Aceh, in Al-Chaidar’s, Aceh Bersimbah Darah, (Pustaka Al-Kaustar, Jakarta, 2001) p. 106.

67 See Presidential Decree 2/1945 on the State’s Institutions and Legislation pre-dating Indo- nesia and which remains applicable.

68 See Thung Ju Lan, ‘Contesting the Post-colonial Legal Construction of Chinese Indone- sians as ‘foreign subjects’, 13:4 Asian Ethnicity (2012) pp. 373–387.

69 Miranda, supra note 5, pp. 785, 808.

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4.4 Indigenous People within a Centralistic System (1967–1998)

The centralised system during the Suharto regime deconstructed the social, economic and cultural structures of the mha associated with the inheritance of lands and collective ownership. In this era, a new structure of government introduced the Javanese model, while old structures of previous kingdoms, sultanates and tribes were gradually reduced, creating the potential disinte- gration of Indonesia as one composed of unitary states. The centralised power was much associated with the colonialist views of government on how to treat the people and on the allocation of wealth. For example, the enactment of the Law on Village No. 5/1979 which generalised the government structure on the basis of ‘Kelurahan’ (village), based on the Javanese model and became the smallest unit of Indonesia’s centralistic government, and diminished all the existing mha structures.70

Additionally, the unification of the legal and policy systems under this centralised power has contributed to the decline of the mha’s justice system in many parts of Indonesia.71 In this period the mha could not grow normally and the new generation assumed this centralised Javanese model through a central model of education.72 The existence of indigenous tribes in various districts and provinces was mostly incompatible with the creation of the districts and the provincial governments. The central government intentionally created a new administrative structure to diminish the previous governance structure and ethnicity, with the aim of strengthening the unity of Indonesia.

70 See Rizal Malaranggeng, Against Economic Centralisation: Indonesia 1986–1992 (Gramedia, Jakarta, 2008) pp. 35–78.

71 To this end the government has issued several regulations such as Ministry of Justice Reg- ulation No. J.B.4/3/17 (tln 276), 21 August 1952 to decline the ‘Swapraja Court’ and ‘Adat Court’ systems throughout Sulawesi; Ministry of Justice Decisions No. J.B.4/4/7 (tln 462) on 30 September 1953 on the Decline of Adat Justice in Lombok; Ministry of Justice Regu- lation No. J.B.4/3/2 (tln 641) on the Decline of the Swapraja and Adat Justice Systems in Kalimantan; and Presidential Regulation No. 6 /1966 on the Decline of Adat and Swapraja Courts in West Irian. Then in 1964 the Government issued Law No. 19 (ln 1964 No. 107) on the Principle Guidelines of the Justice System, in which Article 1(1) stated that the justice system in Indonesia is state justice recognised by the Law. Then this Law was replaced by Law No. 14/1970 (ln 1970 No. 74), in which Article 3(1) stated a similar construction. Also Article 39 confirmed that the government would liquidate the Adat and Swapraja Courts.

Hence, since this Law came into force, Adat and Swapraja Courts as indigenous justice systems were liquidated.

72 See an explanation in Laurensius Gawing, ‘Peradilan Adat: Keadilan Yang Ternafikan’

(Adat Court: the Marginalised Justice), 21 Majalah Forum Keadilan (17 September 2006).

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This policy was opposed by some strong ethnic and historical groups, such as in Aceh, while other areas which were weaker were confronted with this new administrative structure,73 which recognised their cultural, ceremonial and institutional identities, but not their natural resources. In this sense, the recognition of the mha in Indonesia included the recognition of the claims on forest areas within the claimed state forest under the mk Decision No. 35.74 But the administrative structures, such as the Ministry of Forestry, the provincial and district administrations, recognised that the recognition of the mha’s rights over land and resources would erode their interests.

In the current decentralised era, the government has slightly changed its approach to one of sharing control over natural resources under the autonomy framework, from central government to regional autonomy, i.e. the special and district autonomy.75 However, the emergence of regional autonomy did not deal with historical peoples and their concerns, but was rather created as a new political structure based on sharing territory and on political negotiation between regional and central governments. The Government of Indonesia has placed the mha under regional government,76 although many powers to control resources remain with the central government. Hence, there is competi- tion between central and local governments to control natural resources, with the rights of indigenous peoples contested.77 In other words, the existence of

73 There was the dissolution of Aceh province into the North Sumatra province under Law No. 10/1948. This policy then triggered Daud Beureueh’s armed movement for freedom in 1953 until he reached a peace agreement that included the special autonomy status for Aceh under the Law No. 24/1956. See a complete analyses of the Aceh rebellion in Naza- ruddin Sjamsuddin, The Republican Revolt, a Study of the Acehnese Rebellion (Institute of South East Asia Studies, Singapore, 1985) pp. 1–332.

74 See a complete analysis in Yance Arizona, ‘The Application of mk Decision No. 35/puu- x/2012 in the Regional Legal Reform’. The article was delivered at the workshop for strengthening the management of Adat forest and conservation area of Masyarakat Adat, Working Group icca? Indonesia and FoMMA, Malinau, 24–26 September 2013.

75 It stated: “the actualization of the internal aspect of the right to self-determination to develop economic, social and cultural potentials, is stated in Articles 18, 18A and 18B of the Constitution, which regulates regional government in implementing full autonomy (regional autonomy), with the exception of state affairs, which by law is considered as the central government’s affair/authority”. See the hr Committee 2012, supra note 27) para. 6.

76 The implementation of regional autonomy is governed by Law No. 32 of 2004 in conjunc- tion with Law No. 8 of 2005, and Law No. 12 of 2008 on Regional Government.

77 Article 63(1) (2n, 2k) of Law No. 32/2009 on Environmental Protection and Management stated that the central government and provincial governments have authority to issue policy on the recognition of the mha.

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indigenous tribes in various districts and provinces was mostly incompatible with the creation of districts and provinces.

Thus far, the recognition of the mha in a region was through Provincial Regulations (Perda), or Governor Regulations (Pergub), or judicial decision, or an agreement between the mha and the government’s institutions over the recognition of the mha rights over their lands and forests.78 The recognition of the mha in the Constitution became a basis for local governments to make local legislation.79 This would need a regulation on the recognition of the existence of the mha, rather than its institutional structures. It may be understood in two ways. First, the provincial government does not need to of- ficially recognise the existence of the mha, as it obviously exists, as the district government ruled their institutions. It means that the district government au- tomatically identifies them on recognising their institutions. Secondly, it is still confusing when the Constitution and Constitutional Court’s Decision 35 refer to the “isolated mha” in the forestry area, whereas in fact there are also the non-isolated mha who form the majority in the regional community. Neither the Constitution nor Constitutional Court differentiate between these two different characters of the mha, but just consider the isolated mha in the forestry area, while for the non-isolated majority, the central government granted them autonomy in culture. So the tension regarding sharing the benefits of resources will remain.80

78 Yance Arizona (ed.), Antara Text dan Kontexts: Dinamaka Pengakuan Hukum Hak Ma- syarakat Adat atas Sumber Daya Alam di Indonesia (The Dynamic of the Recognition of the mha over Natural Resources in Indonesia) (HuMa, Jakarta, 2010) pp. 15–66.

79 The content of the policy and law on the recognition of the mha in Indonesia can be seen in several forms: the recognition on the existence and protection of the mha, such as Perda Morowali No. 13/2012 on the Recognition and Protection of the mha Suku Wana;

Adat institution, such as Perda Kalimantan Tengah No. 16/2008 on the Institution of Adat Dayak in Middle Kalimantan. This also occurred in lag in Aceh in recognising Wali Nanggroe as the highest level of Adat institutions and 11 other lower Adat institutions;

the rights on land and forest, for example Perda Lebak No. 32/2001 on the Protection on the Hak Ulayat Baduy community, The Governor Regulation in Kalimantan Tengah No.

13/2009 on the Tanah Adat and Adat Rights on Land; also there is a regulation on the Adat Court, as Government Regulation No. 43/ 2013 on the Guidance of the Adat Court in Sulawesi Tengah.

80 See a complete analysis in Yance Arizona, ‘Kedudukan Peradilan Adat dalam Sistem Hu- kum Nasional’ (The role of the Adat Court in the national legal system), a paper presented in Kalimantan Tengah on the discussion to strengthen the Adat judicial system for im- proving access to justice, Tuesday, 11 June, 2013, pp. 1–17.

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4.5 Reformation Era 1998 Onwards

In the era of reformation, the voice of the mha re-emerged to claim recognition and to re-establish rights that had been violated over decades. The regions and provinces have issued various forms of legislation to recognise the existence, institutions and entitlements of the mha in their own territories.81 This recognition is contained within Provincial Regulations (Perda), Governor Regulations (Pergub), Head of District Circulars, Judicial Decisions and agree- ments between the mha and the government institutions on the recognition of the rights of the mha over their lands and forests.82 As a result, the legal status of the mha has been made more obscure, as there is no clear legal umbrella within central government and no decentralisation of the justice system.83

For example, the Provincial Regulations in Kabupaten Lebak on Village Ke- nees as an area for the mha Badui, e.g. Suku Anak Dalam in Jambi, Suku Sakai in Pakan Baru, Suku Tengger in East Java, etc.84 Additionally, the recognition of Nagari under Provincial Regulation No. 13/1983 for cultural and ceremonial purposes, and the recognition of 13 categories of mha institutions in Article 98 of the Law of Aceh Government No. 11/ 2006.85

Under the Indonesian Constitution, the mha is recognised as a marginalised group of people in a very limited sense, but in local government the recognition is broader, covering cultural ethnic groups, institutions, lands and justice systems beyond the forest areas.86 In this sense, the mha still exists

81 See Jimly Ass-Shiddieqie, Towards a Legal and Democratic State (Sekretariat Jenderal dan Kepaniteraan Mahkamah Konstitusi ri, 2008) p. 821.

82 Arizona (ed.), supra note 78.

83 According to the Ministry of Internal Affairs of Indonesia “during the period of 2005–

2009, the central government revoked 1480 regional regulations that were incompatible with national legislation; 6 of them were on mining”. See hr Committee, ‘Consideration of Reports submitted by State parties under Article 40 of the Covenant Initial Reports of State parties in Indonesia’, 19 January 2012, para. 11.

84 Other examples: Nagari in Sumatra Barat, Dayak in Kalimantan Barat, Mukim in Aceh, Suku Anak Dalam in Jambi, Suku Sakai in Pekan Baru, Asmat in Papua and so forth. See Siti Zuhroh and Eko Prasojo, The Problem of Regional Regulation (perda): The Problem and its Solutions (The Habibie Center and Penerbit Ombak, Jakarta, 2010) pp. 5–25.

85 This can be viewed in Martua Sirait et al., ‘How are the Rights of the mha over Natural Resources Regulated?’, a paper in a seminar on Participatory Spatial Planning in Bandar Lampung, 11 October. See Komnas ham, Toward the Constitutional Rights of the mha (Komnas ham, Jakarta, 2006) pp. 14–15.

86 Some local legislation does explain its objectives of recognition, for example the objectives of recognition and administering the rights of the mha Badui in the Lebak region.

Article 11 Perda Lebak No. 32 2001 states that the objective is to prevent the dispute and chaos of the mha Baduy from involving personal interests so as to ensure the community’s

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as communities, covering: individuals, family, a collection of families, villages, sub-ethnicities, ethnicities and races. So the failure of the central and regional governments to define the unit of the mha contributes to confusion in administering the law, the rights to land and the natural resources.87

The contents of the policies and regional laws on the recognition of the mha can be seen in several forms: the recognition of the existence and protection of the mha suku Wana in Perda Morowali No. 13/2012, the recognition of the Adat institution in Perda Kalimantan Tengah, the regulation on the Adat Court in Governor Regulation of Middle Sulawesi No. 43/ 2013 and so forth.88

Hence, there is no guidance on, or agreement for, regional regulation of the mha, as each region may have its own different legislation. Some regions have granted the right to get the benefits of resources from indigenous areas, but this provision contradicts the upper legislation that puts resources under the control of the central government in the favour of undefined people. In practice, the central government tends to benefit more the people on Java island.

The problems of “regulatory duplication and inconsistencies between and within levels of government”, and “legal process regarding fairness, transparency, corruption and insufficient administration”89 makes the issue even more complex.

rights, so the certification of the Baduy area for personal purposes is prohibited. While Perda Sumatra Barat No. 16/2008 is concerned with the utility of Ulayat land and its func- tion to benefit the community.

87 See the complete analysis in Arizona (ed.), supra note 78, p. 71.

88 See e.g. Article 1(14) of Perda No. 16/2008 on the Institution of the Adat Dayak in Middle Kalimantan, which confirmed that the Adat right is the right to utilise the resources within the Adat area, based on custom and Adat law, as known in the Dayak system; Article 1(22) defines the rights of the mha over land as the rights individually or collectively to manage, to benefit and utilise natural resources and their profits both inside and outside the land area. Equally, the recognition of the rights to lands and forests, for example Perda Lebak No. 32/2001 on the Protection on the Hak Ulayat Baduy Community, the Regula- tion of Governor Kalimantan Tengah No. 13/2009 on the Adat Rights to Land, sk Bupati Merangin No. 287/2003 on the Confirmation of Bukit Tapanggan as Adat Forest for the mha Desa Guguk Kecamatan Sungai Manau Kabupaten Merangin; also Qanun Aceh Be- sar on Mukim and its entitlement to natural resources, and so forth.

89 See further discussion in Bernadetta Devi et al., ‘Mining and Development in Indonesia:

An Overview of the Regulatory Framework and Policies’, Final Report, March 2013, (Centre for Social Responsibility in Mining, Sustainable Mineral Institute, Queensland, 2013) p. 12.

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4.6 Dilemma of Identifying Scope and Content

The lack of clarification on the scope and content of mha rights over natural resources can be viewed from three aspects. First is the procedural right to Free, Prior and Informed Consent (fpic).90 The central government confirmed the mandatory obligation for fpic to be implemented for the concerned community:

The principle of “Free, Prior and Informed Consent” is an integral part of the Government’s policy with regard to the use of lands for development projects. The principle requires mandatory inclusive consultations on an equal footing between the community, the Government and business actors, including in approving the use and the benefit sharing of development projects involving communal lands owned by Masyarakat Hukum Adat.91

The principle is linked to treaty norms, including the right to self- determination affirmed in Common Article 1 of the ihr Covenants.92 Also General Comment No. 21 of the icescr, on the right of everyone to take part in cultural life, sets out its overarching approach to its interpretation of this right, as expressed in Article 15 of Covenant and General Comment No. 7 (1997) on the right to ad- equate housing and the prohibition of forced evictions.

The second aspect is the substantial right to ownership, occupancy, use and control of ancestral lands.93 Current arrangements have prevented this right from being effectively applied to the mha, as the formal licence and the right of ownership of lands and their resources are understood to belong to states (governments) under Article 33 (2, 3) of the Constitution. The limited recognition applied to forestry land is not clear in the application, as the boundary of such land is not defined, nor is it clear whether this land includes the natural resources therein. Several regional regulations provide substantial rights for the mha, but have been problematic when faced with central legislation and the Constitution.

90 See Articles 10, 19, 29(2), and 32(2) of the undrip 2007. Concerning the explanation of the meaning of this principle, see the un Human Rights Office of the High Commissioner,

‘Free, Prior and Informed Consent of Indigenous People’, September 2013, <http://www .ohchr.org/Documents/Issues/IPeoples/FreePriorandInformedConsent.pdf>, accessed on 5 February 2015.

91 The Committee on escr 2014, supra note 49, para. 15.

92 See un Human Rights Office of the High Commissioner, supra note 90.

93 See Article 32 of the undrip 2007.

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The third aspect is the right to receive benefits from natural resources under the government’s control. Article 33(2, 3) of the Constitution has confirmed this beneficiary right of people regarding natural resources management. The mha, like other people, have been regarded as beneficiaries and some lower level laws also recognised some limited procedural rights to benefit from natural resources utilisation, in terms of housing, education, health and water.

Thus far, this beneficiary right’s meaning remains questionable in its application to isolated indigenous people. The people constitute a passive subject to receive the profits and benefits of the resources used under state control, with no right to decide the level and form of benefits. So the role of government is very significant in determining who the people are and what benefits they should receive.

Hence, marginalised communities (indigenous people) may receive three entitlements: (a) a procedural right to informed consultation on a natural resource project that may impact their way of life;94 (b) a substantive right of ownership, occupancy, use and control of their ancestral land resources;95 (c) a beneficiary right, in which people have a right only to receive the benefits of resource nationalism arrangements, as currently misused by the elites of the government and of investors.

With regard to the mha’s rights, the most fundamental is the right of internal self-determination under Common Article 1 of the ihr Covenants, concerning autonomy or self-government.96 This principle provides the basic right of the mha to be promoted and protected, both under the national and international frameworks. Under the current Constitution, Indonesia does not clearly provide for the range of this mha right, only to protect the “traditional rights of the mha”. It would need more explanation to apply these traditional rights to cover traditional natural resources, to which indigenous people’s rights to resources can then refer. Internal self-determination under Common Article 1 allows more room for the mha to perform its traditional rights in the political, economic and cultural spheres, along with the fpic standard in relation to the use of natural resources.97

94 See the un Declaration on the Rights of Indigenous Peoples, G.A. 61/295, Articles 26, 28, un Doc. a/res/61/295, (September 13, 2007).

95 Ibid.

96 See Articles 3 and 4 of the undrip 2007.

97 See Articles 10, 19, 29 (2), and 32(2) of the undrip 2007.

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The association of land with an indigenous people has been considered essential, as it is an ancestral inheritance.98 Currently, Indonesia has recognised certain lands within state forests as belonging to indigenous people,99 but without clear boundaries and still being formally under the occupation of the state or companies. Whereas the right to territories was barely related to the isolated indigenous people in forest areas, it has recognised that some territories involve (non-isolated) indigenous people, such as the Mukim in Aceh province covering the territory of several villages. Overall, this right was considered to be more culturally symbolic and may conflict with the formal structure of government, i.e. sub-districts (Kecamatan) or districts (Kabupaten).

Hence, both isolated and non-isolated indigenous peoples do not have rights over resources, as all resources remain under the control of the state government under Article 33(2, 3) of the Constitution.

5 The Marginalisation of Indigenous People in Indonesia

The marginalisation of the mha was an inheritance from the colonial Dutch subdivision of people into pribumi (natives) who were treated differently than the European and foreign oriental (non-indigenous) peoples.100 It generated conflicts in mines and plantations between the indigenous peoples and corpo- rations, mostly to the disadvantage of the indigenous peoples.101 Moreover, the unitary, centralistic model of states has tended to undermine other peoples and territories beyond Java Island.102

Under the general traditional rights of the mha, in terms of cultural rights, limited land in forested states and water resources were part of the lowest

98 The undrip, in repetitive wording, has specified the content of this right to cover “lands, territories and resources”. See a complete statement in para. 10 and Articles 8(2b), 26(1, 2, 3), 27, 28(1, 2), 29(1), 32(2) of the undrip 2007.

99 See MK Decision No. 35/2012.

100 See Yance Arizona and Erasmus Cahyadi, ‘The Revival of Indigenous Peoples: Contesta- tions over Special Legislation on Masyarakat Adat’, in Brigitta Hauser-Schaublin (ed.), Adat and Indigeneity in Indonesia, Culture and Entitlements between Heteronomy and Self-Ascription, Gottingen Studies in Cultural Property 7 (Universittasverlag Gottingen, Gottingen, 2013) p. 55.

101 Hukumonline, ‘Ironis, Regulasi sda Marginalisasi Masyarakat Hukum Adat’, 7 December 2012, <http://www.hukumonline.com/berita/baca/lt50c1f8a620608/ironis--regulasi-sda- marjinalisasi-masyarakat-hukum-adat>, accessed on 1 February 2016.

102 See R.M.A.B. Kusuma, The Birth of the 1945 Constitution (Badan Penerbit Fakultas Hukum Universitas Indonesia, Depok, 2004) p. 363.