Activities under the J-SLMP and future ERP should adopt sustainable development principles, including environmental, social, cultural, and economic considerations, consistent with applicable national and regional regulations. This ESMF document adopt the Government of Indonesia‟s (GoI) laws and regulations to the extent that they are in compliant with the World Bank Policies on Environmental Assessment (OP 4.01), Natural Habitats (OP 4.04), Water Resource Management (OP 4.07), Indigenous Peoples (OP 4.10) and Physical Cultural Resources (OP 4.11). Specific provisions are described in the ESMF to address any aspect of the Bank policies that are not fully addressed through GoI laws and regulations. Applicable National and Regional regulations for the ERP related to environmental and social aspects are outlined as follows:
Law No. 6 of 2014 on Villages. This law has significant implications for the forestry sector by expanding the authority of villages to manage their own assets and natural resources, revenue and administration. It specifically reallocates a specific portion of the state budget to village administrations, providing all of Indonesia‟s villages with annual discretionary funding for making local improvements that support poverty alleviation, health, education and infrastructure development.
Law No. 23 of 2014 on Regional Governance. This law effectively weakens Indonesia‟s system of regional autonomy by withdrawing authority over natural resource management (including forestry) from district and city governments and shifts it to provincial and national- level governments.
Law No. 18 of 2013 on the Prevention and Eradication of Forest Degradation. This law strengthens law enforcement by providing additional legal certainty and defining the penalties for those engaged in forest destruction. It clearly defines which activities are banned, on the part of individuals and organized groups who are complicit in illegal logging activities, as well as organizations involved in the illegal timber trade and officials engaged in the falsification of permits.
Law No. 32/2009 concerning Environmental Management and Protection. For the government executing agency (National and Regional level), this Law provides has the mandate for the Province and District to develop a Strategic Environmental Assessment, that will guide regional spatial planning for development. This Law also requires has obligated any development program by private sector to implement proper environmental and social considerations including environmental assessment, management planning and monitoring;
Law No. 26/2007 concerning Spatial Planning. It amends Law No. 24/1992 (Spatial Planning Act) in the context of decentralization, urbanization, and other factors. It grants authority over spatial planning to provincial governments (pemerintah provinsi) and district governments (pemerintah kabupaten and pemerintah Kota). Provision of this authority is not stipulated within previous spatial planning laws. It also provides some new ways for enhancing development control including zoning, planning permits, implementation of incentives and
disincentives, including administration and criminal sanction. Law No. 26/2007 also acknowledges the importance of public participation in spatial planning.
Law No. 41/1999 concerning Forestry. The 1999 law includes some conservation-oriented policies. It divides forests into three categories, including: Conservation Forests, Protection Forests and Production Forests. It also empowers the Ministry of Forestry to determine and manage Indonesia‟s Kawasan Hutan (National Forest Estate);
Government Regulation (PP) No. 24 Year 2018 concerning Electronic Integrated Permitting Services (OSS);
Ministry of Agrarian and Spatial Plan/Head of National Land Agency No. 6/2018 concerning a Complete and Systematic Land Registration (PTSL);
Presidential Regulation No. 88/2017 concerning Resolution of Land Conflict within Forest Area (PPTKH);
Government Regulation (PP) No. 46 Year 2016 concerning Guidelines on Implementing Strategic Environmental Assessment;
Ministry of Environment and Forestry Regulation No. 83/MENLHK/SETJEN/KUM.1/10/2016 concerning Social Forestry;
Ministry of Environment and Forestry Regulation No. P.84/Menlhk-Setjen/2015 concerning Tenurial Conflict Management within Forest Area (PPTKH). This regulation was enacted to support settlements of land occupancies, including conflicts within forest areas, by way of a joint taskforce involving ATR/BPN, MoEF, and MoHA under coordination of the Coordinating Ministry of Economic Affairs (CMEA);
Government Regulation (PP) No. 27/2012 concerning Environmental Permit, Regulation of the Minister of Environment No. 16/2012 concerning Guidelines for Preparing Environmental Documents (AMDAL, UKL/UPL, and SPPL);
Other applicable environmental standards such as water quality, air quality, and erosion control.
The J-SLMP and future ERP activities will potentially involve and impact Indigenous Peoples (IPs) and should provide benefits to and manage impacts on Indigenous Peoples (IPs). Government of Indonesia‟s policy on Indigenous Peoples includes:
UUD 1945 (Amendment) Article 18, clause #2 and Chapter 281 clause # 3. Article 18B(2) (second amendment) states that „The state recognizes and respects indigenous peoples and their traditional rights providing these still exist and are in accordance with the development of the people and the principles of the Unitary State of the Republic of Indonesia, which shall be regulated by law‟. Article 28I(3) (second amendment) states that „The cultural identities and rights of traditional communities shall be respected in accordance with the development of the times and civilization‟
Law 6/2014 on Villages. Gives local communities the opportunity to propose becoming an indigenous village (desa Adat), with substantial opportunities to self-govern based on traditional laws and customs. Article 76 makes specific reference to communal land (tanah
ulayat) as a village asset if a village has been legally recognized as an Adat village by district or provincial legislation;
Law 39/2014 on Plantation Development, Article 12(1) states that, „in the case of land require for plantation businesses, companies must consult indigenous land rights holders to obtain agreement on the delivery of land and compensation‟. Article 17(1) states that „The relevant authorities are prohibited from issuing plantation permits over the land of indigenous communities. Article 55(b) states that „[Individuals are prohibited from] working, using, occupying and /or controlling public land or the land of indigenous peoples for the purpose of conducting a plantation business. Article 103 states that „Any officer who issues a plantation permit over land with indigenous rights holders […] shall be punished with imprisonment of five years or a fine of IDR 5 billion‟;
Law No. 41 on Forestry amended through the Constitutional Court Decision No. 35/PUU- X/2012. The Constitutional Court ruled that Adat forests are not part of the state forest (Kawasan Hutan). This Court decision modified the sub-classification of what was known as forest areas as: Titled Forests (Hutan Hak), and State Forests (including concessions, village forest programs as Hutan Desa, and Hutan Hak – those areas held by Adat communities).
This decision further implied that Adat forests, wherever legally recognized, would be assumed to be collectively owned forests of Indigenous Peoples and Adat communities (i.e.
part of the Titled Forests category);
Law 5/1960 on Basic Agrarian Principles (BAL). Recognizes Adat law as the law that is most relevant to most Indonesians, and the basis of Indonesian land law, thus reversing the dualism of western versus Adat law, which is specifically cited as undermining legal certainty;
Presidential Decree (Keppres) No. 111/1999 concerning Development of Isolated Indigenous Community (KAT) which provides a broad definition of Indigenous Peoples and the need for government assistance;
Regulation of the Minister of Land Agency and Spatial Development No. 9/2015 on the Procedures to Establish the Land Communal rights on the MHA Land and Community Living in the Special Area (non-forest estates);
Provincial Regulation (PERDA) no. 7/2013, PERDA No 2/2014 and PERDA No 8/2016 all concerning the recognition of customary communities (Masyarakat Hukum Adat), including Marga Serampas.
MOHA Regulation No. 52/2014 on the Guidelines on the Recognition and Protection of MHA (Masyarakat Hukum Adat);
In addition, there are two draft bills that are yet to be legislated, including draft bill on the recognition and protection of the rights of Customary Law Communities (Masyarakat Hukum Adat) and Land Law.
The above regulations will support the J-SLMP and future ERP, and no contradictions are foreseen in the regulatory framework. Implementation on Presidential Regulation No. 88/2017 must be carefully planned and implemented, so the approach involving modification of forest areas (e.g. into other use areas) and Agrarian Reform policy (Tanah Obyek Reforma Agrarian – TORA) will not cause deforestation or land degradation. Additionally, Constitutional Court Rule (Putusan Mahkamah
Konstitusi – MK) No. 35/2012 should be interpreted responsibly, so it does not provoke massive land claims within forest areas. These challenges are discussed further in Chapter 4.0 (this document).