5.3 SOCIAL BASELINE
5.3.3 Land Tenure and Natural Resource Conflicts and Disputes
5.3.3.1 Spatial Plan of East Kalimantan
The ERP targets land-based emissions from forestry and plantations in East Kalimantan Province.
Consequently, the ERP will deal with land tenure issues in Components 1, 3, 4, and 5. The main reference for land tenure is the provincial spatial plan formalised in Provincial Regulation (Peraturan Daerah [PERDA]) No.1/2016 on East Kalimantan Spatial Plan 2016-2036. The spatial plan contains the spatial pattern (Figure 5) that regulates land use and land allocation, including forestry and plantation allocation in forest and other use areas respectively.
The provincial spatial plan identifies disaster-prone areas40 that may be relevant to tenurial aspects.
These disaster-prone areas are associated with various risks, such as loss of property, loss of life, injury, and disturbances to daily activities. Disaster-prone areas are designated as protected areas under the PERDA. Implementation of the ERP needs to consider disaster-prone areas as uncertainties that may result in unforeseen changes in accounting area due to changes in landscape and/or land cover. Production forests (i.e., timber and forestry plantation concessions) occur in all of the proposed villages. This condition offers two possibilities consisting of negative and positive interaction between local communities with the concession holders (companies), and the possibility of establishing community partnerships such as social forestry schemes41 relevant to Component 4 of the ERP; thus encouraging positive interactions.
39 Sponsel, L.E.; Headland, T.N.; Bailey, R.C. Anthropological perspectives on the causes, consequences and solutions of deforestation. In Tropical Deforestation: The Human Dimension; Sponsel, L.E., Headland, T.N., Bailey, R.C., Eds.; Columbia University Press: New York, NY, USA
40 Evaluated based on geological, biological, hydrological, climatological, geographical, social, cultural, political, economic, and technology point of views.
41 Ministry of Environment and Forestry allocates certain areas within production forest as social forestry allocations (Peta Indikatif dan Areal Perhutanan Sosial - PIAPS)
Figure 5 Spatial pattern of East Kalimantan Spatial Plan42.
42 PERDA No 1/2016 regarding Spatial Plan of East Kalimantan Province 2016-2036
5.3.3.2 Tenurial Conflicts
Enforcement of the spatial plan regulation needs to be improved. Overlapping forestry, palm oil, and mining licenses suggest inconsistencies in the licensing process, and this is assumed to be an indication of weak enforcement of the spatial plan regulation. This assumption is supported by spatial analysis showing that approximately 27% of the palm oil plantation concession (HGU) falls outside the designated plantation area. The same analysis shows that 0.2% of forest areas fall outside the designated forest areas in the spatial plan.
Tenurial conflicts may arise due to discrepancies between spatial plan policies with the actual land use
and licensing.
Conflicts may be related with overlap between community needs (including customary rights) and forest/plantation/mining concessions. Analysis of conflict risks in each of the districts targeted for ER is done based on the following categories of tenurial conflicts: Potential conflict areas between logging and forestry plantation concessions;
Customary communities with logging concessions (may include encroachment);
Customary communities with forestry plantation concessions (may include encroachment);
Customary communities with conservation areas (may include encroachment);
Customary communities with logging and forestry plantation concessions (may include encroachment, least frequent/observed in one district);
Palm oil companies with logging concessions (most frequent, observed in six districts);
Palm oil companies with forestry plantation concessions (most frequent, observed in six districts);
Palm oil companies with logging and forestry plantation concessions;
Palm oil companies with customary people (most frequent, observed in six districts); and
Palm oil companies with customary people and forestry plantation concessions.
Overlapping areas may trigger tenurial and natural resource conflicts according to the above categories. The overlap size corresponds to the risk and scale of potential conflict. In addition to the risk of conflicts based on the overlap, the GoI has developed an indicative map of tenurial conflict with an inventory of around 201 conflicts, 33 of which are located in the Kalimantan provinces. MoEF’s Law Enforcement Agency (Gakkum) lists three ongoing disputes between local people and companies in East Kalimantan This differentiation will be done during additional consultations scheduled in 2019 (as part of the socialisation process led by DDPI).
Forestry Sector
Designation of forest areas is formalised by the Decree of Ministry of Forestry No. 718/2014 regarding state forest areas in East Kalimantan. The state forest areas are assigned a license to manage (Izin Usaha Pemanfaatan Hasil Hutan Kayu [IUPHHK]) logging (Hutan Alam [HA]) or forestry plantations (Hutan Tanaman Industri [HTI]). The licensing procedure is regulated in the Regulation of Ministry of Environment and Forestry No. 9/2015 regarding licensing procedures for logging, forestry plantation and ecosystem restoration in production forest areas.
An example of a conflict within FMU’s across protected forest, production forest and limited production forest designations can be seen in Berau District43. A study done by Working Group on Forest Land Tenure and GIZ in 2015 showed that the object of the dispute is the forest areas utilised by local communities/indigenous people. A case study for this area showed a general trend in the typology of conflicts and disputes involving primary/main actors such as companies, local communities and indigenous people. It highlighted the need to identify actors in order to set up an appropriate mediation strategy, so that the strategy can be adjusted to suit the characteristics of each actor.
The same study showed secondary or supporting actors that included NGOs and district offices, with the capacity and availability of local mediators resting mainly with the NGO. This may reflect the condition in East Kalimantan. In Berau District example, the conflict style was competitive44 despite the possibility for cooperation and collaboration45. Companies and district offices were more compromising46 and accommodative47 with regards to the resolution of the conflict. Willingness to resolve the conflicts, as well as willingness to compromise are the main driver for conflict resolution in this case.
Root causes of the conflict were relevant, particularly as the object of the conflict (forest areas) were utilised and claimed by local communities, with the same areas designated and licensed as production forest. With regards to the Berau District conflict, the root causes were:
Sub-optimal (or lack of) monitoring and evaluation by companies (license holders) causing the conflict to occur and escalate;
Lack of information regarding the forestry program and concession boundaries; and
Lack of capacity to resolve conflicts (accumulation from previous conflicts/issues).
These root causes are also relevant to timber plantations and agriculture as drivers of deforestation. A summary of livelihood issues and tenurial conflicts is provided in Table 21.
On-going activities and policies on conflict and dispute resolution include approaches at the national level (e.g., agrarian reform implementation progress) and approaches at the sub-national level.
Resolution processes at the sub-national level include encouraging multi-stakeholder interaction (through workshops and dialogues), formation of communication forums, mediation and partnership facilitation, and ultimately establishment of a MoU. This should embody the results of the mediation, and was proven to be a workable milestone in the conflict resolution case in Berau District.
43Working Group on Forest-Land Tenure. 2015. Tenurial conflicts on forest management unit (FMU) Development
44 This is the “win-lose” approach. You act in a very assertive way to achieve your goals, without seeking to cooperate with the other party, and it may be at the expense of the other party. This approach may be appropriate for emergencies when time is of the essence, or when you need quick, decisive action, and people are aware of and support the approach.
45 This is where you partner or pair up with the other party to achieve both of your goals. This is how you break free of the “win- lose” paradigm and seek the “win-win.” This can be effective for complex scenarios where you need to find a novel solution and can mean re-framing the challenge to create a bigger space and room for everybody’s ideas. The downside is that it requires a high-degree of trust and reaching a consensus can require a lot of time and effort to get everybody on board and to synthesize all the ideas.
46 This is the “lose-lose” scenario where neither party really achieves what they want. This requires a moderate level of assertiveness and cooperation. It may be appropriate for scenarios where you need a temporary solution, or where both sides have equally important goals. The trap is to fall into compromising as an easy way out, when collaborating would produce a better solution.
47 This is when you cooperate to a high-degree, and it may be at your own expense, and actually work against your own goals, objectives, and desired outcomes. This approach is effective when the other party is the expert or has a better solution. It can also be effective for preserving future relations with the other party.
To mitigate conflicts in forest areas, MoEF provides the licensing procedure for social forestry (customary forests, village forests, community forests and community plantation forests). Eligible applicants for the licenses (IUPHHK) are customary groups, community groups and village administration. The licenses are issued upon recommendations from provincial governments.
Customary (Adat) groups are defined as the customary community (masyarakat hukum adat [MHA]) that has received recognition through district regulation (PERDA). When applying for a customary forest license, the MHA is required to provide map of customary area and profile of the customary organisation.
Estate Crop Sector
Most conflicts in this sector are related to land grabbing. This notion is supported by the fact that, in the plantation sector, 84% of the reported conflicts (nationally) are categorised as land grabbing48. Land grabbing is large-scale illegal land acquisition without the consent of the existing landowners.
Land is seized illegally and unfairly, using underhand and manipulative methods. Licensing for plantations (including palm oil) is regulated under Regulation of Ministry of Agriculture No. 29/2016 which was revised in Regulation of Ministry of Agriculture No. 21/2017 regarding procedures for plantation licensing. However, the risk of land grabbing may still occur due (but not limited) to the following factors49:
Capital investment of large corporations that allows land acquisition at massive scales;
Lobbying power of corporations with local governments (Governor, Bupati or City Mayor); and
Governance risks such as:
o Allocation for economic growth from plantation sector in the spatial plan;
o Targets for district revenue affecting recommendations on licensing; and
o Lack of mediation and facilitation with local/indigenous communities by the local government.
With such accelerated expansion, land conflicts will tend to be concentrated in the plantation concessions. This fact urges the ERP to consider ATR/BPN and its technical implementation units (province and district) as key stakeholders in the plantation sector. Engaging with this stakeholder needs to be aimed at:
Thorough examination of recommendations from the Bupati/Mayor/Governor;
Ensuring proper environmental and social impact assessment prior to HGU issuance; and
Requiring implementation of environmental and social safeguards, especially in ERP locations.
48 Meri Persch-Orth dan Esther Mwangi. 2016. Konflik perusahaan-masyarakat di sektor perkebunan industri Indonesia. No.
144, Juni 2016 10.17528/cifor/006144. CIFOR, Bogor
49 Sekolah Tinggi Pertanahan Nasional (STPN). 2013. Membaca Ulang Politik dan Kebijakan Agraria
Mining Sector
Spatial analysis of mining concessions shows that existing mining licences have exceeded the allocation in the spatial plan by 22.6%, and most of this (approximately 80% of existing concessions) overlap with production forest and plantation areas. This issue is addressed by the Governor’s Regulation (Pergub) No.1/2018 on arrangement of mining, forestry and oil palm plantation permit in East Kalimantan, which specific mentioning about moratorium of forestry concession from natural forest, and new mining licenses. This regulation is already launched and implemented. The moratorium is a step to improve governance issues related to licensing. Other issues such as euphoria and corruption are yet to be addressed.
Considering the significance of mining in the ERP, it is important to consider Ministry of Energy and Mineral Resources and Energy and Mineral Resources Agency of East Kalimantan as influential stakeholders at national and provincial levels respectively. Additionally mining companies may also be included as influential stakeholders in ERP of East Kalimantan. In relevance with land use in Other Use Area (APL), the roles of Ministry of Agraria and Spatial Plan/Land Agency, as well as its technical implemeting units at provincial and district levels become crucial in the ERP.
Conflicts in Non-State Forest Area (APL)
The ability to use land outside state forest areas (i.e., in other use areas, Area Penggunaan Lain [APL]) is administered through the Ministry of Agrarian and Spatial Plan (Kementerian Agraria dan Tata Ruang/Badan Pertanahan Nasional [ATR/BPN]). This authority is further mandated to the province (kantor wilayah or regional) and district offices (kantor pertanahan) through Presidential Decision (Keputusan Presiden) No. 34/2003 that vests the agrarian and land authority (including those for plantation licenses or Hak Guna Usaha [HGU]) to these offices.
As discussed in Section 2.3.2, stakeholders in APLs include the Bupati/Walikota, licensing office (Kantor Perijinan), relevant provincial/district agencies, and Technical Implementation Units (Unit Pelaksana Teknis [UPT]) of the Ministry of Agrarian and Spatial Plan, namely provincial and district offices of the Agrarian and Spatial Plan (Kantor Wilayah Provinsi and Kantor Pertanahan Kabupaten, respectively). These are the stakeholders that influence the implementation of the ERP in APL, as they are essential in providing recommendations for the issuance of plantation permits, and issuance of tenurial rights to indigenous peoples. Having such roles, these stakeholders will also be crucial in the implementation of safeguards for environmental and social risks. Provincial and district offices of the Agrarian and Spatial Plan (Kantor Wilayah Provinsi and Kantor Pertanahan Kabupaten, respectively) may also contribute to preventing conflicts by evaluating conflict potentials prior to issuing recommendations for HGU. Additionally, this agency may also be involved in facilitating Feedback Grievance and Redress Mechanism (FGRM) associated with the need to effectively resolve the conflicts.
Feedback and Grievance Redress Mechanism (FGRM)50 is developed to facilitate conflict resolution by sectors (i.e., forestry, plantation and mining), as well as by jurisdiction (forest areas and other use areas). The FGRM mechanism will allow documentation of conflicts and the measures to resolve these conflicts.
50 Separate document is prepared as part of the Environmental and Social Management Framework (ESMF).
Table 21 Summary of livelihoods issues and tenurial conflicts.
Summary of
Issues Root Cause/s
Frequency and/or Prevalence
Responsible Entities
Relevance to the ERP (including risks) Overlapping
uses
Sub-optimal monitoring and evaluation by license holders
Frequent (approximately 95% of the area)
License holder Forest management to support improvement of land governance
Unclear border of FMU’s
Minimum information on forestry
programs/policies
Frequent FMU Capacity building on
forest management
Tenurial conflicts
Lack of capacity to resolve conflicts
Rare
(approximately 5 of 28 villages)
FMU &
License holder
Capacity building on forest management