Introduction

Customary Forest as a part of customary right (ulayat right) of Indigenous People is a manifestation of the state obligation to promote the rights of Indigenous People as stated in Article 18B paragraph (2) of the 1945 Constitution, which states “The state recognizes and respects the existence of Indigenous People and its traditional rights as long as they still exist and in harmony with the transformation of society and the principles of the Unitary State of the Republic of Indonesia”.

Customary Forest is a type of forest located within the Territory of the Indigenous People.1 Article 5 paragraph (1) letter b of Law Number 41 of 1999 on Forestry as amended by Law Number 6 of 2023 on the Determination of Government Regulation In Lieu of Law Number 2 of 2022 on Job Creation (“Forestry Law”) classifies Customary Forest as Private Forest (Hutan Hak). This categorization is emphasized by Constitutional Court Decision No. 35/PUU-X/2012 (“Constitutional Court Decision 35/2012”), which stipulates that Customary Forest is a private forest and not a state forest.

Constitutional Court Decision 35/2012 radically changed the “conception” of Customary Forest in Indonesia since previously, the Forestry Law classified Customary Forest as a state forest. Within this conception, a Customary Forest is a state forest (forest that is not encumbered with land rights) of which management is delegated to Indigenous People. Thus, the status of Indigenous People is limited to that of a “state’s agent” who holds the right to “manage” their Customary Forest.

As a consequence of Constitutional Court Decision 35/2012, which classifies Customary Forest as private forest (as opposed to state forest), Indigenous People are recognized as owners of their Customary Forest and not only as managers.2 This has massive implications for recognizing Indigenous People, who currently have a stronger position over their Customary Forest.

Recognition of Customary Forest is part of the Social Forestry Management System, in which the community acts as the main actor or main partner in forest management to achieve prosperity and forest sustainability without changing the status or function of the forest. In the context of Customary Forest, Indigenous People have a role as the main actors, as they are the owners and, at the same time, managers of the Customary Forest area.

Customary Forest may originate from either state forest or non-state forest.3 As stipulated by the Forestry Law, Customary Forest have the same primary functions as forest in general:

  1. Conservation function;
  2. Protection function; and/or
  3. Production function.

Recognition of Customary Forest

Indigenous People are the “owners” and “managers” of Customary Forest. A Customary Forest Determination that recognizes the existence of a Customary Forest legitimizes the right to own and manage the land. It should be emphasized that the Recognition of Customary Forest is an accesoir/follow-up action that must be preceded by the “recognition of Indigenous People” as a condition precedent. Therefore, the recognition of Indigenous People is a preliminary requirement that must be fulfilled before submitting an Application for Recognition of Customary Forest.

  1. Application for Customary Forest Recognition
    Indigenous Stakeholders submits an application for Recognition of Customary Forest to the Minister of Environment and Forestry. The Application must fulfill the following requirements:4

    1. Absolute Requirements
      1. Indigenous People’s Identity, which contains:
        1. Indigenous People name;
        2. Identity of Indigenous People chief;
        3. Address of Indigenous People chief.
      2. Map of Indigenous Territories signed by the Chief of Indigenous People;
      3. Statement Letter signed by the Chief of Indigenous People and containing:
        1. Confirmation that the proposed area is part of Indigenous Territories;
        2. Statement of Approval that the proposed Customary Forest will have functioned as regulated by the applicable regulations.
    2. Tolerance Requirements
      1. Regional Regulations and/or governor/regent/mayor Determinations on the Inauguration/Recognition of Indigenous People.
  2. Criteria for Forest that can be recognized as Customary Forest
    1. Located within Indigenous Territory;
    2. A forestry area with clear boundaries and managed according to the local wisdom of the Indigenous People;
    3. Originate from state forest areas and/or non-state forest areas; and
    4. Indigenous People are still collecting forest products in the forest area to fulfill their living needs.
  3. Validation and Verification of an Application
    1. Administrative Validation
      The Minister of Environment and Forestry tasked the Director General of Social Forestry and Partnerships (“Director General”) to validate and verify the completeness and authenticity of the required documents submitted by Indigenous Stakeholders.
      Validation results can be:

      1. Complete and authentic requirements; or
      2. Incomplete and/or inauthentic requirements (both absolute requirements and tolerance requirements)
        If the requirements are incomplete and/or inauthentic, the Director General sends the application back to the applicant for revision. In the event that the requirements are not fulfilled within 180 days, the application is rejected.
        The Director General accepts the application and conducts field verification if the results of administrative validation state that the application is:

        1. Complete and authentic requirements; or
        2. The absolute requirements have been fulfilled, but the tolerance requirements (in the form of Regional Regulations that recognize/inaugurate the existence of Indigenous People and/or governor/regent/mayor Determination regarding the recognition/inauguration of Indigenous People) have not been fulfilled. However, the Indigenous Territory has been determined by the regent/mayor.
          This rule is unique because it allows the possibility of circumstances in which “the existence of Indigenous People has not been recognized, but the existence of their Indigenous Territory has been recognized first”.
          It can be concluded that the application is only accepted if it meets both the absolute and tolerance requirements. However, it can still be followed up if it satisfies the absolute requirements only with a note that the tolerance requirements are in the process of being fulfilled.
    2. Field Verification
      Field verification ensures that the data and facts in the field are consistent. Field verification is held by an integrated team formed and determined by the Director General.5 The team is obliged to ensure:

      1. The existence of the applicant and the validity of the application and its supporting documents;
      2. The location and function of the expected Customary Forest;
      3. The condition of the land cover of the expected Customary Forest;
      4. The listing of the expected Customary Forest in provincial and regency/municipal spatial layout plans;
      5. The feasibility of recognizing the requested area as a Customary Forest.
        The field verification results are included in the minutes and official report.6
  4. Determination of Customary Forest
    On behalf of the Minister of Environment and Forestry, the Director General shall issue the determination regarding the recognition of the Customary Forest within fourteen (14) working days of receiving the minutes and official reports on the field verification results.7
  5. Tolerance Conditions
    Although Indigenous People exist in reality, they are often unable to access their rights because their existence is not legally recognized. Not all Indigenous People have been recognized by the regional government through regional regulations or the determination of regional leaders as regulated by law.
    This circumstance is attributed to the fact that not all regional governments are highly concerned about Indigenous People’s existence. In addition, advocacy for Indigenous People to fight for their rights remains limited. This circumstance is a barrier to the Recognition of Customary Forest in Indonesia. Remember that recognition of Indigenous People is a preliminary requirement that must be fulfilled before the relevant Indigenous People can submit an application for recognition of their Customary Forest.
    In response to this issue, the Regulation of the Minister of Environment and Forestry Number 9 of 2021 on the Management of Social Forestry (MoEF Regulation 9/2021) provides tolerance and discretion.
    Article 71 MoEF Regulation 9/2021 stipulates that, on behalf of the Minister of Environment and Forestry, the Directorate General issues the Determination of Indicative Areas of Customary Forest in the case of an application for recognition of customary forest submitted by Indigenous People who have not received recognition of their existence through regional regulations or head of region determination. However, the Indigenous Territory has been determined by the Regent/Mayor. The status of Indicative Areas of Customary Forest can be updated to Customary Forest following the issuance of the regional regulation/determination of the regional head that recognizes the associated Indigenous People.
  6. Some Crucial Issues related to the Recognition of Customary Forest
    1. Indigenous Territory Map as an Absolute Requirement
      In principle, the Indigenous People create and submit the Indigenous Territory Map as one of the requirements that must be fulfilled in the process of Recognition of Customary Forest. Indigenous People should actively identify and map their Indigenous Territories. In its implementation, the Minister of Environment and Forestry has a role in facilitating the identification and mapping of Indigenous Territory.
      The results of the identification and mapping of Indigenous Territories are then submitted to the governor/regent/mayor as the basis for issuing a determination on the recognition of the existence of Indigenous People as a preliminary requirement and the basis for issuing the Determination of Recognition of Customary Forest.
    2. Customary Forest originating from State Forest
      Customary Forest may originate from State Forest and/or Non-State Forest, as described in the Introduction Section. A state forest is a forest located on land that is not encumbered with land rights.8 This means that a State Forest is a forest under direct state control.
      Constitutional Court Decision 35/2012 classifies Customary Forest as a private forest. Thus, when the Determination of Recognition of Customary Forest is issued, the status of a forest area as a state forest is terminated.
Read Also  Law Number 20 of 1961 on Revocation of Rights of Land and the Objects Over The Land

Closing

Protecting Indigenous People’s Rights over their Customary Forest is a constitutional mandate that must be obeyed. In its implementation, the Recognition of Customary Forest must be preceded by an act of Recognition of Indigenous People and Territories. Indigenous Stakeholders submit an application to the Minister of Environment and Forestry for the recognition of Customary Forest. Recognition of Customary Forest is determined if the validation and verification process shows that the submitted application has fulfilled the specified requirements and criteria.

Avaya Ruzha Avicenna

Sources

  1. Article 1 point 8 the Regulation of the Minister of Environment and Forestry Number 9 of 2021 on the Management of Social Forestry (MoEF Regulation 9/2021)
  2. Article 1 point 70 Government Regulation Number 23 of 2021 on Forestry Administration (GR 23/2021), Article 1 point 23 MoEF Regulation 9/2021
  3. Article 62 paragraph (1) MoEF Regulation 9/2021
  4. Article 66 MoEF Regulation 9/2021
  5. Article 68 MoEF Regulation 9/2021
  6. Article 69 paragraph (6) MoEF Regulation 9/2021
  7. Article 70 MoEF Regulation 9/2021
  8. Article 1 point d Forestry Law