Introduction
J.F. McCarthy, K. Robinson, and A. Dhiaulhaq
Land is central to the challenges of Indonesia’s future development: plans for infrastructure development as well as agriculture and population redistribution encounter decades of unresolved problems of how to recognise and register land rights (McCarthy and Robinson 2016).
Indonesia has what the FAO calls the ‘state land problem’: a condition where “states ‘own’ large tracts of un-demarcated land and thus risk dispossessing smallholders if they act on those rights” (Dwyer 2015, 917). The post-colonial Indonesian state assumed responsibility for the governance of local resources, shifting land governance away from subsistence farmers and smallholders in their communities to the national level (Bedner 2016). ‘Nationalizing’ or delocalising resource governance provided state-based actors with the power to reallocate land, even land currently under use, to commercial or state plantation, mining, or logging interests.During the Suharto period, using the rubric of‘development’ and under conditions of ‘crony capitalism,’ state decision-makers used coercion and subterfuge to facilitate licensed access for enterprises to use large tracts of land. This generated land conflicts and inequality, leaving a legacy of unresolved land governance issues. The post-authoritarian period (after the fall of Suharto in 1998) created democratic space for local actors to express grievances and address injustices. Nonetheless, there are ongoing problems of procedural and distributional justice and unresolved tensions between smallholder-friendly and corporate land use.
In the spirit of Jan Michael Otto's astute reflections regarding how statutory legal frameworks can both exclude the poor and provide protection (Otto and Hoekema 2012), this chapter considers efforts to protect subsistence and smallholder landowners from rapid land dispossession. We first consider processes of land tenure ‘formalisation' used to facilitate modern capitalist development and smallholder dispossession. We develop a notion of ‘adverse formalisation' to describe a process whereby state actions have deprived smallholders of customary land and livelihoods. Adverse formalisation writes “smallholders out of the legal picture” while giving investors access to new territory (Dwyer 2015, 918).
The chapter then considers processes that can potentially counter adverse formalisation. We consider processes of ‘scaling up' into nonstate, transnational, and private forms of regulation. We also consider ‘scaling down' by securing the tenurial rights of marginal groups through locally grounded concepts of adat rights, or village autonomy, thus allowing for some degree of legal pluralism.
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