‘Scaling down': relocating the governance of resources back ‘down' to local communities

‘Scaling down’ involves construing community territory as a site for reconstructing justice and fair distribution in the local domain. The registration of group land rights has been supported internationally by advocates of land tenure reform as a way of managing or preventing encroachment by outsiders.

A contemporary model of group rights, similar to the colonial arrangement, might provide a model that allows for communities to manage their collective rights based on their own rules. It may also protect group rights and land held as community commons. Communities may hold such land as protection against adverse formalisation (i.e., for land­based livelihoods). By avoiding formalising individual titles, this has the virtue of avoiding the forced transition from highly flexible, dynamic tenure systems to fixed systems of formalised rights.

Global social movements around indigenous rights have called for relocating the governance of resources ‘down’ to local communities. In Indonesia, this shift redefined the customary or indigenous (masyarakat adat) territory as a site for reconstructing justice and fair distribution. This redefinition involved consolidating (or in some cases, reconstituting) local land and place-based identities as a way of defining rights denied by the state. This consolidation was a way of articulating grievances against dispossession, a lack of consultation, and inadequate compensation for lost livelihoods. Indigenous identities can be a form of “strategic essentialisms” (Cohen and McCarthy 2015; using Spivak’s term) and culturally constituted identities become fixed to specific territorial claims.

Adverse formalisation characterised the experience of thousands of communities living on subsistence agriculture, hunting and collecting, and smallholder production during the New Order regime. Community protests were common, but rarely achieved redress (Robinson 2018). Towards the end of the New Order, many of these demands coalesced in a national movement, which drew on the tropes of customary land ownership and community land stewardship, in which many of these groups expressed their rights against government-forced dispossession. In 1999, in the euphoria of Reformasi, the group AMAN was formed to advocate for firmer recognition of customary rights.

This term was defined by global discourses on indigeneity, in instruments such as the 1989 ILO Convention on Indigenous and Tribal Peoples and the 2007 UN Declaration on the Rights of Indigenous

Peoples. This concept had its origins in the political struggles of ‘fourth world peoples' in settler colonies, where it was historically clear which people had been dispossessed by the colonisers. Indonesia has not ratified the ILO Convention, arguing that all Indonesians are ‘indigenous.' The century-long mobility of people on the archipelago makes it difficult to distinguish who has rights (i.e., an indigenous concept of precedence), and the process is potentially exclusionary. In particular, when deciding who is ‘indigenous' or ‘masyarakat (hukum) adat,' which historical point should be the point of reference?

Self-identification is a key concept in the global definitions of indigeneity. Apart from being a politically constituted category or term in political discourse, ‘indigenous' identities draw on both global discourse and local rhetoric. Given the historical emergence of these claims in the anti-politics of the New Order, perhaps we can understand the concept of indigenous identity in contemporary Indonesia as an expression of an anti-free market/neo-liberal ideology. This concept may be similar in form to arguments emerging in Europe in 2018 against extreme forms of dispossession and inequality (Dardot and Laval 2015), as seen in the concept of ‘commun.' This concept attempts to counter private property as an analytical category and form of practice. The ‘common' reflects the kind of claims represented in claims of collective adat-based ownership rights.

In Indonesia, advocates of indigenous (masγarakat adat) rights celebrated a significant victory in 2012. AMAN successfully pursued a judicial review of Forestry Law No 41/1999.

In line with the Constitutional Court's decision, three years into his presidency, Jokowi recognised nine newly designated “customary forests,” or hutan adat, covering 33.4 square kilometres in Sumatra, Borneo, and Sulawesi. AMAN has reportedly “mapped out 19,000 square kilometres of land, home to 607 indigenous communities, which it says must be rezoned as customary forests” (Gokkon 2017). According to one report, the Environment and Forestry Minister plans to approve 43,800 square kilometres of land for community forestry schemes by 2019. At the same time, the administration is reportedly considering recognising 164 square kilometres of customary forests when President Jokowi stands for re-election (Gokkon 2017). However, this would depend on district heads and legislatures issuing decrees that recognise the indigenous status of communities. Applications for adat status are difficult processes that require documents setting out the history of the community, adat institutions and regulations, and maps ofthe customary forests. Moreover, apparently, “the locations that the government has been targeting so far are not the ones with agrarian conflicts or where there are overlapping claims between local communities” (Gokkon 2017).

Formalist efforts to counter the alienation of local community lands assume the main threat of land grabbing comes from outside encroachment. The way to proceed is by formalising group rights before appropriation occurs.

For example, in 2001 the national government developed the Papua Special Autonomy Law (No. 21) as part of an effort to address separatist unrest in Papua. This law provides a mechanism for some form of recognition of indigenous rights (Savitri and Price 2016). Communities can apply for the recognition of community use rights or for individual ownership titles: the law does not specifically provide for community ownership rights. And despite recognition of adat in principle, processes to recognise communal use rights or individual titles get bogged down in procedural requirements. For the most part, Papuans tend to obtain recognition of their tenurial rights only at the point when a developer is alienating them. Consequently, as Savitri and Price (2016) argue, Papuan tenurial claims and development objectives remain subordinate to outside interests. While the law is yet to provide effective safeguards against the dispossession or erosion of land-based livelihoods, specific provincial legislation could offer a way to provide some recognition of collective rights.

From another angle, the New Village Law (Law 6/2014) offers villages that are recognised as ‘adat villages' the possibility to regulate and manage their adat territory. Under the asal-usul principle of the Village Law, villages have the right to manage their land affairs (Desa mengatur dan mengurus tanah desa atau tanah ulayat adat desa).¹ This management would potentially allow for a land tenure system that builds on de facto processes: the systems of tenure rights accepted by groups of people (i.e., a village or community) but not formally recognised by the state. Such systems are legitimate in the sense that they are justified and have on-going acceptance within a community, irrespective of state law.

Ideally, this initiative would allow for the internal authority of the group, building local forms of governance. Over time, it might involve demarcating group boundaries (batas desa) and providing some form of title to the village lands. Internal property issues would be left for the community to manage. Policies would continue to encourage the gradual recording of individual rights, ensuring that group title registrations would not freeze individual tenure. If possible, effective safeguards would need to be provided against dispossession and internal manipulation. The advantage of this system would be that titles would not be tied to cultural identity (regarding adat or suku) but rather to village residence.

One potential issue is that there may not always be a functioning community institution overseeing land affairs. Furthermore, solutions need to address the presumed binary distinction between individual and collective rights. Customary systems, where much of the land is held as a ‘commons’ of the community, acknowledge individual rights (e.g., ownership of trees planted on collectively held land). These systems occasionally acknowledge residual rights in fallowing land, which oblige new users to seek consent for their use. Any move towards collective community- or village-based rights needs to address this complexity of bundled rights, recognising the different categories of rights embedded in a community title. It is also important to avoid the problems of freezing land tenure. The bundled rights allocated to communities may also need to include rights to alienate land.

Initiatives to recognise customary rights have struggled to find ways to protect local communities, especially the non-elite members, who may be vulnerable to internal manipulation from their leadership. Community members not only need protection from external encroachment; reluctant, predatory, and resistant actors emerge from within communities as well. Such protection may require the development of mandatory internal rules and procedures “to seek fair distribution of benefits and ameliorate discrimination against [the] less powerful” (Fitzpatrick 2005, 472). There are many legal methods of holding group representatives accountable (e.g., by holding elections or framing a binding group agreement through formal corporate ownership), thereby providing elements of liability and transparency (Fitzpatrick 2005). The question of accountable community leadership is especially critical in cases where regulations might allow community leaders to make adat land available to investors, which opens the procedure to abuse.

Economically empowering communities before and after they gain recognition of their rights is crucial, in order to ensure that the community can maximise the advantages those recognitions will entail. As Fay and Denduangrudee (2016) note, local communities “will need to be well organized and understand the opportunities and constraints this collective rights process provides.” This organisation and education may require support, funding, and advocacy from institutions, NGOs, and social movements, as well as governments.

In all of these considerations, there is the underlying question of how power and interests shape where titling and group rights are provided. For instance, in the Cambodian cases discussed by Dwyer (2015), in the face of vested interests gaining titles to land, communities pursued group rights on a small scale and only in areas where there was no land grabbing. In Indonesia, there is a similar risk: forms of counter-formalisation may require support and approval from local government officials and ministries (Bedner 2016; Fay and Denduangrudee 2016). Such processes are in danger of being manipulated by corporate and investor influence peddling. Such manipulation may also limit the scope for remediation in situations where permits have been issued and where adverse formalisation has already occurred. On this note, Polack, Cotula, and Cote (2013, 1) distinguish “accountability as rights” from “accountability as power.” While the first involves a focus “on the substantive rights and transparency of process established by legal and regulatory frameworks,” the second emphasises “the importance of citizen actions, power and politics in public accountability.” Both are required for effective outcomes in protecting the land rights and livelihoods of the poor.

Conclusion

Can a distributional justice agenda (from above and below) address the adverse formalisation problem? There is increasing pressure on national governments and investors to meet human rights norms, alongside global movements for corporate accountability. In response, President Joko Widodo ran for the presidency with a commitment to reforming land affairs. The land question retains rhetorical and political significance. However, given the difficulties we have discussed, the redistributive agenda has shrunk: current initiatives focus on land under state control rather than the classical redistributive agenda of ‘land to the tiller.' The unresolved problems of this program show the difficulties of pursuing even this limited agenda of state-led reform. Moreover, the state reform program has yet to answer the question of how to address adverse formalisation. As this paper suggests, this remains the most acute problem, which goes to the heart of the development strategies being pursued by the Indonesian government.

Shifts in international governance have created new objects of regulation—such as certified palm oil and timber commodities—that also involve (potentially) seeking to reorganise labour and land use practices. In the scaling up process, both subaltern groups and social movements have new opportunities to forge alliances, using international governance arrangements to contest the localisation of the problem. The optimistic scenario is that the pressure on investors to commit to respecting community land rights and accommodating existing land uses will increase, and state management will gradually move towards meeting international standards (Afrizal and Anderson 2016) in the state's quest for international investment. However, this could also be read as a gradual shift towards new forms of a ‘governmentalisation of land affairs.' In other words, we see the emergence of institutionalised techniques and procedures, a suite of measures and rationalities that shape local-level land negotiations. They set the terms under which corporations gain access to land, how land is ‘freed up,' and how smallholders might negotiate benefit-sharing arrangements (i.e., new forms offormalisation). They dispose corporations, smallholders, and local government to act in particular ways, but ultimately and cumulatively support the alienation of land for resource development (mines and plantations).

In the meantime, after the New Order period, the oppositional politics of land reform shifted to the advocacy of customary or ‘indigenous' rights. This coincided with an international policy agenda that involved recognising group rights. The hope is that by registering existing group rights and by offering them protection, reform initiatives will provide a means of supporting existing tenurial systems and preventing external encroachment. While we have seen that there are many positive possibilities associated with these approaches (not least under the new village law), there are acute challenges. There are those who consider recognising indigenous group rights as exclusionary and contrary to the spirit of inclusive citizenship and distributional justice. Furthermore, there are procedural difficulties. How to decide who can claim an indigenous status and under what conditions? How to prove that functioning customary or community institutions still exist? How to prevent elite capture? In response, legal drafters readily construct regulatory frameworks that also create administrative constraints on those seeking to achieve legal recognition for adat or village communities. District heads and legislatures empowered under decentralisation have discretionary power over these initiatives, but they are vulnerable to influence peddling by corporations and investors. The fear is that such adat rights may only be recognised on a small scale, in remote places where land access is not contested.

Those pursuing land questions need to advocate for more just development models that do not give primacy to market forces, and that allow for the empowerment of subaltern groups (i.e., models that support smallholder inclusion). Current efforts to regulate and mitigate the most negative impacts of adverse formalisation, as discussed above, depend upon developing effective forms of accountability as power, not just rights. In the meantime, efforts to develop ‘accountability as rights' have proceeded at a quick pace, with many new innovations. The concern is that such advances coincide with the consolidation of a development approach that focuses on making the most of the nation's competitive advantages, particularly around the availability of cheap land and labour, at the expense of the sustainability of smallholder agriculture (Millar 2015). Initiatives need to avoid transforming how land is conceived so as to support economic and social inclusion. They need to shift the conception of land away from being embedded in processes that only include local people on adverse terms, and towards re-embedding it in indigenous or local-level community social relations.

Notes

³ Thanks to Adriaan Bedner for making this point.