INDONESIA LAND
TENURE RIGHTS
The most important legislation governing land rights is the Basic Agrarian Law (BAL or UUPA), Law No.5 of 1960. It is quite a complex law reflecting and adopting customary (Adat) law developed at rural villages level, and further modified by Dutch Colonial rule. The BAL defines the fundamental types of rights that might be held by private individuals. It also explains the role of the state related to its utility of land; along with, its regulation of private rights and private uses of land. The goal of this law is to lay a foundation for improving the national land law and to provide the certainty of land rights for the people.
However, in 1967, the BAL was ceased to be applied, and the Basic Forest Law, Law No.5 of 1967 (BFL) was adopted. Then, the BFL was replaced by a new Forestry Law in 1999 (Sectoral Law). Both laws removed the weak protections contained in the BAL regarding land rights of customary (Adat) law when communities live in forested areas or on lands granted by the state to corporations.
Indonesia land tenure rights are divided into four categories; State property rights, Private property rights, Community property rights, and Open-access property rights. During the New Order regime, the law stated that all land on which the other party cannot prove its owner is declared a state-own domain. The government has the authority to provide or sell the land to the parties in need.
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State properties: Land ownership owned by the Central Government.
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Private properties: Resources owned by a single individual or firm
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Community properties: The community can use and access in common.
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Open-access properties: There are no limits and no authorities controlling the resources.
RIGHTS OVER LAND
In accordance with the Basic Agrarian Law (BAL or UUPA), Law No.5 of 1960, is divided into two categories; Primary and Secondary. The law specifies several types of land titles. Even though the rights and titles over the land are specified in many regulations, the main types of rights over the land are regulated under the Agrarian law.
According to the basic principles of Agrarian law, the State government of Indonesia are at the highest hierarchy of holding the authority to control the resources for the sake of the Indonesian Nation.
INDONESIA LAND
CONFLICT
Competition over access to land is a source of conflict in many parts in Indonesia. Conflict over the control of land is related to the land that the government grabbed from individuals and communities during the New Order regime and granted to corporations or private properties. Many areas that the government agencies classified as forest are actually village home sites. This leads to a violent confrontation with the official authorities.
Although the community land rights are recognized by law, they are not often granted. Claiming to the community land rights have less chance where influential private actors are involved. It can be concluded that when the land falls to the state, for example, due to being destroyed by fires, the more powerful corporations always get the first rights to it instead of the communities; even though, the citizens claim that as a traditional community, they are entitled to land. The accessibility to agricultural land has been a problem for many Indonesian farmers for a long time.
BURNING ACTIVITY AND ILLEGAL LAND OWNERSHIP TRANSFORMATION
Indonesia palm oil plantation
The Indonesian palm oil industry was imported by Dutch Colonists in 1848, and expanded larger from national to transnational scale. After independence, Sukarno transferred foreign plantation companies to state ownership control, and the state encouraged the expansion of the palm oil industries in Indonesia.
During the Suharto regime, due to the weakness of law enforcement, the illegal palm oil industries have expanded rapidly. The establishment of the expansion of palm oil plantations in Indonesia has unfavourably impacted indigenous people’s rights to their forests, livelihood, food, and culture. The persistence of law violations of the companies includes the illegal use of fire for forest clearance and illegal land ownership transformation.
Forest types
Palm oil plantation
Fire hot spots
The land ownership transformation before and after forest fires in palm oil plantation activities are questionable. The majority of land transformations occurs from community property ownership to ownership by local elites. It was confirmed that 60% of the burnt forest between the year 2015 and 2016 were converted to palm oil plantation, and 40% were the unplanted areas which were occupied by local communities who do not have land rights or certificates. Due to the lack of property land rights protections, the open-access land used by small farmers is always subjected to the intimidation of government officials, and corporations.
Therefore, it is possible that burning activity is actually a conversion technique of land use. Local elites benefit from these land transformations; however, farmers are poorly at a disadvantage. This transformation is an illegal activity, in accordance with the Presidential Decree No. 88/2017 on the certificate of land rights in which the state forest cannot be owned by private ownership. Although there are laws that protected human rights, and the environment, the state agencies and private companies are left unpunished because of a lack of access to justice, and corruptions
ILLEGAL LAND OWNERSHIP TRANSFORMATION PROCESS
The process of land rights transformation has several problems due to unreliable mechanism including tight management controls, an inadequate legal framework, weak governance, uncertainty, and inappropriate processes. The transformation of land rights is done through two different models; the state control model, and the private model.
The purpose of the state control model is to protect against the manipulation of land by non-state actors. However, there are complex issues which are the failure of legislation to define the definition of state land and the lack of time limitation. The unclear definition of state land leads to the uncertainty of the rights, the allocation, and uses of state land.
Another obstacle of converting state land involving forest lands is the competition among government institutions; the Department of Forestry, the traditional communities, and local government regarding the authorities over the land. Moreover, the craving of farmers for access to land is related to the community's resentment regarding past government land-grabbings.
The private model is a simply converted property rights with limited government intervention. The transformation process from forest to private property has encountered several stages and it is the most complex process.
Firstly, Indonesia faced an economic crisis leading to the illegal activities by smallholder farmers, and the expansion of logging outside their concession. Secondly, forestland transforms into peatland which is easily burned during the dry season. The burning activity mostly executed by local communities of smallholder farmers to expand their palm oil plantations.
After a few years of burning, smallholder farmers register the land with the Village offices once the land has been planted with oil palm. After that, the smallholder farmers sell the planted land to other parties. Finally, the transformation process is officially registered with the Village offices. However, the transformation is illegal because according to the basic agrarian law, the protected forest cannot be owned by private property owners as it should belong to the state.
The new owners mostly are local elites divided into political elites, business elites, cultural elites, and bureaucratic elites. They are involved with the highest class politicians, high-class business rank, and local government officers. Most of them occupy palm oil plantations without official permission from the government; therefore, it is likely that the government will ignore this illegal activity.
In conclusion, the main sources of forest fires are driven by the issues of land ownership and the intervention of the more influential figures regarding land rights. The burning activity becomes a conversion of land use which is an illegal activity ignored by the authorities. The elites including the government officers took advantage of small farmers to gain the ownership of land to expand their concession they occupy. The issues of how to deal with the uncertainty of land rights remain unsolved.
When the land is burnt, the plantation companies always get the first rights of ownership. The desire to grow the concession can lead to the burning activity since this can cause the land ownership transformation. Besides, the owners of the plantation industries are mostly local elites who are related to the government officers; therefore, it is likely that the government will disregard the problem.
There is a possibility that the companies burn the land intentionally to expand the concession. They do not try to extinguish the fire or report them because they receive benefits from that.