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The challenges of good land governance
Fundamental to the challenges facing the reform of the Indonesian land sector is that it lacks a comprehensive land law. All land in Indonesia falls into one of two categories: (i) forest estate (kawasan hutan); and (ii) non-forest estate (Areal Pengunan Lain, APL). As such, land is administered under a dual system through two different government agencies, the Ministry of Forestry (MoFor) and the National Land Agency (Badan Pertanahan Nasional, BPN) responsible for forestry and non-forestry lands, respectively. It is further complicated by indeterminate entitlements to land; lack of recognition of customary (adat) rights to land; lack of processes allowing free, prior, and informed consent; excessive application of the State’s power of eminent domain; and a policy for the allocation of land concessions that ignores or overrides the rights and interests of other rights holders. Add to this, government control over land, State land (hak menguasi negara). Land administration and land management are also built upon a range of complexities established in the colonial past. Taken together, the dual system, along with colonial legacies, have generated numerous challenges to good land governance in the country including the rights of individuals, communities, and the sustainable management of natural resources. Confronted with serious challenges, the government is currently working to clear hurdles with regard to existing land-related regulations that date back to the 1800s.
It is generally acknowledged that across Indonesia, land-tenure legislation struggles to be properly implemented, and most people gain access to land on the basis of local land-tenure systems and communityacknowledged traditions. These customary practices and systems, broadly described as adat, have been profoundly impacted by decades of colonial and postindependence government interventions and are continually burdened as a result of diverse factors such as cultural interactions, population growth, socioeconomic changes, and political processes. Adat land systems are extremely diverse. This diversity is the result of a range of cultural, social, ecological, and economic factors in respective communities in the different regions of the country.
Indonesia’s political stability has created a window of opportunity to reform the land sector.
At the International Conference on Regulatory Reform of Indonesian Land Laws for People’s Welfare, held in Jakarta on December 11, 2012, high-level government and civil society speakers identified lack of political will at the highest levels as the key obstacle to land reform in Indonesia. Initiatives to transform property rights seriously challenge existing structures that sustain deforestation. This means that any reform must challenge the power of the MoFor and local administration over forest lands. At stake with any such reform is the ongoing accumulation of vast profits from economic activities generated from unregulated and unsustainable forestry. Accordingly, any effort to implement good governance over forest land faces numerous challenges. In case of non-forest land areas, complex and overlaps laws, decrees and regulations prevent resolution of tenure claims and strengthening land administration. Further, lack of clarity on forest and non-forest land areas, due to absence of reliable maps and data, prevent progress in building tenure security.
In order to appreciate the challenges facing land-sector reforms in the country, it is also necessary to understand the political economy of land in Indonesia. Real prospects for reform have emerged only since the late 1990s. Indonesia’s growing political stability has created a window of opportunity for the implementation of important reforms, including land reforms. The government recently made a strategic commitment to developing stronger, more robust policies and programs for addressing land-sector problems. The reforms are taking place through a dynamic series of top-down high-level initiatives and seem to be followed by a series of complementary bottom-up responses from civil society. Taken together, these are leading to changes in the formal and informal balance of power between central and regional government authorities such as in determining the allocation of land within provincial spatial plans. A pilot assessment of land governance, using the World Bank’s land Governance Assessment Framework (LGAF) was undertaken in 2009. It is anticipated that a more comprehensive assessment will commence later in 2013. In addition, it is anticipated that there will be support for dissemination of the United Nations Voluntary Guidelines for Land Tenure.
Key government land reforms: top-down initiatives
The government has initiated several measures at national and local levels to focus on and resolve overlaps and simplify complexities of the legal instruments, confirm tenure security, and strengthen institutional mechanisms for land governance. These initiatives include:
Taken together, the top-down reforms are leading to changes to the formal and informal balance of power between central and regional government authorities in determining the allocation of land to forestry versus no-forestry purposes within provincial spatial plans.
Civil society advocacy and bottom-up engagements
On the bottom-up side of the reforms, the following initiates are important to note:
Understanding the underlying dynamics of the political economy of land that challenge the implementation of good land governance in Indonesia is fundamental to the achievement of land sector reform and providing donor support. Changes within the Indonesian government and changing relationships between the government, civil society, and the private sector are opening up new spaces for negotiation and also new areas of con ict. The highly political nature of Agrarian Reforms, especially given statements by the President himself, has seen the subject return to the center stage of public debate. While the Indonesian government and political leaders struggle to reform land laws, local communities and local governments seem to have taken the lead in forging new relationships and patterns in land management creating new challenges for land governance. The current World Bank’s stock-taking of the Indonesian land sector, which will be delivered by September 2013, is expected to identify priorities for donor support to land-sector reform. Early indications suggest that support may be required in the areas of: (i) the proposed new Land Law and implementing regulations; (ii) Land Reform Plus (Agrarian Reform); (iii) procedures for recognition of participatory community land mapping; to be undertaken by civil society in support of the land rights of indigenous communities, especially in forest lands; (iv) enhancing National Spatial Data Infrastructure (NSDI) along with OneMap; (v) land governance, including the application of the Land Governance Assessment Framework (LGAF) and awareness raising of the Voluntary Guidelines for Land Governance; and (vi) a comprehensive study on the political economy of land.
Bell, K.C., Srinivas, M.S. and Martinez, J. (2013), Reforming Indonesia’s Complex Legal Environment for Land Governance: Complementary Top-Down and Bottom-Up Approaches, paper presented to the Annual World Bank Land and Poverty Conference, April 8-11, 2013, Washington D.C.
FAO, 2012. Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security, Rome.
World Bank, 2012. Land Governance Assessment Framework: Implementation Manual for Assessing Governance in the Land Sector, World Bank, Washington D.C.