Parliament and response from the Government. The Parliament’s Legislative Body agreed to the
legislation process of the Draft Law and it shall proceed to Badan Musyawarah (Deliberative
Body) of the Parliament before presented to the Plenary Session. However the process
stagnance at the Legislative Body. In the other hand, the government has not indicate any
formal support to the Draft Law;
Recommendation to the Committee on Economic, Social and Cultural Rights (CESCR):
●
To encourage the GoI with the Indonesian Parliament to immediately issued the Draft Law
on Rights of Masyarakat Hukum Adat which contents are in accordance with international
human rights instruments and standards, in particular the UN Declaration on the Rights of
Indigenous Peoples;
●
To encourage the GoI to involve masyarakat hukum adat, including the women, in the
planning and implementation of economic and development programs. Governments
should ensure that they obtain “free, prior and informed consent” from the affected
masyarakat hukum adat communities before starting an economic and development
project;
●
To encourage the GoI to review all land and natural resources tenure and concessions on
masyarakat hukum adat’s territories, develop a road map for adat land rights restitution
involving the masyarakat adat representatives and other parties which agreed by all
parties; and
●
To encourage the GoI together with the Indonesian Parliament to immediately ratify the
ILO Convention 169 on Indigenous and Tribal Peoples (1989).
Land Tenure
29. Throughout 2016 to 2020, the right to welfare, which includes conflicts related to land and
natural resources (SDA), became the right that was most frequently reported to Komnas HAM.
In 2016 there were 2,748 complaints; in 2017 there were 2,136 files; in 2018 found 2,425 files;
2019 as many as 1,119 cases; and in 2020 found 1,025 cases related to alleged violations of the
right to welfare.29
30. Based on the results of the implementation of the functions and authorities of the Komnas
HAM, it identified that root causes of human rights violations related to land and natural
resources. There have been claims and deviations from norms and content regarding the
meaning of State Controlling Rights (HMN) over land and natural resources. Masyarakat Hukum
Adat (MHA) are still experiencing problems in respecting, protecting, and fulfilling human rights
due to the absence of formal recognition of the existence and comprehensive customary rights.
The implication is that the status of MHA according to formal law is not clear, which results in
the non-fulfillment of security guarantees for customary areas including respect, protection, and
fulfillment of their human rights. The problem of recognizing customary forests occurs because
of the determination of forest areas including customary forests as state forests. This has the
effect of taking over customary areas, including customary forests, with the policy of unilaterally
establishing and/or confirming state forest areas.
29
Komnas HAM, Standar Norma dan Pengaturan (Norms and Regulations Standard) No. 7 Tentang Hak Asasi
Manusia Atas Tanah dan Sumber Daya Alam (Human Rights on Land and Natural Resources Issues), 2021, p. 1,
can be accessed at https://www.komnasham.go.id/files/1640332286-standar-norma-dan-pengaturan-nomor$I8ZR.pdf.