Asia,1 there is still disagreement as to whether the masyarakat adat or masyarakat
hukum adat are exactly equal to „indigenous peoples‟ that defined in the international
concern for indigenous peoples, as it is perceived throughout the United Nations
system. Several government institutions, including the President and Ministry of
Environment, also use the term “indigenous peoples” as the English translation of
masyarakat adat or masyarakat hukum adat in the official documents. There is not
any official data stating the number of population of the indigenous peoples in
Indonesia. The Alliance of Indigenous Peoples‟ of the Archipelago (Aliansi
Masyarakat Adat Nusantara, hereafter called as AMAN) estimated approximately 50
million to 70 million of the 240 millions overall populations in Indonesia.
9.
Traditional land rights (hak ulayat) generally refer to rights under adat systems,
which include aspects of: i) use and conservation of land, ii) access to water and other
resources, and iii) land transfer and exchange. While variations exist among different
communities, the common belief is that lands are jointly owned by their individual
owners and by the communities. However, these rights are usually not supported by
legal titles and few maps exist showing clear boundaries of the lands covered by these
rights; as such, they are difficult to enforce in the formal legal systems.
10.
The term masyarakat adat is not used in most Indonesian legal documents, except in
the Special Autonomy Law of Papua No. 21/2001, the Oil and Gas Law No. 22 of
2001 and the Coastal and Small Islands Management Law No. 27 of 2007. On the
other hand, the term masyarakat hukum adat (adat law community) is found in
several laws including the 1945 Constitution, the Basic Agrarian Law No. 5/1960,
Forestry Law No. 41/1999, Human Rights Law No. 39/1999, the Constitutional Court
Law No. 24/2003, Water Resources Law No. 7 of 2004, Plantation Law No. 18 of
2004, and Environmental Protection and Management Law No. 32 of 2009. However,
Komnas HAM argues that the legal recognition of indigenous peoples' existence and
rights in some of those laws are not wholly consistent with of which formulated and
defined in the 1945 Constitution.
11.
In the early 1980s, the New Order administration classified almost 70% of the total
land area as “Forest Areas”, without giving recognition to the pre-existing rights of
local people, including masyarakat adat, on these lands and natural resources. The
State leased out, through concessions to corporations and state agencies, millions of
hectares of land, forests, coastlines and other natural resources which had been
customarily owned, used, and/or cared for by local and indigenous communities.
Indeed, government calculations in 2003 showed that out of around 190.5 million
hectares of land, 67.4% has been declared as “state-forest” areas. According to this
categorization, many masyarakat adat suddenly found themselves living “illegally”
on state land, despite their occupancy and customary land ownership for generations
or even centuries.
1
United Nations Special Rapporteur on the rights of indigenous peoples. 2013 Report to the Human Rights Council
A/HRC/24/41/Add.3. 2013. p. 5.
Komnas HAM-52nd Session of ICESCR – April 2014, page 4