Rights and Resources Initiative · Figure 5.1 Process of the gap analysis 19 Figure 6.1 Potential country level operating modalities ... NKB the Forest Management and Governance Reform

Rights and Resources Initiative

International Land and Forest Tenure Facility National Assessment: Indonesia

Draft

Helsinki, Finland May 22, 2014

DISCLAIMER

Indufor makes its best effort to provide accurate and complete information while executing the assignment. Indufor assumes no liability or responsibility for any outcome of the assignment.

Copyright © 2014 Indufor

All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including, but not limited to, photocopying, recording or otherwise.

i © INDUFOR: INTERNATIONAL LAND AND FOREST TENURE FACILITY NATIONAL ASSESSMENT: INDONESIA

TABLE OF CONTENTS

EXECUTIVE SUMMARY 1

1. OBJECTIVE AND OVERVIEW OF THE APPROACH 2

2. CONTEXT 3

2.1 Land tenure trends 3 2.2 Land use changes and pressures 3 2.3 Current legislative, policy and institutional frameworks on tenure and related

opportunities and challenges 5

2.3.1 Policy framework 5 2.3.2 Legislative framework on tenure 7

2.3.3 Forest administration and the institutional framework relevant for land tenure 10

3. KEY INTERVENTIONS RELATED TO SECURING COMMUNAL LAND TENURE 14

4. STAKEHOLDER PERSPECTIVES 16

5. GAP ANALYSIS AND POTENTIAL DEMAND FOR FACILITY SERVICES 19

5.1 Gaps and potential Facility services 19 5.2 Potential pilot projects 24 5.3 The demand and value added of potential facility services – Key take home

messages 25

6. POTENTIAL COUNTRY LEVEL WORKING MODALITIES 27

6.1 Potential country level working modalities 27 6.2 Risks and their mitigation 29

LIST OF APPENDICES

Appendix 1 List of stakeholders

Appendix 2 Legally recognised community forestry models in Indonesia

Appendix 3 Evolution of the land and resource tenure related legislation

Appendix 4 Overview of the national tenure reform processes

Appendix 5 International support

Appendix 6 Relevant lessons learned

LIST OF FIGURES

Figure 5.1 Process of the gap analysis 19

Figure 6.1 Potential country level operating modalities 27

Figure 6.2 Facility process at the country level – A rolling process for constant gap analysis and identification of strategic value adding interventions 28

LIST OF TABLES

i © INDUFOR: INTERNATIONAL LAND AND FOREST TENURE FACILITY NATIONAL ASSESSMENT: INDONESIA

Table 2.1 Forest land tenure in Indonesia 3

Table 2.2 Analysis of opportunities and challenges in key policies relevant to tenure 7

Table 2.3 Analysis of opportunities and challenges in key legislation relevant to tenure 9

ii © INDUFOR: INTERNATIONAL LAND AND FOREST TENURE FACILITY NATIONAL ASSESSMENT: INDONESIA

Table 2.4 Analysis of opportunities and challenges in the key institutional

frameworks relevant to tenure 11

Table 5.1 Gaps and potential needs for the Facility support 21

Table 6.1 Key risks and their mitigation 30

LIST OF BOXES

Box 2.1 Agribusiness and communal forest land 5

Box 4.1 Example of a key bottleneck: Lack of consideration of tenure issues in the forest gazettement process

18

3 © INDUFOR: INTERNATIONAL LAND AND FOREST TENURE FACILITY NATIONAL ASSESSMENT: INDONESIA

ABBREVIATIONS

AMAN

BAL

National Alliance of Indigenous Peoples of the Archipelago

Basic Agrarian Law

BIG the Geospatial Information Agency

BPM National Land Agency

BP-REDD+ the REDD + Management Agency

BRWA the Ancestral Domain Registration Agency

CLUA the Climate and Land Use Alliance

CGI the Consultative Group of Indonesia

CSO Civil society organisations

DFID Department for International Development, UK

DGM Dedicated Grant Mechanism

DKN the National Forestry Council

EU European Union

FCPF the Forest Carbon Partnership Facility

FIP the Forest Investment Program

GIZ Deutsche Gesellschaft für Internationale Zummanarbeit GmbH

GOI Government of Indonesia

HKM Hutan Kemasyarakatan (Community-based Forest)

HTR Hutan Tanaman Rakyat (Community-based Forest Estate)

ICCO the International Cocoa Organisation

ILC International Land Coalition

ILFTF International Land and Forest Tenure Facility

IP Indigenous people

IPAF Indigenous Peoples Assistance Facility

IPO Initial public offering

ITTO International Tropical Timber Organization

JKPP the Indonesian Network for Participatory Mapping

KPK the Corruption Eradication Commission

MFP3 Multistakeholder Forestry Programme, Phase 3

MoU Memorandum of Understanding

MP3EI the Master Plan on Acceleration and Expansion of Indonesian Development

Economic

MRV Measurement, Reporting and Verification NGO Non-Governmental Organisations NICFI Norway's International Climate and Forest Initiative NKB the Forest Management and Governance Reform Pact REDD+ reducing emissions from deforestation and forest degradation and foster

conservation, sustainable management of forests, and enhancement of forest carbon stocks

RRI Rights and Resources Initiative

SFM Sustainable Forest Management

TGHK Forest land use policy called Tata Guna Hutan Kesepakatan

UKCCU the cross-Government UK Climate Change Unit


UKP4 the Presidential Delivery Unit for Development Monitoring and Oversight

UN the United Nations

UNOPS the United Nations Office for Project Services

UNREDD the United Nations Programme on Reducing Emissions from Deforestation and Forest Degradation

USD United States dollar

USAID United States Agency for International Development

WG-Tenure The Working Group on Forest Land Tenure


PREFACE

Forests and drylands are home to over 3 billion of the world’s poorest people and constitute over 40% of the earth’s surface, and store 70% of terrestrial carbon. The tenure over much of this land is contested, with various stakeholders, such as local people, private sector companies and governments claiming use or/and ownership rights. It is now widely recognized that insecure forest and land tenure, and the limited recognition of customary land rights, are severe constraints to achieving the global goals on equitable development, climate change, and conservation. The pervasive and growing land and resource conflicts demonstrate that existing instruments and the currently available funding are inadequate to successfully address the rural tenure crisis and that a large-scale and more coherent response is required.

The Rights and Resources Initiative (RRI) has established a process with the aim to target the global gap in addressing communal land tenure in the identified niche areas of strategic importance. This process has resulted with a draft design of an International Land and Forest Tenure Facility (ILFTF). To allow further development of the Facility concept, the RRI has requested Indufor to carry out a Country Assessment in four countries. The aim of the assessment is to test the validity of the Facility concept at the country level and gain a better understanding of local demand and potential value added for the services the Facility proposes to offer.

This report and the other three Country Assessment Reports will feed into a Synthesis Report

which aims to identify and validate the demand for, and value added of, the Facility and

detailed scope of its services.

Various stakeholders provided invaluable insights and contributions to the National Assessment. The Indufor team wishes to thank the national host Indigenous Peoples’ Alliance of the Archipelago (AMAN), and especially AMAN Secretary General Mr. Abdon Nababan, and AMAN Debuty Secretary General for Advocacy, Law, and Politics Ms. Rukka Sombolinggi, the Indufor National Expert Dr. Mia Siscawati, and all those who contributed to the National Assessment through interviews, focus group discussions, validation workshop, and through online comments and exchange.

Contact:

Karoliina Lindroos

Indufor Oy

Töölönkatu 11 A, 3rd Floor

FI-00100 Helsinki

FINLAND

Tel. +358 9 684 0110

Fax +358 9 135 2552

[email protected]

www.indufor.fi

mailto:[email protected]://www.indufor.fi/


EXECUTIVE SUMMARY

Core demand and added value related to the potential Facility Services

Absence of a long term sustainable support modality for communal tenure rights

There is a wealth of bi- and multilateral development financers, INGOs, philanthropic foundations, and other institutions generating forest relevant development assistance in Indonesia. The most notable overarching themes in the forestry support are climate change, and timber legality related to the Voluntary Partnership Agreement. These thematic areas have attracted large scale financing. The communal tenure rights are addressed, but mostly indirectly, within the framework of these thematic areas. Direct support for the tenure rights of indigenous peoples and local communities is generated through a limited number of developments partners and donors in Indonesia. This direct thematic support is typically sporadic and smaller in scale. A long term financially sustainable communal tenure rights specific support modality is absent.

Major gaps in the political will and in public sector capacity and service delivery in context of forest governance and tenure

Various key bottleneck themes identified across the stakeholder groups were related to the land and resource governance. The themes centered to lacking political will and limited government capacity to address tenure issues, inconsistent and suboptimal legal framework on forest tenure and inconsistencies in the administrative framework in the forest sector. Both the CSOs and the private sector highlighted the lacking public sector service provision in context of forest land administration. There is a clear demand from various stakeholders to address these key gaps. Various types of potential activities have been identified in order to strategically address these key gaps together with the public sector stakeholders with the aim to improve the operational environment related to tenure in Indonesia.

Key value adding elements

The key value adding elements of the potential Facility modalities are identified in

i) Sustainable, long term support focused on communal tenure agenda

ii) Flexible and fast funding arrangements allowing action on strategic windows of

opportunities

Currently sporadic support is available in the context of communal tenure rights. A tenure rights focused support modality would allow added value of the Facility by delivering against the identified thematic funding gap. The funding would complement the large scale thematic funding for REDD+ and timber legality, and other thematic development efforts in the rural and forest landscapes because consideration of tenure is an important success factor in these.

Another value adding feature is identified in the flexibility and response speed of the potential Facility. Most currently available support modalities apply the conventional project based or programmatic approach with related bureaucracy and lengthy fund allocation procedures. The stakeholders consider that the potential country level Facility would generate significant value added if it remains flexibility and allows quick response in mobilizing financing to address strategic opportunities.


1. OBJECTIVE AND OVERVIEW OF THE APPROACH

In Indonesia the legal pluralism, limited recognition of the tenure rights of the indigenous peoples and local communities by the forest administration, overlapping institutional mandates, and corruption among other factors have generated numerous challenges to good land governance in the country. There has been an increasing opposition especially by indigenous and local communities to large-scale land acquisitions for special economic zones, oil palm plantations, mines, dams, power plants, highways, and any number of development schemes in the forest landscapes across the country. The allocation of concessions and development rights in the forest landscape, without consideration for the claims by indigenous peoples and local communities, has created severe and continuous land and resource conflicts. In order to solve these conflicts a more equitable tenure system for Indonesia’s natural forests and plantations, which requires that the rights of communities in forest lands, must be developed.

This National Assessment aims to:

Identify and validate the demand for, and value added of, Facility Services from the point of view of the main constituencies of indigenous peoples and local communities, while taking into account the interests and roles of private sector actors, civil society, and government organizations in the selected countries

The key steps in developing the National Assessment have included:

1. Desk study for analysis of relevant background information and stakeholders to be consulted

2. Field mission to carry out interviews, focus group discussions, and a final validation workshop

3. Electronic circulation of the key findings (workshop presentation) and the workshop outcomes for additional consultation of the stakeholders.

During the field mission stakeholders from all focus groups were consulted in one-on-one interviews or focus group discussions and again in the workshop. Key items discussed were:

i) The main bottlenecks and challenges in advancing the forest tenure reform, ii) Gaps in current support on securing tenure rights of indigenous peoples and local

communities iii) Potential strategic and value adding Facility services that would bridge the gaps and

alleviate the key bottlenecks iv) Potential country level working modalities of the Facility v) Potential pilot projects to be supported by the facility if established vi) Risks related to the Facility and its support and related mitigation strategies

The field mission contacted representatives of 36 stakeholders (Non-governmental Organizations (NGOs), Civil Society Organizations (CSOs), Indigenous Peoples Organizations (IPOs), companies, research and academic institutions, domestic and international development funding agencies and state agencies) of which 22 were available for meeting (see Appendix 1 for relevant stakeholders). 8 individual stakeholders participated to the workshop while others invited stated unavailability due to their busy schedules.


2. CONTEXT

2.1 Land tenure trends

All forest land in Indonesia is currently owned either by the state or private stakeholders. Communal ownership is not acknowledged in Indonesia’s current legal framework. Indigenous peoples and local communities have been managing forest lands and resources through customary management systems governed by customary laws. However, land tenure systems of both indigenous peoples and local communities are not acknowledged by the forestry law which declares all forest lands in Indonesia as state forest. This explains the data released by the Ministry of Forestry in 2007 and 2009 stating that more than more than 40 % of total rural villages in Indonesia are located within the boundaries of state forests.

In 2013 most forests, 97%, were “state controlled” (Forestry Law No. 41 of 1999) and less than 3 % were in private ownership, see Table 2.1. Private ownership refers to the status of the land, which is privately owned land. Private forests, which are mostly small plots of timber plantations, that are established in privately owned land is known as people’s forest (hutan rakyat in Indonesian).

Private companies and communities can hold rights for forest land management in the state production forest. Currently 35 million ha of the production forest (state controlled forest) is managed by companies under license while community licenses cover less than 1 million ha. The trend of area under community management is increasing as the area of the total state forest managed by communities through licenses has increased from 0.22% in 2002 to 1.05% in 2013. However, the share of community licenses over the total production forest area remains marginal (RRI 2014).

Table 2.1 Forest land tenure in Indonesia

Tenure type Category Tenure share (%)

2002 2008 2013

Public ownership Government Administered

98.28 98.43 96.09

Designated for indigenous people & local communities

0.22 0.19 1.05

Private ownership Indigenous people & local communities

0.00 0.00 0.00

Individuals & firms 1.50 1.38 2.86

Source: 2002 and 2013 figures adapted from RRI (2014) and 2008 figures from ITTO, RRI (2011).

2.2 Land use changes and pressures

Main drivers of deforestation

The current deforestation rate in the country is about 2% per year (USAID 2014). Expansion of oil palm and timber plantations, agriculture crops such as sugarcane, mining, infrastructure development and urbanisation, which are usually favoured in government policies, have been the main drivers of deforestation in the country. Deforestation imposes high costs on indigenous and local communities that live in and/or depend on forest resources for their livelihood (USAID 2014).

Logging and plantation development

Indonesia has about 96.92 million ha of forests which constitute about 51% of country’s total land area (RRI 2014). Indonesia has been suffering from high rates of deforestation over the past decades. State control over forest land has been contributing to the deforestation process


in Indonesia since 1970s. Most areas of Indonesian forests (claimed by the state as state forests) are managed by forest companies through concessions. In 1980s and 1990s logging companies could get licenses to manage up to 2 or 3 million hectares of forests. These companies have been practicing excessive logging and poor forest management.

In the beginning of 1990s, Ministry of Forestry developed timber plantation policy and started to give licenses to timber plantation companies. The initial idea of developing timber plantation policy in Indonesia was to enable reforestation of logged over areas. However, instead of applying to develop timber plantations in logged over areas, many timber plantation companies submitted application of licenses to develop plantation in natural forests that were still intact. Their main interest was mining the wood. The logs that were harvested in the area granted for timber plantation were consider legal because government policy allowed the companies to conduct forest land clearing prior to developing new timber plantation. (Kartodihardjo and Supriono 2008).

Many areas in which the Ministry of Forestry gave licenses to forestry companies are customary territories and homelands of various groups of indigenous peoples. Logging activities as well as land clearing for the purpose of establishment of industrial plantation displaced indigenous peoples from their own homelands through various ways. Those who stay, and especially the women, vulnerable and marginal groups within these communities, have been facing poverty and different forms of social injustices. (Siscawati and Mahaningtyas 2012).

Population growth

Like in many developing countries, the population growth in rural areas of Indonesia is likely to increase bringing in more challenges for land-tenure regime. The population growth will force the decline in average farm size and increase in landlessness and thereby increase pressure on forests and the customary regimes that protect them. (ITTO, RRI 2011).

Population growth is the main issue for the Island of Java, which is the most populated island in Indonesia. On other main islands the increasing population related challenge is internal migration, particularly the new phenomena of migrations that are financially supported by capital holders of industrial agriculture. There has been an increasing trend of capital sponsored migration of groups of farmers to occupy state forests in order to plant coffee. Middlemen of coffee bean trading provided coffee farmers with financial and other supports (in form of fertilizers, etc.). The farmers who received support are then obligated sell their coffee bean to these middlemen.

Expansion of agribusiness and related land grabbing

In Indonesia, it is easier to obtain a license to cultivate oil palm than to harvest timber, thus large areas of forests are cleared every year under the pretext of oil palm development, without any actual cultivation. As oil palm only starts to bear fruit after about 3 years of plantation establishment, oil palm producers are incentivized to specifically target forested areas, to which indigenous and local communities in many areas have customary rights, to offset the cost of plantation establishment and the relatively long time to fully recover costs (Schoneveld 2010).

Under the consideration of state control over forests, the government has allocated large areas to companies for oil palm and pulp and paper plantations and other industrial activities. However, an estimate shows that 70% of forest areas with indigenous land claims are subject to overlapping permits. Thus any changes in the tenure status forests in Indonesia will have implications for concession agreements (RRI 2014).


Box 2.1 Agribusiness and communal forest land

According to Schoneveld (2010) “most oil palm companies are in conflict with communities that hold customary claims to the land. Land acquired in the past has often been used by indigenous communities for swidden agriculture and for the harvesting of non-timber forest products; this is land to which rights are often insecure.” Indigenous communities and local groups have no right to stop land acquisitions by, for example, big companies, and all they can hope for is to obtain fair compensation, which often does not realize (Cotula and Mayers 2009).

Communities entering in a partnership scheme with an oil palm company are required to hand over their land certificates which are used as collateral by the company to obtain loans from the bank. However, there is no certainty that the land returned to the community partners will be same as the blocks initially handed over to be managed under the partnership scheme. “For example, in Sanggau, West Kalimantan, the average land parcel handed over per household was 4.21 hectares, and the average land returned was 1.03 ha. There is a false conception among community partners that this land is actually being lent to the company and will be returned after the partnership contract has finished, but this is often not the case.” (Resosudarmo et al. 2012)

Expansion of mining

Mining activities and the related infrastructure development in forested areas, and particularly in forest conservation areas, have been a growing cause of deforestation in Indonesia. Mining business has expanded fast after 2000 and in 2010 mining accounted for 16% of Indonesia’s total export value. Along the growth of the mining business, the impacts to forest resources and the tenure conflicts are likely to increase as well. (Resosudarmo et al., 2012).

According to Resosudarno et al. (2012). Under Law 11/1967, licensed mining operators can conduct their operations in a given area as long as an agreed compensation has been provided to the land holders (including those operating under customary law). However, it has been argued that over time, land holders felt cheated of their customary (adat) rights as they realized that they had been 'pushed' to accept inadequate compensation. During the Soeharto era (1966-1998), when the power of central government and the military was strong, local people did not dare to challenge mining operators over inadequate compensation. After the 1999 Reformasi, which reduced the power of central government and the military, many land holders have tried to reclaim their lands and conducted illegal mining or contracted their land out to illegal mining operators.

2.3 Current legislative, policy and institutional frameworks on tenure and related opportunities and challenges

2.3.1 Policy framework

The key policies relevant to forest tenure analysed are i) the Forest Management and Governance Reform Pact (NKB/MoU of 12 government agencies and state institutions), ii) the One Map Policy, iii) The Master Plan on Acceleration and Expansion of Indonesian Economic Development (MP3EI), and iv) the community forestry policies at the national level (Table 2.2).


The Forest Management and Governance Reform Pact (NKB)

The Pact is a Memorandum of Understanding of joint action between 12 government agencies and state institutions established in March 11 in 2013 with the President of Indonesia participating to the official signing. The key objectives of the MoU are i) Harmonization of forest related regulations, ii) Resolution of forest related conflicts, and iii) Alignment of the technical procedures for forest gazettement.

Host of the MoU is the National Corruption Eradication Commission (KPK). KPK is a statutory institution that has gained strong public support. Two months before the Constitutional Court Ruling on customary forest was released in 2013, twelve government institutions and state institutions signed a memorandum of joint action on Accelerating Forest Delineation, which was initiated by the KPK in the Presidential Palace, Jakarta. The ministers and heads of state agencies who signed the memorandum of joint action are the Ministry of Internal Affairs, Ministry of Justice and Human Rights, Ministry of Finance, the Ministry of Energy and Mineral Resources, Ministry of Agriculture, Ministry of Forestry, Ministry of Public Works, Ministry of Environment, Ministry of National Development and Planning/ National Development Planning Agency, the National Land Agency, the National Geospatial Information Agency (BIG), the National Human Right Commission.

The One Map Policy

The One Map Policy introduced in 2010 aims to harmonize the national geospatial data and to solve the overlap and confusion over various existing maps in various state agencies. Initially, the One Map Policy was developed by the Presidential Delivery Unit for Development Monitoring and Oversight (UKP4) considering that the maps produced by the state agencies are inconsistent. In addition, the maps show overlapping of the areas where government agencies have given licenses to companies (forestry, agriculture and mining licenses). The One Map Policy encourages the standardization of maps and its supporting network, that is one reference, one standard, one database, and one geoportal. One part of the action plan of this policy is to accommodate participatory mapping. The policy is currently being implemented by the National Agency on Geospatial Information (BIG) which is mandated to create one basemap for the use of all national institutions and stakeholders.

The Master Plan on Acceleration and Expansion of Indonesian Economic Development (MP3EI) 2011-25

MP3EI is a macro level economic development plan. It aims to facilitate economic growth and investment in agriculture by boosting the development of oil palm and other cash-crop plantations. The CSOs have voiced concerns that the Plan will further fuel land and resource conflict, for example Merauke indigenous people’s opposition to MIFEE (Merauke Integrated Food and Energy Estate), and the people of Central Kalimantan’s opposition to that province becoming a centre for large-scale mining.

Community forestry policies at the national level

The currently existing community forestry models are described in Appendix 2. Models allow management rights for various purposes, including for small-scale commercial management at the community level. These policies are currently the only government approved and legal models that give access to management rights (but exclude ownership rights) to the forest communities.


Table 2.2 Analysis of opportunities and challenges in key policies relevant to tenure

Item Opportunity Challenge

Forest Management and Governance Reform Pact (NKB/MoU of 12 government agencies and state institutions)

Facilitates the process towards tenure reform

Potentially limited to technical aspects rather than enhancing the legislative framework

Potentially limited involvement of the CSOs

One Map Policy Potential inclusion of the mapped customary territories to the One Map

Strengthening the participatory mapping of the customary territories in areas that remain to be mapped

The participatory mapping methodology and manual developed by CSO (lead by JKPP) could be developed into a national tool through BIG sponsored standard operating procedure

One Map would enable access to nationally consistent and complete geospatial data and would allow improved land governance, accountability and transparency.

BIG considers the maps of the customary territories facilited by CSOs/NGOs technically incompatible with BIG data (lower accuracy) > risk of lack of recognition

BIG requires the mappers in the mapping process of indigenous or local community territories to have certain educational level and a BIG certification > presents a challenge when applying participatory mapping methodologies

The Master Plan on Acceleration and Expansion of Indonesian Economic Development (MP3EI)

Strong consideration and focus on natural resource sectors

Aims to facilitate investment in agriculture by boosting the development of oil palm and other cash-crop plantations in the provinces of Papua, Sumatra and Kalimantan. In order to implement the plan, 21.6 million ha of land will be allocated to plantation development with 12 million ha for oil palm alone.

A significant share of the land is expected to be available by clearing forest (RRI 2013) which is likely to fuel land tenure conflicts.

Community forestry policies at the national level

Allocation of forest management rights to local communities

Limited to management rights, no devolution of tenure

Potentially slow and bureaucratic process of allocation

Inadequate public sector support, dependency on external funding and technical support

Ministry of Forestry Directorate General on Forest Industries does not consider the community forestry licensing (community timber license, community-company partnership) as their responsibility

2.3.2 Legislative framework on tenure

The state control over forest land derives from the history, from the Dutch Colonial rule and the New Order Regime (1966-1998). After the New Order Regime lost its power in May 1998, the Indonesian Parliament enacted the New Forestry Law No. 41 of 1999. Article 5 of Forestry Law (1999) asserts two forest categories: state forest (hutan negara) and forest subject to rights (hutan hak). State forest refers to any forest on a land not subject to a land title. The


other category, known as hutan hak refer to any forest on land with a land title. This category is commonly interpreted as private forest.

The Forestry Law (1999) recognizes the existence of customary forest (hutan adat), however, it categorizes customary forest as state forest. Article 1 of this law mentions that “adat forest is

a state forest that is located in the territory of masyarakat hukum adat1.” Article 5 concludes

also that “in case in its development the masyarakat hukum adat in question no longer exists, the management right of customary forest shall be returned to the Government.”

Forestry Law (1999) has not recognized the rights of masyarakat adat over customary forest lands or acknowledged that resources on these lands have been managed under customary practices long before the modern state of Indonesia was established.

The Indonesian CSOs (lead by National Alliance of Indigenous Peoples of the Archipelago AMAN), challenged the forestry law in Indonesia’s Constitutional Court by submitting an official request for a judicial review of the law in March 2012. The request for judicial review of the forestry law refers to the recognition of the rights of indigenous peoples in the Indonesian Constitution. The 2002 Amendment to the Indonesian Constitution recognizes the cultural identity and traditional rights of indigenous peoples as a basic human right. Other laws such as the 2007 law on the Management of Coastal Regions and Small Islands and the 2009 Environment Law recognize adat rights.

Responding to AMAN’s judicial review, on May, 2013 the Constitutional Court of the Republic of Indonesia ruled that customary forests (hutan adat) are no longer part of state forests (hutan negara). The Court ruled to delete the word “state” from article 1.6. of Forestry Law (1999). Now, the article reads “customary forests are forests located in the territory of customary law communities”. The Court ruled that “Customary forest” is to be taken out of “state forest” (Hutan Negara), and to be moved into “forest subject to rights” (Hutan Hak).

The key legislation relevant to tenure is analyzed in Table 2.3. The table presents the legislation related key opportunities and challenges in advancing the tenure right of indigenous peoples and local communities.

For recap of the evolution of the land and resource tenure related legislation see Appendix 3 and for overview of the national tenure reform processes in general see Appendix 4.

1

customary law communities

Table 2.3 Analysis of opportunities and challenges in key legislation relevant to tenure

Item Opportunities Challenges

Constitutional Court Ruling in the Case Number 35/PUU/2012

Art 1.6 Recognition of the rights of the indigenous peoples over customary forest and territory

New definition on customary forest: ”Customary forest is a forest located within customary territories” > removal of the ”state forest” expression

Art 5.1 State forest does not include customary forest > allows a reference for re- delineating state forest while leaving the customary forest out

Inadequate implementation and lacking regulation for implementation

Art 5.3 requires that the government shall determine the customary forest as long as the indigenous peoples remain in existence and this existence is recognized

Government institutions require local regulation (district/provincial) for this recognition

Village Law no 6 of 2014

Recognizes the customary village (desa adat)

Ministry of Internal Affairs has to develop the government regulation on customary village > opens the opportunity for the recognition of the customary territory (wilayah adat)

Opens opportunities for all (customary and non-customary) village governments to address land and forest tenure

Ministry of Internal Affairs has traditionally registered the population in villages and the village administration but not land or resource related issues > capacity implications

Draft bill on the recognition and protection of the rights of the indigenous peoples

This draft bill contains legal framework for tenurial rights for indigenous peoples The content of the bill might be changed in the parliament due to political interests

The recognition of collective rights might have been removed from the current version

Lacking recognition of rights of women and marginalized groups

Draft bill on land (currently in the Parliament)

Recognizes the customary territories

Sets criteria on how to recognize indigenous peoples but is very general

Potentially could recognize collective ownership

Establishment of land court in the capital of each province

Operationalization of the bill especially in the context of the criteria on recognizing indigenous communities (e.g. attachment to land and the issue of transmigration)

The situation of the ownership rights of migrants on indigenous lands is unclear (previous policy in allocating land for migrating families)

Land court would only apply to non-forest land

Forestry law no 41/1999

Legal reference to user/management rights through community forestry licenses Strengthening of the state control over forest and forest land

In the context of the Constitutional Court decision 35/2012 the Forestry law has been used to strengthen the bureaucratic process in recognizing the existence of indigenous peoples

Law on the prevention and eradication of forest destruction no 18 of 2013

None were identified Strengthens the state control over land

Continues to position the indigenous and local communities, whose territories are overlapping state forest, as illegal inhabitants

Positions the forest related activities carried out by these communities as illegal

© INDUFOR: INTERNATIONAL LAND AND FOREST TENURE FACILITY NATIONAL ASSESSMENT: INDONESIA 9

2.3.3 Forest administration and the institutional framework relevant for land tenure

Table 2.4 presents i) the list and description of the key Indonesian state institutions and organizations with mandate directly or indirectly relevant to forest tenure and ii) the analysis of the current opportunities and challenges developed though stakeholder interviews.

Indonesia has a dual system of land control. Of Indonesia’s 190 million ha of land mass: 70% or 133 million ha of land is classified as ‘forest land’. Forest land is administered by the Ministry of Forestry. However, about 41 million of land officially classified as ‘forest land’ is actually not forested (Bell et al. 2013).

30% or 57 million ha of land is classified as “non-forest land” which is administered by the National Land Agency (BPN) (Bell 2013). BPN has offices in every provinces and districts, and is solely responsible for determining the status of, allocating, registering and regulating all land classified as non-forest land (USAID 2014). About 15 million ha of the ‘non-forest land’ is actually forested and usually managed by provincial and district governments which can authorize economic activities such as setting up oil palm plantations. Thus these forests with ‘non-forest land’ status are vulnerable of being cut down for plantation establishment (Bell et al. 2013) putting the customary rights of local and indigenous communities to these lands at risk. The dual system of land control in Indonesia has caused confusion, land conflicts, problems for local and indigenous communities, evictions, and forest destruction (Bell et al. 2013). The public services related to land and resource tenure are fragmented as agencies have overlaps in mandate and coordination between sector agencies is also limited.

There is a lack of complete inventory of reliably geo-referenced land parcels for both forests and non-forest lands, even though the country has made significant advances in modern geospatial technology. This, combined with a large backlog of land yet to be formally delineated, presents numerous challenges to good governance in the land sector.

The land registration system in Indonesia is overly complex, inefficient and often ambiguous. This, aided with a general lack of clear rights and procedures for registering communal rights and non-transparent expropriation procedures, has weakened the land tenure security and the development of a functioning land market both in rural and urban areas. (USAID 2014).

© INDUFOR: INTERNATIONAL LAND AND FOREST TENURE FACILITY NATIONAL ASSESSMENT: INDONESIA 10


Table 2.4 Analysis of opportunities and challenges in the key institutional frameworks relevant to tenure

Institution Opportunities Challenges

Ministry of Forestry

Mandate over forest land. Ministry of Forestry represents the central government and has the control of allocating state forests for several purposes (production, conservation, protection, etc.). Ministry of Forestry allocates the licenses for forest concessions (logging concession and timber plantations) to state-owned companies, private companies and communities.

The National Land Agency

Mandate over non-forest state land

In some area the non-forest land actually has forest cover while in forest land areas, which are under the mandate of the Ministry of Forestry, the forest land has no forest cover

Ministry of Internal Affairs

Mandate over village governance. It has become relevant Ministry now that the along the new Village Law the Ministry has to develop Government Regulation on customary village which opens the opportunity for the recognition of the customary territory (wilayah adat)

A new stakeholder, Ministry of Internal Affairs, is now directly relevant through the new Village Law > potentially more opportunities and political interest to address the tenure issue

Through training and advocacy some officers/segments in the conventional institutions have started to have more positive view on communal tenure rights > continued work could potentially improve the situation further

Potentially overlapping mandates between Ministry of Forestry and Ministry of Internal Affairs in handling the areas that are declared as state forests. Under the new Village Law, the Ministry of Internal Affairs will be taking care the establishment of customary villages which are mostly located inside the boundaries of the state forests. Similar overlapping mandates are occurring between the National Land Agency (controlling the non- forest state lands).

Multiple maps and overlapping boundaries– in the absence of gazettement data

Lack of rights based approaches and understanding of indigenous and community rights

Lack of substantial understanding related to land and forest tenure

Lack of capacity related to tenure related services

The National Commission on Human Rights

The National Commission on Human Rights is a state institution that has an equal position with other state institutions. The establishment of this state institution is based on the Law no. 39 of 1999 on human rights. The main mandate of this institution is to protect and promote human rights in Indonesia through research, socialization, monitoring and mediation of human rights. Detailed procedures of this national commission are presented in articles number 75 to 99 of the law No. 39 of 1999 on human rights

National inquiry on indigenous rights > includes tenure rights

Results brought to the presidential and legislative levels > potential for high level visibility and action on tenure rights

Unknown political landscape of the next government in post-election era after July 2014

No punitive power > cannot impose change to “business as usual” if there is resistance in state institutions



Presidential Delivery Unit for Development Monitoring and Oversight (UKP4)

UKP4’s main task is to assist the President in carrying out the supervision and control related to achieving the national development targets. UKP4 also carries out the analysis, coordination, and rapid assessment of matters considered strategic and potentially impede or likely to accelerate the process of governance and development.

This institution hosted the REDD+ Task Force appointed by President Susilo Bambang Yudhoyono (Presidential decree no. 25/2011). The Task Force is responsible for the establishment of REDD+ financing mechanisms; the preparation of Measurement, Reporting and Verification (MRV) institutions and the effective implementation of the moratorium. The REDD+Task Force completed its task at the end of 2013 as newly established National Body on REDD+ was established

UKP4 is also involved in the development of the NKB/MoU of 12 government agencies and state institutions on forest reform.

UKP4 continues its main task to assist President of Indonesia in monitoring and overseeing policies, programs and performances of sectoral ministries including ministry of forestry.

UKP4 continues its important role in the development of conceptual approach of One Map Policy. It has also critical role in coordinating government agencies and state institutions in the development of steps toward the implementation of the Constitutional Court Ruling on Customary Forest

Another critical role of UKP4 that could benefit the land and forest tenure reform is its mandate to monitor steps taken by government agencies that are involved in the NKB/MoU of 12 government agencies and state institutions on forest reform.

It has limited authority to intervene the development of policies and programs within sectoral ministries including Ministry of Forestry and other ministries that play critical roles in land and forest tenure reform

The Geospatial Information Agency (BIG)

National Coordinating Agency for Surveys and Mapping (Bakosurtanal) is evolving into BIG. New mandate for the agency is the provision of an implementation strategy and funding for base maps at various scales

BIG is currently involved in the implementation of One Map Policy by developing one reference, one standard, one database, one geoportal in order to solve the problems caused by the existence of various official maps produced by various government institutions. Within this process, BIG has been approached by AMAN, JKPP and other CSOs to consider the customary maps produced by community mapping processes facilitated by JKPP, AMAN and other groups.

Potentially considers the maps of indigenous territories facilitated by the CSOs/NGOS (e.g. JKPP) incompatible with their data management system due to differing accuracies of BIG data and the CSO/NGO facilitated data

The National Forestry Council (DKN)

A multi-stakeholder advisory body of the Ministry of Forestry established in 2009. Although the establishment DKN has in line with the Article 70 of the Forestry Law of 1999, which mention that in increasing community participation in forest-related development government (central and local) can be assisted by a multi-stakeholder

DKN has potential role in the development of substantial concept on land and forest conflict resolution process. DKN has also strategic position to promote this concept to the government to be developed as official mechanism that works at national and local levels.

Key members of DKN’s chambers (which include chambers of government, business, NGOs, community, and academicians) work on limited period of time (during their appointment as selected members) and might not be able to intensively focus due to their responsibilities in their own institutions



forum on forestry, DKN is an independent institution. It has a desk to tackle land rights conflicts. The desk is tasked with identifying and mediating the land conflict resolution process.

The National Agency on REDD+

The Indonesian president signed a presidential decree to create a national agency aimed at combating greenhouse gas emissions signals progress in the country’s efforts to tackle global warming. The National Agency for REDD+ reports directly to President Susilo Bambang Yudhoyono.

The National REDD+ Agency will continue to build upon the foundation for readiness laid by the Presidential REDD+ Task Force, a cross- ministerial initiative leading preparation for implementation from 2010- 2013.

BP-REDD+ has potential position to coordinate the adoption of possible land and forest tenure reform policies into national and provincial strategies of REDD+

BP-REDD+ has limited authority in enforcing the adoption of the land and forest tenure reform policies in related sectors including forestry and agriculture.

The Corruption Eradication Commission (KPK)

Law No.30/2002 on the Corruption Eradication Commission, which was passed in 2002, providing a legal basis for the establishment of the KPK.

The KPK vision is to free Indonesian from corruption. Its tasks include investigating and prosecuting corruption cases and monitoring the governance of the state. It has the authority to request meetings and reports in the course of its investigations. It can also authorize wire taps, impose travel bans, request financial information about suspects, freeze financial asset transactions and request the assistance of other law enforcement agencies. It also has the authority to detain suspects, including well-known figures, and frequently does so.

KPK has been handling corruption cases in the forestry sector. This experience has brought this state institution into a process of addressing the prevention of corruption in forestry sector, including corruption in the process of issuing licenses for forestry companies and other forest land use related issues. Along the way, KPK has initiated the development of the NKP/MoU of 12 government agencies and state institutions on forest reform.

KPK has strong public support that has pushed the government agencies and other state institutions to start the corruption prevention within their organizations. However, high political actors, who feel that their authorities are being challenged by KPK, have been trying to find various ways to weaken KPK


3. KEY INTERVENTIONS RELATED TO SECURING COMMUNAL LAND TENURE

There is a wealth of bi- and multilateral development financers, INGOs, and philanthropic foundations generating development assistance directed to forestry and sustainable forest management in Indonesia (see key development financers and potentially communal tenure rights relevant assistance in Indonesia in Appendix 5). Between 2010-2012 Indonesia received USD 125 million of forest relevant financing from the development partners - over 4% of the

global forestry Official Development Assistance (ODA)2.

The most notable overarching themes in the forestry support are climate change, and timber legality related to the Voluntary Partnership Agreement. According to stakeholders the external donor financing is concentrated to 11 of the 34 provinces which are especially suitable for REDD+ relevant projects as they have high carbon stock and risk of deforestation. Communal tenure rights are addressed, but mostly indirectly, within the framework of these thematic areas.

Direct support to the tenure rights of indigenous peoples and local communities is provided by a relatively limited number of development partners and donors in Indonesia. The support is generated mostly by International Non-Governmental Organizations (INGOs), philanthropic foundations and alike, which channel donor financing to tenure relevant activities in various countries, including Indonesia. However, this support is generally sporadic because many of the INGO related support modalities depend on project or programme based donor financing, and the philanthropic foundations and alike typically finance a variety of thematic interventions and do not concentrate specifically on communal tenure rights. A long term financially sustainable communal tenure rights specific support modality is absent.

There are several resource mobilization organizations that are specialized in accessing foreign funding from the development partners and channeling these funds to implementing partners (mostly CSOs) at the national level. Three of these organizations are Samdhana Institute, Kemitraan (Partnership for Governance Reform), and Yayasan Kehati (the Indonesian Biodiversity Foundation). The Samdhana Institute channels funds towards realizing and securing tenure rights. It works closely with the Alliance for Indigenous Peoples in the Archipelago (AMAN) and indigenous communities of AMAN members at the national and sub- national level.

AMAN has also been gaining significant funding, most notably from the Japan Social Development Fund, which is administered by the World Bank. The total amount of the grant is USD 3 million. AMAN has proposed the innovative grant program and will implement the grant funding for the benefit of Indonesia’s adat communities. This has enabled AMAN to channel both funding and technical assistance to its members towards building the capacity of indigenous communities in key forest provinces.

The planned, potentially large, communal tenure relevant financing in Indonesia comes through:

i) Forest Investment Programme (FIP) Dedicated Grant Mechanism (DGM) ii) Forest Investment Programme (FIP) iii) Multistakeholder Forestry Programme (MFP) (UK)

The Forest Investment Programme (FIP) Dedicated Grant Mechanism (DGM) is administered by the World Bank. At the time of the field mission (April 2014), the design of the DGM in Indonesia was still in the World Bank internal process and unavailable. According to the World Bank the tenure relevant potential thematic areas under which activities could be financed include, but are not limited to, land tenure policies to strengthen the indigenous peoples rights over their land and natural resources, and participatory land-use planning through mapping and profiling, land use identification, and land management design.

2

Data from OECD Creditor Reporting System: stats.oecd.org


The FIP financed directly tenure agenda relevant activities will focus on the institutional development for sustainable forest and natural resource management through the KPH system. In this context the FIP can support various activities related to empowerment and participatory planning and mapping at community level and around targeted KPHs.

The third phase of the Multistakeholder Forestry Programme (MFP) was launched during the field mission and little detail on the Programme was available. UKCCU confirmed that forest land and resource tenure is an area that will be considered and supported under the MFP 3. The aim is to start addressing tenure issues in more strategic ways and to include the consideration of tenure issues into the Indonesian Timber Legality Assurance System.


4. STAKEHOLDER PERSPECTIVES

Key questions for the stakeholder consultations were:

i) The main bottlenecks and challenges in advancing the forest tenure reform, ii) Gaps in current support on securing tenure rights of indigenous peoples and local

communities, iii) Potential strategic and value adding Facility services that would bridge the gaps and

alleviate the key bottlenecks, iv) Potential country level working modalities of the Facility, v) Potential pilot projects to be supported by the facility if established, and vi) Risks related to the Facility and its support and related mitigation strategies

This chapter will present the stakeholder perspectives on the main bottlenecks and challenges in advancing the forest tenure reform and securing tenure rights of indigenous peoples and local communities. The items ii)-vi) are discussed in following chapters under respective headlines.

The stakeholders reflected the key bottlenecks and challenges from their different organizational perspectives, but various key bottleneck themes were identified across the stakeholder groups.

A commonly identified bottleneck theme was related to the legislative framework. The absence of a clear land law, lacking acknowledgement of communal tenure, and the multitude of partly contradictory tenure relevant legislation were considered major bottlenecks within the legislative framework. The CSOs also highlighted specifically the lack of legislative or policy frameworks that could be used as references for the official approval of the CSO facilitated participatory maps of territories of indigenous peoples and local communities.

Many stakeholders from different groups highlighted the limited political will and Government capacity to address the tenure issue. Various stakeholders considered that there is a lack of political will to advance the tenure reform and to address the land and resource rights of the indigenous peoples and local communities. In this context the international development partners noted that in many cases there is lack of willingness to address the tenure issue by the public sector counterpart institutions, which hinders the partners’ ability to effectively support tenure rights agenda. The private sector stakeholders considered that in general the capacity of the Government to address the tenure issue is low which manifests in less lucrative investment and operational environment.

The dichotomy of the forest administration was identified by various stakeholders. While the general administration is decentralized, the forest administration is still functioning through centralized model. Although provincial and district governments now have more autonomy, they have limited control over land and forest resources and have limited authority in addressing land and forest tenure. Final decision making over company licenses for logging and timber plantation, and to communities for community forestry licenses, is with the Ministry of Forestry. Provincial and district governments will only provide recommendation for the initial application process for the forest-related licenses. For provinces and districts with significant amount of conservation areas, they have no authority over these areas as the management of conservation areas is fully with the central government (Ministry of Forestry).

Other major bottlenecks was considered to be the suboptimal (or absent) public sector service provision: Both the CSOs and the private sector highlighted the inadequate public sector service provision in context of forest land administration. The private sector stakeholders noted that the lack of clear working modalities for community-company partnerships present a major bottleneck in the operating environment in adding uncertainty and cost. The CSOs noted the absence of an agency that would register the participatory maps of the indigenous peoples’ and local communities territories while the private sector stakeholders highlighted the lacking support from the Ministry of Forestry to guide and generate working modalities for the obligatory company-community partnerships in context of timber plantation licenses.


In context of the public sector processes various stakeholders noted that one bottleneck is that the delivery indicators for the state agencies set up by the UKP4 do not take tenure issues into account. This can lead to opportunities lost as the state agencies prioritize delivery against the indicators monitored (See box 4.1).

Below is a list of key bottlenecks mentioned by the stakeholders, classified according to stakeholder type:

Civil Society Organizations, Non-governmental Organizations and Indigenous Peoples Organizations

Legal and institutional framework and lack of political will

Lack of political will on tenure reform: There seems to persist both at the highest political level, and at the executing level a lack of commitment on tenure reform

Inconsistent legal framework related to tenure: Multitude of partly contradictory legislation and lack of clear land law and legislation recognizing communal ownership

Since 1999 Indonesia’s general administration has been decentralized (to the provincial, district and village levels) while the natural resource related sectors remain centralized: Main policies on these sectors, including those on land and forest tenure, are enacted by central government at the national level.

Awareness, capacity and resource limitations

CSO capacity to work flexibly with the public sector institutions and to convey messages in the language of the public sector institutions

Limited financial support for advocacy in terms of strategic lobbying (e.g. during legislative and policy processes)

Limited awareness at the community level on legal frameworks and existing policies related to tenure: The limited awareness is linked to local level elite capture and the exclusion of women and marginalized groups

Limited availability of fast response funding mechanisms: Fast response mechanism would to allow strategic responses and inputs (e.g. during legislative and policy processes)

Sometimes challenges in the CSO processes to operationalize ideas and actions generated in networks/forums/platforms: The constraints are related to limited time and to the prioritizing institutional mandates over cooperation and shared agendas

Limitations related to the participatory mapping process

No legal or policy frameworks that could be used as references for the official approval of the CSO facilitated participatory maps of territories of indigenous peoples and local communities

Lack of participatory mapping methodology that is faster and more efficient and carried out in large scale while considering the social and gender aspects

Lack of public sector service to register maps of customary territories: Maps of the indigenous and peoples’ territories have been produced but the registering agency is missing. In the absence of such an organization the CSOs have established the Ancestral Domain Registration Agency (BRWA).

Private sector

Policy on partnership with local communities: There is a lack of clear working modalities and need for support from the Ministry of Forestry. However, currently the industry is left alone to test different partnership models with the communities


Limited capacity of the government to address the tenurial issue: Results with

suboptimal investment and operating environment for the private sector

Government agencies and state institutions

Need to align the forest governance with human rights framework. Considering that Indonesia’s Constitution has adopted human rights framework and that a specific law on human rights has been established in 1999, forest governance policies in Indonesia including land and forest tenure policies must be revised in accordance to the human rights framework

Need to address corruption in the forest sector, including corruption in the process of issuing licenses to logging and timber plantation companies

The financial allocation for and the performance indicators of the gazettement process need to consider the requirements of the participatory approaches.

National and regional resource mobilization organizations

Limited supply of funding focused specifically on securing rights of indigenous peoples and local communities

Existing legal framework and policies give limited recognition on tenure rights

Limited supply of fast response funding, strategic programmatic support and strategic institutional support toward realizing and securing tenure rights

International financers (multi- and bilateral donors, international organizations)

Need to coordinate and align interventions

Public sector counterparts’ reluctance to address tenure issues

Need to support the cultivation of new generation of experts, the current expertise in the CSO base is concentrated

Lack of financing for tenure relevant innovations

Research and academic institutions

Consideration of the tenure aspects is weakening in the existing international climate change schemes

Inertia related to the tenure reform at the national level

Ministries are concentrating to the delivery indicators set up by the UKP4 but so far the delivery indicators have not considered tenure related aspects: an opportunity to address tenure reform is lost

Box 4.1 Example of a key bottleneck: Lack of consideration of tenure issues in

the forest gazettement process

The activities implemented by the gazettement unit of the Ministry of Forestry need to be in line with the annual workplan of the Ministry of Forestry. The UKP4 monitors the implementation of the annual work plan of the Ministry of Forestry, including detailed work plan on forest gazettement, using certain delivery indicators for efficient performance. At the time of the development of the workplan and related costing, the resources required to carry out a participatory process were not factored in. According the Ministry of Forestry stakeholders consulted, this has led the forest gazettement process little room for dialogues and negotiations with indigenous peoples and local communities as these activities are considered slowing down the gazettement process and therefore affecting the performance of the institution.


5. GAP ANALYSIS AND POTENTIAL DEMAND FOR FACILITY SERVICES

5.1 Gaps and potential Facility services

The aim of the potential Facility is to provide strategic and value adding support while avoiding overlaps and doubling of efforts with other supporting institutions. The gaps in activities and support in securing forest tenure for indigenous peoples and local communities were identified through the background analysis and the stakeholder consultations. The gaps were identified considering both the existing bottlenecks and challenges on one hand, and the existing activities and related support currently available to securing tenure rights on the other hand. As the potential services the Facility could provide at the country level were derived based on the gaps identified, and, hence, can be considered strategic and value adding.

Figure 5.1 Process of the gap analysis

Background analysis and stakeholder consultations

Gaps

Key bottlenecks Existing activities

and support

Potential facility services

Table 5.1 presents the identified gaps, matched with potential services offered by the Facility. The gaps are divided in three categories, i) Thematic gaps, ii) Gaps related to funding modalities, and iii) Gaps related to geographic concentration of existing support and activities.

The thematic gaps

The identified thematic gaps were diverse, see Table 5.1. The thematic gaps can be classified under following broad categories

i) Legislative framework, advocacy and awareness ii) Gender and capacities iii) Participatory mapping iv) Technological innovation related to securing tenure rights

Legislative framework, advocacy and awareness

In the context of addressing the limited political will to address the tenure agenda, the CSO stakeholders identified a gap in the support and resources available for engaging in the strategic government agenda, and for lobbying, and cultivating champions, as well as raising policy makers’ awareness on tenure related issue in the context of national socio-economic development. In practice meaningful participation requires intensive preparatory work, which raises the issue of resourcing (staffing, funding). The gap in support for lobbying is linked to the limitation of some donors (due to donor policy or legislation of the country the funding agency is registered to). Gap in support was also identified in advocacy related to the absence of a state agency to register the existing CSO facilitated participatory maps of the territories of indigenous peoples and local communities. Through engaging in the government


agenda, advocacy, and cultivating champions the stakeholders see an important opportunity to address the bottlenecks related to the legislative framework.

Gender and capacities

The stakeholders considered that there is a gap in gender mainstreaming linked to the limited resources to address and support the gender issues in context of tenure rights, e.g. in the legislative processes, mapping process, community level decision making, etc.

A gap in support for tenure rights related capacity building in the public sector institutions, beyond Ministry of Forestry, was identified. Other state agencies, beyond Ministry of Forestry have become increasingly relevant in context of tenure (e.g. Ministry of Internal Affairs along the new Village Law, and BIG along the One Map Policy). However, only Ministry of Forestry currently includes tenure issues in the Ministry training curriculum.

Participatory mapping

Some support is likely available for the CSO facilitated participatory mapping of indigenous territories and local communities. However, stakeholder identified a gap in support directed to the related methodological development. A faster and more efficient methodology, which still considers the social aspects, is needed to scale up and speed the mapping.

Another gap was identified in context of support available for the CSO facilitated mapping of the areas of local (non-indigenous) communities. These areas are generally fragmented and, consecutively the cost of mapping increases.

An important gap was identified in absence of funding and support directed to testing a process to have the CSO facilitated maps officially approved by government agencies. A significant amount of territories of indigenous peoples, and to some extent of local communities, have been mapped but these maps have not been officially approved. As the mapping process continues, solutions must be found to allow their official recognition.

Technological innovation related to securing tenure rights

Stakeholders identified a gap area in context of technological tenure relevant innovation support. Currently there is limited or no systematic support for actively looking for value adding innovations in context of tenure, their further development, and up-scaling, lesson learning, and dissemination.

The gaps related to the funding modalities

The funding gaps culminate to three items:

i) Limited financing available specifically directed to communal tenure rights ii) Limited funding sources that can mobilize financing fast iii) Limited operational financing available and the recipients dependency on project

based financing

The potential financing modalities that would deliver against the gaps identified will be discussed further in Chapter 6.

The geographic gaps

In terms of geographic distribution the support to forest agenda is centred to certain provinces and districts (e.g. West and Central Kalimantan, Jambi in Sumatra, Papua, Riau, Central Sulawesi etc.). At the provincial and district levels, the concentration of support has created a capacity gap between different areas (capacities of local communities, community organizations, local administration etc.). There is currently an imbalance of support in the provinces with high carbon stock and risk of deforestation. To allow added value of the Facility services at the country level, the consideration of the geographic aspect and concentration of external support could be considered when allocating support.


Table 5.1 Gaps and potential needs for the Facility support

Thematic gaps

Gaps Potential Support

Legislative framework, advocacy and awareness

CSOs limited resources (time and funds) to engage in the strategic government agenda (e.g. NKB, One Map Policy): CSOs are in most cases formally invited to participate to the processes but in practice meaningful participation requires intensive preparatory work (e.g. carrying out analysis, preparation of background papers or policy briefs etc.) which raises the issue of resourcing (staffing, funding)

Potential to support to CSOs and peoples organizations to prepare supporting material (background papers, academic papers etc.) to key advocacy processes. The support is not necessary large in terms of disbursement but can be considered strategic and potentially can have high impact in respect to the size of the investment. In some cases can require funding modality that enables fast disbursement.

Limited support available for intensive political work in context of tenure rights – especially lobbying: some donor funding cannot be used for this thematic area (due to e.g. the legislation of the country the funding agency is registered to or donor policy)

Potential support to CSO organizations to strategic lobbying processes. This can mean e.g. assisting in drafting laws, regulations, policies if CSO assistance is requested or accepted, preparing briefs for key policy makers, constant exchange and meetings with high level policy makers and champions, monitoring of legislative process to observe whether draft laws and regulations “stay on course” etc.

No support to advocacy to convince the state agencies on the need to establish an agency with mandate to register the maps of territories of indigenous peoples and local communities

Potential support to the advocacy on the need of such agency > support to CSOs on conceptualizing and submitting the idea to relevant state institutions

Limited support for cultivating champions (e.g. parliamentarians and public sector officials) e.g. through training programmes

Potential support for the cultivation process of strategically selected champions (e.g. training, facilitating establishment of a caucus on indigenous peoples and local communities within the national and local parliament, establishment of political desks within CSOs/IPOs at national and decentral levels to facilitate communication between CSOs and the political champions)

Lacking support for building awareness on tenure related issues and their connection to the socio-economic development

Supporting the increased understanding of the high level government officials of the tenure rights and their linkages to socio-economic development (e.g. strategic dialogue with presidential candidates and provision of a brief on the pressing issues related to tenure rights)


Gender and capacities

Limited resources by all stakeholders to address and support the gender issues in context of tenure rights (e.g. in the legislative processes, mapping process, community level decision making, etc.)

Special emphasis on gender in all Facility support to foster gender mainstreaming Building capacity of specific groups working with local and indigenous communities or with tenure rights to develop activities linking gender and tenure rights Developing methodologies for gender mainstreaming in the context of tenure rights by taking into consideration local contexts and the needs to produce local leaders for gender mainstreaming that will contribute to the development of local actions in realizing and securing rights for indigenous peoples and local communities including women and vulnerable and marginalized members of these communities

Limited support to tenure rights related capacity building in the public sector institutions beyond Ministry of Forestry (currently tenure issues are included in the training curriculum of the Center for Education and Training of the Ministry of Forestry)

Copy or develop end modify existing training and awareness training models to the ministries that have become increasingly relevant in tenure rights context (e.g. Ministry of Internal Affairs, Ministry of Environment, BIG, National Land Agency etc.)

Participatory mapping

Limited support available for the CSO/IPO/NGO led participatory mapping of indigenous territories and local communities but not for the related methodological development Some donors, such as the World Bank have approached the CSOs facilitating the participatory mapping but the organizations have decided, apparently due to historical reasons, not to accept funding from the World Bank. However, the funding might be realized through other channels. No funding has been made available for methodological development.

Support for the further development of an efficient participatory mapping methodology (based on the existing manual) that can be used to a larger scale, be faster while still addressing social aspects and needs

Limited support available for the CSO/IPO/NGO facilitated mapping of the areas of local (non-indigenous) communities. These areas are fragmented and, hence, the mapping expensive.

Potential targeted support for mapping of the areas of local communities in the state forest

Limited or no support for testing a process to have the CSO/IPO/NGO facilitated maps get officially approved by government agencies and or state institutions and Need for support for scaling up the CSO/IPO/NGO led mapping of indigenous territories in the areas less targeted by donors

Support in strategic locations where local regulation for indigenous rights is in place > to create critical mass of lessons learned and examples for advocacy > to allow a test case where the maps produced are submitted to the local level (and then to the central level) administration for official approval

Innovation

Limited or no support on tenure and tenure rights related innovation (e.g. technologies) Potential support related to innovations on tenure and tenure rights , e.g. modified and low cost remote sensing technologies and mapping technologies i) identification of interesting innovations, ii) funding for the further development and testing/piloting, iii) adoption of innovations, iv) dissemination


Financial modality gaps

Gaps Potential services

Limited financing available specifically directed to tenure rights (in contrast to ample funding available on e.g. REDD+ where financing to support tenure rights can potentially also be generated but always in the context of the climate agenda and objectives, which also requires specific knowhow from the recipients)

Facility itself is a delivery mechanism

Limited funding sources that can mobilize financing fast Fast response finance window to allow strategic inputs

Limited operational financing available, recipients dependency on project based financing which results with limited financial sustainability and disproportionate or suboptimal use of resources for securing funding

Operational financing for key organizations (that otherwise have funding gaps) to allow critical mass and retention of key expertise – can be utilized also in activities supported by the facility (technical assistance)

Geographic gaps

Gaps Potential services

Foreign support centered to certain provinces and districts (e.g. West and Central Kalimantan, Jambi in Sumatra, Papua, Riau, Central Sulawesi etc.). These areas are considered either as carbon rich areas with risk of deforestation, areas with complex dynamics of massive deforestation, or as the areas that have problems with illegal logging as well as timber legality.

Emphasis on support in areas that are less crowded by donors and are identified as strategic areas in context of tenure rights

Various donors concentrate on working with national level organizations and agencies Flexible mechanism to allow local organizations to access support (e.g. though sub-grant windows and direct grants) Local level capacity building in grant management, organizational development etc.


5.2 Potential pilot projects

Pilot projects are selected based on their suitability and match to the Facility concept. Projects are selected based on their strategic nature so that they i) address a current key bottleneck, ii) with potential success, allow also leveraging of larger financing for supporting tenure rights of indigenous peoples and local communities, iii) present a “low hanging fruit” and allow demonstration of success and the value of the planned Facility, and iv) are implementable in a relatively short time, and with clearly measurable outcomes relevant considering the Facility objectives, allow feeding also into the final design of the Facility,

Supporting a process to test how the CSO facilitated participatory maps of the territories of indigenous peoples and rural communities can become officially approved

Rationale. One bottleneck is the status of the maps of the territories of indigenous peoples and local communities facilitated by the CSOs/IPOs/NGOs. A mass of maps have been produced but so far none have been officially approved. The CSOs continue facilitating the participatory

mapping of more territories, depending on financing available3. The maps have been

submitted to the Ministry of Environment and the National Geospatial Agency (BIG), but there has so far been no official approval by any Ministry. Meanwhile, the central level forestry administration requires first a local level approval, likely through regulation.

According the stakeholder interviews, a few district governments that are starting to prepare district regulation on the recognition of the existence of indigenous peoples and the protection of their rights have indicated the needs to have maps of customary territories of indigenous peoples as an important attachment of the district regulations.

Project concept: Testing of the process at the local and national level to have the CSO facilitated maps of the territories of indigenous peoples and local communities officially approved. Further the goal should be to have these maps acknowledged introduced to the One Map by the BIG. The Facility could support the local communities in a less donor favored area, to either putting an already existing map forward for the local level administration or to first produce the map of the indigenous or local community territories and then to submit it for approval.

Target outcome: Development of a process for official approval of the maps of the territories of indigenous peoples and local communities. Generation of lessons learned on how to meet the administrative requirements and have the official approval of the maps. Creation of advocacy material that can be used in advocacy as an example on how to allow the official approval of the already existing maps facilitated by CSOs/IPOs/NGOs.

Requirement: Selection of a strategic location where local regulation for indigenous rights is in place and the operational environment is enabling for the acknowledgement of the rights of indigenous peoples and local communities

Activity: Testing whether and through which process the maps created can pass through local level administration and the indigenous and/or local community territories can be officially accepted. Testing the subsequent process at central level.

Estimated duration: 1-3 years

Estimated cost: 300-400 000 USD

Cultivating champions

Rationale. One bottleneck is the limited support for cultivating champions (e.g. parliamentarians and public sector officials). Such champions would be the high level policy

3 E.g. the World Bank has offered to provide large scale financing but the CSOs have declined the financing due to historical reasons. The DGM likely aims to support the mapping.


makers such as member or the Parliament or management of state organizations relevant to tenure. Committed champions with awareness and capacity on tenure issues would allow potentially significant advances in context of land and resource rights of indigenous peoples and local communities. Such advances would include e.g. support to legislative and policy processes in terms of technical inputs, comments, proposals for tenure relevant laws and regulations or revision of the existing laws and revisions. Such support would be timely e.g. in the context of allowing implementation of the Constitutional Court Decision 35/2012 on separating out the indigenous territories from the state forest. According to the CSOs experience has proven that close relationship with such champions is an excellent channel to advance the tenure rights and the tenure reform agenda. However, currently support to cultivating champions is not available.

Project concept: Piloting the establishment of 1-3 political liaison desks within CSOs/IPOs at national (1) and decentral (provincial and/or district level) (2) levels to facilitate communication between CSOs and the political champions at the central and decentral levels

Target outcome: Strategic opportunities (e.g. proposal on new regulation or legislation, monitoring the current drafts in legislative processes, opportunities to provide inputs for legislative and policy processes etc.) to advance the tenure agenda through active support of the champions by the desks

Requirement: Existence of high level officials with interest and commitment to tenure agenda

Activity: Champion(s) identified and supported in terms of capacity building, awareness raising, technical support, knowledge exchange -also between local and central level, strateg

Documents

Rights and Resources Initiative · Figure 5.1 Process of the gap analysis 19 Figure 6.1 Potential country level operating modalities ... NKB the Forest Management and Governance Reform