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Who Owns the Land? Looking for Law and Power in Reformasi East Kalimantan

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Who Owns the Land? Looking for Law and Power in Reformasi East Kalimantan Who owns the Land? Looking for Law and Power in Reformasi East Kalimantan Een wetenschappelijke proeve op het gebied van de Rechtsgeleerdheid Proefschrift ter verkrijging van de graad van doctor aan de Radboud Universiteit Nijmegen op gezag van de rector magnificus prof. dr. S.C.J.J. Kortmann, volgens besluit van het college van decanen in het openbaar te verdedigen op maandag 23 november 2009 om 10.30 uur precies. door Laurens Gerrit Hendrik Bakker geboren op 12 augustus 1974 te Leidschendam Who owns the Land? Looking for Law and Power in Reformasi East Kalimantan An academic essay in Law Doctoral Thesis To obtain the degree of doctor from Radboud Universiteit Nijmegen on the Promotores authority of the Rector Magnificus prof. dr. S.C.J.J. Kortmann, according to the Prof. dr. F.A.M. Hüsken decision of council of deans to be defended in public on �������������������Monday November, 23 Prof. mr. P.H.P.H.M.C van Kempen 2009 at 10.30 hours Prof. mr. H.M.C. Slaats by Manuscriptcommissie Prof. mr. A.B. Terlouw Laurens Gerrit Hendrik Bakker Prof. dr. K. VBB born on 12 August 1974 Prof. dr. T. Widlok in Leidschendam ‘Truth shall prevail – don’t you know Magna est veritas et . Yes, when it gets a chance. There is a law, no doubt – and likewise a law regulates your luck in the throwing of the dice. It is not Justice the servant of men, but accident, hazard, Fortune – the ally of patient Time – that holds an even and scrupulous balance. Both of us had said the very same thing. Did we both speak the truth – or did one of us – or neither? . .’ ( Joseph Conrad, Lord Jim) ‘Vimes, I know you must be aware that the sym- bol is not the thing itself,’ said the Patrician. (Terry Pratchett, Thud!) Supervisors Prof. dr. F.A.M. Hüsken Prof. mr. P.H.P.H.M.C van Kempen One swallow never made a spring Prof. mr. H.M.C. Slaats You can buy a crown - it doesn’t make you king Doctoral Thesis Committee Beware the trinkets that we bring Prof. mr. A.B. Terlouw Prof. dr. K. VBB Prof. dr. T. Widlok (New Model Army – Lurhstaap) NUNUKAN DIstrICT Map of Paser district Paser of Map PASER DIstrICT Paser and Nunukan in East Kalimantan East in Nunukan and Paser district Nunukan of Map Content - I Foreword 11 4 Regions to the fore | Positioning Paser and Nunukan 3 4.1 East Kalimantan 3 II Glossary 15 4.2 Defining Dayak 4 4.3 The district of Paser: Paser Buen Kesong 5 4.3.1 The population 6 1 Introduction | Authority beyond reformasi 19 4.3.2 History 7 4.3.3 Economy 8 1.1.1 Isolation or autonomy? A new logging firm in Kepala Telake 3 4.3.4 Forestry 9 1.1.2 Riches of the past: the lands of the sultan 4 4.4 The district of Nunukan: Penekindidebaya 10 1.1.3 Urban Dayak power play: Pak Josef 5 4.4.1 The population 11 1.1.4 The adat law speaks: a verdict in Krayan 6 4.4.2 History 12 1.2 A problematic inheritance 7 4.4.3 Economy 13 1.3 Central government under reformasi 8 4.4.4 Forestry 14 1.4 Researching reform in the regions 9 4.5 Concluding remarks 15 1.5 Power in society 10 1.6 Research questions and methodology 11 1.7 Being there: fieldwork locations 12 5 The mountains of Paser | Land and authority in Gunung Lumut 22 1.8 Outline of the book 13 5.1 Protecting Mului’s forest 3 5.2 Kepala Telake’s riches 4 2 Land and its users | The potential of law and identity 63 5.3 Whose forest is Rantau Layung’s? 5 5.4 Maintaining control in Belimbing 6 2.1 Land matters 3 5.5 Concluding remarks 7 2.2 Land and law in Indonesian politics: an overview 4 2.3 Indigeneity in Indonesia: the concept of adat 5 2.4 Claiming indigenous land 6 6 The laws of the Krayan Highlands | Land at the border of the state 12 2.5 The role of law 7 2.6 Concluding remarks 8 6.1 Governing Krayan 3 6.2 Inside the adat authority 4 6.3 Adat procedures 5 3 Laws and regulations | Official dimensions 12 6.4 Decisions of the adat councils 6 6.4.1 Experienced adat leaders 7 3.1 Administrative and judicial hierarchies 3 6.4.2 Family land 8 3.2 Law’s hierarchy and authority 4 6.4.3 The land, the house and the buffalo 9 3.3 Legal overlap: the authority of 5 6.4.4 Testing the limits of adat’s authority 10 CONTENT People’s Consultative Assembly’s Decrees 6 6.5 Concluding remarks 11 3.4 Regional autonomy legislation and land issues 7 3.5 The Basic Agrarian Law and related legislation 8 3.6 The Forestry Law and related legislation 9 7 The voices of the people? | NGOs and OrMas power 12 3.7 Indigenous peoples’ rights in Indonesia 10 3.8 Concluding remarks 11 7.1 NGOs and local government 3 Content - 7.2 Paser’s adat organisations: negotiating land and power 5 11 Conclusion | Law, land and the discourse of rights 3 7.3 Competiting organisations in Krayan 6 7.4 East Kalimantan and Dayak power 7 11.1 Focussing the findings 3 7.5 Concluding remarks 8 11.2 Finding the rules 4 11.3 Determining authority 5 11.4 The legal dimension 6 8 The politics of land | Dispute mediation in Paser 13 11.5 Resources and interests 7 11.6 Who owns the land? 8 8.1 Filling a vacancy 3 8.2 A company operating beyond its boundaries 4 8.3 The government to the fore 5 Appendix I 22 8.4 The choice for public administration 6 Excerpts from the adat law book of Krayan Darat 8.5 Negotiating land: review cases 7 8.5.1 The return of Pak Ibing 8 Appendix II 22 8.5.2 Fishing for coal boats 9 Excerpts from the adat law book of Krayan Hilir 8.5.3 Palm oil borderlands 10 8.6 Concluding remarks 11 Appendix III 12 Studying the adat of Paser 9 The Sultan’s Map | Arguing aristocratic land rights 224 Appendix IV 22 asks of district government public 9.1 Return of a sultan? 3 administration division 9.2 The sultanate of Paser in historical perspective 4 9.3 Historical background to Pak Tur’s claim 5 9.4 Sultans during colonial rule and independence 6 Bibliography 22 9.5 Sultans in the 21st century? 7 9.6 Pak Tur in court 8 9.7 The claim in society 9 Summary 22 9.8 Concluding Remarks 10 Samenvatting 22 10 “Can we get hak ulayat?” | Claiming communal land 12 10.1 (Re)claiming hak ulayat 3 Curriculum Vitae 22 10.2 State law and ulayat 4 10.3 Solving the hak ulayat problem? 5 Ministerial Regulation 5 of 1999 6 CONTENT 10.4 Hak ulayat and politics in Paser 7 10.5 Adat and hak ulayat in Nunukan 8 10.6 Direct effects of the regulations 9 10.7 A view from the government 10 10.8 Concluding remarks 11 Preface and I acknowledgements Conducting research for this book had a surprising resemblance to one of its main underlying findings; claims to land need authoritative backing, embedding in lo- cal circumstances and a sense of social relations to succeed. Doing research is no different in that respect; one needs official backing and local support in order to collect data, but also an understanding of local society in order to make any data interpretation valid. The willingness of local people to patiently explain time and again what goes on, and why, and the warmth of their friendships are essential to the success of any socio-legal research. Throughout the fieldwork conducted for this book I was received cordially and friendly in village communities, government offices, and private homes. People in small villages would allow me to occupy part of their houses with our backpacks and mosquito net, and spare their time to ac- company me to fallow fields at remote locations in order to get us to understand their explanations of land management. We shared food, coffee and thoughts there, and I came back with greatly increased knowledge of, and respect for, the ways of life in the mountains of East Kalimantan. In the administrative centres of regional capitals support for the research by civil servants and government officials was both priceless and astounding. Enthusiastic individuals willingly explained the tasks and functioning of their offices and their roles within the government admin- istration at large to me. Again, many took the time to patiently discuss procedures and the finer details of their roles. What astounded me was the enthusiasm and passion that many of them displayed. The idea that reformasi and administra- tive decentralisation had made a difference at the regional level of governance was wholeheartedly confirmed by officials. Pointing out their own roles in the administration, they emphasized their increased popular visibility as well as their newly activated responsibilities of formulating and implementing policy. Various ambitious and energetic officials rose through the ranks during the years in which I conducted my research among them and their, and others, cooperation and as- sistance have been invaluable. A third group of people moved between these two categories; members of NGOs, community representatives to local government and leaders of indigenous movements maintained a steady connection between the population and the government.
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