International Labour Organization

Article 24 Representation

Non-Observance of Convention No. 111 by the Republic of

Submitted by

SERIKAT BURUH PERKEBUNAN INDONESIA (SERBUNDO) (The Indonesian Union of Plantation Workers) Jl. Garu VI No. 70 Medan, North , Indonesia 20147 + 62822-6733-5183 [email protected]; [email protected]

12 August 2019

CONTENTS PAGE I. INTRODUCTION 1

II. FACTS 12 A. The Ompu Ronggur Indigenous Community 12 1. History, Social Organization and Customary Land Tenure 12 2. Traditional Occupations 17 B. Discriminatory disregard for Ompu Ronggur’s Rights in Favour of TPL 18 1. The TPL Concession 21 2. Ongoing Encroachment on and Destruction of Community Lands and Resources 22 3. Long-Standing and Persistent Disregard for Complaints made by Ompu Ronggur 23 4. Permanent Insecurity and Impunity 24 C. Discriminatory Impairment and Nullification of the Ompu Ronggur’s Traditional and “Particular” Occupations 25 1. Agro-forestry 26 a. Benzoin Resin Harvesting 26 b. Rice Farming 29 c. Timber Harvesting and Woodcarving 29 2. Hunting 30 3. Floor mat and tandok manufacture and sale 32 4. Traditional governance occupations 33 D. Indonesian Law Discriminates against and their Rights 36 1. The Constitution 39 2. Land Laws 42 a. The Basic Agrarian Law 42 b. The 1999 Forestry Law 44 4. Constitutional Court Decision No. 35: Unfulfilled Promise 45

III. VIOLATIONS 47 A. Preliminary 47 1. Temporal Jurisdiction 47 2. Interdependent and Interconnected Rights 49 B. Specific Violations 55 1. Article 1 55 a. Indonesia’ treatment of Ompu Ronggur is consistent with the definition of discrimination in C111, Article 1 56 b. Indonesia’s treatment of Ompu Ronggur is illegitimate and unjustified 59 2. Articles 2 and 3 65 a. Article 2 66

b. Article 3 69

IV. CONCLUDING COMMENTS AND REQUESTED REMEDIAL MEASURES 77

V. ANNEXES (ATTACHED SEPERATELY) 1. National Inquiry on the Rights of Customary Law-Abiding Communities Over Their Land in Forest Areas Author: The National Commission on Human Rights (Komnas HAM), 18 March 2016 2. Affidavits 1. Affidavit of Pancur Simanjuntak 2. Affidavit of Hermina Sianipar 3. Affidavit of Pariang Simanjutak, Manaek Simanjuntak, Selamat Simanjutak 4. Affidavit of Mestor Simanjuntak, Pariang Simanjuntak, Nurhaida Silitonga, Ompu Rosalina Simanjuntak, Maruli Simanjuntak 3. Maps 1. Map of Huta 2. Map of Forest Clearances in the Huta. 3. Map of overlap of Huta by State Forest Area 4. Map of overlap of Huta by Production Forest 4. SERBUNDO Articles of Incorporation 5. Ompu Ronggur Statement of Endorsement and Support 6. Supporting letters from AMAN Tano , AMAN, YMKL, FPP and AIPP

Article 24 Representation Non-Observance of Convention No. 111 by the Republic of Indonesia

I. INTRODUCTION 1. This Representation is submitted by Serikat Buruh Perkebunan Indonesia (“SERBUNDO”) (in English: The Indonesian Union of Plantation Workers), an industrial association representing workers, pursuant to Article 24 of the Constitution of the International Labour Organisation (“ILO”) and the Standing Rules of the Governing Body (“Standing Rules”).1 It is submitted on behalf of the Ompu Ronggur indigenous community and its members (“Ompu Ronggur” or “the Community”) (see Annex 5, endorsing this Representation), whose traditional lands are located in North Sumatra Province, Republic of Indonesia (“Indonesia” or “the State”), and which is subject to long-standing and debilitating discrimination in contravention of core labour standards and interconnected human rights law. This discriminatory treatment is rooted in the denial of its rights as an indigenous community, including the conversion of substantial areas of the Community’s lands to a monocrop plantation; is ongoing; and has resulted in the gross impairment or nullification of the Community’s traditional occupations and the inter-dependent land and other rights vested in indigenous peoples. 2. The situation of Ompu Ronggur is emblematic of entrenched and systemic discrimination2 against indigenous peoples throughout the Indonesian archipelago.3 The ILO Director General has acknowledged that “[t]hroughout South-East Asia, ethnic minorities and indigenous peoples

1 See Annex 4 for the articles of incorporation. SERBUNDO is an alliance of 12 labour unions, primarily representing plantation workers. 2 See e.g., General Comment No. 20, Non-Discrimination in Economic, Social and Cultural Rights, E/C.12/GC/20 (2009), para. 12 (defining ‘systemic discrimination’ as “legal rules, policies, practices or predominant cultural attitudes in either the public or private sector which create relative disadvantages for some groups, and privileges for other groups”). 3 See e.g., Annex 1, National Inquiry on the Rights of Indigenous Peoples over their Land in Forest Areas, National Commission on Human Rights (Komnas HAM), 18 March 2016 (documenting gross and pervasive violations of indigenous peoples’ rights in Indonesia), http://rightsandresources.org/wp-content/uploads/2016/04/Komnas- HAM-National-Inquiry-on-the-Rights-of-Customary-Law-Abiding-Communities-Over-Their-Land-in-Forest- Areas_April-2016.pdf; and WITHOUT REMEDY: Human Rights Abuse and Indonesia’s Pulp and Paper Industry (Human Rights Watch: Washington DC, 2003), p. 31 (stating that its examination of various situations of violations involving pulp and paper companies, including that of the Batak Toba, “are intended not to provide a detailed analysis of these specific conflicts but rather to illustrate the national scope and striking similarity in the way these plantations have operated in relation to local communities, the complaints they have engendered in the community, and the protests and violence that has inevitably resulted”).

Page 1 of 82

are at a disadvantage relative to other sectors of national populations.”4 This is particularly true, and is the case in this Representation, where their rights are not adequately secured and where private sector and other operations have encroached on their traditional lands.5 A UN Special Rapporteur has observed that an “inequitable and exclusionary land tenure system exists in Indonesia, exemplified by the fact that approximately 69 per cent of the land is owned by 16 per cent of the population.”6 She further explains that indigenous peoples’ “claims to the land are not recognized by the State,” and “[c]onversion of land uses has had significant impact on natural resources and land rights of forest-dependent communities.”7 The Indonesian National Forestry Council documented that conflicts over forests in 2013 involved nearly 20,000 villages in 33 provinces.8 The World Bank concludes that these conflicts are primarily due to competing land claims, loss of livelihoods for local communities, and governance issues.9 In 2018, another UN Special Rapporteur confirmed that indigenous peoples in Indonesia “face disproportionate barriers to accessing land” and that this discriminatory treatment is exacerbated by the fact that

4 ILO, Director-General, Time for Equality at Work: Global Report Under the Follow-up to the ILO Declaration on Fundamental Principles and Rights at Work, 91st Session of the International Labour Conference, Report I(B) (Mar. 2003), para. 95. 5 See e.g., S. Errico, The rights of indigenous peoples in Asia : a human rights-based overview of national legal and policy frameworks against the backdrop of country strategies for development and poverty reduction, (International Labour Office, Gender, Equality and Diversity Branch, 2017), p. 44 (explaining that “Land dispossession and loss of access to natural resources have a significant impact on indigenous peoples’ livelihoods, resulting in growing poverty and food insecurity, among others. … As previously noted, land tenure security and access to natural resources are also receiving particular attention in the framework of national strategies for development and poverty reduction”), https://www.ilo.org/wcmsp5/groups/public/---dgreports/--- gender/documents/publication/wcms_545487.pdf; and UNCERD, Early Warning and Urgent Action Procedures: Indonesia (13 March 2009), p. 1 (stating that the “high number of conflicts arising each year throughout Indonesia” between local communities and plantation companies remains an issue of concern, “in particular with regard to the protection of indigenous peoples’ rights”), https://www.ohchr.org/Documents/HRBodies/CERD/EarlyWarning/Indonesia130309.pdf. 6 Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context, Raquel Rolnik: Mission to Indonesia, A/HRC/25/54/Add.1 (2013), para. 42, https://www.refworld.org/docid/52e0f5e7a.html. 7 Id. para. 49-50. 8 See e.g., ‘In landmark ruling, Indonesia’s indigenous people win right to millions of hectares of forest’, Mongabay, 17 May 2013, https://news.mongabay.com/2013/05/in-landmark-ruling-indonesias-indigenous-people-win- right-to-millions-of-hectares-of-forest/; and E/C.12/IDN/CO/1 (2014), para. 29 (expressing concern “about the large number of land disputes and cases of land-grabbing in the State party. … Similarly, the Committee is concerned that court decisions on land cases have been primarily made on the basis of the existence of titles”). 9 Towards Indonesian Land Reforms: Challenges and Opportunities. A Review of the Land Sector (Forest and Non- forest) in Indonesia (World Bank 2014).

Page 2 of 82

their “livelihoods and food sources depend considerably on the free use of land.”10 She also confirmed that “land-related conflicts have had devastating human rights impacts.”11 3. With respect to this Representation, it is proven herein that Indonesia has contravened Convention No. 111, Discrimination (Employment and Occupation) of 1958 (“C111”) in relation to the situation of Ompu Ronggur. C111 entered into force for Indonesia on 7 June 2000. Indonesia’s acts and omissions and the resulting violations described herein occurred subsequent to 7 June 2000 and are ongoing, or, where initiated prior thereto, demonstrate ongoing and continuous effects and consequences that also violate C111.12 The discrimination C111 prohibits and the equality it seeks to establish are governing principles of law and society and are deemed so fundamental to the international human rights regime that “no derogation is permitted.”13 The 1998 Declaration on Fundamental Principles and Rights at Work further affirms that one of the four core labor standards at the international level is “the elimination of discrimination in respect of employment and occupation.”14 4. Based on the proven facts and as a matter of law, Indonesia has violated, to the extreme detriment of the Community, Articles 1, 2, and 3 of C111, all read in conjunction with Article II(a) of the Declaration of Philadelphia. This Declaration, which is an integral part of the ILO’s

10 UN Special Rapporteur on the Right to Food, Report of the Special Rapporteur on the right to food on her mission to Indonesia, A/HRC/40/56/Add.2 (2018), para. 51-2 (emphasis added), https://documents-dds- ny.un.org/doc/UNDOC/GEN/G18/447/88/PDF/G1844788.pdf?OpenElement. 11 Id. para. 68 (explaining that “The Agrarian Reform Consortium states that between 2015 and 2017, there were 1,361 agrarian conflicts involving 2,185,948 hectares and impacting 848,197 households. These conflicts predominantly involved the use of land for plantations, forestry and infrastructure”). 12 In common with other human rights tribunals and mechanisms, the Governing Body has held states responsible for continuing violations of indigenous peoples’ rights under Convention No. 169, even though the events that initiated the violations occurred decades before its entry into force. See e.g., Report of the Committee set up to examine the representation alleging non-observance by Mexico of the Indigenous and Tribal Peoples Convention, (No. 169), made under article 24 of the ILO Constitution by the Radical Trade Union of Metal and Associated Workers, GB.273/15/6; GB.276/16/3 (1999), at para. 36 (stating that “the effects of the decisions that were taken at that time continue to affect the current situation of the indigenous peoples…. The Committee therefore considers that the Convention does currently apply with respect to the consequences of the decisions taken prior to its entry into force”); accord Report of the Committee set up to examine the representation alleging non- observance by Denmark of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under article 24 of the ILO Constitution by the Sulinermik Inuussutissarsiuteqartut Kattuffiat (SIK), GB.277/18/3; GB.280/18/5 (2001), at para. 29 (stating that “The Committee observes that the relocation of the population of the Uummannaq settlement, which forms the basis of this representation, took place in 1953. It also takes note of the fact that the Convention only came into force for Denmark on 22 February 1997. … [T]he Committee considers that the consequences of the relocation that persist … still need to be considered … despite the fact that the relocation was carried out prior to the entry into force of the Convention”). 13 Report of the Committee on the Elimination of Racial Discrimination, 1 November 2002, UN Doc. A/57/18, Chapter XI(C) and; World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance Declaration, 2001, preambular para. 22. See also Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18/03, Inter-Am. Ct. H.R., Ser. A No. 18 (2003), para. 101 (stating that “the fundamental principle of equality and non-discrimination has entered the realm of jus cogens”). 14 Declaration on Fundamental Principles and Rights at Work, ILO, 86th Sess. (June 1998), 37 I.L.M. 1233, 1235.

Page 3 of 82

Constitution, provides that “all human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity.” Connected to this, and as stated in Article 43 of the 2007 UN Declaration on the Rights of Indigenous Peoples (“UNDRIP”), the international community has determined that the indigenous peoples’ rights framework provides “minimum standards for the survival, dignity and well-being of the indigenous peoples of the world.”15 As discussed below, these “minimum standards” are highly relevant to the interpretation of C111 in the case of indigenous peoples. 5. The violations proven herein concern Indonesia’s discriminatory treatment, impairment and nullification of Ompu Ronggur’s traditional occupations and associated rights, including to its lands. These lands underpin and sustain their traditional occupations,16 the Community’s identity, and its social and cultural integrity.17 In addition to deficient and even prejudicial national policies and laws concerning indigenous peoples, the violations of C111 highlighted herein are further caused by an Industrial Planted Forest permit (Hutan Tanaman Industri - HTI) granted by Indonesia in 1992 to a private company, now called PT. Toba Pulp Lestari (“TPL”), and the ongoing consequences thereof. This permit, issued without even notifying the Community, has authorized cyclical forest clearances, commencing in 2004, and the establishment of monocrop plantations to provide pulp for paper and rayon manufacturing over the entirety of the Community’s traditionally owned lands (see Annex 3, Maps 2 and 4). In turn, this has resulted in the discriminatory treatment and denial of the Community’s right to maintain, freely pursue, and benefit from its traditional occupations and economy, which are presently either substantially impaired or nullified due to Indonesia’s acts and omissions. The Community has become impoverished as a direct consequence, for example, losing all of its sustenance and income derived from two traditional occupations, over 80 percent of its income from another, and significant losses in relation to three others.18 As explained below, these discriminatory effects and the related harm are multi-generational and multi-dimensional.

15 See also ‘Protecting rights and dignity of indigenous peoples ‘is protecting everyone’s rights’, UN DESA, 9 August 2017 , https://www.un.org/development/desa/en/news/social/rights-and-dignity-indigenous-peoples.html. 16 See e.g., SR Food 2018, supra note 10, para. 63 (explaining that the “right to land is closely related to food access and availability, which are integral to the right to food, especially for those populations who grow their own food, or who use land for income-generating purposes”). 17 See e.g., Report of the Committee set up to examine the representation alleging non-observance by Guatemala of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under article 24 of the ILO Constitution by the Federation of Country and City Workers (FTCC) (GB.294/17/1):(GB.299/6/1) (2007), para. 44 (affirming that indigenous territorial rights “not only relate to ownership and occupation, but also to the survival of indigenous peoples as such and their historical continuity”); and Bernard Ominayak, Chief of the Lubicon Lake Band vs. Canada, A/45/40, vol. 2 (1990) (finding that the Band’s survival as a distinct cultural community was bound up with the sustenance that it derived from the land). 18 See e.g., S. Errico, The rights of indigenous peoples in Asia, supra note 5, p. 36 (citing a 2012 IFAD study and stating that “the lack of recognition and protection of indigenous peoples’ rights to land and natural resources [in Indonesia] has been regarded as the main cause of their poverty”).

Page 4 of 82

6. Article 17(1) of the UNDRIP provides that “Indigenous individuals and peoples have the right to enjoy fully all rights established under applicable international and domestic labour law.”19 This recognizes both the individual and collective dimensions of these rights in the case of indigenous peoples. Consistent therewith, the ILO Committee of Experts on the Application of Conventions and Recommendations (“the CEACR”) has repeatedly affirmed that “discrimination as set out in Article 1 of [C111] covers discrimination against indigenous peoples,”20 and that C111 applies to and protects their traditional occupations.21 It has also applied C111 to indigenous peoples in Indonesia, referring in 2008, for instance, to recommendations made by the UN Committee on the Elimination of Racial Discrimination (“UNCERD”) about plantations and indigenous peoples’ rights, and requesting – but, to date, not receiving – information on “any measures taken or envisaged to address discrimination suffered by indigenous peoples in employment and occupation.”22 7. Likewise, an ILO Office study on the indigenous traditional occupation of shifting cultivation in Nepal concludes that C111 “intends to eliminate discrimination and the lack of equal opportunities experienced by indigenous workers due to the very fact that they belong to

19 Lee Swepston explains that the ‘right to enjoy fully’ in Article 17(1) “implies that there should be effective enjoyment of these rights. Ie that they should not merely be included in legislation, but that States have a duty to ensure their implementation in fact as well as theory.” L. Swepston, Labour Rights in J. Hohmann & M. Weller, THE UN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES: A COMMENTARY (Oxford University Press 2018), p. 465. 20 See e.g., CEACR Observation concerning C111, Botswana 2011/2012; and CEACR Direct Request Convention 111, Liberia, 2013/2014. (The Committee has considered any discrimination against an ethnic group, including indigenous and tribal peoples, to be racial discrimination within the terms of the Convention). 21 See e.g., CEACR, Observation concerning C111, El Salvador 2008/2010, para. 68 (interpreting Convention 111 to cover indigenous peoples’ traditional, non-wage occupations). See also General Survey on the fundamental Conventions concerning rights at work in light of the ILO Declaration on Social Justice for a Fair Globalization, 2008. Report of the Committee of Experts on the Application of Conventions and Recommendations (articles 19, 22 and 35 of the Constitution), Report III (Part 1B), International Labour Conference, 101st Session, (2012), p. 315 (stating that “Traditional occupations, for example those pursued by indigenous peoples, such as subsistence farming, handicraft production or hunting, are also ‘occupations within the meaning of [C111]”). 22 CEACR, Direct Request concerning C111, Indonesia 2008/2009, at para. 8 (noting “the Government’s indication, included in the report submitted to CERD in 2007, that there are regulations on the protection of indigenous peoples (UN Doc. CERD/C/IDN/3, paragraph 62). In particular, the report emphasizes that article 28(1) of the 1945 Constitution guarantees full respect for the rights of indigenous peoples (paragraph 64). It also notes from the same report that Indonesia is preparing new legislation to provide better protection and treatment for all ethnic groups”). See also CEACR, Observation concerning C111, Indonesia 2010/2011 (requesting that Indonesia “indicate any other action taken or envisaged, at national and regional level, to promote equality of opportunity and treatment in employment and occupation of all ethnic groups of the population, including indigenous peoples…, and on the results secured by such action, in accordance with Article 3(f) of the Convention”); Report of the Committee of Experts on the Application of Conventions and Recommendations, International Labour Conference, 102nd Session, Report III (Part 1A) (International Labour Office: Geneva 2013), p. 232-35 (making extensive reference to the concluding observations of CEDAW and the Human Rights Committee), http://www.ilo.org/public/libdoc/ilo/P/09661/09661(2013-102-1A).pdf.

Page 5 of 82

indigenous peoples.”23 A 2007 ILO publication on indigenous peoples and discrimination adds that, “due to the distinctiveness of indigenous peoples’ way of life, treating the indigenous and non-indigenous parts of the population in the same way would regularly lead to discriminatory outcomes and unequal opportunities for indigenous and tribal peoples.”24 Given that contemporary international law has recognized a discrete body of rights vested in indigenous peoples,25 the same approach is warranted in relation to the interpretation of the nature and elements of discrimination affecting indigenous peoples under C111 as well as the harm caused thereby.26 In this respect, and by way of analogy, the former UN Special Rapporteur on the Right to Food explains that “indigenous peoples are generally recognized as having broader rights to natural resources under international human rights law;”27 this “… provide[s] a point of reference for evaluating questions related to the availability, accessibility and adequacy (including cultural appropriateness) of food as well as non-discrimination.”28 Thus, discriminatory treatment under C111 must be identified, interpreted and understood in the context of the specific rights of indigenous peoples.

23 K. Aryal & E. Kerkhoff, The right to practice shifting cultivation as a traditional occupation in Nepal: A case study to apply ILO Conventions Nos. 111 (Employment and Occupation) and 169 (Indigenous and Tribal Peoples), (ILO Office, 2008), p. 12. 24 ILO, Newsletter 2007: Indigenous and Tribal Peoples – Theme: Discrimination, p. 7, http://www.ilo.org/wcmsp5/groups/public/---ed_norm/--normes/documents/publication/wcms_100542.pdf. See also Yakye Axa Indigenous Cmty. v. Paraguay, Inter-Am. Ct. H.R., Ser. C No. 125 (2005), para. 51 (where the Inter-American Court of Human Rights explains that, to ensure the American Convention’s rights to indigenous peoples, states “must take into account the specific characteristics that differentiate the members of the indigenous peoples from the general population and that constitute their cultural identity”); and Handölsdalen Sami Village and others v. Sweden, Euro. Ct. H. R., Application No. 39013/04 (2010), Partly Dissenting Opinion of Judge Ziemele, para 10. (finding that certain rights of the Sami village were denied because Sweden’s entire approach to land disputes failed to “take account of the rights and particular circumstances of indigenous people”). 25 See e.g., Ángela Poma Poma v. Peru, CCPR/C/95/D/1457/2006, 24 April 2009, 7.2 (reiterating that Article 27 of the ICCPR establishes and recognizes a right which is conferred on members of indigenous peoples “and which is distinct from, and additional to, the other rights which all persons are entitled to enjoy under the Covenant”). See also Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin, Inter-Am. C.H.R, OEA/Ser.L/V/II.62, Doc. 26, 1984, p. 76 and 81 (where the Commission held that “special legal protection” is recognised for indigenous languages, cultures, economies, ecosystems and natural resource base, religious practices, “ancestral and communal lands, and the establishment of an institutional order that facilitates indigenous participation through their freely chosen representatives”). 26 Yakye Axa Indigenous Cmty. v. Paraguay, Inter-Am. Ct. H.R., Ser. C No. 125 (2005), para. 51. According to the Court, indigenous cultural identity has a direct bearing on the Convention’s “scope and content,” and leads to special state obligations and measures of protection. 27 UN Special Rapporteur on the Right to Food: Mission to Canada, A/HRC/22/50/Add.1 (2012), para. 62 (stating that “Indigenous peoples are also uniquely positioned with respect to food by virtue of their relationship with traditional lands and the natural resources therein, which is a central component of their identity. Accordingly, indigenous peoples are generally recognized as having broader rights to natural resources under international human rights law. They have the right to use natural resources as a means of supporting their cultural integrity through traditional economic activities, such as subsistence agriculture, hunting and fishing, as well as religious or spiritual activities”), https://www.refworld.org/docid/511cb0422.html. 28 Id. para. 68.

Page 6 of 82

8. The CEACR and other bodies of the ILO system29 have also affirmed the interconnection between equal treatment and protection of indigenous peoples’ traditional occupations and effective guarantees for their rights of ownership, control and possession of traditional lands and resources.30 The CEACR has explained that the prohibition of discrimination and the guarantee of equal protection for indigenous peoples’ traditional occupations require, inter alia, “that measures are adopted to resolve the problem of land ownership,” in accordance with the traditional ownership rights of these communities.31 This traditional ownership arises from indigenous peoples’ occupation and use and their customary tenure systems and associated customary laws.32 States have a corresponding obligation to regularize, respect and equally protect indigenous peoples’ property rights,33 and, as discussed further below, the failure to do so is routinely categorized as discrimination by human rights mechanisms.34 As discussed below, the Indonesian Constitutional Court reached the same conclusion with respect to indigenous property rights in a 2013 judgment, a decision that has been barely implemented by Indonesia.35

29 See e.g., Equality and non-discrimination at work in East and South-East Asia: Guide (ILO Regional Office for Asia and the Pacific, Bangkok, 2011) (explaining that C111 “upholds the right of indigenous and tribal peoples to earn their living with respect to the exercise of their traditional occupations. In such cases development and employment promotion programmes often need to be combined with safeguarding indigenous and tribal control over natural and environmental resources in their areas of traditional habitation”). 30 See e.g., CEACR, Direct Request concerning C111, Uganda 2014/2015 (recalling “the difficulties regarding access to traditional occupations faced by some hunter-gatherer and pastoralist communities as a consequence of loss of access to traditional lands” and asking the government to provide more information on how it would safeguard indigenous rights). 31 CEACR, Observation concerning C111, El Salvador 2008/2009 (also referring “to similar comments made by the [UNCERD] (CERD/C/SLV/CO/13, 4 April 2006, paragraph 11), to the effect that the difficult situation concerning land ownership is continuing to have a negative impact on the possibility for indigenous peoples to perform their traditional occupations”). See also CEACR, Observation concerning C111, Democratic Republic of Congo 2013/2014, (stating that “The Committee requests the Government to take practical measures to allow indigenous peoples access, on equal footing with other members of the population … to resources which enable them to carry out their traditional and subsistence activities, particularly to land). 32 See e.g., UN Declaration on the Rights of Indigenous Peoples (13 Sept. 2007), Art. 26(1) (providing that “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired” (hereinafter “UNDRIP”); and Report No. 40/04, Maya Indigenous Communities of the Toledo District, Case 12.053 (Belize), Inter-Am. Com. H.R. (12 October 2004), para 117. (observing that “the jurisprudence of the system has acknowledged that the property rights of indigenous peoples are not defined exclusively by entitlements within a state’s formal legal regime, but also include that indigenous communal property that arises from and is grounded in indigenous custom and tradition”). 33 See e.g., UNDRIP, Article 26(3) (providing that “States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned”); and C169, Article 14(2) (providing that “Governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession. 34 See e.g., UNCERD, General Recommendation No. 23, Indigenous Peoples (1997). 35 The State has not only failed to implement this judgment, it continues to actively contravene its letter and spirit, both in law and through specific acts. See e.g., E/C.12/IDN/CO/1 (2014), para. 39 (where the UNCESCR expresses concern about “provisions of recently adopted Law No. 18/2013 on Prevention and Eradication of Forest Destruction as well as other laws in force in the State party which contravene the Decision 35/PUU-X/2012 of the

Page 7 of 82

Associated participation and other procedural rights have also been highlighted by CEACR36 and other bodies of the ILO system,37 and are mandated by general international law, including pursuant to the universal human rights instruments in force for Indonesia.38 9. The CEACR has repeatedly determined that equal protection for indigenous peoples’ traditional lands and resources is fundamentally intertwined with guaranteeing indigenous peoples “access to the material goods and services necessary to take up an occupation on an equal footing with other sectors of the population.”39 In 2018, it recalled and unequivocally stated that: … one of the main issues faced by indigenous peoples relates to the lack of recognition of their rights to land, territories and resources, undermining their right to engage in traditional occupations and that steps should be taken to ensure equality of opportunity and treatment of indigenous peoples in employment and occupation, including the right to engage without discrimination in traditional occupations and livelihoods. Recognition of the ownership and possession of the lands they traditionally occupy and access to their communal lands and natural resources for traditional activities is essential.40 10. The International Labour Office (“ILO Office”) confirms that the “main problem faced by indigenous peoples regarding their traditional occupations is the lack of recognition of their rights

Constitutional Court on the right of ownership of customary forests by Masyarakat Hukum Adat [indigenous peoples]”). 36 See e.g., CEACR, Direct Request concerning C111, Burundi in Report of the Committee of Experts on the Application of Conventions and Recommendations, ILC.107/III(A), (International Labour Office, Geneva, 2018), p. 356 (urging Burundi “to take the necessary steps to ensure equal access for the Batwa people to education, vocational training and employment, including to enable them to exercise their traditional activities…;” and requesting information on a law “revising the Forestry Code, which provides that the rational and balanced management of forests is based, inter alia, on the principle of participation by the grassroots communities, and on the exercise of traditional activities by the Batwa on the land where they live”). 37 See e.g., Eliminating discrimination against Indigenous and Tribal peoples in employment and occupation. A Guide to Convention No. 111, PRO169 and the Equality team (ILO Office: Geneva, 2007) (hereinafter “ILO Guide to C111”), p. 12. 38 See notes 308 – 325 below. 39 CEACR, Observation concerning C111, Argentina 2018/2019 (also referring to recommendations made by the UNCERD concerning “persistent structural discrimination against indigenous peoples; the difficulties faced by members of indigenous peoples in gaining access to the formal labour market and their concentration in work that does not allow them to gain access to fundamental labour rights…”). 40 CEACR, Observation concerning C111, Ethiopia in Report of the Committee of Experts on the Application of Conventions and Recommendations, ILC.107/III(A) (International Labour Office, Geneva, 2018), at p. 363. See also CEACR, Observation concerning C111, Australia in Report of the Committee of Experts on the Application of Conventions and Recommendations, ILC.107/III(A) (International Labour Office, Geneva, 2018), at p. 340 (“plac[ing] importance on the new emphasis on the use of indigenous rights in land for the promotion of economic development including employment and occupational opportunities of indigenous peoples;” and requesting information on “steps taken to ensure that indigenous people have access to land and resources to allow them to engage in their traditional occupations and to access employment without discrimination”); and General Survey on the fundamental Conventions 2008, supra note 21, p. 321.

Page 8 of 82

to lands, territories and resources.”41 In common with the CEACR, it has concluded that equal protection for indigenous peoples’ traditional occupations requires simultaneous protection for the lands and resources that sustain those occupations, as have a variety of other international human rights bodies and tribunals.42 Discussing C111, the ILO Office explains that Access to land and natural resources is generally the basis for indigenous peoples to engage in their traditional occupations. Recognition of the ownership and possession of the lands which they traditionally occupy, access to land which they have used for traditional activities, and measures to protect the environment of the territories they inhabit are therefore crucial with a view to enabling indigenous peoples to pursue their traditional occupations.43 11. In short, the above-quoted bodies of the ILO system have consistently determined that C111 applies to indigenous peoples and protects their traditional occupations from the discrimination that Ompu Ronggur has long-experienced, and continues to suffer, due to Indonesia’s acts and omissions. In common with other international human rights bodies, they have consistently affirmed and stressed that protections for indigenous peoples’ traditional occupations are dependent on the legal recognition and protection of their rights of ownership, possession and control over the lands and resources that sustain those traditional occupations. Indeed, they have categorized these interdependent land rights as “crucial” and “essential,” classifying their absence or inadequate recognition as the “main problem faced by indigenous peoples regarding their traditional occupations.” Yet, as confirmed by a UN Special Rapporteur in December 2018, Indonesia continues to “lack of formal methods to determine customary rights to land” as part of its property laws and, thus, has no effective means to address the main problem experienced by indigenous peoples with respect to their traditional occupations.44

41 ILO Guide to C111, p. 4 (further explaining that “Many communities have been marginalized and alienated due to land grabbing, large-scale development projects, population transfer, establishment of protected areas, etc”). 42 See e.g., CERD/C/NOR/CO/21-22 (2015), para. 30(a) (recommending that Norway “[t]ake concrete steps to give full effect in practice of the legal recognition of the Sami rights to their lands and resources as provided for in the Finnmark Act to enable Sami to maintain and sustain their livelihoods”); CEDAW/C/RUS/CO/8 (2015), para. 40(b) (recommending that Russia “[g]uarantee that indigenous women have full and unrestricted access to their traditional lands and the resources on which they depend for food, water, health and to maintain and develop their distinct cultures and identities as peoples”); Committee on the Rights of the Child, General comment No. 16 on State obligations regarding the impact of the business sector on children’s rights, CRC/C/GC/16 (2013), para. 19 (explaining that “[s]elling or leasing land to investors can deprive local populations of access to natural resources linked to their subsistence and cultural heritage; the rights of indigenous children may be particularly at risk in this context”); Special Rapporteur on the Right to Food: Mission to Malaysia, A/HRC/25/57/Add.2 (2014), para. 65 (observing that “access to land presents a direct relationship to the right to food: where indigenous communities have lost access to the forests and land that they depend on for their livelihood, they can fall into a situation of food insecurity and extreme poverty”). 43 ILO Guide to C111, p. 13. See also Shifting cultivation as a traditional occupation in Nepal, supra note 23; and ILO, Newsletter 2007, supra note 24, p. 7. 44 SR Food 2018, supra note 10, para. 66.

Page 9 of 82

12. Moreover, consistent with the definition of discrimination in Article 1(a) of C111, the UNCERD explicitly acknowledged in 2013 that, due to Indonesian law “as currently drafted, indigenous peoples … have been denied rights to their lands in favour of an ownership right vested by the State,” including in private companies, such as TPL.45 It has also constantly upheld the principle that the failure to legally recognize, respect and secure indigenous land rights is discriminatory and has underscored that the realization of state and private sector projects on indigenous lands in Indonesia “without free, prior and informed consent, would permanently affect the land rights of [indigenous peoples] and, as a result, would infringe their rights under the International Convention on the Elimination of All Forms of Racial Discrimination.”46 The same conclusion has been reached by the Committee on the Elimination of Discrimination Against Women (“CEDAW”).47 Thus, the discrimination suffered by Ompu Ronggur with respect to its traditional occupations is itself rooted in, and aggravated by, the discriminatory denial of and disregard for its land, resource and other rights, and the illegitimate preferences accorded by the State to TPL. 13. In addition to employing the jurisprudence of UN treaty bodies and other human rights mechanisms, ILO practice confirms that specific instruments on indigenous rights are also highly relevant to interpreting discrimination under C111.48 The Equality Team of the International

45 UNCERD, Early Warning and Urgent Action Procedures: Indonesia (30 August 2013), p. 1 (noting in this regard that the Indonesia Constitutional Court “ruled on 16 May 2013 that certain provisions of the Forestry Act No. 41/1999 are unconstitutional due to the classification of 'customary forest' as being part of 'state forests';” and welcoming “reports that the President of Indonesia has publicly stated his personal commitment to initiating a process that registers and recognises the collective ownership of customary indigenous territories in Indonesia”) (emphasis added), https://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/IDN/INT_CERD_ALE_IDN_7098_E.pdf. 46 See e.g., UNCERD, Early Warning and Urgent Action Procedures: Canada (14 December 2018), p. 1, https://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/CAN/INT_CERD_ALE_CAN_8819_E.pdf; UNCERD, Early Warning and Urgent Action Procedures: France (14 December 2018), p. 1 (concerning the “lack of consultation of, and free, prior and informed consent from the indigenous peoples of French Guiana regarding the mining project “Montagne d’Or”. The Committee is also concerned about the alleged absence of intention to undertake such consultation despite the adverse impact of the mining project on indigenous peoples’ control and use of their lands, including threat to ecosystems, deforestation and destruction of archaeological sites. Therefore, the Committee is concerned that, if the above allegations were corroborated, the realization of the mining project “Montagne d’Or” would infringe the rights of indigenous peoples of French Guiana that are protected under the International Convention on the Elimination of All Forms of Racial Discrimination”), https://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/FRA/INT_CERD_ALE_FRA_8820_E.pdf; and UNCERD, Early Warning and Urgent Action Procedures: Guyana (14 December 2018), p. 1, https://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/GUY/INT_CERD_ALE_GUY_8821_E.pdf. 47 CEDAW/C/IDN/CO/6-7 (2012), para. 45(b) (identifying “Cases of discrimination” that include “cases of violation of the rights of indigenous women to access their land, water and natural resources”) and para 46(b) (recommending that Indonesia “Implement effective measures to eliminate discrimination,” including to “ensure access to land and natural resources for indigenous women, through all available means, including temporary special measures, in accordance with article 4, paragraph 1, of the Convention, and general recommendation No. 25 (2004), on temporary special measures”). 48 See e.g., ILO Guide to C111, p. 2. (explaining that “Convention on Indigenous and Tribal Peoples, 1989 (No. 169) … provides a series of very important elements for overcoming discrimination against these peoples and ensuring

Page 10 of 82

Labour Standards Department has highlighted “the relevance of the [UNDRIP] for the ILO’s mandate and the main ILO Conventions relating to the rights set out in [that instrument].”49 The ILO Office observes that the Indigenous and Tribal Peoples Convention, 1989 (No. 169) (“C169”) “can guide and contribute to the effective application” of C111,50 while the CEACR considers that ratification of C169 marks “a significant step forward in achieving the objective” of C111.51 Indeed, one of the steps the CEACR recommends that states take to abide by C111 is, precisely, ratification of C169.52 Interpretations of the UNDRIP and C169 are thus both relevant and persuasive to understanding the scope and degree of protection that may be provided for indigenous peoples by C111. 14. With respect to Article 17(1) of the UNDRIP, quoted above, Lee Swepston explains that “… this Article extends to all kinds of productive activity undertaken by Indigenous peoples,” including: traditional economic activities … such as hunting and gathering, shifting cultivation and handicrafts. … All this means that the other Articles of the Declaration, and other provisions of international law, that refer to other kinds of economic activity than employment in the formal sense, are also relevant to the application of Article 17. … [T]he provisions of the Declaration that refer to Indigenous peoples’ right to continue or to develop their traditional economic activities should be understood to be covered in relevant part by Article 17 protection on workers’ rights” (e.g., Arts. 5, 11, 20, 21 and 32).53

equality of opportunity and treatment for them. … [E]lements of Convention No. 169 can guide and contribute to an effective application of Convention No. 111 to help ensure that indigenous and tribal peoples fully enjoy their right to equality of opportunity and treatment in employment and occupation”). 49 ILO standards and the UN Declaration on the Rights of Indigenous Peoples. Information note for ILO staff and partners, Equality Team of the International Labour Standards Department, http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/publication/wcms_100792.pdf. 50 ILO Guide to C111, p. 2 (further observing, at p. iii, that C111 “provides an important framework for promoting the rights of indigenous women and men to equality and decent work in line with the Indigenous and Tribal Peoples Convention, 1989 (No. 169) and the [UNDRIP]”). See also Decent Work for Indigenous and Tribal Peoples in the Rural Economy (ILO Office: Geneva, 2017), http://www.ilo.org/wcmsp5/groups/public/---ed_dialogue/--- sector/documents/publication/wcms_601067.pdf. 51 CEACR, Direct Request concerning C111, Central African Republic, 2011/2012, (the Committee also asks the government “to take the necessary measures to ensure protection against discrimination and the promotion of equality of opportunity and treatment of indigenous peoples … with respect to the exercise of their traditional activities”). 52 See e.g. CEACR, Direct Request concerning C111, Namibia, 2013/2014, (also noting “the Government’s indication that it has not yet considered the ratification of Convention No. 169. The Committee requests the Government to continue to provide information on the measures taken to improve the educational and employment situation of the Himba and San peoples, and to provide statistical information on the evolution in this regard. The Committee also asks the Government to provide information on specific measures taken or envisaged to address the rights of marginalized indigenous peoples over their traditional lands and resources. The Committee encourages the Government to consider the possibility of ratifying Convention No. 169, and requests it to continue to provide information on any progress in this respect”). 53 L. Swepston, Labour Rights in J. Hohmann & M. Weller, THE UN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES: A COMMENTARY (Oxford University Press, 2018), p. 463-4.

Page 11 of 82

He further explains that Article 17(1) should “also be understood as relevant to Articles referring to land rights development, given the close relationship between those land rights and economic activity – for instance, Article 10, 26 and 32 [of the UN Declaration].”54 15. With the preceding in mind, SERBUNDO respectfully requests that this Representation is declared receivable in accordance with Article 2 of the Standing Rules and that the Governing Body establishes a Committee at its earliest possible opportunity to examine and decide upon the merits. In so doing, it respectfully urges the Governing Body to fully consider the scope and nature of the rights guaranteed to indigenous peoples in various United Nations’ human rights instruments in force for Indonesia, and human rights law more broadly, when interpreting and identifying its obligations under C111, so that it may interpret and may place the discriminatory treatment suffered by Ompu Ronggur and its gravity in full context.55 As various human rights bodies have observed, this requires due regard for the current status of indigenous peoples’ rights in international law when interpreting treaties of general application.56 II. FACTS A. The Ompu Ronggur Indigenous Community 1. History, Social Organization and Customary Land Tenure 16. Ompu Ronggur is a Batak Toba indigenous community, known by the administration as Sabunganihuta II, comprised of 120 families, located in the Siborong Borong Sub-District, Tapanuli Utara Regency, North Sumatra Province. Batak Toba is one of five sub-groups of the Batak indigenous people of North Sumatra, designating that they are Batak who, by virtue of customary law (adat), traditionally own the lands and resources around Lake Toba. Stated simplistically,57 Batak Toba further sub-divides into a number of clans (marga) and then into huta, often translated as ‘village’, but better understood as a “political and territorial unit”58 owned

54 Id. p. 464. 55 See e.g., Namibia (Legal Consequences) Advisory Opinion, ICJ Reports 1971, 31; and Case Concerning the Gabcikovo-Nagymaros Project (Hungary v. Slovakia), ICJ Reports 1997 (where the International Court of Justice has endorsed the need to interpret a treaty “within the framework of the entire legal system prevailing at the time of interpretation”). 56 See e.g., The Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Inter-Am. Ct. H.R., Series. C No. 79 (2001), para. 148; Tyrer v. UK, E.C.H.R., Judgment of 25 April 1978, para. 15 (explaining that “the Convention is a living instrument which ... must be interpreted in the light of present-day conditions…”). 57 The literature on the complexity of Batak Toba social and territorial organization is surveyed in detail in I. Simbolon, Peasant Women and Access to Land: Customary Law, State Law and Gender-based Ideology. The Case of the Toba-Batak (North Sumatra), (PhD Thesis, Landbouwuniversiteit Wageningen 1998), p. 38-42 http://edepot.wur.nl/164899. 58 See e.g., H. Hanan, Modernization and Cultural Transformation: The Expansion of Traditional Batak Toba House in Huta Siallaganat, 50 PROCEDIA - SOCIAL AND BEHAVIORAL SCIENCES 800 (2012), p. 801 (stating that “a Huta is a political and territorial unit of Batak people. To get a territorial claim one has to set up a homeland out of nature land, and the settlement stands for a legitimate territoriality of the family clan”), https://ac.els-

Page 12 of 82

and controlled by an autonomous, patrilineal lineage within the clan.59 Ompu Ronggur is a member of the Simanjuntak clan and its name refers to its ancestral founder, ‘Grandfather Ronggur’, from whom the current inhabitants have inherited ownership of their lands.60 17. Batak Toba generally use their clan name as a surname and further auto-denominate and identify by specifying the name of their huta. Thus, the nexus between ancestral lands and tribe, clan, and family is made explicit in and fundamental to personal and cultural identity. Confirming this, the anthropologist Indira Simbolon, herself a Batak, observes that “Adat principles treasure the unity of land and people and relate it to unity with the supreme being. Land and people unity is closely associated to the group of patrilineally related people…. The triangle of land, people, and ancestor worship is manifested in the marga.”61 18. Indigenous peoples in Indonesia are referred to in domestic law and practice as Masyarakat (Hukum) Adat, which roughly translates as ‘customary law societies’ and is synonymous with ‘indigenous peoples’ as that term is understood in international law.62 Illustrating this, the UN Committee on Economic, Social and Cultural Rights (“UNCESCR”) recommended in 2014 that Indonesia commence harmonizing existing laws with the draft law on “the rights of Masyarakat Hukum Adat and ratify the ILO Convention on Indigenous and Tribal Populations….”63 Ompu Ronggur self-identifies as indigenous, as do the other Batak groups, and Batak Toba are recognized as such by other indigenous peoples and the State.64 With respect to

cdn.com/S187704281203220X/1-s2.0-S187704281203220X-main.pdf?_tid=47add14d-639e-4725-921b- da7679185e14&acdnat=1522770900_dff32c5b3b9f598258bd0ce15add6e71. 59 See e.g., E. Brunner, Urbanization and Ethnic Identity in North Sumatra, 63 AMERICAN ANTHROPOLOGIST 508 (1961), p. 510 (stating that “The Toba Batak lived in relative isolation until they came into contact with German missionaries and Dutch administrators in the latter half of the 19th century. … The aim of the Dutch officials was political control. Confronted with an indigenous organization in which each village was virtually autonomous, they enlarged the units of political administration and established local lineage headmen as representatives of the colonial government. The headmen also served as judges in a series of adat courts in which native customary law was the basis of the judicial system”). 60 See e.g., Hanan, supra, note 58, p. 801 (explaining that “Huta is the local name for a traditional village, which is set up when a group of people from the family clan establish a new settlement amidst cultivated or an open land”). 61 Simbolon, Peasant Women and Access to Land, supra note 57, p. 41. 62 See e.g., Annex 1, National Inquiry on the Rights of Indigenous Peoples, p. 2 (stating that “The theme of the rights of indigenous communities (Masyarakat Hukum Adat - MHA) over their territories was chosen because it has a strong human rights dimension”); and p. 8 (stating that “the Constitutional Court decision No. 35 / PUU-X / 2012 on judicial review of Law No. 41/1999 on Forestry is an important legal breakthrough in the process of legal reform related to issues of indigenous peoples (Masyarakat Adat)”). 63 E/C.12/IDN/CO/1 (2014), para. 38 (also “[r]eferring to the State party’s statement that it would make use of relevant principles contained in the United Nations Declaration on the Rights of Indigenous Peoples, the Committee urges the State party to expedite the adoption of the draft law on the rights of Masyarakat Hukum Adat”). 64 Recognition by other indigenous peoples is confirmed by the fact that Abdon Nababan, the Secretary General of AMAN for the years 2007-17 is Batak Toba, https://archive.globallandscapesforum.org/glf-2015/speaker/abdon- nababan/.

Page 13 of 82

the State, in December 2016, for example, Indonesia’s President formally recognized the Batak Toba community of Pandumaan-Sipituhuta as ‘indigenous’ via a Presidential Decree that excised its lands from the State forest estate.65 19. Ompu Ronggur has occupied and used its traditionally owned lands (huta), defined in accordance with Batak customary law, since time immemorial.66 Simbolon explains that “the Toba Batak have had their own detailed rules regarding relationships to land. Social territorial units [huta] which bear the land relations are more or less clearly defined while the different objects of land relations are subject to different rights, duties, and privileges borne by different groups and individuals.”67 Contiguous boundaries with neighboring huta are well understood and scrupulously observed. This is illustrated and confirmed in written agreements concluded between Ompu Ronggur and its neighbors.68 20. While the huta is owned communally by the clan and cannot be alienated, each lineage/family has its own area(s) of land, which can be inherited or sold to other members of the huta.69 Simbolon also explains that the “… marga, which is further divided into lineages, gives [executive] rights to the lineages and their members to concretely regulate the individual use of, and control over, the land. It also authorizes the transfer of land rights within their respective domains.”70 With respect to the substance of adat law relating to lands,71 she further explains

65 ‘President Jokowi: Customary Forests Should Not be Traded’, Cabinet Secretary for State Documents & Translation, 30 December 2016, https://setkab.go.id/en/president-jokowi-customary-forests-should-not-be- traded/. 66 E. Brunner, The Toba Batak Village, in G. Skinner (ed.), LOCAL, ETHNIC, AND NATIONAL LOYALTIES IN VILLAGE INDONESIA, A SYMPOSIUM (Institute of Pacific Relations, 1959), p. 55 (explaining that Batak Toba adat “includes not only inheritance, property, and marriage law, but also a value system, the procedure of each life-crisis ceremony, the entire kinship system, and the proper behaviour between members of various patrilineal kin groups. Adat defines the reciprocal rights and obligations between relatives, both living and deceased. Its major social function is that it tells one Batak how to behave toward another. It is not precisely equivalent to either law, custom or culture...”). 67 I. Simbolon, Caring for Toba Land and the Environment in T. van Meijl and F. von Benda-Beckman (eds.), PROPERTY RIGHTS AND ECONOMIC DEVELOPMENT. LAND AND NATURAL RESOURCES IN SOUTHEAST ASIA AND OCEANIA (Keegan Paul Intl., 1999), p. 65. 68 See Annex 2(1), Affidavit of Pancur Simanjuntak, p. 3 (stating that “The map depicts of our customary tenure system and the lands we have traditionally owned. Our community knows exactly where everything lies. They are not just pointing at random things. The neighboring communities have also agreed with this. We held discussions with them to confirm our common borders, and they signed statements to this effect”). 69 See e.g., С. Eijkemans, PROFITABILITY OR SECURITY: DECISION-MAKING ON LAND USE AMONG TOBA BATAK PEASANTS IN NORTH SUMATRA, INDONESIA (Nijmegen Studies in Development and Cultural Change, 1995), at p. 87-8, (stating, at p. 87, that “Since Toba Batak customary law forbids the alienation of ancestral property, it is impossible for any man to sell land, and similarly to enrich himself by buying additional land”), http://repository.ubn.ru.nl/bitstream/handle/2066/146083/mmubn000001_211248290.pdf?sequence=1; and L. Castles, The political life of a Sumatran residency: Tapanuli 1915- 1940, (Ph.D Thesis, Yale University 1972), p. 8 et seq. 70 Simbolon, Peasant Women and Access to Land, supra note 57, p. 41. 71 Various authors have cautioned against simplistically equating adat laws with regard to land to western property law concepts. See e.g., J. McCarthy & C. Warren, Customary Regimes and Collective Goods in Indonesia’s Changing

Page 14 of 82

that it includes “the total bundle of rights such as the right to regulate, supervise, represent in outside relations, alienate and allocate, and use and exploit. Implied in this bundle of land rights are substanti[ve] and procedural aspects which have a mix of public and private dimensions.”72 These and other customary laws govern the daily lives of the members of Ompu Ronggur and their various relationships with the huta and marga. The importance of adat or customary law to Ompu Ronggur is encapsulated by Eijkemans, who explains that to “blame someone for not living according to the adat rules is one of the most serious insults for a Toba Batak.”73 21. As is the case with indigenous peoples worldwide, Batak Toba have multiple and profound relations with their ancestral lands. One Batak Toba woman explains that “The forest is my hair, the mountain is my head, the water is my blood, the sand and all that God created in this land, it’s a human, the same as me. If there’s no longer any forests in Indonesia, it’s like my head is being all cut off.”74 Citing several studies, Eijkemans explains that “According to the traditional belief, the land of ancestors must remain within the family. A Batak saying states that selling one’s land is equivalent to selling one’s children.”75 Further, Land, as the primary means of production and essential for subsistence, has a special meaning in Toba Batak culture. … Land is considered to be something like a treasure (a pusaka) that may never be sold. Land is considered as the bones of the ancestors (holi-holi ni da ompung). The ownership of land, especially ancestral land, ensures one’s status in the marga raja (the reigning clan). To lose the ancestral lands is to invite doubt on one’s future traditional status.76 22. Ompu Ronggur began making a map of its huta in 2015 as part of a nationwide process to seek recognition and registration of indigenous lands conducted by the national indigenous peoples’ organization, Aliansi Masyarakat Adat Nusantara (Indigenous Peoples Alliance of the Archipelago) (“AMAN”).77 Their map, completed in 2016, encompasses 971 hectares (see Map 1 in Annex 3) and illustrates the various integrated ecological zones that huta are generally

Political Constellation in S. Sargeson (ed.), COLLECTIVE GOODS, COLLECTIVE FUTURES IN ASIA (Routledge, 2002), p. 76 (explaining that adat transcends individualistic property concepts in western law: “[i]t incorporates dimensions of religion, social life and economics, and is ‘fundamentally concerned with the rights and reciprocal responsibilities of individuals to their communities or descent groups, and to the founding ancestors who continue to ensure collective wellbeing’”). 72 Simbolon, Peasant Women and Access to Land, supra note 57, p. 44. 73 Eijkemans, PROFITABILITY OR SECURITY, supra note 69, p. 84. 74 Rusmedia Lumban Gaol, Pandumaan-Sipituhuta, https://www.ran.org/beyond_paper_promises/#story-item- 19026. 75 Eijkemans, PROFITABILITY OR SECURITY, supra note 69, p. 136. 76 Id. p. 86. 77 The AMAN land registration process and the context in which it was established is discussed in Annas Radin Syarif, Indonesia, in INDIGENOUS PEOPLES’ INITIATIVES FOR LAND RIGHTS RECOGNITION IN ASIA (Asia Indigenous Peoples Pact, 2016), p. 47 et seq, http://www.iapad.org/wp-content/uploads/2016/01/Indigenous-Peoples- Initiatives-for-Land-Rights-Recognition-in-Asia_AIPP_FINAL_2016.pdf

Page 15 of 82

comprised of according to Batak Toba customary law.78 The process of mapping the huta and these zones are described in the affidavit of Pancur Simanjuntak. He explains that the “entire area [mapped] is an ecological system referred to as a huta. Huta also signifies a self-governing area within the Batak traditional political organization system.”79 He identifies the various zones, indicated in different colors on the map attached to his affidavit (corresponding to Annex 3, Map 1) and which comprise the Community’s huta as follows: the pink zone [mid-green, “hutan adat” on Map 1] “shows customary forest, known as Tombak Raja. … Tombak Raja is our sacred forest, the part of our land that supports the life of the other sections. … [Y]ellow [orange on Map 1] shows land for livestock grazing. … The blue area [dark green on Map 1] is where people collect firewood, hunt, and some have also planted [benzoin] resin trees there. The green area [pale green on Map 1] is where we grow agricultural crops, have our rice paddies, and more resin trees, among other things. The orange [purple on Map 1] is the location of an ancestral village, where our fore parents lived from 1890 until 1920.80 23. Concurring with the testimony of Community members (see Annexes 2(1) and (3)), Hanan describes how the descendants of the ancestor that established the village a group of chiefs of the huta, known collectively as Raja ni huta or ‘Kings of the territory’. They are “in command of management and development of the Huta. … However, the social and physical sustainability of a Huta is the responsibility of every inhabitant.”81 Pancur Simanjuntak explains that “[w]hen we want to cut down trees in [the Tombak Raja] to build a house, we have to ask for permission from the Raja ni huta (our customary elders, who are like our traditional government).”82 Eijkemans further explains that “access-to-land decisions are taken mainly at the village and family level….”83 He records that “this is strongly embedded in the local culture” and with respect to “communal land … decisions lie with the village authorities, but when it concerns private land, the decisive power is back with the family again.”84 24. A joint affidavit by three community members, annexed hereto, elucidates that the Raja ni huta “are the government of our community. They exercise authority in the community and have autonomy in relation to other Batak Toba huta (territories).”85 They further explain the

78 These zones are described in more detail in Simbolon, Peasant Women and Access to Land, supra note 57, p. 43- 4 (explaining, at p. 43, that “Housing area, farming area, grazing area, forest area, reserved area and sacred area carry different layers of socio-cultural meaning. It is the housing area, or parhutaan, that is the starting point from which the different access rights of various members and non-members of the huta to all adjacent physical properties are formulated”). 79 Annex 2(1), Affidavit of Pancur Simanjuntak, p. 2. 80 Id. p. 3. 81 Hanan, supra note 58, p. 801. 82 Annex 2(1), Affidavit of Pancur Simanjuntak, p. 2. 83 Eijkemans, PROFITABILITY OR SECURITY, supra, note 69, p. 135. 84 Id. 85 Annex 2(3), Affidavit of Pariang Simanjutak, Manaek Simanjuntak, Selamat Simanjutak, p. 2.

Page 16 of 82

interrelationship between this traditional government, their land tenure system and related rules, and the Community’s traditional occupations.86 An academic study concludes in this regard that, for the Batak Toba, “land fulfils its ultimate function in providing ‘the material basis for the social continuity of the groups beyond the lifetime of individual land holders’.”87 25. Connected to this, Indonesia’s National Human Rights Institution, Komnas HAM, observes that 71 percent of indigenous villages in Indonesia “are dependent upon forest resources for their livelihoods,”88 and that “the loss and destruction of forests is equivalent to the loss and destruction of [indigenous peoples’] way of life.”89 These and related issues are discussed further below in connection with the discriminatory acts and omissions that have denied and continue to deny Ompu Ronggur equal treatment and opportunity with respect to its traditional occupations, all in violation of C111 and for which Indonesia is internationally liable. 2. Traditional Occupations 26. Ompu Ronggur’s traditional occupations (discussed in more detail below) include:

• agriculture; • agro-forestry, including the collection and sale of benzoin resin extracted from cultivated Styrax or kemenyan trees and the cultivation of brown “forest” rice; • harvesting timber for house construction and related wood carving; • hunting; and • the collection of non-timber forest products and the manufacture of items therefrom for household use or for sale at market.

27. All of these traditional occupations are fundamentally and inextricably intertwined with the Community’s traditional land tenure and management systems, its related governance system, its culture and identity, and the lands and natural resources on which they depend. They are also consistent with the traditional occupations identified by the UN FAO in studies on ‘Ways

86 Id. at p. 2-3 (responding as follows to the questions: When you allocate areas to families to cultivate kemenyan trees and harvest their resin is this the traditional way to allocate lands within the community? Yes, it is in accordance with our custom and how we own and use our lands following our laws. Can you protect your traditional occupations, such as kemenyan forest cultivation and resin collection, without also protecting your lands? No, the two must go together. Are the activities of TPL interfering with the authority of raja ni huta over the huta? Yes. We no longer have control over our lands and what happens on them, and the authority of our traditional government is harmed every day”). 87 Simbolon, Peasant Women and Access to Land, supra note 57, p. 45 (quoting F von Benda-Beckmann and K. von Benda-Beckmann, A Functional analysis of property rights, with special reference to Indonesia, in Benda- Beckmann et al (eds.), PROPERTY RIGHTS AND ECONOMIC DEVELOPMENT IN SOUTHEAST ASIA AND OCEANIA (Kegan Paul Int’l., 1997), p. 16). 88 Annex 1, National Inquiry on the Rights of Indigenous Peoples, p. 10. 89 Id. at p. 5.

Page 17 of 82

in Which Forests Can Contribute to Human Livelihood.”90 The FAO concludes more generally that “Forests are critical for the survival of many indigenous peoples as the providers of food security and for enhancing livelihoods. Forests’ resources include nutritious foods and medicines, household materials, and the income gained from selling forest products.”91

28. Ompu Ronggur’s traditional occupations have been practiced since time immemorial and today remain fundamental to the Batak Toba’s traditional economy. In the case of the harvesting and trading or sale of benzoin resin, evidence demonstrates that this traditional occupation was well established by at least the 9th Century CE.92 Active cultivation of the trees that produce the resin began at least 200-300 years ago (previously it had been harvested from wild trees), entrenching a system and occupation of agro-forestry that had provided most Batak Toba with a substantial income.93 29. Eijkemans describes how this income has been crucial to the maintenance of Batak Toba traditions, ceremonies and social cohesion, estimating that “about 20-25% of the total annual family income is spent on traditional events.”94 This income also permitted many Batak Toba to educate their children, from primary school through university.95 Various academic studies document the fundamental importance of education to Batak Toba and the interrelationship with their basic cultural values.96 As one Batak Toba man puts it: “The benzoin is the source of

90 Asia-Pacific Forestry Sector Outlook Study: People and Forests in Asia and the Pacific: Situation and Prospects, Working Paper No: APFSOS/WP/27, (FAO, Rome, 1997), Table 1, http://www.fao.org/3/w7732e/w7732e04.htm. 91 FAO’s work with indigenous peoples in forestry, CA4293EN/1/04.19 (FAO, Rome 2019), p. 1, http://www.fao.org/3/ca4293en/ca4293en.pdf. 92 J. Drakard, A MALAY FRONTIER. UNITY AND DUALITY IN A SUMATRAN KINGDOM (Studies in Southeast Asia, Cornell University 1990), p. 14 and 33 (observing that before the arrival of the Europeans, the Batak Toba traded with other groups and were bartering with towns on the west coast of Sumatra. In particular, they were trading camphor, incense and guttapercha in exchange for salt, tobacco and fish). See also C. Garcia Fernandez, Benzoin, a resin produced by styrax trees in North Sumatra Province, Indonesia, in K. Kusters and B. Belcher (eds.), FOREST PRODUCTS, LIVELIHOODS AND CONSERVATION, Vol. I, Asia (Center for International Forestry Research, Bogor, 2004), p. 148-49 (explaining that the trade from North Sumatra has existed for over a millennium and that Sumatran benzoin was traded in China in the 9th Century CE), http://www.cifor.org/publications/pdf_files/Books/BKusters0401.pdf. 93 C. Garcia Fernandez, id. p. 149. 94 Eijkemans, PROFITABILITY OR SECURITY, supra note 69, p. 171 (explaining that “Toba Batak spend a lot of money on traditions and ceremonies with the aim of maintaining good social relationships with fellow villagers and members of other family clans, and simultaneously of showing their involvement in the local culture. In Toba Batak society, where personal relations are crucial to gaining access to scarce resources (cf. section 4.3), such relations are of great instrumental importance to people as a kind of social insurance. Some informants estimated that about 20-25% of the total annual family income is spent on traditional events. Only 5-10% is returned (e.g. as food on other adat feasts)”). 95 Annex 2(3), Affidavit of Pariang Simanjutak, Manaek Simanjuntak, Selamat Simanjutak (explaining that “In the past, there were families with up to ten children. They were able to send them all to school all the way through to completing high school. Now, most people only have two or three kids, we struggle to send them to school”). 96 See e.g., Irmawati, The Underlying Values of Determining Motives for Success in Batak Toba Society: A Study of Indigenous Psychology in S. McCarthy, J. Jaafar, A. Kamal & A. Zubair (eds.), PSYCHOLOGY AT WORK IN ASIA: PROCEEDS OF THE 3RD AND 4TH ASIAN PSYCHOLOGICAL ASSOCIATION CONFERENCES AND THE 4TH

Page 18 of 82

our life. If it does not exist people cannot live here. It is the source of our livelihood and allows us to send our children to school. So we strongly objected when [TPL] cleared the forest.”97 30. As discussed further below, income from benzoin harvesting has been reduced by over 80 per cent due to Indonesia’s discriminatory acts and omissions, while other traditional occupations, including those related to production and harvesting of food, have been nullified. This has resulted in grave and ongoing harm to the Community, its basic values and identity, and its dignity and well-being. This harm is multigenerational and multi-dimensional in its scope and effect. B. Discriminatory disregard for Ompu Ronggur’s Rights in Favour of TPL [A] challenge to securing the right to land involves large-scale land acquisitions. The Special Rapporteur was informed of these acquisitions as one of the most critical obstacles blocking the realization of the rights to land and to food in Indonesia. In the absence of clear landownership and registration, the Government has awarded logging, palm oil, mining and other companies permits to operate in lands on which people have been farming for generations.98 31. In 2011, the CEACR noted that Indonesia had yet to “provide information on measures taken to promote equality of opportunity and treatment in employment and occupation of all ethnic groups of the population, including indigenous peoples.”99 Consequently, it asked that Indonesia indicate whether the national human rights institution, Komnas HAM, monitors the effectiveness of government policies aimed at eliminating discrimination, including as faced by indigenous peoples. As highlighted below, Komnas HAM conducted an in-depth National Inquiry on the Rights of Indigenous Peoples on the Territories in the Forest Zone and, in 2015, unambiguously documented and concluded that Indonesia has failed to address the debilitating structural discrimination that undermines and frequently negates their rights. It explained that examining “this theme will help provide a new awareness for the society and the government that human rights violations concerning MHA [indigenous peoples] and their customary areas are complex and are caused by systems and policies. … This issue has not been addressed thoroughly in the past in part because the roots of discrimination and marginalisation are so deep.”100 A “major issue” in its findings was classified as the “lack of legal recognition of MHA and the reality of the takeover of indigenous areas…” due to “the governance and policies of the State … that

INTERNATIONAL CONFERENCE ON ORGANIZATIONAL PSYCHOLOGY (Cambridge Scholars Publishing, 2013); and R. Meilona Purba, M. Nauly, & R. Fauzia, The Efforts of Batak Toba’s mother in Educating Children, 81 ADVANCES IN SOCIAL SCIENCE, EDUCATION AND HUMANITIES RESEARCH 219 (2017). 97 Kersi Sihite, Pandumaan-Sipituhuta, North Sumatra, https://www.ran.org/beyond_paper_promises/#story-item- 19027. 98 SR Right to Food 2018, supra note 10, para. 67. 99 CEACR, Observation concerning C111, Indonesia 2011/2012. 100 Annex 1, National Inquiry on the Rights of Indigenous Peoples, p. 2.

Page 19 of 82

count human beings and forests as an economic resource only.”101 Also, “the practice of MHA access restrictions on their customary lands is a result of the issuance of permits of forest management to the management of the corporation and the determination of these areas by government institutions.”102 32. To make matters worse, Komnas HAM further concluded that the State continues to routinely and actively disregard and violate indigenous peoples’ rights, on a massive scale, by granting indigenous lands to commercial enterprises, whose normally unsupervised and unchecked activities magnify and exacerbate these violations.103 This is confirmed by World Bank staff, who explain that State-authorized forestry concessions “involve extensive land-use changes and invariably result in displacement, loss of access to and control of natural resources by dependent communities, especially [indigenous peoples], and the destruction and loss of the rich biodiversity of primary and naturally regenerating forests.”104 They further conclude that a “growing body of evidence indicates that many concessions awarded since 1991 may not be contributing to national economic development,” and “[d]espite such evidence, the government continues to pursue a policy of large-scale land investments without adequate oversight mechanisms.”105 33. This is precisely the situation experienced by Ompu Ronggur, a situation that contravenes C111 and numerous other basic and interconnected international human rights standards subscribed to by Indonesia. In this regard, the UN Special Rapporteur on the Right to Food, in her 2018 report on Indonesia, explains that “the right to food is indivisibly related to other rights, including rights to health, social protection, housing, water and sanitation, access to land and work, and a healthy environment,” as well as based on the principle of non-discrimination.106 In the same way, the right of the Community to be free from discrimination with respect to its traditional occupations is also inter-dependent and inextricably interconnected with a range of internationally protected rights that are vested in indigenous peoples, and which are presently and also being violated with impunity by Indonesia.

101 Id. p. 5. 102 Id. 103 See also E/C.12/IDN/CO/1 (2014), para. 28 (where the UNCESCR expresses concern “at the lack of an adequate monitoring of the human rights and environmental impact of extractive [and plantation] projects during their implementation. In many cases, affected communities have not been afforded effective remedies and have, along with human rights defenders working on these cases, been subject to violence and persecution”). 104 K. C. Bell et al, A Review of Indonesian Land-based Sectors with Particular Reference to Land Governance and Political Economy, Paper prepared for the “ANNUAL WORLD BANK CONFERENCE ON LAND AND POVERTY” The World Bank - Washington DC, March 23-27, 2015, p. 7. https://www.researchgate.net/publication/327111629_A_Review_of_Indonesian_Land- based_Sectors_with_Particular_Reference_to_Land_Governance_and_Political_Economy 105 Id. p. 8. 106 SR Food 2018, supra note 10, para. 18 (emphasis added).

Page 20 of 82

1. The TPL Concession 34. In the late 1980s, Indonesia granted forestry/plantation concessions for the purpose of planting and harvesting trees for pulp and paper production to the Inti Indorayon Utama company, which later changed its name to PT. Toba Pulp Lestari (TPL). TPL is majority owned by the Royal Golden Eagle (Raja Garuda Emas) group which also owns Asia Pacific Resources Ltd. (APRIL), one of Indonesia’s two largest pulp and paper producers.107 TPL’s concessions cover at least 268,000 hectares, 168,000 of which are in the District where Ompu Ronggur is located. In 1992, a permit was formally issued to TPL.108 This sparked decades of protests and conflict, that persists to this day, as TPL has taken over Batak Toba lands, clear-cut natural forests and cyclically planted and harvested fast growing eucalyptus and other pulpwood trees.109 Over 20 communities, comprising over 3,000 families, have been adversely impacted by TPL’s operations and have active conflicts with the company.110 35. None of the affected Batak Toba communities were consulted or even notified that the permit was being considered or had been issued to TPL in 1992.111 There has not been any formal attempt to consult with these communities, including Ompu Ronggur, since the permit was issued or in relation to any of the specific clearances on its lands between 2004 and 2019, despite their highly visible and prolonged protest about Indonesia’s grant of their lands to TPL. The associated permit makes no mention of the existence of these communities, nor does it require that TPL acknowledge or respect their rights. While not publicly available in their entirety, there is also no attention to the Community’s rights (or existence) in associated impact assessments or management plans. Additionally, not one single member of the Community is employed by TPL and it otherwise derives no benefit at all from TPL’s operations. As one Community member testifies, “we have received nothing. They have never offered us any work either. No, no work offered, no scholarships offered. We prefer our kids to leave now because we do not have enough land for them because of TPL. That is no benefit.”112 In short, Ompu Ronggur suffers substantial

107 E. Wakker, INDONESIA: ILLEGALITIES IN FOREST CLEARANCE FOR LARGE-SCALE COMMERCIAL PLANTATIONS (Aidenvironment Asia, June 2014), p. 9, https://www.forest-trends.org/wp- content/uploads/imported/indonesia-case_6-19-14-pdf.pdf. 108 Permit No. 493/KPTS-II/1992 109 See e.g., A. W. Situmorang, Contentious Politics in Toba Samosir: The Toba Batak Movement Opposing the PT. Inti Indorayon Utama Pulp and Rayon Mill in Sosor-Ladang Indonesia (1988 to 2003) (Thesis, Ohio University, 2003) (describing at length the take-over and conversion of Batak Toba lands by TPL and the ensuing conflict), https://etd.ohiolink.edu/!etd.send_file?accession=ohiou1082124155&disposition=inline. 110 Brihannala Morgan, ‘It’s time for Toba Pulp Lestari to keep its promises’, Rainforest Action Network, 24 May 2017, https://www.ran.org/the-understory/tpl_keep_promises/. 111 This is common practice in Indonesia. See e.g., SR Housing 2013, supra note 6, para. 51 (explaining that she “was informed that in many cases developers acquire permits for plantation, mining or development activities from local Governments, without prior knowledge of the residents actually living on the land and sometimes in contradiction to spatial plan or zoning regulations”). 112 Annex 2(2), Affidavit of Hermina Sianipar, p. 3.

Page 21 of 82

negative impacts and is disproportionately and illegitimately affected by TPL’s operations, to its extreme and enduring detriment. 2. Ongoing Encroachment on and Destruction of Community Lands and Resources 36. Except for the period 2000 to 2004, when its concession was suspended, TPL has progressively clear-cut natural forests and cyclically planted and harvested fast growing eucalyptus and other pulpwood trees over substantial areas of the lands traditionally owned by Ompu Ronggur and other Batak Toba communities. These clearances continue unabated (most recently in 2019), including over a considerable area of forest designated as “sacred” by the community.113 These clear-cut and planted areas are illustrated, along with the date each area was cleared, on maps produced by the Community in conjunction with AMAN (see Annex 3, Map 2). These maps were presented to the President of Indonesia in October 2016 and the Minister of Forests in March 2017.114 37. As shown on Map 2, TPL has cleared forest and converted 231.22 hectares of the Community’s traditional lands to plantation between 2004 and 2018, and these incursions are ongoing. This is more than a quarter of the huta traditionally owned by the Community. Almost 50 per cent of the area (101 ha.) converted by TPL is within the Community’s sacred forest (Tombak Raja or Hutan Adat) and over 30 per cent is within the primary areas in which Ompu Ronggur cultivates benzoin trees and harvests the resin and collects other non-timber forest products that are crucial to its traditional occupations (87.85 ha.). 38. In sum, Ompu Ronggur has lost a substantial area of the land, forests and resources that underpin and sustain its traditional occupations. It is acutely aware of the harm already suffered and is determined to avoid further harm. It continues to live in a constant state of insecurity because further clearances and plantings of eucalyptus by TPL could occur at anytime and anywhere in its customary lands. A Community member testifies in her annexed affidavit that “When they [TPL workers] see some of our land is not being used, they immediately take it over and start planting on it. They say that if we are not using the lands, they will plant on it.”115

113 Annex 2(1), Affidavit of Pancur Simanjuntak, p. 3 (responding to the question “Significant areas of the cleared areas shown on Map 2 are in the sacred forest, the Tombak Raja? How does the community feel about this?,” he explains that “[t]hey are very sad, the community’s water source (an underground spring which feeds into the river) [also] has been polluted by TPL”). 114 Id. p. 2 (explaining that “The president received these maps in October 2016. Ten Batak Toba communities within the TPL concession, including Ompu Runggur, personally submitted maps to Minister of Forestry. I myself had a personal discussion with the Minister at that time, showed her the maps and explained them. This happened during the AMAN congress in March 2017. The Minister promised to return indigenous customary lands amounting to 17 million hectares in various parts of Indonesia. It is unclear however when, or even if, these lands will be returned to the communities”). 115 Annex 2(2), Affidavit of Hermina Sianipar, p. 2.

Page 22 of 82

3. Long-Standing and Persistent Disregard for Complaints made by Ompu Ronggur 39. Ompu Ronggur and other Batak Toba communities have continuously and formally objected to the granting of their lands to TPL and its destructive activities. We have complained “very often, and for many years, [but] the government did not respond and has not done anything.” 116 The Community has maintained records and kept copies of these complaints made over the last 20 years. Other than an unfulfilled promise made by the Minister of Forests in 2017 – to urgently intervene in TPL’s activities affecting the Community – the State has been unresponsive to these complaints, and TPL continues to operate with impunity. The Minister reportedly “said she was startled to see the TPL concession was encompassing indigenous customary lands,” and “she would follow up as quickly as she could. She said that TPL was destroying both the environment and the community’s health due to its practices.”117 However, as one resident noted, “I am not aware of any action taken by the Minister in relation to our discussions….”118 40. Except for a protest march and demonstration in 2017, triggered by another round of forest clearances, however, the Community has now given up submitting complaints to the State or TPL, regarding it as futile. Instead, it has focused its efforts, since 2012, on the enactment of local level legislation (a District Perda – Peraturan Daerah) that would recognize that they “still exist” as an indigenous community, a precondition to accessing (albeit inadequate) protections under extant law. A Perda was drafted by AMAN and submitted by Ompu Ronggur to the District legislature, which, other than making a few amendments to the draft, has yet to enact the same.119 This absence of district legislation and formal recognition under the same precludes legal action to explicitly recognize and secure the Community’s legal personality and customary property rights (a debilitating obstacle that is discussed more extensively below). A draft national law is also pending approval by Parliament, but even if enacted in the near term, recognition at the District level is still required for Ompu Ronggur in that draft law. 41. It is, however, possible for the lands in question to be excised from the TPL concession by the President and/or Ministry of Forestry prior to formal recognition. This occurred in the case of the nearby Batak Toba community of Pandumaan-Sipituhuta. After decades of forest clearances by TPL and protests by that community, in December 2016, its lands were excised

116 Annex 2(3), Affidavit of Pariang Simanjutak, Manaek Simanjuntak, Selamat Simanjutak, p. 3. 117 Annex 2(1), Affidavit of Pancur Simanjuntak, p. 2. 118 Id. 119 Id. p. 3 (“Since we started pushing for the perda (local, District-level legislation) on indigenous peoples’ recognition and protection in 2012, we were advised by local government to refrain from any direct contact with TPL. We are still hoping and waiting for the perda to be passed, so we do not want to trigger any confrontation which could affect the passing of the perda”).

Page 23 of 82

from the TPL plantation.120 This was done by simply revising the company’s Annual Work Plan, based on a map produced by the community.121 While this land was removed, that community is nonetheless still waiting for the District Perda to pass so that it can acquire formal title to its lands. 42. The situation of Pandumaan-Sipituhuta is almost identical to that of Ompu Ronggur.122 For instance, testifying before Komas HAM in 2014, one community member explained that they “used to make ends meet by harvesting kemenyan (incense) trees from the forest for the past 300 years. The villagers, according to [her], however, were now unable to rely on the forest for their livelihoods after TPL….”123 4. Permanent Insecurity and Impunity 43. In a publication of the Centre for International Forestry Research (CIFOR), Persch-Orth and Mwangi report that Indonesia has the highest number of industrial tree plantation conflicts worldwide.124 The Institute for Policy Analysis of Conflict explains that “land and resource conflicts are becoming a major source of lethal violence in Indonesia and there are no good mechanisms for resolving them.”125 These findings are confirmed by numerous other sources, which have detailed extensive conflicts over lands and substantial harm to indigenous and other communities that are affected by plantations in Indonesia.126 44. Various studies further confirm that affected communities have little access to justice to assert and defend their rights, and that companies are often supported by State security forces when communities complain. Citing the rights to self-determination and food and the prohibition of discrimination, the UNCESCR, for instance, expressed concern at “at the lack of an adequate monitoring of the human rights and environmental impact of extractive [and plantation] projects during their implementation [in Indonesia]. In many cases, affected communities have not been afforded effective remedies and have, along with human rights defenders working on these

120 ‘President Jokowi: Customary Forests Should Not be Traded’, Cabinet Secretary for State Documents & Translation, 30 December 2016, https://setkab.go.id/en/president-jokowi-customary-forests-should-not-be- traded/. 121 Andiko, Comparative Study on Rights Recognition and Permits Procedures in Forest areas for Communities and Companies (ASM Law Office, Bogor, 2017), p. 16, http://rightsandresources.org/wp- content/uploads/2017/10/Comparative-Study_Jan-2017_Andiko_English.pdf. 122 See e.g., https://www.lifemosaic.net/eng/resources/video/dont-pulp-pandumaan-sipituhuta-a-david-and- goliath-tale/. 123 ‘Komnas HAM holds inquiry to settle land disputes’, Jakarta Post, 22 September 2014, https://www.thejakartapost.com/news/2014/09/22/komnas-ham-holds-inquiry-settle-land-disputes.html. 124 M. Persch-Orth & E. Mwangi, Company–community conflict in Indonesia’s industrial plantation sector, CIFOR Info Brief, No. 143, (May 2016). 125 Indigenous Rights vs. Agrarian Reform in Indonesia: A Case Study from Jambi (IPAC, Jakarta 2014), http://file.understandingconflict.org/file/2014/04/IPAC_Report_9_Case_Study_from_Jambi _web.pdf. 126 See e.g., ‘In Indonesia, a paper giant shuffles a litany of land conflicts’, Mongabay, 24 April 2019, https://news.mongabay.com/2019/04/in-indonesia-a-paper-giant-shuffles-a-litany-of-land-conflicts/.

Page 24 of 82

cases, been subject to violence and persecution.”127 It recommended in this respect that Indonesia “review legislation, regulations and practices in the mining and plantations sectors.”128 45. The preceding typifies the situation of Ompu Ronggur. The numerous complaints filed by Ompu Ronggur with both the State and TPL have been ignored and, as noted above, it lives in a constant state of insecurity because further clearances and planting of eucalyptus by TPL could occur at anytime and anywhere in its customary lands. In his annexed affidavit, one Community member testifies: “What will be left of us if we cannot securely enjoy our land and traditional occupations without living in constant state of fear and anxiety that today or tomorrow or next week TPL will come and cut down or take what little remains”?129 The State supports, privileges and allows TPL to pursue its occupation to the extreme detriment of the Community, its rights and its well-being, and its operations proceed irrespective of their rights and with impunity. 46. The Community is acutely aware that it is helpless to address these issues in the national sphere. This has generated considerable fear and anxiety within Ompu Ronggur, both in relation to its present situation and for the prospects of its future generations. Three Community elders testify that “We feel like we are being downtrodden. We feel deeply upset. The government has given the company special treatment, and we are even poor now. We have nothing. We have nothing left. We are scared for our children’s future. There is no more land for future generations. We are very worried and we always are thinking about what will happen.”130 This fear is further substantiated in the light of the severe pecuniary harm suffered by the Community in relation to the denial of its right to equal treatment of its traditional occupations and to benefit from its traditional economy more broadly. C. Discriminatory Impairment and Nullification of the Ompu Ronggur’s Traditional and “Particular” Occupations 47. Ompu Ronggur regards and manages its lands as an “integrated and interdependent ecological unit,” in accordance with its customary land tenure system and the traditional knowledge inherited from its ancestors (see Map 1, showing the different zones). A Community member explains that “The entire area is an ecological system referred to as a huta. The way we see it, a huta is like a house. You can’t have a house with only a kitchen, or just a living room. It isn’t a house unless all the rooms we need to live are present.”131 The entirety of its traditional lands is a managed landscape, including the forests therein, which are cultivated, managed and used for agro-forestry and other traditional occupations.132 These traditional occupations have

127 E/C.12/IDN/CO/1 (2014), para. 28. 128 Id. 129 Annex 2(1), Affidavit of Pancur Simanjuntak, p. 3. 130 Annex 2(3), Affidavit of Pariang Simanjutak, Manaek Simanjuntak, Selamat Simanjutak, p. 3. 131 Annex 2(1), Affidavit of Pancur Simanjuntak, p. 3. 132 C. Garcia Fernandez, supra note 92, 2004), p. 148-49.

Page 25 of 82

been practiced since time immemorial and today remain fundamental to the Batak Toba traditional economy. 48. Empirical studies demonstrate that “Batak Toba cultural values … proved to have a positive effect on the management of resources and environment.”133 These studies conclude that “if the management of natural resources and the environment of Lake Toba [are] to be improved then the … interaction of Batak Toba cultural values must be optimized.”134 As discussed below, agro-forestry as a traditional occupation is substantially impaired due to the activities of TPL, activities that exclude, and have been accorded preference over, the rights of the Community in violation of C111. 49. C111, Article 1(3), defines ‘employment’ and ‘occupation’ to include “access to vocational training, access to employment and to particular occupations, and terms and conditions of employment.” The term ‘particular occupations’ is understood to include indigenous peoples’ right to pursue their traditional occupations and related activities on their lands, and equality in this context includes the principle that no one “should be excluded from exercising the occupation of their choice on discriminatory grounds.”135 C111 also “upholds the right of indigenous and tribal peoples to earn their living with respect to the exercise of their traditional occupations.”136 Examining a case study from Indonesia that illustrates indirect discrimination, the ILO Regional Office for Asia and the Pacific concluded that “discrimination in occupation” was manifest due to the “deprivation of the traditional means of livelihood through allocation of native farmlands to the transmigrants, without adequate compensation.”137 The same conclusion is warranted in relation to the impairment and nullification of Ompu Ronggur’s traditional occupations, discussed below. 1. Agro-forestry a. Benzoin resin collection For generations, Indigenous Batak communities … have planted benzoin trees in the forests on their traditionally-owned lands. … For many, this is a significant cultural practice that

133 See e.g., S. Haholongan Marbun, R. Hamdani Harahap, Badaruddin & R. Sibarani, The Effect of Batak Toba Culture to Management of Natural Resources and Toba Lake Environment in Regency of Samosir, 9 INTERNATIONAL JOURNAL OF CIVIL ENGINEERING AND TECHNOLOGY 271, p. 276, http://www.iaeme.com/MasterAdmin/UploadFolder/IJCIET_09_03_029/IJCIET_09_03_029.pdf. 134 Id. p. 277. 135 See e.g., ILO Guide to C111, p. 14; and CEACR, Direct Request concerning C111, Uganda, 2014/2015. 136 Equality and Non-discrimination at Work in East and South-East Asia, supra note 29, p. 47. 137 Equality and Non-Discrimination at Work in East and South-East Asia: Exercise and Tool Book for Trainers, (ILO DWT for East and South-East Asia and the Pacific, Bangkok, 2011), p. 192, https://www.ilo.org/wcmsp5/groups/public/---asia/---ro-bangkok/---sro- bangkok/documents/publication/wcms_178417.pdf.

Page 26 of 82

provides a primary source of cash income. Since [TPL] took over communities’ land for its pulp plantations, many benzoin forests have been cleared and converted to pulp plantations.138 50. In common with other Batak Toba communities, Ompu Ronggur has purposefully cultivated Styrax/kemenyan trees and seasonally harvested and sold their resin for centuries. The resin is used for incense, pharmaceuticals, cosmetics, and as a flavor agent in tobacco products. Eijkemans explains that the “output per hectare of benzoin trees is low. High population densities with monocultures of benzoin trees are not possible. But under low population densities, as occur in parts of North Tapanuli, benzoin cultivation can be promoted. The trees do not demand much care and can therefore be planted in large areas.”139 These kemenyan forests are vigorously managed by the Community because resin production, both its quality and quantity, depends on maintaining a specific micro-climate, which in turn depends on a surrounding healthy forest within which the kemenyan trees can thrive.140 As stated by an environmental scientist: Benzoin trees are grown with many other diverse trees – since the Benzoin tree produces a good resin as long as it is naturally surrounded by other trees and vegetation. These forest gardens have evolved into a delicate system that needs lots of work and preservation. The benzoin farmers are highly skilled in maintaining a balance between high light and low temperature in the micro management of the benzoin trees and the other trees.141 51. Kemenyan forests are agro-forestry areas that are part of the overall ecological unit and land tenure and management system employed by the Community.142 They are internally divided and allocated to the various families in the community (except in the sacred forest), with each family holding an area containing around 500 trees.143 These areas are inherited generation to generation, further subdivided among adult children, and remain within the respective families

138 B. Morgan, ‘Life at the Frontline of Deforestation: How Families in Indonesia are Fighting Back’, OneGreenPlanet, April 2017, https://www.onegreenplanet.org/environment/families-in-indonesia-fighting-deforestation/. 139 Eijkemans, PROFITABILITY OR SECURITY, supra note 69, p. 147. 140 Annex 2(3), Affidavit of Pariang Simanjutak, Manaek Simanjuntak, Selamat Simanjutak, p. 2 (stating in response to the question “Is the kemenyan forest you cultivate affected by TPL?” that “Yes. Much of the forest is gone. TPL has cut down most of the trees. The wind is now strong in what is left of the forest, and there is less acidity in the water. It has changed the micro-climate in the forest where we cultivate the kemenyan trees. There needs to be a certain amount of forest cover, certain temperatures, to maintain the health of the kemenyan trees”); and Annex 2(1), Affidavit of Pancur Simanjuntak, p. 3 (explaining that TPL “also affected our resin trees because the trees in the forest has been cut down, there are now strong winds which affect the temperature in the forest, which also affects the micro-climate that the resin trees need. Strong winds also ruin the resin as well as damage the leaves of the resin tree”). 141 See e.g., ‘Giant eucalyptus plantation company destroys Benzoin forest gardens in Indonesia’, EM News, 24 August 2010, http://www.engagemedia.org/Members/emnews/news/giant-eucalyptus-plantation-company- destroys-benzoin-forest-gardens-in-indonesia. 142 C. Garcia Fernandez, supra note 92, p. 149. 143 Annex 2(3), Affidavit of Pariang Simanjutak, Manaek Simanjuntak, Selamat Simanjutak.

Page 27 of 82

unless abandoned.144 There are various customary laws concerning land that regulate the resin forests and their sub-division into family areas, and various rituals that must be performed in relation to the traditional occupation of resin harvesting.145 This entire system is regulated by the village elders, who collectively comprise the Community’s traditional government.146 In this respect, the kemenyan forest and related traditional occupation is encoded in and inextricably tied to Ompu Ronggur’s customary land tenure, governance, legal, kinship, and inheritance systems. 52. Agro-forestry and benzoin collection are thus fundamental to Batak Toba culture and identity as well as traditional occupations from which they have historically derived a substantial income. With regard to the latter, Rohadi explained, in 1999, and in the district in which Ompu Ronggur is situated, that income from benzoin extraction ranged between 45-70 per cent of Batak Toba household income.147 As noted above, Garcia Fernandez and others observe that income from resin collection is traditionally used to pay school fees and, in the past, “it served to put several generations of through university.”148 53. With Indonesia’s permission and ongoing acquiescence, TPL has destroyed substantial areas of Ompu Ronggur’s kemenyan forest. It has also clear-cut or removed large trees from most of the other remaining areas, disrupting the micro-climate that determines the health and productivity of the kemenyan forest and quality and quantity of resin they produce.149 Three elders confirm that the resin they collect today is of inferior quality and is worth less at market: Before [the resin] was white and thick. Now, the resin is sticky, it looks melted, it is a thinner consistency. This is inferior resin and it is not worth the same. There is a difference in price. The best quality resin is valued at 250,000 per kilo; second grade is valued at 160,000 per kilo; and third grade is 80,000 per kilo. Now we mostly produce third grade resin, while before TPL it was almost all first grade, worth more than three times the amount. 150

144 Id. p. 1 (explaining that “In the past, the forest was worked on together. We worked together, but we now divide up the land because there is kinship. In the beginning there was one person. If, for example, they had seven children, the land would be divided amongst the seven etc.”). 145 Id. 146 Id. p. 3 (“In the past, the forests were open to those who wanted to work there as long as the lands belonged to them. That was before, when there were not that many community members. This was the way hundreds of years ago. The forests have been allocated to families for more than 200 years now, so this knowledge has been handed down from generation to generation to the present. If there is a dispute among the families, it then gets taken to raja ni huta, “the Kings of the Territory” (our traditional elders)”). 147 D. Rohadi, Case Study of Kemenyan in Tapanuli Utara District (Center for International Forestry Research, Bogor, 1999). 148 C. Garcia Fernandez, supra note 92, p. 156. 149 Annex 2(3), Affidavit of Pariang Simanjutak, Manaek Simanjuntak, Selamat Simanjutak, p. 2 (explaining that “Today you can get around 2 ounces, but before that we were able to get 1 kilo from each tree;” “[b]efore we could bring around 10 kilos of resin per week. … Now, it is difficult to get even 2 kilos per week”). 150 Id.

Page 28 of 82

54. The unequal treatment of Ompu Ronggur and privileging of TPL’s activities substantially impairs this traditional occupation and has greatly diminished the Community’s income.151 Prior to TPL’s operations, each tree would produce approximately one kilogram of highest quality resin per year, valued at 250,000IDR or US$18.17 in the 1990s (equivalent today to 867,000IDR or US$63.02).152 Each family thus generated 12,500,000IDR or US$900per annum from its allocated trees (equivalent to 43,350,000IDR or US$3,150 today). Due to the reduction in the number of trees, the loss of land to plant new resin trees, and the present inferior quality, and this lower price, of the resin, each family today derives an income of approximately 8,150,000IDR (US$592) per annum.153 This represents a reduction in income of over 80% since TPL began its operations. b. Rice farming 55. Ompu Ronggur cultivates two kinds of rice: white rice, grown in paddies and harvested once a year, and brown rice, planted only in the forest and harvested twice a year. Due to TPL’s activities, the forest areas for this kind of rice farming have been greatly reduced as have the corresponding yields.154 Traditional forest rice farmers are thus greatly restricted from practicing this traditional agricultural occupation. Brown forest rice is also more expensive than white paddy rice if sold at market (it is sold in 16 kilogram units for 180,000IDR, while white rice is 150,000IDR for the same quantity). The Community forest rice farmers are thus also losing a considerable income from this traditional forest farming as well as an important and highly nutritious food source. The Community estimates that it has lost at least 50 per cent of its income from the harvest and sale of brown forest rice due to the privileging of TPL’s activities and the disregard for its rights, as typified by TPL’s destruction of its forests. White paddy rice is also negatively affected. As explained in Annex 2(4), page 2, an affidavit signed by five Ompu Ronggur elders, “because all the forests have been cleared, whenever it rains heavily there are now floods which inundate our paddy fields and destroy them, so we lose income even more.” c. Timber Harvesting: 56. Timber traditionally harvested for house construction is also becoming scarce due to TPL’s forest clearances, including in the Community’s sacred forest, which is viewed as a repository of large hardwood species used in house construction and associated wood carving.155 In this

151 Id. (“Now we get less resin and it is lower quality, and we are losing most of our income for both of these reasons”); and Annex 2(2), Affidavit of Hermina Sianipar, p. 3 (“We used to make good money from resin. We only make a very little nowadays”). 152 Id. p. 2. 153 Id. 154 Annex 2(2), Affidavit of Hermina Sianipar, p. 3-4. 155 Annex 2(1), Affidavit of Pancur Simanjuntak, p. 2 (“Tombak Raja is very important to us. This is where our water spring that is the source of a creek that flows into the river is located; where we get timber for our houses; and where we hunt. … When we want to cut down trees in there to build a house, we have to ask for permission from the Raja ni huta (our customary elders who are like our traditional government). We also must conduct a prayer ritual as well. After we cut down the trees, we must replace them by planting other trees”).

Page 29 of 82

regard, despite commitments to the contrary, TPL uses both plantation- and natural forest- derived timber to produce pulp for paper.156 Traditional Batak Toba houses are famous for both their construction methods and the ornate woodcarving that adorns them.157 Woodcarving in particular is a prized and highly remunerated skill and traditional occupation among Batak Toba. The traditional occupations of house construction and woodcarving are, therefore, also substantially impaired by TPL’s operations. 57. Hanari et al explain that Batak Toba houses are also intimately tied to cultural rights, cultural heritage and the transmission of traditional knowledge. House construction is based on “the knowledge has been informally passed on from generation to generation,” and “the community enforces unwritten rules in that house forms vary little over time.”158 Moreover: Traditional houses play a vital role in the collective memory of Batak Toba people as they reveal events, societal issues and progress of the lives of people. … Building traditions and the architecture of traditional houses have provided Batak Toba people with a sense of identity and meaningful collective memory. To be kept alive, this collective memory must be continuously recreated and transmitted from one generation to another.159 58. These interrelationships further illustrate that the discriminatory disregard for the Community’s traditional occupations and its rights more broadly transcends the simple loss of income. The harm caused is multi-generational and multi-dimensional, deeply affecting identity and cultural integrity, and the Community’s well-being and dignity. 2. Hunting 59. Due to forest clearances and the establishment of mono-crop plantations by TPL in and around Ompu Ronggur’s lands, game animals that were plentiful prior to the arrival of TPL are now so scarce that hunting is virtually impossible.160 Community elders explain that “we are no longer able to exercise our traditional wisdom on hunting because we can no longer hunt because

156 In 2015, TPL adopted “No deforestation, No peat, No exploitation” policies, but observers conclude that these policies have “failed to resolve the grievances of numerous Batak communities who have lost benzoin trees, which they tap for incense and are central to their culture and livelihoods.” See e.g., ‘”Give us back our land:” paper giants struggle to resolve conflicts with communities in Sumatra,’ Mongabay, 9 June 2017, https://news.mongabay.com/2017/06/give-us-back-our-land-paper-giants-struggle-to-resolve-conflicts-with- communities-in-sumatra/. 157 H. Hanana et al, Batak Toba Cultural Heritage and Close-range Photogrammetry, 184 PROCEDIA - SOCIAL AND BEHAVIORAL SCIENCES 187 (2015), p. 188 (explaining that “The façade of the house is covered with carved motifs, which are painted in three natural colors: white, red and black. The front wall and the gable of the house are decorated with extensive figural and ornamental decoration”), https://core.ac.uk/download/pdf/82192014.pdf. 158 Id. p. 189. 159 Id. p. 189. 160 Annex 2(2), Affidavit of Hermina Sianipar, p. 3 (“There are no more animals, they have run away. … The forests are gone because of TPL, the animals cannot live there anymore”); and Annex 2(3), Affidavit of Pariang Simanjutak, Manaek Simanjuntak, Selamat Simanjutak, p. 3.

Page 30 of 82

animals are very rare now because of the destruction of the forest by TPL.”161 Hunting as a traditional occupation is thus nullified and the Community is forced to buy (expensive) meat that was once abundant and free.162 Community testimony confirms that successful hunting was previously common and occurred at least once a week.163 Animals, such as deer and wild boar - and others obtained by trapping – would provide meat for two days and, pursuant to customary law, was shared among the Community by hunters.164 Now, many families are unable to buy meat or do so only infrequently.165 This has substantially reduced protein intake in the Community, which normally has negative developmental and health effects. 60. In this regard (although equally applicable to the other instances of discrimination against Ompu Ronggur), the UN Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health has directly linked land and resource rights to the right to health, stating that the right to health of indigenous people is threatened by changes in the use of land caused by development projects linked to logging operations, palm oil plantations and energy- intensive industries…. This has led to a substantial loss of access to traditional land and sources of livelihood, … which have had a direct impact on the physical and mental health of these communities.166 61. In the same vein, the UNCESCR has explained that the obligation to respect existing access to adequate food requires states to refrain from adopting measures that result in preventing such access, whereas the obligation to protect requires measures “to ensure that enterprises or individuals do not deprive individuals of their access to adequate food.”167 It has stressed also that “specially disadvantaged groups may need special attention and sometimes priority consideration with respect to accessibility of food. A particular vulnerability is that of many

161 Annex 2(3), Affidavit of Pariang Simanjutak, Manaek Simanjuntak, Selamat Simanjutak, p. 3. 162 Id. (“We have to buy meat from market. Meat is very expensive to buy. Pork, for example, is 50,000 rupiahs per kilo”). 163 Annex 2(2), Affidavit of Hermina Sianipar, p. 3. 164 Annex2(3), Affidavit of Pariang Simanjutak, Manaek Simanjuntak, Selamat Simanjutak, p. 3. 165 Annex 2(2), Affidavit of Hermina Sianipar, p. 3 (“Do you have less meat or more meat now? Now we must buy it in a shop. We do not have money to buy meat, so we do not eat meat anymore. Is that true for most people in the village? Yes, most families are like us, or maybe they eat meat once a week, or when they have money”). 166 Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health on his visit to Malaysia, A/HRC/29/33/Add.1, 1 May 2015, at para. 52. See also UNCESCR, General Comment No. 14: The right to the highest attainable standard of health (2000), para. 27 (explaining that “in indigenous communities, the health of the individual is often linked to the health of the society as a whole and has a collective dimension. In this respect, the Committee considers that development- related activities that lead to the displacement of indigenous peoples against their will from their traditional territories and environment, denying them their sources of nutrition and breaking their symbiotic relationship with their lands, has a deleterious effect on their health”). 167 UNCESCR, General Comment No. 12, The Right to Adequate Food, E/C/12/1999/5 (1999), para. 15.

Page 31 of 82

indigenous population groups whose access to their ancestral lands may be threatened.”168 The discrimination that has nullified the community’s ability to maintain and benefit from the traditional occupation of hunting, therefore, reverberates, inter alia, in violations of the right to food and to health.169 3. Floor mat and tandok manufacture and sale 62. The women of the Ompu Ronggur have since time immemorial harvested bayon (a member of the Pandanus genus), a fibrous non-timber forest product, that the women prepared and then wove into floor mats.170 These were mostly sold in the market. Each mat sold for 750IDR in the 1990s. A family would produce one mat per week (providing an income then of approximately 37,500IDR annually per family, equivalent to 130,000IDR or US$9.45 today). They also made tandok, a woven bag or sack in its larger form, from the same material, the smaller of which are used in all customary ceremonies. Each tandok would sell for 15,000IDR in 1990’s (equivalent to 52,000IDR or US$3.78 today). Each family would produce at least one per week (approximately 750,000IDR per family, per annum, equivalent to 2,600,500IDR or US$189.05 today). 63. However, due to TPL’s activities, bayon has not been found in sufficient quantity for the past 20 years.171 Consequently, the women in the Community have been deprived of their traditional handicrafts/weaving occupation in this regard as well as the substantial income that sales in the market produced. CEDAW has observed that the non-discrimination principle requires that states “ensure that indigenous people, including women, have … unobstructed

168 Id. para. 13. 169 Id. para. 18 (stating that “any discrimination in access to food, as well as to means and entitlements for its procurement, on the grounds of race, colour, sex, language, age, religion, political or other opinion, national or social origin, property, birth or other status with the purpose or effect of nullifying or impairing the equal enjoyment or exercise of economic, social and cultural rights constitutes a violation of the Covenant”); and para. 19 (stating that “[v]iolations of the right to food can occur through the direct action of States or other entities insufficiently regulated by States. These include: … denial of access to food to particular individuals or groups, whether the discrimination is based on legislation or is proactive; … adoption of legislation or policies which are manifestly incompatible with preexisting legal obligations relating to the right to food; and failure to regulate activities of individuals or groups so as to prevent them from violating the right to food of others”). 170 Annex 2(2), Affidavit of Hermina Sianipar, p. 1-2. 171 Id.

Page 32 of 82

access to their ancestral lands,”172 and made a specific recommendation to Indonesia in this regard in 2012.173 64. This is also a prime example of intersectional discrimination (gender/indigenous status), including via a disproportionate impact on female members of the Community, who also complain that they have lost the social space created by joint weaving activities.174 The UNCESCR explains that “Such cumulative discrimination has a unique and specific impact on individuals and merits particular consideration and remedying.”175 The women are also deeply concerned that they are now unable to pass on their traditional weaving knowledge to future generations, illustrating, as is the case for the other traditional occupations discussed herein, discrimination with intergenerational effects.176 4. Traditional governance occupations 65. The ILO’s International Standard Classification of Occupations defines ‘Traditional Chiefs and Heads of Villages’ as an occupation.177 According to this classification, traditional chiefs perform a variety of legislative, judicial, administrative and ceremonial functions, and their specific tasks include: presiding over the community, allocating communal land and other resources among households in the community or village, adjudicating and resolving disputes under customary law, and representing the community in external relations.178 As discussed

172 CEDAW/C/GAB/CO/6 (2015), para. 43. See also CEDAW/C/RUS/CO/8 (2015), para. 40(b) (recommending that Russia “Guarantee that indigenous women have full and unrestricted access to their traditional lands and the resources on which they depend for food, water, health and to maintain and develop their distinct cultures and identities as peoples”); and CEDAW, General recommendation No. 34 on the rights of rural women, CEDAW/C/GC/34 (7 March 2016), para. 55-6 (“Rural women often have only limited rights over land and natural resources. In many regions, they suffer from discrimination in relation to land rights, including with respect to communal lands, which are controlled largely by men;” and classifying their “… rights to land, natural resources, including water, seeds and forests, and fisheries as fundamental human rights”). 173 CEDAW/C/IDN/CO/6-7 (2012), para. 45(b) (identifying “Cases of discrimination” that include “cases of violation of the rights of indigenous women to access their land, water and natural resources”) and para 46(b) (recommending that Indonesia “Implement effective measures to eliminate discrimination,” including to “ensure access to land and natural resources for indigenous women, through all available means, including temporary special measures, in accordance with article 4, paragraph 1, of the Convention, and general recommendation No. 25 (2004), on temporary special measures”). 174 See e.g., CEDAW/C/JPN/CO/7-8 (2016), para. 34 (“the Committee remains concerned at: … (e) The persistence of multiple/intersectional forms of discrimination in the employment sector with regard to indigenous women, minority and other women…”); UNCERD, General recommendation No. 25 on gender-related dimensions of racial discrimination (2005); CERD/C/COL/CO/15-16, para. 31-2; CERD/C/GTM/CO/14-15; and CERD/C/PRY/CO/4-6, 4 October 2016, para. 41-2. 175 General Comment No. 20, Non-Discrimination in Economic, Social and Cultural Rights, E/C.12/GC/20 (2009), para. 17 (also stating that “Some individuals or groups of individuals face discrimination on more than one of the prohibited grounds, for example women belonging to an ethnic or religious minority”). 176 Annex 2(2), Affidavit of Hermina Sianipar, p. 1-2. 177 International Standard Classification of Occupations: ISCO 08, Vol. I (International Labour Office 2012), p.88, 90, https://www.ilo.org/wcmsp5/groups/public/@dgreports/@dcomm/@publ/documents/publication/wcms_172 572.pdf. 178 Id.

Page 33 of 82

above, Ompu Ronggur’s traditional chiefs (the customary elders known as Raja ni huta) are the Community’s traditional government, performing, inter alia, the tasks and functions specified in the International Standard Classification of Occupations.179 66. Indonesia’s acts and omissions have severely impaired the governance occupations of the traditional chiefs of Ompu Ronggur as well as the right of the Community to be represented and govern itself through its own institutions.180 Various international human rights bodies have highlighted the importance of the preservation and self-directed operation of indigenous peoples’ communal structures and modes of self-governance,181 rights also affirmed in the UNDRIP182 and C169.183 67. According to the chiefs, “we can no longer govern; [w]e no longer have control over our lands and what happens on them, and the authority of our traditional government is harmed every day.”184 The Community’s traditional government can no longer exercise their right to “manage, distribute, and effectively control [the] territory, in accordance with their customary laws and traditional collective land tenure system.”185 There is a close link between the regulation

179 See also Annex 2(3), Affidavit of Pariang Simanjutak, Manaek Simanjuntak, Selamat Simanjutak, p. 3 (“The raja ni huta, “the Kings of the Territory” (our traditional elders) … are the government of our community. They exercise authority in the community and have autonomy in relation to other Batak Toba huta (territories)”); and Annex 2(1), Affidavit of Pancur Simanjuntak, p. 2. 180 See e.g., Tiina Sanila-Aikio vs. Finland, CCPR/C/124/D/2668/2015 (2019), para. 6.10-11 (ruling that “the State party’s obligations contained in article 27 depend on the effective role that the Sami Parliament may play in decisions that affect the rights of members of the Sami community to enjoy their own culture or to use their own language in community with the other members of their group. … [T]he Committee considers that the Supreme Administrative Court rulings affected the rights of the author and of the Sami community to which she belongs to engage in the electoral process regarding the institution intended by the State party to secure the effective internal self-determination and the right to their own language and culture of members of the Sami indigenous people”); and Chitay Nech v. Guatemala, Inter-Am. Ct. H.R., Ser. C No. 212 (2010), para. 117 (where the Inter- American Court explained that the direct representation of indigenous peoples, through their mandated representatives and institutions, is “a necessary prerequisite” for the exercise of their right to self-determination and, by extension, their right to freely pursue their economic, social and cultural development “within a plural and democratic State”). 181 Plan de Sánchez Massacre, Inter-Am. Ct. H.R., Ser. C No 105 (2004), para. 85. 182 UNDRIP, inter alia, Article 4 (providing that “Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions”); and Article 34 (providing that “Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards”). 183 Article 7(1) provides that “The peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development. In addition, they shall participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly.” 184 Annex 2(3), Affidavit of Pariang Simanjutak, Manaek Simanjuntak, Selamat Simanjutak, p. 3. 185 Saramaka People v. Suriname, Inter-Am. Ct. H.R., Ser C No. 172 (2007), para. 194 (where the Court ordered that recognition of the Saramaka people’s territorial rights must include recognition of “their right to manage,

Page 34 of 82

and conduct of traditional occupations and the traditional government and its functioning. They are fundamentally intertwined on many levels. Due to the denial of the Community’s rights and the unjustified privileging of TPL’s permit rights, in this case typified by the take over and conversion of Community lands and forests, the traditional elders can no longer practice their governance and the regulatory functions, which are crucially important, inter alia, to the practice and sustainability of traditional occupations and the lands on which they depend. 68. This includes the negation of their role as representatives of the Community in external relations. This is due to the failure of the State to secure their effective participation in decision- making and the critical role it has for safeguarding the Community’s rights,186 and the right of the Community to be represented by the leaders of its choice.187 The Human Rights Committee has repeatedly held in this regard that indigenous peoples have the right to engage in the “economic and social activities which are part of the culture of the community to which they belong,”188 and, “securing continuation and sustainability of traditional forms of economy of indigenous minorities (hunting, fishing and gathering) … must be protected….”189 Moreover, where decisions may affect them, their effective participation, through their representatives, must be guaranteed and ensured.190 The Governing Body has repeatedly held that, while C169 “does not impose a model of what a representative institution should involve, the important thing is that they should be the result of a process carried out by the indigenous peoples themselves;” and “it is essential

distribute, and effectively control such territory, in accordance with their customary laws and traditional collective land tenure system,” all of which presupposes that they are able to do so through their own freely identified representatives and through their own institutions, and that these institutions are established consistent with the customary laws and traditions of the indigenous peoples themselves, not those of the national government); in accord Apirana Mahuika et al. vs. New Zealand, CCPR/C/70/D/547/1993 (2000), at 9.7. 186 See e.g., Chitay Nech v. Guatemala, Inter-Am. CT. H.R., Ser. C No. 212 (2010), para. 115 (reiterating that human rights law upholds indigenous peoples’ right to direct participation in decisions that may affect their rights and development, “in accordance with their values, traditions, customs and forms of organization”); 187 Id. (observing that indigenous leaders “exercise their charge by mandate or designation and in representation of a community. This duality is both the right of the individual to exercise the mandate or designation (direct participation) as well as the right of the community to be represented. In this sense, the violation of the first reverberates in the damage of the other right”). 188 See e.g., Bernard Ominayak, Chief of the Lubicon Lake Band vs. Canada, Report of the Human Rights Committee, 45 UN GAOR Supp. (No.43), UN Doc. A/45/40, vol. 2 (1990), at 1. 189 CCPR/CO/69/AUS (2000), para. 11. 190 See e.g., J. Lansman et al. vs. Finland (Communication No. 671/1995), UN Doc. CCPR/C/58/D/671/1995; and General Comment No. 23 (art. 27), adopted by the Human Rights Committee at its 1314th meeting (fiftieth session), 6 April 1994. UN Doc. CCPR/C/21/Rev.1/Add.5., para. 9.5. See also Yatama v. Nicaragua, Inter-Am. Ct. H. R., Ser. C No. 127 (2005), para. 229 (where the Court stressed that universal rights of equality and political participation give rise to an obligation on states to adopt affirmative and differentiated measures to guarantee the participation of indigenous groups under conditions of equality and to take into consideration their customary forms of organization;” and, para. 225, “that states must guarantee that indigenous peoples “can participate, in conditions of equality, in decision-making on matters that affect or could affect their rights and the development of their communities … and that they are able to do so through their own institutions and in accordance with their values, uses, customs and forms of organization…”).

Page 35 of 82

to ensure that the consultations are held with the institutions that are truly representative of the peoples concerned.”191 D. Indonesian Law Discriminates against Indigenous Peoples and their Rights 69. The preceding demonstrates that Indonesia has discriminated against Ompu Ronggur in relation to its traditional occupations and associated rights. This discrimination is also firmly rooted in and exacerbated by extant Indonesian law and related practice, which, as is the case with TPL, unjustifiably privileges state-authorized private sector and other operations and excludes the rights and well-being of indigenous peoples. This is further confirmed by the various UN human rights treaty bodies that have examined the situation of indigenous peoples in Indonesia. All have concluded that a series of structural and discriminatory defects in Indonesian law and practice have established serious obstacles to legal recognition of and respect for indigenous peoples’ rights. The same issues have been identified in ILO Office and other studies and reports.192 70. The UNCERD determined in 2007 that Indonesian laws related to indigenous peoples “are not sufficient to guarantee their rights effectively,”193 a finding reiterated by the UNCESCR in 2014, which identified “the absence of an effective legal protection framework of the rights of Masyarakat Hukum Adat due to inconsistencies in relevant legislative provisions.”194 These bodies also have specifically linked the denial of indigenous land and resource rights and associated livelihoods and occupations to discriminatory laws and practices.195 Both have recommended in this respect that Indonesia, to quote the UNCERD, “review its laws … to ensure

191 Report of the Committee set up to examine the representation alleging non-observance by Argentina of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under article 24 of the ILO Constitution by the Education Workers Union of Río Negro (UNTER), local section affiliated to the Confederation of Education Workers of Argentina (CTERA) (GB.297/20/1):(GB.303/19/7) (2008), para. 75. 192 See e.g., R. K. Dhir, Indigenous Peoples in the World of Work in Asia and the Pacific: Status Report (ILO Office, 2015); and Errico, The rights of indigenous peoples in Asia, supra note 5. 193 CERD/C/IDN/CO/3 (2007), para. 17. 194 E/C.12/IDN/CO/1 (2014), para. 38. 195 In addition to the findings of the UNCERD, all of which relate to discrimination, defined in largely the same manner as C111, see e.g., CEDAW/C/IDN/CO/6-7 (2012), para. 45-6 (stating that the Committee is “deeply concerned about: (a) The disadvantaged position of rural and indigenous women, which is characterized by … the existence of discrimination with respect to ownership and inheritance of land;” and urging Indonesia to “eliminate discrimination … and ensure access to land and natural resources for indigenous women, through all available means, including temporary special measures…”); and CRC/C/IDN/CO/3-4 (2014), para. 19 (expressing deep concern about “discriminatory provisions that still remain in national legislation and the prevalence of de facto discrimination, including: (d) Various forms of discrimination against children belonging to indigenous communities, such as insufficient access to education and health care”); and, at para. 70 (urging Indonesia to “eliminate poverty among indigenous communities … provide for their equal access to all public services, … and ensure the prior informed consent of indigenous peoples with regard to exploitation of the natural resources in their traditional territories”).

Page 36 of 82

that they respect the rights of indigenous peoples to possess, develop, control and use their communal lands.”196 71. These bodies have further confirmed that indigenous peoples have been and continue to be subjected to severe and continuous violations of their rights and that a pattern of gross violations is especially pronounced in connection with non-recognition of their ownership over traditional lands and the granting of the same to commercial enterprises, such as TPL. In this regard, the UNCESCR expressed concern in 2014 “at violations of human rights in the mining and plantations sectors, including the right to livelihood, the right to food, the right to water, labour rights and cultural rights.”197 The UNCERD identified that “a high number of conflicts arise each year throughout Indonesia between local communities and palm oil companies….”198 It also explicitly acknowledged the discrimination inherent in this situation, observing in 2013 that, due to Indonesian law, “as currently drafted, indigenous peoples … have been denied rights to their lands in favour of an ownership right vested by the State,” including in private companies.199 This was confirmed in 2018 by the UN Special Rapporteur on the Right to Food following a mission to Indonesia. She affirmed that indigenous peoples “face disproportionate barriers to accessing land,” a factor made worse by the fact that their “livelihoods and food sources depend considerably on the free use of land.”200 72. The National Human Rights Commission, Komnas HAM, conducted a wide-ranging and long-term inquiry into indigenous peoples’ rights and, in 2015, reached the same conclusions as the UN treaty bodies. It made a series of recommendations aimed at correcting the substantial deficiencies in Indonesian law and practice, almost all of which have yet to be acted on, let alone realized. This inquiry identified “several root causations of human rights violations related to indigenous peoples that began in the colonial period and continue until the present….”201 All of these root causes are applicable to the situation of Ompu Ronggur. The first, “Lack of legal recognition/status as indigenous people, which makes their legal rights/claims unclear or uncertain,” a problem that is not only related to the non-recognition of control and ownership of indigenous peoples’ territories, but also to the absence of a legal system provided by the state to protect

196 CERD/C/IDN/CO/3 (2007), para. 17. 197 E/C.12/IDN/CO/1 (2014), para. 27. 198 CERD/C/IDN/CO/3 (2007), para. 17. 199 UNCERD, Indonesia, Early Warning and Urgent Action Procedures, 30 August 2013, p. 1 (noting in this regard that the Indonesia Constitutional Court “ruled on 16 May 2013 that certain provisions of the Forestry Act No. 41/1999 are unconstitutional due to the classification of 'customary forest' as being part of 'state forests';” and welcoming “reports that the President of Indonesia has publicly stated his personal commitment to initiating a process that registers and recognises the collective ownership of customary indigenous territories in Indonesia”) (emphasis added), https://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/IDN/INT_CERD_ALE_IDN_7098_E.pdf. 200 SR Food 2018, supra note 10, para. 51-2. 201 Annex 1, National Inquiry on the Rights of Indigenous Peoples, p. 14.

Page 37 of 82

indigenous territories. … Very few indigenous peoples have gained official recognition. In practice, local governments do not give recognition and some even expressly deny the existence of certain indigenous peoples.202 73. In this regard, the Indigenous Territory Registration Unit, a mapping agency created by AMAN and other NGOs, has registered more than 1,039 indigenous territories throughout Indonesia as of 2017 (a process ongoing at present). However, “So far, regional governments have granted a measure of legal recognition to only 48 of these.”203 In other words, less than five per cent of the indigenous territories registered by AMAN as of 2017 have been officially accredited or recognized by Indonesia. This is even more troubling because non-indigenous communities and persons are not required to be formally recognized or accredited in order to secure their property and other rights, and this discriminatory standard is even repeated in legislation that purports to protect indigenous rights.204 74. The second root cause identified by Komnas HAM concerns “the neglect of the rights of indigenous peoples over their territories in the forest zone. … Authorization by the government in the form of permits gives legality to the corporations to dominate all management of indigenous forests and to ignore their territorial claims.”205 The next is the existence of “development policy promoting economic growth [that] has given priority to granting exploitation permits to large-scale economic enterprises over indigenous territories, with the state apparatus and/or the security forces providing protection to the corporate interests.”206 Another relates to the lack of effective judicial and other remedies to address violations; as a result “conflict and human rights abuses continue to occur, especially based on the agrarian land and forests. These conflicts lead to many forms of discrimination, stigmatization and criminalization of indigenous peoples.”207 75. The above referenced findings by Indonesia’s national human rights institution, together with determinations of widespread and serious human rights violations, have been separately

202 Id. 203 W. van der Muur, Forest conflicts and the informal nature of realizing indigenous land rights in Indonesia, 22(2) CITIZENSHIP STUDIES 160 (2018),165, https://doi.org/10.1080/13621025.2018.1445495. 204 See e.g., A. Bedner & S. van Huis, The Return of the Native in Indonesian Law: Indigenous Communities in Indonesian Legislation, 164 BIJDRAGEN TOT DE TAAL-, LAND- EN VOLKENKUNDE/JOURNAL OF THE HUMANITIES AND SOCIAL SCIENCES OF SOUTHEAST ASIA 165–193 (2010), p. 189 (discussing the (then) draft Bill on Coastal Areas and Small Islands (now Law 27/2007) and explaining that its “Article 74 recognizes the rights of masyarakat adat as owners (pemilik) of the coasts and to use the beaches and waters of the coasts, and respects their adat law. To put this in proper perspective, one should realize that Article 74(7) allows other communities to obtain similar rights without them having to go through the troublesome accreditation procedure reserved for masyarakat adat, so the recognition is not as special as it first appears”), https://openaccess.leidenuniv.nl/bitstream/handle/1887/18073/Bedner%20A.W.%20and%20S.C.%20van%20H uis%2c%20The%20return%20of%20the%20native%20in%20indonesian%20law.pdf?sequence=1. 205 Annex 1, National Inquiry on the Rights of Indigenous Peoples, p. 14. 206 Id. p. 15 207 Id. p. 16.

Page 38 of 82 reported on by UN Special Rapporteurs on the Right to Food and Indigenous Peoples’ rights,208 the UN Permanent Forum on Indigenous Issues,209 the World Bank, and by non-governmental organizations too numerous to list.210 World Bank studies on the forestry sector in Indonesia, for instance, clearly reveal that government policies supporting the expansion of timber and oil palm plantations have “marginalized and alienated forest-dependent communities and indigenous peoples from traditional lands and uses, through denial of rights and access,” and that such denials have been “backed by force.”211 The former UN Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people identified plantations in Indonesia as placing indigenous peoples “on the verge of completely losing their traditional territories and thus of disappearing as distinct peoples.”212 As discussed below, this discrimination and long- standing pattern of human rights violations against indigenous peoples is firmly entrenched in extant law.

1. The Constitution 76. Article 18 of Indonesia’s 1945 Constitution recognizes the existence of indigenous peoples by stating that 250 regions in Indonesia are governed by customary and/or tribal administration systems. This article was amended in 2000 to include a new Article 18B, which, in sub-paragraph 2, provides that The state recognizes and respects individual [kesatuan-kesatuan] adat law communities [masyarakat hukum adat] and their traditional rights, in as far as they still exist and in line with the evolution of society [perkembangan masyarakat] and the principle of the Unitary State of Indonesia, as regulated by Act of Parliament. 77. Thus, the State “recognizes” and respects indigenous peoples and their traditional, customary rights, provided that “they still exist,” a decision made entirely and solely by the State,

208 R. Stavenhagen, Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Oral Statement to the UN Permanent Forum on Indigenous Issues Sixth Session, 21 May 2007, p. 3. Available at: http://www.un.org/esa/socdev/unpfii/documents/6session_SR_statement_asia_en.doc. 209 V. Tauli-Corpuz and P. Tamang, Oil Palm and Other Commercial Tree Plantations, Mono-cropping: Impacts on Indigenous Peoples’ Land Tenure and Resource Management Systems and Livelihoods, UN Permanent Forum on Indigenous Issues Working Paper, E/C.19/2007/CRP.6, para. 23 (finding, inter alia, that it is estimated 40 million indigenous people in Indonesia “depend mainly on forests and natural resource goods and services. Large areas of forest lands traditionally used by indigenous peoples have already been expropriated”), http://www.un.org/esa/socdev/unpfii/en/session_sixth.html. 210 See e.g., WITHOUT REMEDY: Human Rights Abuse and Indonesia’s Pulp and Paper Industry (Human Rights Watch: Washington DC, 2003). 211 See e.g., Sustaining Economic Growth, Rural Livelihoods and Environmental Benefits: Strategic Options for Forest Assistance in Indonesia, (World Bank, December 2006), p. 2, http://siteresources.worldbank.org/INTINDONESIA/Resources/Publication/280016- 1152870963030/IDForestStrategy.pdf?resourceurlname=IDForestStrategy.pdf 212 Stavenhagen, supra note 208, p. 3.

Page 39 of 82

and provided that this would be “in line with the evolution of society.”213 It is not fully clear what the latter entails, but it is generally understood to refer to the development priorities of the State (decisions also made entirely and solely by the State). This was acknowledged by the President of Indonesia on 10 August 2006, when he publicly admitted that indigenous peoples’ rights “had often been sacrificed for the sake of development, as powerful business interests seek to exploit natural resources.”214 Additionally, it contains a further requirement that these rights must be “regulated by Act of Parliament.” To date, while a draft Bill has been pending before the legislature for a number of years, no such law has been adopted:215 “[t]his means that at present little can be said about the effective meaning of Article 18B(2).”216 78. In the absence of a national framing law, the decision on whether an indigenous community is judged to 'still exist' depends on affirmative recognition by a local government law (e.g., District Perda).217 The State, by law, thus determines which peoples benefit from the protection of Article 18B(2) and which do not. This serious problem is further compounded by the non-existence, in most cases, of District Perda, substantial delays in their adoption where drafted and, where they exist, haphazard implementation that often results in ongoing non- recognition of indigenous peoples and their communities.218 Contrary to numerous international standards, this non-recognition by the State denies indigenous peoples’ legal personality (the capacity to hold and enforce rights); contradicts the principle of self-identification; essentially renders them invisible in the eyes of the law; and subordinates their rights to those of any other party. This is precisely the underlying situation and context complained of in this Representation and for which Ompu Ronggur presently seeks redress.

213 See e.g., Forestry Law 41/1999, Article 5(3)(2); and Keputusan Mentri Kehutanan, No. 47/Kpts-II/1998, Ministerial Decree 1998, Article 1(2), which states that the existence of adat rights and legal systems are to be determined only by a Governor’s proclamation. 214 ‘President Admits Indigenous People Mistreated’, Jakarta Post, 10 August 2006. 215 See e.g., ‘New life for Indonesia’s long-delayed indigenous rights bill?’, Mongabay, 17 March 2016, https://news.mongabay.com/2016/03/new-life-for-indonesias-long-delayed-indigenous-rights-bill/. 216 The Return of the Native in Indonesian Law, supra note 204, p. 170. 217 The five relevant criteria are set out in the explanatory notes to the 2004 Plantations Act, as follows: “(1) adat communities still organize themselves exclusively under customary association (rechtsgemeinschaft); (2) the presence of structured customary institutions; (3) the presence of a clear legal territory of adat communities; (4) adat communities still practice their daily activities according to the existing adat law and institutions; and (5) the local government has recognised the existence of such adat communities in accordance with any local regulation on such a recognition.” 218 ‘Indonesia’s indigenous wage two-pronged battle for legal recognition’, Mongabay, 27 April 2016 (explaining, inter alia, that “According to Erasmus Cahyadi, AMAN’s law and human rights director, the alliance has helped pass just five regulations — known as Perdas — since the landmark [Constitutional] court decision three years ago. “To get a Perda passed, we have to produce an ethnographic study that documents the history of the community, how they regulate themselves, their adat institutions, and presents maps of the customary forests” — a slow, expensive process, Cahyadi said. In the case of Enrekang, the Perda merely acknowledges the existence of indigenous groups, laying out a process of verifying them and eventually, acknowledging their collective rights. That job, Arman said, will be carried out by an as yet-formed committee composed of local ministry officials, NGOs and other government figures”), https://news.mongabay.com/2016/04/perda-push/.

Page 40 of 82

79. Indonesia’s Constitution also vests ownership of natural resources and exclusive management rights in the State. In this respect, Article 35 provides, inter alia, that “Productive activities related to natural resources, which have importance to the State and significance for the livelihood of the Indonesian people, will be managed exclusively by the State;” and “land, water and natural resources are under the control of the State and should be utilized for the maximum welfare of the Indonesian people.” 80. Exclusive State ownership and control is somewhat tempered by Article 28I(3) of the Constitution, which purports to protect the rights of indigenous communities, although it does not specify what those rights are and is routinely rendered inapplicable by the non- recognition/accreditation of indigenous peoples pursuant to Article 18B(2) and sectoral legislation. Article 28I(3) provides that “The cultural identity and the rights of traditional societies shall be respected in accordance with this age of progress and human civilization,” thereby and further restricting acknowledgement of the rights of indigenous peoples to principles of ‘progress and civilization’, which are not defined and subject to broad interpretation. These restrictions are discriminatory, applying to no other racial or ethnic group in Indonesia, and squarely contradict international standards pertaining to indigenous peoples’ rights. This language is also found in the laws discussed below. 81. Reviewing Indonesia in 2007, the UNCERD observed in relation to the preceding that “the rights of indigenous peoples have been compromised, due to the interpretations adopted by the State party of national interest, modernization and economic and social development.”219 It recommended that Indonesia “amend its domestic laws, regulations and practices” to ensure that these concepts “are not used as a justification to override the rights of indigenous peoples.”220 Likewise, with regard to legal provisions vesting control of resources in the State, the UNCERD “recalls that such a principle must be exercised consistently with the rights of indigenous peoples.”221 82. The UNCERD also concluded that, although Indonesia “recognizes the existence of indigenous peoples on its territory … under domestic law, these peoples are recognized ‘as long as they remain in existence’, without appropriate safeguards guaranteeing respect for the fundamental principle of self-identification in the determination of indigenous peoples.”222 As

219 CERD/C/IDN/CO/3 (2007), para. 16. 220 Id. (recommending, inter alia, that “The State party should review its laws, in particular Law No. 18 of 2004 on Plantations, as well as the way they are interpreted and implemented in practice, to ensure that they respect the rights of indigenous peoples to possess, develop, control and use their communal lands”). 221 Id. para. 17. 222 Id. para. 15. See also E/C.12/IDN/CO/1 (2014), para. 38 (where the UNCESCR refers to Indonesia’s “statement that it would make use of relevant principles contained in the [UNDRIP] and “urges the State party to expedite the adoption of the draft law on the rights of Masyarakat Hukum Adat and ensure that it: (a) Defines Masyarakat Hukum Adat and provides for the principle of self-identification, including the possibility to self-identify as indigenous peoples…”).

Page 41 of 82

confirmed above, because almost all indigenous peoples and their communities in Indonesia lack such legal recognition, they are unable to exercise and enjoy the rights that are in principle guaranteed by the Constitution and other laws. This is a substantial, discriminatory and debilitating obstacle that also affects Ompu Ronggur, which, as noted above, has unsuccessfully sought to obtain such recognition since 2012. 2. Land Laws 83. The UN Special Rapporteur on adequate housing as a component of the right to an adequate standard of living explained in 2013 that, “All land in Indonesia falls into one of two categories, forest estate (about 70 per cent of the land) and non-forest estate (the remaining 30 per cent).”223 The former is under the (now) Ministry of Environment and Forestry, regulated by the Forest Law, while the non-forest estate is managed and administered by the Ministry for Agrarian and Spatial Planning, according to the Basic Agrarian Law of 1960 (“BAL”). The Special Rapporteur further explains that:

As such, land is administered under a dual system through two different Government agencies responsible for forestry and non-forestry lands, respectively. This dual system, together with colonial legacies and lack of integration of customary rights, have all generated numerous challenges, including widespread tenure insecurity, limited recognition of the customary rights of individuals and communities, and the unsustainable management of natural resources.224

The overall tenure insecurity is compounded by the parallel sets of customary adat laws and State law in Indonesia, causing confusion, land conflicts, problems for adat communities, evictions and forest destruction. Neither the [BAL] nor the Basic Forestry Law provide adequate recognition to customary land practices or allow for registration of collective tenure.225

a. The Basic Agrarian Law 84. The BAL purportedly seeks to reconcile rights to natural resources under adat/customary law, referred to as ulayat rights, with inherited colonial legal concepts related to land. Article 3 provides that: “… ulayat rights and other similar rights of customary law communities should be recognised, as long as these communities really exist, and [the exercise of these rights] is consistent with national and State interests, based on the principle of national unity, and is not in contradiction with this law and higher regulations.”226

223 SR Housing 2013, supra note 6, para. 43. 224 Id. 225 Id. para. 44. 226 Likewise, Article 5 of the BAL states that: “Customary law applies to the earth, water and air as long as it does not contradict national and State interests, based on national unity and Indonesian socialism, and also other related provisions of this law, in accordance with religious principles.”

Page 42 of 82

85. The BAL thus limits the rights of indigenous peoples to the point that they become essentially meaningless.227 In the context of the massive development of forestry concessions and plantations, for example, the State simply can convert customary lands into logging and plantation lands, thus negating indigenous peoples’ rights.228 As one legal commentator puts it, “[w]hile mentioned in the BAL, hak ulayat land is not protected by it. Indeed, hak ulayat land is not even registrable under the BAL. To the contrary, the BAL declares that the exercise of hak ulayat must conform to national interests … which allowed the Soeharto government, and the post-Soeharto central and regional governments that followed, to treat hak ulayat land as state property….”229 86. Although the BAL provides the State with an unusual degree of control over all land tenures, much greater security of tenure is afforded to (non-indigenous) citizens granted individual property and use rights or to corporations granted concessions. Whereas regulations, procedures and institutions exist to issue and regulate such tenures, none exist for the recognition, registration or protection of indigenous peoples’ collective tenures based on customary law (hak ulayat).230 These collective tenures are, therefore, “vulnerable to being taken over by the state, or by those who claim statutory rights over the same land,” and, when this occurs, they are simply negated.231 87. The preceding remains the situation despite the adoption of National Assembly Decree (TAP/MPR) No. IX/2001 on Agrarian Reform and Natural Resource Management, which called for a reform of the laws relating to forests, lands and natural resources in order to deal with the persistent land conflicts throughout the Indonesian archipelago. Article 4 of this (unimplemented) decree includes among its goals: “implementing social, conservation and ecological functions in line with the local socio-cultural conditions” and “recognizing, respecting and protecting the rights of indigenous peoples and the diverse national cultures over agrarian/natural resources.”

227 See e.g., SR Housing 2013, supra note 6, para.48 (explaining that “Adat land can only be registered and certified after having been rendered into one of seven private law land rights recognized in article 16 of the BAL. Thus, although in many cases the land right originates in adat law since well before the creation of the Indonesian State in 1945, BPN officials impose a presumption that all unregistered land is State land until proven otherwise. Moreover, Hak ulayat (which can be translated as “a communal right of allocation”) cannot be registered”). 228 W. Wright, Final Report on the Review of the Basic Agrarian Law 1960. Indonesia: Land Administration Project. (World Bank, Jakarta, 1999); and Land Management and Policy Development Project: Project Appraisal Document, Report No: 28178-IND, (World Bank, 2004), http://projects.worldbank.org/P064728/land- management-policy-development-project?lang=en. 229 S. Butt, Traditional Land Rights before the Indonesian Constitutional Court, 10 LAW, ENVIRONMENT AND DEVELOPMENT JOURNAL 57 (2014), p. 66, http://www.lead-journal.org/content/14057.pdf. 230 J. Wallace, A.P. Parlindungan, and A.S. Hutagalung, S. Arie, Indonesian Land Law and Tenures – Issues in Land Rights. Land Administration Project, (Government of the Republic of Indonesia, National Planning Agency and National Land Agency, Jakarta, 1997); and, W. Wright, Final Report on the Review of the Basic Agrarian Law 1960. Indonesia: Land Administration Project. (World Bank, 1999). 231 Traditional Land Rights before the Indonesian Constitutional Court, supra note 229, p. 66.

Page 43 of 82

3. The 1999 Forestry Act 88. Law No. 41 of 1999 on Forestry grants almost absolute authority to the State to govern and regulate all matters related to forests and their products, irrespective of whether the ‘forest lands’ in question are also indigenous peoples’ traditional lands. The Law does contain some recognition of limited rights vested in indigenous peoples to manage forests, but only if such forests are designated as ‘state forest’. Such a designation in turn authorizes the State to convert the forests to other uses, for example, to issue them to concessionaires on the basis that they are part of “the state forest” estate and that such conversion is for “the sake of the nation.” 89. In 2009, UNCERD referred to information indicating “that Indonesia continues to lack any effective legal means to recognize, secure and protect indigenous peoples’ rights to their lands, territories and resources,” and observed that a 2008 Regulation “reiterates Law 41 of 1999 on Forestry that appears to deny any proprietary rights to indigenous peoples in forests.”232 It recommended in this regard that Indonesia “review its laws ... as well as the way they are interpreted and implemented in practice, to ensure that they respect the rights of indigenous peoples to possess, develop, control and use their communal lands.”233 90. That the State may take indigenous lands and issue them to concessionaires by invoking the national interest is explicitly provided for in Article 4(3) of the Forestry Act, which states that “… the State cares for the rights of indigenous peoples, as long as such rights do exist and are recognized and are in line with the national interests.” Article 67 of the Forestry Law further stipulates that recognition of the corresponding customary forests is to be effectuated by Regional and District governments via local legislation (e.g., perdah). To make matter worse, pursuant to Decree Number: P.32 /Menlhk-Secretariat/2015 on Forests Rights, issued by the Minister of Environment and Forestry and which regulates indigenous/customary Forests, indigenous peoples must also be affirmatively recognized by an additional Regional-level legal instrument.234 91. The term ‘recognized’ in these provisions has the same meaning as Article 18B(2) of the Constitution, discussed above. It requires that the State explicitly and affirmatively grant legal recognition to the indigenous community or people in question via a local law recognizing/accrediting that indigenous peoples continue to exist and has, subsequently and additionally, issued of some form of title deed to land or forests. As confirmed above by Komnas HAM, district- and regional-level laws are almost entirely absent across the country, representing a fundamental obstacle to the recognition of indigenous peoples’ rights.

232 UNCERD, Early Warning and Urgent Action Procedures: Indonesia (13 March 2009), p. 2, https://www.ohchr.org/Documents/HRBodies/CERD/EarlyWarning/Indonesia130309.pdf. 233 Id. (repeating a recommendation made in 2007). 234 Andiko, Comparative Study on Rights Recognition and Permits Procedures in Forest areas for Communities and Companies (ASM Law Office, Bogor, 2017), p. 9-10, http://rightsandresources.org/wp- content/uploads/2017/10/Comparative-Study_Jan-2017_Andiko_English.pdf.

Page 44 of 82

4. Constitutional Court Decision No. 35: Unfulfilled Promise 92. On 16 May 2013, Indonesia’s Constitutional Court (“ICC”) issued Decision No. 35/PUU- X/2012, also known as the ‘Traditional Forest Community Case’.235 In its judgment, the ICC declared provisions of the 1999 Forestry Law to be unconstitutional. It so held because the State is constitutionally obligated to recognize and respect the customary land rights of indigenous peoples, whereas the Forestry Law is based on the illegitimate declaration of State control of all forest lands, including lands traditionally owned by indigenous peoples (see Map 3, in relation to Ompu Ronggur). This in turn allows for the granting of concessions and permits by the State to companies, such as TPL, to take over and exploit indigenous peoples’ constitutionally protected customary lands.236 93. In this regard, Komnas HAM, concludes that the Forestry Law gives “little recognition as to the status and existence of indigenous peoples and their territorial rights, resulting in the arbitrary inclusion of areas traditionally inhabited and used by indigenous peoples” into the category of State-controlled forests.237 In principle, the judgment of the ICC has declared to be illegal the process and laws by which much of Indonesia’s land mass was designated to be State forest. According to Komnas HAM, this was done “without any due process of law between the early 1970s and the early 1980s,” and was carried over into the current Forestry Law, which remains in force today despite the ICC decision.238 94. The Traditional Forest Community Case is one of three decisions in which the ICC has upheld the constitutional rights of indigenous communities, ruling, for example, that, “in post- authoritarian Indonesia, the central government cannot ‘do as it pleases’ in respect of natural resources….”239 This is especially noteworthy in relation to this Representation insofar as the ICC has specifically declared the Forestry Law unconstitutional to the extent that it incorporates traditionally owned indigenous lands into the State-controlled forest estate and has allowed for the granting of concessions over those lands. This is the root and underlying cause of the

235 This judgment is available in English at https://rightsandresources.org/wp-content/exported- pdf/constitutionalcourtruling16may2013.pdf. 236 The 1999 Forestry Law provides that “customary forests are state forests located in the areas of custom-based Communities.” The ICC’s ruling deletes the word “state” from that sentence, in effect revising the law so that customary forests are no longer considered state forests. 237 Annex 1, National Inquiry on the Rights of Indigenous Peoples on the Territories in the Forest Zone. Summary of Findings and Recommendations, p. 7 (noting also that “the Government issued licenses on production forest areas for logging concessions, timber plantations, released permits in the forests zone for mining operations and also converted the forest to non-forest areas and allocated areas for large scale plantation and other commercial ventures”). 238 Id. 239 Traditional Land Rights before the Indonesian Constitutional Court, supra note 229, p. 59.

Page 45 of 82

violations alleged and proven herein and for which this Representation has been submitted. Put another way, the concession and permit granted to TPL are not only discriminatory in that they exclude and deny the Community’s rights, and privilege the commercial interests of TPL, they also represent an unconstitutional violation of these rights under Indonesian national law and should not have been issued in the first place. 95. Nonetheless, and also highly relevant to consideration of this Representation, ICC judgments have only prospective effect, meaning that any act completed under the statute between the date of its enactment and its invalidation by the ICC is not affected by the ruling of unconstitutionality and remains legal;240 and the ICC has no legal power to enforce or otherwise ensure compliance with its decisions, nor any authority to impose sanctions in this regard.241 The result in some cases, including in the Traditional Forest Community Case, has been the failure by the State to amend or enact new legislation in response to the rulings of the ICC invalidating legislation or provisions thereof. “The result of this inaction has been that when the Court invalidates statutory provisions, it has left legal lacunae, many of which are filled years later or not at all.”242 96. As acknowledged by the UNCESCR in 2014, and still accurate today,243 the State has yet to give effect to the ICC judgment or to otherwise amend the various legislative provisions that continue to negate or undermine indigenous peoples’ rights.244 This was further confirmed a year later by the UNCERD, which concluded that “it appears that the State party has not taken any measures in response to these [Komnas HAM National Inquiry] recommendations and [the ICC] ruling.”245 It further explained that it “is concerned that these allegations, if verified, could hinder the full enjoyment of rights under the Convention,” and, drawing a direct line between the ongoing failure to recognize and secure indigenous land and resource rights and prohibited discrimination, it … refer[red] to its General Recommendation 23 on the rights of indigenous peoples in which the Committee calls upon States parties “to recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources and, where they have been deprived of their lands and territories traditionally owned or

240 The ICC’s jurisdiction is prescribed in Article 24C of the Indonesian Constitution and by Law 24 of 2003 on the Constitutional Court, Article 10 (providing that the ICC can only review national statutes against the Constitution, not lower-order legal instruments, such as executive regulations and local government by-laws or applications that challenge government action, rather than laws). 241 See e.g., Traditional Land Rights before the Indonesian Constitutional Court, supra note 229, p. 62. 242 Id. p. 63. 243 See e.g., SR Food 2018, supra note 10. 244 See e.g., M. Safitri, Dividing the Land: Legal Gaps in the Recognition of Customary Land in Indonesian Forest Areas, 30 KASARINLAN: PHILIPPINE JOURNAL OF THIRD WORLD STUDIES 31–48 (2017). 245 UNCERD, Early Warning and Urgent Action Procedures: Indonesia (28 August 2015), p. 2 https://www.ohchr.org/Documents/HRBodies/CERD/EarlyWarning/Indonesia28092015.pdf.

Page 46 of 82

otherwise inhabited or used without their free and informed consent, to take steps to return those lands and territories.246 97. Additionally, while it could have interpreted it in accordance with international standards regarding the self-identification of indigenous peoples, the ICC ruling left untouched the requirement of affirmative state recognition/accreditation of indigenous peoples’ existence via district and regional government decrees before rights may vest and become effective. Consequently, “despite explicit constitutional recognition, no national law has been passed that says who qualifies as indigenous, or what rights, if any, such status confers. The lack of legal certainty leaves adat communities especially vulnerable to abuse and loss of lands to those who see profit in their forests.”247 This requirement continues to amount to a debilitating obstacle for almost all indigenous peoples and their communities in Indonesia.248 98. Writing in 2015, World Bank staff commented that the ICC ruling is yet to be fully followed up with effective and clear policy and legal action by the government. Indigenous forests are now largely controlled by investors or the government … excluding the [indigenous] and forest-dependent local communities from their traditional settlements. … The challenge now lies in formulating the legal framework, at national and regional levels, to integrate the legal recognition of their existence and rights over land and other natural resources.249

III. VIOLATIONS 99. In this Representation, SERBUNDO has alleged and, based on the proven facts, substantiated violations of Articles 1, 2, and 3 of C111, all read in conjunction with Article II(a) of the Declaration of Philadelphia. On the basis of these proven facts and, as set out below, as a matter of law, Indonesia is internationally responsible and liable for these violations of Ompu Ronggur’s rights. A. Preliminary 1. Temporal Jurisdiction 100. C111 entered into force for Indonesia on 7 June 2000. Indonesia’s acts and omissions and the resulting violations described herein occurred subsequent to 7 June 2000 and are ongoing,

246 Id. 247 ‘Indonesia’s indigenous wage two-pronged battle for legal recognition’, Mongabay, 27 April 2016 (reporting also that “According to Erasmus Cahyadi, AMAN’s law and human rights director, the alliance has helped pass just five regulations — known as Perdas — since the landmark court decision three years ago”), https://news.mongabay.com/2016/04/perda-push/. 248 See e.g., Forest conflicts and the informal nature of realizing indigenous land rights, supra note 203, p. 165; and The Return of the Native in Indonesian Law, supra note 204. 249 K. C. Bell et al, supra note 104, p. 9.

Page 47 of 82

or, where initiated prior thereto, demonstrate ongoing and continuous effects and consequences that also violate C111. 101. Indonesia granted forestry concessions for the purpose of harvesting trees for pulp and paper in the late 1980s to the company now known as TPL, and a permit was issued to TPL in 1992.250 Since that time, and except for the period 2000-2004, TPL has clear-cut forests and planted fast growing eucalyptus cyclically and in different locations within its permit area, including on the lands traditionally owned by Ompu Ronggur. As shown on Map 2, forest clearances and plantings by TPL occurred in Ompu Ronggur’s lands in the period 2004 – 2018, all subsequent to the entry into force of C111, and are ongoing. Thus, while the concession and permit were issued prior to June 2000, additional, and the most relevant, acts and omissions complained of herein all occurred after entry into force of C111 for Indonesia. 102. In common with international authorities in general,251 the Governing Body has held states responsible for continuing violations of indigenous peoples’ rights, even though the originating events took place decades prior to entry into force of the convention in question.252 In a Representation filed against Denmark, for example, where forcible relocation of indigenous people had occurred 44 years prior to its accession to C169, the Governing Body concluded that “the consequences of the relocation that persist following the entry into force of Convention No. 169 still need to be considered with regard to Articles 14(2) and (3), 16(3) and (4) and 17 of the Convention, … despite the fact that the relocation was carried out prior to the entry into force of the Convention.”253

250 Permit No. 493/KPTS-II/1992 251 See e.g., Sandra Lovelace v. Canada, Communication No.R.6/24, U.N.Doc.Supp.No.40 (A/36/40) (1981); Phosphates in Morocco case (Italy v. France), PCIJ Series A/B, No. 74 (1938); X. v. France, Eur. Ct. H.R., App. no. 18020/91 (1992)(Judgment)(Merits and Just Satisfaction); Serrano-Cruz Sisters, Inter-Am. Ct. H.R., Ser. C No. 118 (2004); Endorois Welfare Council v Kenya, African Commission on Human and Peoples’ Rights (February 2010); and The International Law Commission’s Articles on State Responsibility, annexed to GA Res. 56/83, 12 December 2001, Articles 14 and 15. 252 Report of the Committee set up to examine the representation alleging non-observance by Mexico of the Indigenous and Tribal Peoples Convention, (No. 169), made under article 24 of the ILO Constitution by the Radical Trade Union of Metal and Associated Workers. Doc.GB.273/15/6; GB.276/16/3 (1999), para. 36 (observing that Mexico’s view that it was not responsible for events that occurred prior to entry into force was correct, the Committee established to review the Representation nonetheless held that “the effects of the decisions that were taken at that time continue to affect the current situation of the indigenous peoples in question, both in relation to their land claims and to the lack of consultations to resolve those claims. The Committee therefore considers that the Convention does currently apply with respect to the consequences of the decisions taken prior to its entry into force”). 253 Report of the Committee set up to examine the representation alleging non-observance by Denmark of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under article 24 of the ILO Constitution by the Sulinermik Inuussutissarsiuteqartut Kattuffiat (SIK). Doc.GB.277/18/3; GB.280/18/5 (2001), at para. 29. The Governing Body concluded by observing that these and other “provisions of the Convention are almost invariably invoked concerning displacements of indigenous and tribal peoples which predated the ratification of the Convention by a member State.”

Page 48 of 82

103. Also, as stated above, the additional, relevant acts and omissions at issue in this Representation all occurred subsequent to entry into force of C111 for Indonesia. They are independent acts and omissions as well as consequences of the grants of a concession and permit to TPL. The Inter-American Court of Human Rights has addressed such situations, including in cases involving indigenous and tribal peoples. In the Moiwana Village Case, for instance, the Court stated that “in the case of a continuing or permanent violation, which begins before the acceptance of the Court’s jurisdiction and persists even after that acceptance, the Tribunal is competent to examine the actions and omissions occurring subsequent to the recognition of jurisdiction, as well as their respective effects.”254 In another case, where a mining concession had been granted in 1958, decades prior to entry into force of the American Convention on Human Rights in 1987 and the commencement of mining in 1997, the Court ruled that it is “… competent to examine measures taken following the entry into force of its jurisdiction; in particular, the extraction operations carried out as of 1997.”255 104. Applying the preceding to this Representation, the Governing Body is competent to examine the violations of C111 alleged herein. This is the case both with respect to the consequences of the concession and permit that persist following entry into force of C111 in June 2000, inter alia, because “the situation created [thereby] … still prevails,” and Indonesia’s responsibility for the violations associated with the operations of TPL conducted subsequent to that date.256 Therefore, SERBUNDO respectfully requests that this Representation is declared receivable in accordance with Article 2 of the Standing Rules and that the Governing Body establishes a Committee at its earliest possible opportunity to examine and decide upon the merits of the violations alleged and proven herein. 2. Interdependent and Interconnected Rights Indigenous peoples have the right to maintain and develop their political, economic and social systems or institutions, to be secure in the enjoyment of their own means of subsistence and development, and to engage freely in all their traditional and other economic activities.257 105. SERBUNDO also respectfully urges the Governing Body to fully consider the scope and nature of the rights guaranteed to indigenous peoples in various United Nations’ human rights instruments in force for Indonesia when interpreting and identifying its obligations under C111,

254 Moiwana Village vs. Suriname, I-Am. Ct. H.R., Ser. C No 124 (2005), para. 39. 255 Kaliña and Lokono Peoples v. Suriname, I-Am. Ct. H.R., Ser. C No. 309 (2015), para. 200. 256 Report of the Committee of Experts set up to examine the representation alleging non-observance by Ecuador of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under article 24 of the ILO Constitution by the Confederación Ecuatoriana de Organizaciones Sindicales Libres (CEOSL). Doc. GB.277/18/4, GB.282/14/2, submitted 2000, at para. 28 and 30 (concerning oil exploration activities in the Ecuadorian Amazon and stating that “the situation created by the signature of that agreement still prevails. In addition, the obligation to consult the peoples concerned does not only apply to the concluding of agreements but also arises on a general level in connection with the application of the provisions of the Convention…”). 257 UN Declaration on the Rights of Indigenous Peoples (2007), Art. 20(1).

Page 49 of 82

and so that it may place the discriminatory treatment suffered by Ompu Ronggur and its gravity in full context.258 As various human rights bodies have observed, this requires attention to the current status of indigenous peoples’ rights in international law when interpreting treaties of general application.259 106. In this respect, the UNCERD essentially treats violations of indigenous peoples’ rights as discriminatory per se, including in their collective aspect, and its General Recommendation XXIII on Indigenous Peoples (1997) contains the basis of its “understanding of the non-discrimination norm in this context.”260 It has distinguished “between special and temporary measures for the advancement of ethnic groups … and [the] permanent rights of indigenous peoples…,”261 categorizing the latter as “rights accepted and recognized by the international community to secure their existence and identity.”262 As stated by the Inter-American Commission on Human Rights, “the international community has recognized that these peoples are different from other groups and therefore have particular rights, whose basic premise is the right to self- determination.”263 107. For these and other reasons, international law affirms, to quote a 2007 ILO publication on indigenous peoples and discrimination, that “due to the distinctiveness of indigenous peoples’ way of life, treating the indigenous and non-indigenous parts of the population in the same way would regularly lead to discriminatory outcomes and unequal opportunities for indigenous and

258 This interpretative method is warranted in light of Article 31(3)(c) of the 1969 Vienna Convention of the Law of Treaties, which codifies a general principle of international law and provides that when interpreting a treaty “any relevant rules of international law applicable in the relations between the parties” shall be taken into account. In the same vein, the International Court of Justice has endorsed the need to interpret a treaty “within the framework of the entire legal system prevailing at the time of interpretation.” See e.g., Namibia (Legal Consequences) Advisory Opinion, ICJ Reports 1971, 31; and Case Concerning the Gabcikovo-Nagymaros Project (Hungary v. Slovakia), ICJ Reports 1997. 259 See e.g., Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Inter-Am. CT. H.R., Ser. C No. 79 (2001), para. 148; Tyrer v. UK, Euro. C.H.R., Judgment of 25 April 1978, para. 15 (explaining that “the Convention is a living instrument which ... must be interpreted in the light of present-day conditions…”). 260 S.J. Anaya, INDIGENOUS PEOPLES IN INTERNATIONAL LAW (2nd Ed.), (Oxford University Press, 2004), p. 230. 261 CERD/C/NZL/CO/17 (2007), para. 15. 262 General recommendation No. 32, The meaning and scope of special measures in the International Convention on the Elimination of All Forms Racial Discrimination, CERD/C/GC/32 (2009), para. 15, and 26 (emphasizing that special measures “should not be confused with specific rights … such as … the rights of indigenous peoples…. Such rights are permanent rights … [and] States parties should carefully observe distinctions between special measures and permanent human rights in their law and practice”). 263 Indigenous Peoples, Afro-Descendent Communities and Natural Resources: Human Rights Protection in the Context of Extraction, Exploitation, and Development Activities, OEA/Ser.L/V/II., Doc. 47/15, Inter-Am. Com. H.R. (2015), p. 27 (see also, p. 239, explaining that “The full effectiveness of the right to self-determination is closely related to the exercise of other specific rights of indigenous peoples that guarantee their existence as peoples, among which the right to integrity and cultural identity has a central place. … Another essential element of the right to self-determination is constituted by the relations they have with their lands, territories and natural resources…”).

Page 50 of 82

tribal peoples.”264 UNCERD holds in this respect that “the principle of non-discrimination requires [states parties] to take account of the cultural characteristics of ethnic groups.”265 It adheres to the principle that discrimination is evident and illegitimate where states treat persons differently in analogous situations without an objective and reasonable justification and where they, without an objective and reasonable justification, fail to treat differently persons whose situations are significantly different.266 In making this determination, it examines whether an act or omission “has an unjustifiable disparate impact upon a group distinguished by race, colour, descent, or national or ethnic origin.”267 Likewise, the ILO Director General, in Time for Equality at Work, explains that indirect discrimination shows that the application of equal conditions to each worker can lead to unequal results because the effect of the condition “depend[s] on the life circumstances and personal characteristics of the people concerned.”268 108. The ILO Director General observed in 2003 that indigenous peoples’ rights as regards labour and occupation and the broader range of social, economic, civil and political rights “are inextricably linked.”269 As noted above and discussed further below, the rights at issue in this Representation are interdependent and indivisible, not only in terms of mutual reinforcement and equal importance, but also in their actual content. For instance, the traditional occupation of benzoin resin harvesting is fundamentally and inextricably tied to Ompu Ronggur’s traditional tenure system, customary laws and modes of customary governance and, in turn, depends on access to and security of tenure over traditional forest lands for its continuity and viability. It is also rooted in essential cultural and spiritual practices, protected by associated human rights, as well as a mainstay of the traditional economy of the Batak Toba. These various elements cannot be rationally disaggregated; to be effective, protection against discrimination for the traditional occupation requires simultaneous protection of land, resource and other indigenous rights. 109. Therefore, and in accordance with the practice of the various organs of the ILO system, SERBUNDO additionally urges the Governing Body to fully account for the interdependent and interconnected nature and content of the rights at issue in this Representation, particularly the

264 ILO, Newsletter 2007, supra note 24, p. 7. 265 See e.g., CERD/C/COD/CO/15 (2007), para. 14. See also General Comment No. 20, Non-Discrimination in Economic, Social and Cultural Rights (art. 2, para. 2), E/C.12/GC/20 (2009), para. 8(b) (explaining that [e]liminating discrimination in practice requires paying sufficient attention to groups of individuals which suffer historical or persistent prejudice instead of merely comparing the formal treatment of individuals in similar situations”). 266 UNCERD, General Recommendation XIV, Definition of discrimination (Art. 1, par.1), 22/03/93, at para. 2 (stating that “a differentiation of treatment will not constitute discrimination if the criteria for such differentiation, judged against the objectives and purposes of the Convention, are legitimate or fall within the scope of article 1, paragraph 4, of the Convention. In considering the criteria that may have been employed, the Committee will acknowledge that particular actions may have varied purposes”). 267 Id. 268 Time for Equality at Work, supra note 4, para. 57. 269 Id. para. 288.

Page 51 of 82

fundamental relationship between equal protection for Ompu Ronggur’s traditional occupations and its rights to own, possess and control its traditional lands and resources.270 As noted above (para. 11), the ILO system has categorized the latter as not only interdependent with rights and protections related to traditional occupations, but also as “crucial” and “essential” enabling conditions to make those protections effective. Discussing indigenous peoples in Indonesia, World Bank staff have concluded in this respect that A law to specifically and clearly define and secure customary land is essential for the visibility of associated rights and those dependent on such traditions and tenure arrangements for subsistence. Emancipation of ethnic minorities and their economic, political, and cultural development is based on recognizing and realizing traditional and customary land rights. Their relationship with their land and resources is deeply intertwined with their customs, culture, and political practices; it is the expression of their social wholeness. In their opinion, living, working and nurturing the land with full control and tenurial security is the key to living fully and surviving as people. Taking land from them implies depriving them of their unique identity. Legislation to recognize their struggle for land and self-determination of their destinies is a prerequisite for the fulfillment of their rights and cultural development.271 110. More specifically, and crucially, the discrimination that Ompu Ronggur experiences with respect to its traditional occupations is itself rooted in, and aggravated by, the discriminatory denial of and disregard for its land, resource and other rights, rights it holds as an indigenous community.272 In this situation, equality can be achieved only if measures are taken to eliminate rules that discriminate against indigenous people and to remove the deepest reasons for and underlying causes of the discrimination.273 This is echoed by the ILO Director General, who states in Time for Equality at Work that it “is not possible to eliminate discriminatory practices against indigenous and tribal peoples in the labour market unless issues of education, land rights and other more general social and cultural rights are addressed as well.”274

270 See e.g., H. Quane, A Further Dimension to the Interdependence and Indivisibility of Human Rights?: Recent Developments Concerning the Rights of Indigenous Peoples, 25 HARVARD HUMAN RIGHTS J. 49 (2012), at p. 51 (analyzing United Nations’ treaty body practice “concerning the rights of indigenous peoples, which suggest[s] a further dimension to the interdependence and indivisibility of human rights. These developments suggest that human rights are interdependent and indivisible not only in terms of mutual reinforcement and equal importance, but also in terms of the actual content of these rights”) 271 K. C. Bell et al, supra note 104, p. 12. 272 See e.g., Case 12.338, Twelve Saramaka Clans (Suriname), Merits Report, IACHR, 2 March 2006, at para. 235-7 (ruling that a major manifestation of racial discrimination “has been the failure of state authorities to recognize customary indigenous forms of land possession and use;” and that a lack of constitutional and legislative protection of indigenous peoples’ rights “reflects unequal treatment in the law,” and “amounts to a failure to provide the necessary protection for full exercise of the right to property, on an equal footing with the other citizens of Suriname”). 273 M. Tomei, Discrimination and Equality at Work: A Review of the Concepts, 142 INTERNATIONAL LABOUR REV. 401 (2003), at 412. 274 Time for Equality at Work, supra note 4, para. 288.

Page 52 of 82

111. In common with the UNCERD and others, the Inter-American Commission on Human Rights unambiguously holds “that respect for and protection of the private property of indigenous peoples on their territories … is mandated by the fundamental principle of non- discrimination….”275 Given the complex of interdependent rights involved, the former President of the Inter-American Court of Human Rights concluded that the failure to recognize and protect indigenous peoples’ property rights “would create an inequality that is utterly antithetical to the principles and to the purposes that inspire the hemispheric system for the protection of human rights.”276 The ILO Office has also concluded that “Lack of respect for indigenous peoples’ rights and cultures may lead to discrimination against their traditional livelihood strategies and occupations….”277 As noted above, the UNCERD consistently reiterates that states should recognize and protect the rights of indigenous peoples to “own, develop, control and use their communal lands, territories and resources and, where they have been deprived of their lands and territories traditionally owned … without their free and informed consent, to take steps to return those lands and territories.”278 112. The interconnected and interdependent nature of the content of these and other indigenous rights has been consistently recognized in international human rights law and practice,279 including in the consistent findings of the CEACR.280 As discussed further below, the Human Rights Committee, for instance, has steadily treated traditional occupations as part and parcel of the cultural rights guaranteed by Article 27 of the International Covenant on Civil and Political Rights281 (“ICCPR”) and links the same to protections for indigenous lands, all in conjunction with natural resource rights guaranteed by Article 1(2) of the ICCPR.282 For its part,

275 Case 12.053, Merits Report No. 40/04, Maya Indigenous Communities of the Toledo District, (Belize), Inter- Am.Com. H.R., 12 October 2004, para. 117. 276 Concurring Opinion of Judge Sergio Garcia Ramirez, Judgment on the Merits and Reparations in the Mayagna (Sumo) Awas Tingni Community Case, Inter-Am. Ct. H.R., para. 13. 277 ILO Guide to C111, p. 5. 278 UNCERD, General Recommendation No. 23, Indigenous Peoples (1997), para. 5 (further explaining that “Only when this is for factual reasons not possible, the right to restitution should be substituted by the right to just, fair and prompt compensation. Such compensation should as far as possible take the form of lands and territories”). 279 See e.g., Case 12.354, Kuna Indigenous Peoples of Madungandi and Embera Indigenous People of Bayano (Panama), Inter-Am. Com. H.R., Report 125/12 (2012), at para. 259 (attributing positive value to the establishment of a legal mechanism for recognition of collective property rights and stating that “it understands that the mechanism cannot exclude rights of indigenous peoples that are associated mainly with the right to self- government according to their traditional uses and customs…”). 280 See e.g., Tiina Sanila-Aikio vs. Finland, CCPR/C/124/D/2668/2015 (2019), para. 6.8 (reading ICCPR, Article 27 together with the UNDRIP and ICCPR, Article 1), and 6.9 (reading ICCPR, Article 25, the UNDRIP and ICCPR, Article 1 together, and finding that Articles 25 and 27, read in light of Article 1 and the corresponding right of indigenous peoples to internal self-determination, have a collective dimension that transcends the individual rights guaranteed by those articles). 281 See e.g., Ángela Poma Poma v. Peru, CCPR/C/95/D/1457/2006, 24 April 2009, 7.6; Bernard Ominayak, Chief of the Lubicon Lake Band vs. Canada, A/45/40, vol. 2 (1990); I. Lansman et al. vs. Finland, CCPR/C/52/D/511/1992. 282 See e.g., Apirana Mahuika et al. vs. New Zealand, CCPR/C/70/D/547/1993 (2000), at 9.7 (explaining that a conjunctive reading of Articles 1 and 27 of the Covenant implies that indigenous peoples have a right to enjoy

Page 53 of 82

the CEACR determined in 2018 that “Recognition of the ownership and possession of the lands they traditionally occupy and access to their communal lands and natural resources for traditional activities is essential.”283 It has specifically linked indigenous land titling in Cambodia to effective protection for traditional occupations, referring to its previous comments “concerning the measures taken to address discrimination against indigenous peoples, including the implementation of the 2001 Land Law and the 2009 Sub-decree on procedures to register indigenous communal land.”284 Highlighting the “importance of access to land and natural resources for indigenous peoples to engage in their traditional occupations,” it requested information on “the measures taken to accelerate the protection of indigenous peoples’ land rights pending the registration of collective title….”285 113. The preceding will be highlighted further in the sections below on the specific violations of C111 that are alleged and proven in this Representation. These specific violations illustrate that Ompu Ronggur has been and continues to be subjected to systemic discrimination that has resulted in the impairment or nullification of its right to equal opportunity and treatment of its traditional occupations, which is inextricably tied to its land tenure system and ownership and control of its lands, and its rights as an indigenous community in general. The result, more broadly, is consistent with that observed across Indonesia; indigenous and other forest- dependent communities, numbering about 60 million persons, have been “impoverished and experienced socio-economic discrimination, rising inequality, and loss of access to livelihood opportunities.”286 114. The discriminatory treatment suffered by Ompu Ronggur also comprises a large transfer of wealth and opportunity by the State to TPL from a once well-off and self-sufficient indigenous

‘effective possession’ of and ‘effective control’ over natural resources). Since 2013, the UNCESCR routinely addresses indigenous territorial and associated rights under Articles 1 and 15 of the Covenant. See e.g., E/C.12/PRY/CO/4 (2015), at 6 (expressing concern that Paraguay ‘has not yet legally recognized the right of indigenous peoples to dispose freely of their natural wealth and resources or put in place an effective mechanism to enable them to claim their ancestral lands (art. 1)’). Identical or similar language is found in 2015-16 reviews of Chile, Thailand, Uganda, Venezuela, Guyana, Kenya, Namibia, Canada, Honduras, Sweden, and Costa Rica. 283 Observation concerning C111, Ethiopia in Report of the Committee of Experts on the Application of Conventions and Recommendations, ILC.107/III(A), (International Labour Office, Geneva, 2018), at p. 363. See also Observation concerning C111, Democratic Rep. Congo 2018/2019 (where the CEACR “urges the Government to take measures without delay, including through legislation: … to allow indigenous peoples access, on an equal footing with other members of the population, to all levels of education, vocational training and employment, and to resources, particularly land, which enable them to carry out their traditional and subsistence activities…”); Observation concerning C111, Uganda 2018/2019 (recommending that the State adopt relevant legislative or administrative measures “in order to address in practice access to the necessary resources for hunter–gatherer and pastoralist communities, and particularly land, that are required to carry out their occupations”). 284 Direct Request concerning C111, Cambodia 2015/2016. 285 Id. 286 K.C. Bell et al, supra note 104, p. 10 (also observing, at p. 8, that “Private ownership of vast land concessions in agricultural, forest, and urban areas excludes large sections of the population, especially IP and local communities, from its benefits, widening the gap between the wealthy and the poor”).

Page 54 of 82

community that is now impoverished.287 This situation will only get worse as its resources are further degraded by TPL. The Community, for example, explains that it will take 50-70 years to restore the currently degraded forest to allow their traditional occupations to reach levels enjoyed prior to TPL.288 Therefore, this discrimination will affect and harm the Community for at least the next two to three generations, including its cultural integrity and the transmission of traditional knowledge that is intrinsic to learning and practicing these traditional occupations. A 2017 ILO study explains that “Action to secure the effective recognition and protection of indigenous peoples’ rights to land and natural resources will be crucial for ensuring livelihoods, food security, and safeguarding the cultural integrity and traditional knowledge of indigenous peoples….”289 The UNCESCR has stressed in this context that states have specific obligations to “[r]espect and protect the cultural productions of indigenous peoples, including their traditional knowledge …,” and that this includes “protection from illegal or unjust exploitation of their lands, territories and resources by State entities or private or transnational enterprises and corporations.”290 B. Specific Violations [A]vailable data … indicate that the discrimination against [indigenous peoples] is generalised in most countries where they live, most commonly in the following ways: [t]heir livelihood strategies are not recognized or supported; [t]heir languages, cultural values and skills are not recognized; [and] [t]heir rights to lands and resources are not recognized, which undermines their rights to engage in traditional occupations….291 1. Article 1 115. Article 1(a) of C111 sets out a definition of discrimination, which comprises: “(a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality

287 This is in accord with the findings of a 2003 Asian Development Bank study that included an analysis of issues affecting indigenous peoples in Indonesia. R. Plant, Indigenous peoples, ethnic minorities and poverty reduction: Regional report (Asian Development Bank, 2002), p. 37 (explaining that “It was noticeably in Indonesia that indigenous respondents drew attention to the structural factors behind their present-day poverty—to the trend of impoverishment due to land, resource management, and other policy shortcomings; … many representatives of adat communities identified the main cause of their poverty as lack of recognition and protection of their rights to land and natural resources. This had resulted in dispossession of these communities from their traditional lands and resources; [and] several adat community participants stated that their poverty was also caused by some development activities within their areas, including logging, mining, and plantation agriculture”), https://www.adb.org/sites/default/files/publication/28027/indigenous-peoples-regional.pdf. 288 Annex 2(1), Affidavit of Pariang Simanjutak, Manaek Simanjuntak, Selamat Simanjutak, p. 3. 289 S. Errico, The rights of indigenous peoples in Asia, supra note 5, p. 60 (further explaining, at p. 58, that “valuing indigenous peoples’ culture, practices and knowledge as contributions to the country’s sustainable development and acknowledging the need for differentiated and participatory approaches to address the underlying causes of their marginalization and effective inequalities is particularly important”). 290 General comment No. 21: Right of everyone to take part in cultural life, E/C.12/GC/21 (2009), para. 50(c). 291 ILO Guide to C111, p. 7.

Page 55 of 82

of opportunity or treatment in employment or occupation.” This is similar to the definition of racial discrimination in Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination,292 and the CEACR often highlights the importance of the UNCERD’s recommendations in relation to C111.293 As noted above, various organs of the ILO system have also highlighted in this regard the relevance of the jurisprudence of other UN treaty bodies, C169 and the UNDRIP.294 Article 1(3) defines ‘employment’ and ‘occupation’ to include access to particular occupations. The term ‘particular occupations’ is understood to include indigenous peoples’ rights to pursue their traditional occupations and related activities on their lands, and equality in this context includes the principle that no one “should be excluded from exercising the occupation of their choice on discriminatory grounds.”295 a. Indonesia’s treatment of Ompu Ronggur is consistent with the definition of discrimination in C111, Article 1 116. Article 1(a) requires four elements: 1) a distinction, exclusion or preference; 2) on certain stated bases (e.g., race, gender, religion), which the ILO has repeatedly determined includes indigenous peoples as such.296 The CEACR explains in this regard that it “has considered any discrimination against an ethnic group, including indigenous and tribal peoples, to be racial discrimination within the terms of the Convention;”297 3) that has the aim or effect of impairing or nullifying; 4) equality of opportunity or treatment in employment or occupation, which includes Ompu Ronggur’s traditional occupations.

292 UNCERD, General Recommendation XXIV on Article 1, para. 1 (according to the definition given in Article 1(1), ICERD “relates to all persons who belong to different races, national or ethnic groups or to indigenous peoples”). See also UNCERD, General Recommendation No. 23, Indigenous Peoples (1997), para. 1 (stating that “In the practice of the [UNCERD] … the situation of indigenous peoples has always been a matter of close attention and concern. In this respect, the [UNCERD] consistently affirmed that discrimination against indigenous peoples falls under the scope of the Convention and that all appropriate means must be taken to combat and eliminate such discrimination”). 293 See e.g. CEACR, Observation concerning C111), El Salvador 2008/2009 (referring “to similar comments made by the [UNCERD] (CERD/C/SLV/CO/13, 4 April 2006, paragraph 11), to the effect that the difficult situation concerning land ownership is continuing to have a negative impact on the possibility for indigenous peoples to perform their traditional occupations”); and CEACR, Observation concerning C111, Democratic Republic of Congo 2013/2014. See also CEACR, Direct Request concerning C111, Cameroon, 2014/2015, (“The Committee further notes that the [UNCESCR] emphasized in its concluding observations that some communities … had been moved away from their ancestral lands thereby forcing them to adapt to other dominant cultures in the country. … The Committee … requests the government to take the necessary steps to enable the … [indigenous] peoples to carry on their traditional activities and retain their means of subsistence”) (footnotes omitted). 294 ILO Guide to C111, p. iii; and Decent Work for Indigenous and Tribal Peoples in the Rural Economy (ILO Office 2017). 295 See e.g., ILO Guide to C111, p. 14; and CEACR, Direct Request concerning C111, Uganda, 2014/2015. 296 See e.g. Observation concerning C111, Botswana 2011/2012, (“The Committee recalls that discrimination as set out in Article 1 of the Convention covers discrimination against indigenous peoples…”). 297 General Survey on the fundamental Conventions 2008, supra note 21, p. 319.

Page 56 of 82

117. Based on the facts recited, corroborated and proven herein, there is a distinction, exclusion and preference insofar as Ompu Ronggur’s indigenous property and associated rights are unjustifiably denied, impaired, nullified and relegated to an inferior status vis-a-vis TPL. TPL has been assigned property and occupational rights by the State to the exclusion and detriment of the Community’s rights and its associated traditional occupations. The failure to recognize, respect and protect the rights of Ompu Ronggur, further aggravated by TPL’s take over and destruction of substantial areas of its customary lands in the period 2004-2018, also preferences or privileges the interests of TPL over the rights of the Community, and this is also the case with respect to the ‘occupation’ of TPL vis-a-vis the (traditional) occupations of the Community. This is consistent with the International Labour Standards Department’s understanding of discrimination in this context. It explains that indigenous peoples often “face discrimination against their traditional livelihood as such. This is, for example, the case when practices of shifting cultivation, pastoralism or hunting and gathering are restricted or their rights to land and resources are not recognized.”298 118. The UNCERD has also substantiated that the preceding constitutes discrimination, including in the Indonesian context. Focusing on a large-scale agricultural and plantations project in Papua Province, the UNCERD explicitly acknowledged in 2013 that, due to Indonesian law “as currently drafted, indigenous peoples, such as those affected by the MIFEE project, have been denied rights to their lands in favour of an ownership right vested by the State.”299 Discussing a similar situation in Papua in 2018, it expressed concern about “use of [Special Agricultural Business Leases] for logging and large-scale plantation on indigenous peoples’ land, despite the reported adverse impact … including the destruction of their traditional subsistence lifestyles and environmental degradation.”300 The UNCERD concluded that, if corroborated, “the maintenance and continuous use of SABLs would infringe indigenous peoples’ rights protected under the International Convention on the Elimination of All Forms of Racial Discrimination.”301

298 Understanding the Indigenous and Tribal People Convention, 1989 (No. 169). Handbook for ILO Tripartite Constituents, (International Labour Standards Department, ILO 2013), p. 5, https://www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/publication/wcms_205225.pdf. 299 UNCERD, Early Warning and Urgent Action Procedures: Indonesia (30 August 2013), p. 1 (noting in this regard that the ICC “ruled on 16 May 2013 that certain provisions of the Forestry Act No. 41/1999 are unconstitutional due to the classification of 'customary forest' as being part of 'state forests'” and welcoming “reports that the President of Indonesia has publicly stated his personal commitment to initiating a process that registers and recognises the collective ownership of customary indigenous territories in Indonesia”) (emphasis added), https://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/IDN/INT_CERD_ALE_IDN_7098_E.pdf. 300 UNCERD, Early Warning and Urgent Action Procedures: Papua New Guinea (14 December 2018), p. 1 301 Id. (referring to “the fact that the government authorizes the continuing use of SABL by foreign companies to occupy and use indigenous land in Papua New Guinea. The [UNCERD] also concerned about the fact that the government have not taken any steps towards the implementation of recommendations of its own Commission of Inquiry on SABLs”).

Page 57 of 82

119. In the situation at hand, this same discriminatory denial of Ompu Ronggur’s rights has occurred and, based thereon, the same discriminatory preference (“in favour of”) has been granted to TPL by the State.302 This discriminatory treatment has resulted, inter alia, in the substantial impairment or nullification of the Community’s traditional occupations and associated rights, all in violation of core labour standards and human rights law more broadly. Additionally, there is “an unjustifiable disparate impact” upon Ompu Ronggur, grounded in and caused by the denial of its rights as an indigenous community, and, hence, its status as an indigenous group.303 The Community also has been denied, inter alia, its right to exercise the traditional occupations of its choice on discriminatory grounds. 120. As shown above, the Community’s traditional occupations of hunting and production of floor mats and tandok have been nullified. Its traditional occupations of timber harvesting and woodcarving for traditional housing, cultivation of brown forest rice, traditional governance, and agroforestry and benzoin resin collection are all substantially impaired. In the latter, the Community has lost over 80 per cent of its income, which comprised up to 70 per cent of household income prior to TPL and had supported traditional activities that are central to the Community’s culture as well as the education of generations of Batak Toba. 121. It is not necessary to examine if the above acts and omissions attributable to Indonesia have the explicit aim of discriminating against Ompu Ronggur.304 Discrimination is impermissible under C111 where it is indirect, including where regulations or practices, on their face, are neutral, but in effect negatively impact “a disproportionate number of members of a particular group” of workers.305 The proven facts in this Representation amply substantiate that Indonesia’s acts and omissions have had and continue to have the “effect” of both impairing and nullifying equality of opportunity and treatment of Ompu Ronggur’s traditional occupations and the complex of interdependent rights that sustains them, and has had an unjustifiable disproportionate and entirely negative impact on the Community.

302 See also Xákmok Kásek Indigenous Community v. Paraguay, Inter-Am. Ct. H.R., Ser C No. 214 (2010), para. 273 (referring to a “situation of extreme and special vulnerability of the members of the Community [which] is due, inter alia, to … the prevalence of a vision of property that grants greater protection to the private owners over the indigenous peoples’ territorial claims, thus failing to recognize their cultural identity and threatening their physical subsistence”) and para. 274 (concluding that this exclusion and preference “reveals de facto discrimination” against indigenous peoples). 303 UNCERD, General Recommendation XIV, Definition of discrimination (1993), para. 2. 304 Equality in Employment and Occupation: General Survey by the Committee of Experts on the Application of Conventions and Recommendations (Int’l Labour Conference, 1988), para. 26. (affirming that the presence of intent is not necessary to identify a situation as discriminatory). 305 Time for Equality at Work, supra note 4, para. 57. See also Tomei, Discrimination and Equality at Work, supra note 273, p. 403 (defining indirect discrimination to be the “norms, procedures and practices that appear to be neutral, but whose application disproportionately affects members of certain groups”).

Page 58 of 82

b. Indonesia’s treatment of Ompu Ronggur is illegitimate and unjustified 122. The International Labour Office explains that not “all measures that have a negative effect on indigenous peoples are per se discriminatory. Such measures may be permitted if they are necessary and proportionate to achieve a legitimate objective.”306 This has to be assessed on a case by case basis. Nonetheless, when applying C111 to indigenous peoples, “it would not be appropriate to accept justifications that are based on stereotypes concerning the capabilities, interests and aspirations of indigenous and tribal peoples, or other disregard for their rights and dignity.”307 It further explains that “in order for a specific measure not to qualify as indirect discrimination, it would have to be shown that the measure’s objective takes account of the rights and dignity of indigenous peoples, including the right to be consulted on matters that concern them.”308 It further explains that The need to avoid and eliminate indirect discrimination requires decision-makers to take into account the differences between persons and groups when designing and implementing laws, polices and other measures, in order to avoid discriminatory outcomes. … The potential impact and effects of planned measures on indigenous and tribal peoples and communities should be assessed in consultation with the communities concerned.309 123. This is broadly consistent with the requirements identified by the Human Rights Committee and others in jurisprudence pertaining to activities that may infringe upon indigenous peoples’ traditional economic activities.310 The Committee has repeatedly upheld the rights of members of indigenous peoples to engage in the “economic and social activities which are part of the culture of the community to which they belong,”311 and linked this to the right to equality before the law.312 Where decisions, such as those taken by the State and TPL, may affect them,

306 ILO Guide to C111, p. 12. 307 Id. 308 Id. 309 Id. 310 See e.g., Endorois Welfare Council v Kenya, African Com. on Human and Peoples’ Rights (2010), para. 226 (ruling that “[i]n terms of consultation, the threshold is especially stringent in favour of indigenous peoples, as it also requires that consent be accorded;” and, at para. 291, ”the African Commission is of the view that any development or investment projects that would have a major impact within the Endorois territory, the State has a duty not only to consult with the community, but also to obtain their free, prior, and informed consent, according to their customs and traditions”). 311 See e.g., Bernard Ominayak, Chief of the Lubicon Lake Band vs. Canada, Report of the Human Rights Committee, 45 UN GAOR Supp. (No.43), UN Doc. A/45/40, vol. 2 (1990), at 1. 312 See e.g., Concluding observations of the Human Rights Committee: Guyana, CCPR/C/79/Add.121 (2000), para. 21 (expressing concern “that members of the indigenous Amerindian minority do not enjoy fully the right to equality before the law,” and explaining in this regard that “[i]t is particularly concerned that the right of Amerindians to enjoy their own culture is threatened by logging, mining and delays in the demarcation of their traditional lands, that in some cases insufficient land is demarcated to enable them to pursue their traditional economic activities and that there appears to be no effective means to enable members of Amerindian communities to enforce their rights under article 27”). See also Connors v. United Kingdom, Euro. Ct. H. R. (2004), para. 84 (holding that states

Page 59 of 82

their effective participation must be guaranteed and ensured.313 In common with other human rights bodies, it has further held that the admissibility of measures which substantially compromise or interfere with the culturally significant economic activities of a minority or indigenous community depends on whether the members of the community in question have had the opportunity to participate in the decision-making process in relation to these measures and whether they will continue to benefit from their traditional economy. The Committee considers that participation in the decision-making process must be effective, which requires not mere consultation but the free, prior and informed consent of the members of the community.314 The UNCESCR sustains in this regard that Indigenous peoples’ cultural values and rights associated with their ancestral lands and their relationship with nature should be regarded with respect and protected, in order to prevent the degradation of their particular way of life, including their means of subsistence, the loss of their natural resources and, ultimately, their cultural identity. States parties must therefore take measures to recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources, and, where they have been otherwise inhabited or used without their free and informed consent, take steps to return these lands and territories.315 124. These same issues have been raised directly with Indonesia on numerous occasions. In 2014, the UNCESCR stated that “the free, prior and informed consent of affected communities is not always sought in [mining and plantation] projects, including under Law 25/2007 on Investment. Moreover, even in cases where consultations of affected communities have taken place, their informed decisions have not been guaranteed.”316 UNCERD has stressed the obligation to obtain indigenous peoples’ informed consent in Indonesia on five separate occasions between 2007 and 2013.317 Acknowledging the existence of “Various forms of discrimination against children belonging to indigenous communities,”318 the Committee on the

have an obligation to take positive steps to provide for and protect the different lifestyles of minorities as a way to provide equality under the law). 313 See e.g., J. Lansman et al. vs. Finland, CCPR/C/58/D/671/1995; and General Comment No. 23 (art. 27), CCPR/C/21/Rev.1/Add.5. (1994), para. 9.5. 314 See e.g., Angela Poma Poma v. Peru, CCPR/C/95/D/1457/2006, 24 April 2009, para. 7.6 315 General comment No. 21 Right of everyone to take part in cultural life, E/C.12/GC/21 (2009), para. 36 (also explaining that “The strong communal dimension of indigenous peoples’ cultural life is indispensable to their existence, well-being and full development, and includes the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired”). 316 E/C.12/IDN/CO/1 (2014), para. 27 (recommending that Indonesia “review legislation, regulations and practices in the mining and plantations sectors and: (a) Guarantee legal assistance to communities during consultations on extractive projects affecting them and their resources with a view to ensuring their free, prior and informed consent”). 317 See e.g., UNCERD, Early Warning and Urgent Action Procedures: Indonesia (30 August 2013); and CERD/C/IDN/CO/3 (2007). 318 CRC/C/IDN/CO/3-4 (2014), para. 19(d).

Page 60 of 82

Rights of the Child recommended in 2014 that Indonesia “ensure the prior informed consent of indigenous peoples with regard to exploitation of the natural resources in their traditional territories.”319 125. In a statement that could have been about the situation of Ompu Ronggur, the former Special Rapporteur in the Right to Food explains that “Indigenous peoples have often been victims of discrimination and marginalization; they have been ignored in public policies and excluded from the State. When governments enter into negotiations with an outside entity, whether private or governmental, there is a real risk that their interests and rights will not be taken into account, unless procedural safeguards are scrupulously complied with.”320 Consequently, when read together with other rights vested in indigenous peoples, the applicable “minimum” principle is that “any shifts in land use can only take place with the[ir] free, prior and informed consent…. This is particularly important for indigenous communities, in view of the discrimination and marginalization to which they have historically been subjected.”321 126. While the CEACR322 and other bodies of the ILO system have sometimes highlighted participation and other procedural guarantees in relation to C111,323 the CEACR and the Governing Body have primarily emphasized these rights in relation to various provisions of C169, stressing that ‘consultation and participation’ “constitute the cornerstone of [C169] on which all its provisions are based.”324 They have further stressed that consultation is a continuing obligation;325 must take place “through indigenous peoples’ representative institutions, in good faith, and with the objective of achieving agreement or consent to the proposed measures;” and

319 Id. para. 70. 320 Report of the Special Rapporteur on the right to food, Olivier De Schutter: Large-scale land acquisitions and leases: A set of minimum principles and measures to address the human rights challenge A/HRC/13/33/Add.2 (2009), para. 28, https://www2.ohchr.org/english/bodies/hrcouncil/docs/13session/A-HRC-13-33-Add2.pdf. 321 Id. p. 16, Minimum human rights principles applicable to large-scale land acquisitions or leases, Principle 2 (see also Principle 10: “: Under international law, indigenous peoples have been granted specific forms of protection of their rights to land. States shall consult and cooperate in good faith with the indigenous peoples concerned in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources”). 322 See e.g., CEACR, Direct Request concerning C111, Burundi in Report of the Committee of Experts on the Application of Conventions and Recommendations, ILC.107/III(A), (International Labour Office, Geneva, 2018), p. 356 (urging Burundi “to take the necessary steps to ensure equal access for the Batwa people to education, vocational training and employment, including to enable them to exercise their traditional activities…;” and requesting information on a law “revising the Forestry Code, which provides that the rational and balanced management of forests is based, inter alia, on the principle of participation by the grassroots communities, and on the exercise of traditional activities by the Batwa on the land where they live”). 323 See e.g., ILO Guide to C111, p. 12. 324 CEACR, General Observation on Convention No. 169, Indigenous and Tribal Peoples Observation 2010/81, p. 6, https://www.ilo.org/wcmsp5/groups/public/---ed_norm/--- normes/documents/meetingdocument/wcms_305958.pdf. 325 Id.

Page 61 of 82

is “intended to enable indigenous peoples to participate effectively in their own development.”326 127. Indonesia has failed to comply with these standards and guarantees in relation to Ompu Ronggur. The Community has not been consulted at any time, before or after the permit was issued to TPL, nor before or after any the clearances of its forests between 2004 and 2018. Indonesia has not however ratified C169. Therefore, the most appropriate standard would be that prescribed by the binding instruments it has ratified. As illustrated above, and in the light of the applicable indigenous rights framework, this warrants the application of free, prior and informed consent in connection with the rights violations under C111 proven above and as viewed in the context of Indonesia’s international obligations more broadly.327 128. Additionally, in common with other human rights bodies,328 the Human Rights Committee has consistently held that, while it “recognizes that a State may legitimately take steps to promote its economic development,” this “may not undermine the rights protected by article 27.”329 It has recommended that when planning and executing development and natural resource-related projects, states must “respect the rights of minority and indigenous groups to their ancestral land and ensure that their traditional livelihood that is inextricably linked to their land is fully respected.”330 It further explains that “measures whose impact amounts to a denial of the right of a community to enjoy its own culture are incompatible with article 27,” and the “question” in this regard “is whether the consequences” of the activity authorized by the State “are such as to have a substantive negative impact” on the enjoyment of those rights.331

326 Id., p. 9. 327 Article 31(3)(c) of the 1969 Vienna Convention of the Law of Treaties, which codifies a general principle of international law and provides that when interpreting a treaty “any relevant rules of international law applicable in the relations between the parties” shall be taken into account. In the same vein, the International Court of Justice has endorsed the need to interpret a treaty “within the framework of the entire legal system prevailing at the time of interpretation.” See e.g., Namibia (Legal Consequences) Advisory Opinion, ICJ Reports 1971, at 31; and Case Concerning the Gabcikovo-Nagymaros Project (Hungary v. Slovakia), ICJ Reports 1997. 328 The Inter-American Commission on Human Rights has observed that state policy and practice concerning resource exploitation cannot take place in a vacuum that ignores its human rights obligations, as have the African Commission on Human and Peoples’ Rights and other intergovernmental human rights bodies. In other words, states may not justify violations of indigenous peoples’ rights in the name of national development. The basic principle, reaffirmed at the 1993 Vienna World Conference on Human Rights is that, “[w]hile development facilitates the enjoyment of all human rights, the lack of development may not be invoked to justify the abridgement of internationally recognized human rights.” See e.g., Report on the Situation of Human Rights in Ecuador, Inter-Am. Com. H.R., OEA/Ser.L/V/II.96, Doc. 10 rev. 1 1997, p. 89; Communication No. 155/96, The Social and Economic Rights Action Center and the Center for Economic and Social Rights / Nigeria, para. 58 and 69 (“The intervention of multinational corporations may be a potentially positive force for development if the State and the people concerned are ever mindful of the common good and the sacred rights of individuals and communities”); and Vienna Declaration and Programme of Action, Part I, at para. 10, A/CONF.157/23, 12 July 1993. 329 See e.g., Ángela Poma Poma v. Peru, CCPR/C/95/D/1457/2006, 24 April 2009, para. 7.4. 330 CCPR/C/KEN/CO/3 (2012), para. 24. 331 Ángela Poma Poma v. Peru, CCPR/C/95/D/1457/2006, 24 April 2009, para. 7.5.

Page 62 of 82

Therefore, unless it obtains “the free, prior and informed consent of the members of the community”332 at each stage of TPL’s activities (i.e., prior to a decision that may affect their rights), it is impermissible for the State to authorize activities that “substantially compromise or interfere with the[ir] culturally significant economic activities,” including Ompu Ronggur’s traditional occupations, irrespective of the economic development objectives it purports to pursue. 129. Consistent with various authorities, the UNDRIP provides that any restrictions or limitations on indigenous peoples’ rights “shall be non-discriminatory and strictly necessary solely” to secure the rights of others and “for meeting the just and most compelling requirements of a democratic society.”333 Restrictions that are discriminatory, such as those that are evident in this Representation, are, therefore, impermissible on this basis alone. International jurisprudence further supports the view that discrimination also undermines assertions of necessity334 and proportionality in this context. As stated by the European Court of Human Rights, “Unjustifiable differential treatment in itself” strongly supports a finding that restrictive measures are impermissible and this “consideration must carry great weight in the assessment of the proportionality issue….335 Additionally, “the ‘necessity’ and, hence, the legality of restrictions” requires that the states assess various options and “that which least restricts the right protected must be selected.”336 Permits that restrict property rights, such as the one issued to TPL, “must not be issued if the public purpose in question can be achieved in a different way….”337 Indonesia gave no consideration at all to these issues in the case of Ompu Ronggur and TPL could have undertaken its activities elsewhere and without encroaching on its traditional lands and without impairing or nullifying its traditional occupations.

332 See e.g., CCPR/C/PER/CO/5 (2013) (stating in reference to its decision in Angela Poma Poma that “the Committee is concerned that legislation in force does not provide for free, prior and informed consent of indigenous communities concerning all measures which substantially compromise or interfere with their culturally significant economic activities…”); CCPR/C/BOL/CO/3 (2013), para. 25 (highlighting the obligation to ensure that indigenous peoples’ free, prior and informed consent in relation to “measures which substantially compromise or interfere with their culturally significant economic activities”); CERD/C/CHL/CO/19-21 (2013), para. 13(c) (recommending that Chile “Undertake environmental impact assessments on a systematic basis and hold free, prior and informed consultations with a view to obtaining indigenous peoples’ free and fully informed consent before authorizing any investment project that could negatively affect their health or livelihoods in the areas that they inhabit”). 333 UNDRIP, Article 46(2). 334 Yakye Axa Indigenous Commt v. Paraguay, Inter-Am. Ct. H.R., Ser C No. 146 (2005), para. 148 (where the Court observed that respect for indigenous peoples’ rights is a compelling public interest in its own right that must be fully weighed when considering the necessity and proportionality of restrictive measures). 335 Asmundsson v. Iceland, Euro. Ct. H.R. (2004), para. 40. 336 Case of Ricardo Canese, Inter-Am. Ct. H.R., Ser C No. 111 (2004), para. 96. 337 Sporrong & Lonnroth v. Sweden, Euro. Ct. H.R. (1982), para. 69. The ECHR has also recognized that the availability of alternative options is one of the relevant factors in assessing the proportionality of a restrictive measure. See e.g., Hatton v. United Kingdom, Euro. Ct. H.R. (2003), para. 127 (specifying the obligation to minimize interferences with rights by seeking alternative solutions, “and by generally seeking to achieve their aims in the least onerous way as regards human rights”).

Page 63 of 82

130. Also, the Human Rights Committee has held that, in the case of indigenous peoples, states “must respect the principle of proportionality so as not to endanger the very survival of the community and its members.”338 The term ‘survival’ is understood to mean indigenous peoples’ “ability to ‘preserve, protect and guarantee the special relationship that they have with their territory’, so that ‘they may continue living their traditional way of life, and that their distinct cultural identity, social structure, economic system, customs, beliefs and traditions are respected, guaranteed and protected’.”339 Based on this understanding, the proven facts in this Representation conclusively demonstrate that Indonesia’s acts and omissions, at a minimum, “endanger the very survival of the community and its members.” 131. Despite its abundant and definite international obligations, the proven facts demonstrate that Indonesia issued the concession and permit to TPL, and has tolerated and acquiesced, on an ongoing basis, to its repeated destruction and conversion of Ompu Ronggur’s lands and forests.340 It has done so without any regard for the Community and its rights, its inherent differences and characteristics as an indigenous community, and without any attempt to seek its effective participation in decision making,341 all of which “reveals de facto discrimination” in the case of indigenous peoples.342 There has been no attempt to remedy these long-standing and deleterious acts and omissions, itself a factor long held by human rights tribunals and mechanisms to render state action disproportionate and, thus, illegitimate.343 132. The preceding is the case despite the 2013 decision of the ICC holding that this situation constitutes an unconstitutional violation of indigenous peoples’ rights. Indonesia had and still has a positive constitutional and international obligation to recognize and protect the property rights of Ompu Ronggur, as derived from its customary tenure and traditional ownership, yet it has

338 Angela Poma Poma v. Peru, CCPR/C/95/D/1457/2006, 24 April 2009, para. 7.6. See also Endorois Welfare Council v Kenya, African Com. H.R. (2010), para. 214 (finding that a denial of indigenous peoples’ rights in relation to a nature reserve was disproportionate to the asserted public interest). 339 Saramaka People v. Suriname, Inter-Am. Ct. H.R., Ser C No. 172 (2007), para. 129-134 and; Saramaka People v. Suriname, Interpretation of the Judgment, Inter-Am. Ct. H.R., Ser C No. 185 (2008), para. 37. 340 See also UNDRIP, Articles 18 and 32 (both upholding the right to effective participation in decision making and free, prior and informed consent). 341 See e.g., Ángela Poma Poma v. Peru, CCPR/C/95/D/1457/2006, 24 April 2009, 7.7 (finding violations of indigenous peoples’ rights because “neither the author nor the community to which she belongs was consulted at any time by the State party concerning the construction of the wells. Moreover, the State did not require studies to be undertaken by a competent independent body in order to determine the impact that the construction of the wells would have on traditional economic activity, nor did it take measures to minimize the negative consequences and repair the harm done”). 342 Xákmok Kásek Indigenous Commty. v. Paraguay, Inter-Am. Ct. H.R., Ser C No. 214 (2010), at para. 274 (“it has been proved that the declaration of a private nature reserve on part of the land reclaimed by the Community did not take into account its territorial claim and it was not consulted about this declaration;” this “reveals de facto discrimination against the members of the Xákmok Kásek Community…. In addition, it is evident that the State has not taken the necessary positive measures to reverse that exclusion”). 343 See e.g., Jahn and Others v. Germany, Euro. Ct. H. R. (2005), para. 94; and Former King of Greece and Others, Euro. Ct. H. R. (2000), para. 89.

Page 64 of 82

failed to do so. It has been notified by the Community (and various international human rights bodies) on numerous occasions of these issues and it is demonstrably aware of the situation. Nonetheless, it has allowed impunity to prevail as it continues to deny the Ompu Ronggur’s rights, and privilege the interests of TPL, all to the extreme detriment of the Community and its traditional occupations. 2. Articles 2 and 3 133. C111, Article 2 requires that parties immediately344 adopt and implement a national policy designed to promote “equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof.” This policy, which must be developed with indigenous participation, should include legal measures to prohibit discrimination and active measures to achieve equality in practice.345 Where indigenous peoples, “who are protected by [C111], face inequalities in employment and occupation, the situation should be corrected,”346 and the policy required by Article 2 “should include measures to eliminate discrimination against these peoples.”347 The State is also immediately obligated to “repeal any statutory provisions and modify any administrative instructions or practices inconsistent with the equality policy.”348 134. The CEACR explains that the national equality policy must be clearly stated and effective. This means that “programmes should be or have been set up, all discriminatory laws and administrative practices are repealed or modified, stereotyped behaviours and prejudicial attitudes are addressed … and monitoring put in place.”349 Specific measures to address discrimination, “in law and in practice, should be concrete and specific,” effectively contributing “to the elimination of direct and indirect discrimination” and promoting equality of opportunity and treatment for all categories of workers.350 Additionally, treating certain groups differently,

344 General Survey on the fundamental Conventions 2008, supra note 21, p. 349. 345 ILO Guide to C111, p. 17. 346 Id. p. 16. 347 CEACR, Observation concerning C111, Botswana 2011/2012; and CEACR, Direct Request concerning C111, Belize 2017/2018 (“National policy. Indigenous peoples and ethnic minorities. … The Committee recalls that, where labour market inequalities along ethnic lines exist, a national policy to promote equality of opportunity and treatment, as envisaged in Articles 2 and 3 of [C111], should include measures to promote equality of opportunity and treatment of members of all ethnic groups…. The Committee requests the Government to take specific measures in order to promote equality of workers of Mayan origin as well as other minorities in the country…”). 348 General Survey on the fundamental Conventions 2008, supra note 21, p. 349. 349 Id. p. 350 (further stating, p. 351, that C111 “envisages that the results achieved in the implementation of the national equality policy are being regularly assessed with a view to reviewing and adjusting existing measures and strategies on a continuing basis. Such continual monitoring, assessment and adjustment is required, not only of the measures in place to promote equality, but also of their impact on the situation of the protected groups and the incidence of discrimination”). 350 Id.

Page 65 of 82 such as indigenous peoples, who have specific rights, “may be required to eliminate discrimination and to achieve substantive equality for all groups” covered by C111.351 135. Article 3, inter alia, requires that parties enact legislation to secure observance of the policy and repeal or amend any laws and administrative requirements that are inconsistent with the policy.352 The CEACR has observed, as is the case for Indonesia, that legislation also needs to be effectively implemented, “and in some countries, serious problems remain, particularly with regard to indigenous forms of land use and ownership.”353 It further explicates that legislation alone is not sufficient to achieve C111’s objective; “[e]ffectively responding to the complex realities and variety of ways in which discrimination occurs requires the adoption of differentiated measures. Proactive measures are required to address the underlying causes of discrimination and de facto inequalities resulting from discrimination deeply entrenched in traditional and societal values.”354 a. Article 2 136. With regard to the situation of Ompu Ronggur (and all other similarly situated indigenous peoples in Indonesia), it is clear that, while the State has a number policies and programmes that relate in various ways to C111 (which are frequently not applied in practice or are only partially applied),355 none of these are specifically and proactively targeted towards mitigating and/or eliminating discrimination against indigenous peoples’ traditional occupations and associated rights. Since June 2000, when C111 entered into force, Indonesia has not adopted differentiated policy and legal measures to address the notorious and pervasive discrimination that impairs and nullifies indigenous peoples’ rights to freely engage in their traditional occupations and livelihoods and to continue to benefit from their traditional economies. A 2015 ILO Office study concludes in general that “[l]imited attention has been paid to indigenous peoples within the country’s legal and policy frameworks.”356

351 Id. 352 See also The Discrimination (Employment and Occupation) Recommendation, 1958, at para. 2. 353 General Survey on the fundamental Conventions 2008, supra note 21, p. 321. 354 Id. p. 354. 355 Compare, for instance, CEACR, Observation concerning C111, Indonesia 2013/14 (where the CEACR “recalls Act No. 40 of 2008 concerning the elimination of racial and ethnic discrimination under which the National Human Rights Commission is responsible for supervising efforts aimed at eliminating all forms of racial and ethnic discrimination, and notes the absence in the Government’s report of any information on its practical application”); with CEACR, Observation concerning C111, Indonesia 2016/17 (stating that “In its previous comments, the Committee requested the Government to provide information on the implementation of Law No. 40 of 2008 concerning the elimination of racial and ethnic discrimination including measures taken by the National Human Rights Commission to monitor Government policies aimed at eliminating racial and ethnic discrimination. The Government merely indicates that steps have been taken to require employers to register company regulations and collective agreements with responsible authorities, and that measures have been taken to ensure that such documents are not discriminatory”). 356 Indigenous Peoples in the World of Work in Asia and the Pacific, supra note 192, p. 59.

Page 66 of 82

137. More specifically, the 2015 study observes that although Indonesia’s 2010–14 Medium- Term Development Plan addresses inclusion, poverty reduction, empowerment and, to some extent, poor communities and marginal groups, “[b]eyond these general categories, however, the indigenous peoples of Indonesia are absent from the plan. This may entail a risk of maintaining or enhancing the social and economic hardships of the numerous indigenous groups, as the plan does not adequately address their problems.”357 Similarly, while the ILO Decent Work Country Programme for Indonesia focuses on the broad category of vulnerable and marginalized communities, “[t]here is no specific mention of indigenous peoples, however, in the programme’s priorities and outcomes.”358 This study also highlights that there is “no acknowledgement of the indigenous peoples of Indonesia in any of the extensive social and economic analyses of the country,” and “[d]isaggregated data are not available….”359 138. Nor has Indonesia adopted any effective measures to address the main underlying cause of this discriminatory treatment:360 as stated by the CEACR, “the lack of recognition of their rights to land, territories and resources, undermining their right to engage in traditional occupations.”361 The UNCERD confirmed in 2009 “that Indonesia continues to lack any effective legal means to recognize, secure and protect indigenous peoples’ rights to their lands, territories and resources,” and this statement remains accurate today.362 Also, the World Bank concluded that “no specific areas of forest land have been set aside to reduce inequity or to improve the

357 Id. p. 62. 358 Id. 359 Id. p. 66 (explaining that “This absence of information severely impedes efforts to understand the full extent of the problems that they face and the impact on them of existing policies and laws. Disaggregated data are of critical importance in designing and improving policies and programmes that can adequately address their needs”). 360 See e.g., The Dark Side of Green Growth: Human Rights Impacts of Weak Governance in Indonesia’s Forestry Sector (Human Rights Watch 2013), p. 1-2 (stating that “Indonesian authorities have routinely violated the rights of forest-dependent communities in allocating land use and setting forest industry concession boundaries. … Rather than address the underlying causes of these disputes, the government has instead recently passed a flurry of legal instruments—laws, ministerial regulations, presidential decrees, and Memorandums of Understanding (MOUs) that focus on broadening the scope of military involvement to address conflicts and contain vaguely defined ‘national security threats’”), https://www.hrw.org/sites/default/files/reports/indonesia0713webwcover_1.pdf; and K.C. Bell et al, supra note 104, p. 7 (observing that “In 2014, the new Indonesian government mandated further investments in land to promote economic development. … All these involve extensive land-use changes and invariably result in displacement, loss of access to and control of natural resources by dependent communities, especially IP, and the destruction and loss of the rich biodiversity of primary and naturally regenerating forests. … A growing body of evidence indicates that many concessions awarded since 1991 may not be contributing to national economic development. Recent studies established that large-scale land concessions in Indonesia reduced the farmland available to smallholders and cultivators and left a trail of social and ecological destruction. Despite such evidence, the government continues to pursue a policy of large-scale land investments without adequate oversight mechanisms”). 361 General Survey on the fundamental Conventions 2008, supra note 21, p. 321. 362 UNCERD, Early Warning and Urgent Action Procedures: Indonesia (13 March 2009), p. 2, https://www.ohchr.org/Documents/HRBodies/CERD/EarlyWarning/Indonesia130309.pdf.

Page 67 of 82

welfare or livelihoods of specific communities or groups. In contrast, 75% of land has been allocated for supporting economic development (usually in large commercial holdings) and protecting environmental services.”363 World Bank land tenure specialists have concluded that unless “current laws and regulations on forest and non-forest lands are replaced with unambiguous and concise ones, equitable land tenure security cannot be realized in Indonesia….”364 139. The 2015 ILO Office study further explains that “Access to land and natural resources is of fundamental importance to the livelihoods of the indigenous peoples in Indonesia,” yet “owing to a lack of recognition and protection of indigenous peoples’ access to land and natural resources, many have been dispossessed.”365 In this respect, “large tracts of land have been lost as a consequence of allocation for logging concessions, mining and plantations. … The decline of access to land and natural resources has severe consequences on the livelihood activities of indigenous peoples.”366 Echoing many others, it determined that “In sum, the livelihood options of the indigenous peoples of Indonesia are severely limited by a number of factors, ranging from discrimination, shortage of skills and capacity, lack of access to markets and credit, to the absence of alternative employment options.”367 140. Simply stated, the policy required by Article 2 of C111 does not presently “include measures to eliminate discrimination against [indigenous] peoples.” This situation persists unabated, underlying and aggravating the severe violations experienced by Ompu Ronggur and thousands of other communities, notwithstanding the President of Indonesia’s admission, more than 13 years ago, that indigenous peoples’ rights “had often been sacrificed for the sake of development, as powerful business interests seek to exploit natural resources.”368 Thus, as stated by the UN Special Rapporteur on the Right to Food in December 2018, indigenous peoples in Indonesia continue to “face disproportionate barriers to accessing land,” and this discriminatory treatment is exacerbated by the fact that their “livelihoods and food sources depend considerably on the free use of land.”369 Two years earlier, the World Bank concluded that forestry concessions, such as that held by TPL, “disproportionately affect the livelihoods of forest-

363 Sustaining Economic Growth, Rural Livelihoods, and Environmental Benefits: Strategic Options for Forest Assistance in Indonesia (World Bank, 2006), p. 96, http://documents.worldbank.org/curated/en/986501468049447840/pdf/392450REVISED0IDWBForestOptions. pdf. Other than an increase in the percentage of land allocated to large commercial holdings, this statement remains valid today. 364 K.C. Bell et al, supra note 104, p. 5. 365 Indigenous Peoples in the World of Work in Asia and the Pacific, supra note 192, p. 64 (citing Country Technical Note on Indigenous Peoples’ Issues: Republic of Indonesia (IFAD, November 2012)). 366 Id. 367 Id. p. 65. 368 ‘President Admits Indigenous People Mistreated’, Jakarta Post, 10 August 2006. 369 SR Food 2018, supra note 10, para. 51-2.

Page 68 of 82

dependent communities,” and the “[e]conomic loss and damage” caused thereby are “substantial[ly] impacting” local livelihoods and poverty.370 141. The preceding has been previously confirmed by numerous commentators, including the CEACR and, implicitly, by the State itself. In 2012, for instance, the CEACR observed in reference to Article 2 that the State “does not provide information on measures taken to promote equality of opportunity and treatment in employment and occupation of all ethnic groups of the population, including indigenous peoples … but rather refers to article 28(i)(2) of the Constitution which provides for a general prohibition of discrimination based on ‘any grounds whatsoever’.”371 In this respect, a 2017 ILO Office study on the rights of indigenous peoples in Asia contains a chapter that reviews policies related to indigenous peoples’ traditional occupations in ten countries. While Indonesia is discussed in relation to the subject of each of the other chapters, it is not mentioned at all in the chapter on policies related to traditional occupations.372 b. Article 3 142. While Indonesia has adopted several laws addressing various aspects of the prohibition of discrimination, including racial discrimination, these laws have proved to be ineffective with respect to indigenous peoples’ rights. This fact has been confirmed by Komnas HAM in its 2014 national inquiry, which identified a series of discriminatory ‘root causes’ of gross and pervasive violations of indigenous peoples’ rights, and by numerous international human rights mechanisms. UNCERD has repeatedly determined that Indonesian laws related to indigenous peoples “are not sufficient to guarantee their rights effectively,”373 and the UNCESCR identified

370 Acceleration Program of One Map Policy Implementation (P160661), Indonesia, Project Information Document/Integrated Safeguards Data Sheet (PID/ISDS) (World Bank, 8 December 2016), p. 4 (concluding that “Agriculture, logging, mineral extraction, … together with weak land governance and administration have increased speculative encroachment and forest conversion, diminishing and degrading forests and the environmental services they provide, and disrupting traditional forest/rural livelihoods and settlements, further enhancing the potential for poverty. Notably, unsustainable natural resource use and poor environmental management disproportionately affects the livelihoods of forest-dependent communities.”), http://documents.worldbank.org/curated/en/828551483460652874/pdf/ITM00184-P160661-01-03-2017- 1483460649782.pdf. 371 CEACR, Observation concerning C111, Indonesia 2011/12 (asking “the Government once again to provide information on the practical application of Act No. 40 of 2008, including any relevant administrative and judicial decisions. The Committee also asks the Government to indicate whether the Komnas HAM has taken or envisaged any measures to monitor the effectiveness of government policies aimed at eliminating racial and ethnic discrimination faced by different ethnic groups, including indigenous peoples…. The Committee asks the Government to provide information on any measures taken or envisaged by the Government, at national and regional levels, to promote equality of opportunity and treatment in employment and occupation of all ethnic groups of the population, including indigenous peoples, irrespective of race, colour and national extraction, and on the results of such action”). No such information was provided as of 2016/17. 372 S. Errico, The rights of indigenous peoples in Asia, supra note 5, (Ch. 5: Public policies on cultural, social and economic rights, Section 5.2. Employment and occupation), p. 43 et seq. 373 CERD/C/IDN/CO/3 (2007), para. 17.

Page 69 of 82

“the absence of an effective legal protection framework of the rights of Masyarakat Hukum Adat due to inconsistencies in relevant legislative provisions.”374 A 2017 ILO Office study concludes that, in Indonesia, “the lack of harmonization between statutory and customary (adat) law results in an overall situation of tenure insecurity for indigenous communities. In fact, the lack of recognition and protection of indigenous peoples’ rights to land and natural resources has been regarded as the main cause of their poverty.”375 143. The recommendations adopted by Komnas HAM, the body that monitors State compliance with C111, and the various human rights bodies that supervise compliance with binding instruments in force for Indonesia have not been implemented.376 The same is also the case for judgments of the ICC upholding indigenous peoples’ rights and holding inconsistent laws, including the Forestry Law, to be unconstitutional. The ICC ruled in these cases that “in post- authoritarian Indonesia, the central government cannot ‘do as it pleases’ in respect of natural resources…,” yet the State continues to do so and continues to authorize companies like TPL to do the same, all without regard for indigenous peoples and their rights. Moreover, notwithstanding the passage of 19 years since C111 entered into force, Indonesia has also yet to enact a desperately needed framework law on the rights of indigenous peoples, even though a Bill has been before the legislature for over a decade.377 144. Indonesia has also failed to comply with the immediate obligations in Articles 2 and 3(b) and (c) to repeal any statutory provisions and any administrative measures that may discriminate directly or indirectly against indigenous peoples, including those that have authorized the violations of Ompu Ronggur’s rights that are at issue in this Representation. As discussed above, there are a plethora of laws and administrative measures that directly or indirectly discriminate

374 E/C.12/IDN/CO/1 (2014), para. 38. 375 S. Errico, The rights of indigenous peoples in Asia, supra note 5, p. 36. 376 CEACR, Observation concerning C111, Indonesia 2010/2011 (The Committee notes with interest the adoption of Act No. 40 of 2008 concerning the Elimination of Racial and Ethnic Discrimination…. Under the Act, the National Human Rights Commission (Komnas HAM) is responsible for supervising efforts aimed at eliminating all forms of racial and ethnic discrimination”). 377 See e.g., ‘Activists say Indonesia dragging its heels on indigenous rights’ Mongabay, 20 Sept. 2018 (explaining that “Legislation of a long-awaited bill on indigenous rights continues to be mired in red tape, as activists accuse the government of stalling the process”), https://news.mongabay.com/2018/09/activists-say-indonesia- dragging-its-heels-on-indigenous-rights/; Consideration of reports submitted by States parties under article 40 of the Covenant. Initial reports of States parties: Indonesia, CCPR/C/IDN/1 (2012), para. 385 (explaining that Indonesia is “working on the Bill on the Recognition and Protection of Traditional Communities, which [is] currently in the process of discussion by the House of Representative”); and Third periodic report of States parties due in 2000: Indonesia, CERD/C/IDN/3 (2006), para. 62 (stating that, “At present Indonesia is preparing new legislation to provide better protection and treatment for all ethnic groups. These include bills on the Rights of the Traditional Community (Hak-hak masyarakat adat); the Rights of the Remote Traditional Community (komunitas adat terpencil); and Recognition and Respect for the Traditional Community and Their Traditions (Hak masyarakat adat dan tradisinya)”), https://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CERD%2fC%2fIDN%2f3& Lang=en.

Page 70 of 82

against indigenous peoples, a fact recognized by the State for a least a decade. In 2006, for instance, it observed (albeit in understated fashion) that “Some Indonesian regulations need to be harmonized to accommodate the concerns of masyarakat adat.”378 145. While there are numerous deficiencies in extant Indonesia law that require amendment to remedy discrimination against indigenous peoples, including as they relate to the routine privileging of private sector operations on indigenous lands and “creat[ing] legal certainty for Government and third parties at the expense of indigenous title,”379 SERBUNDO will here highlight one of the primary and most egregious obstacles to the recognition of their rights. This concerns the prevailing interpretation and implementation of the Constitution, Article 18B(2)’s language that indigenous peoples’ rights shall be respected “where they still exist” and, thus, that must be explicitly recognized and accredited via local, provincial and, in some cases, national regulations or decrees in order to access the protections that the law purports to provide. This debilitating and discriminatory obstacle applies to no other racial/ethnic group in Indonesia, contravenes numerous international guarantees, and has been identified by Komnas HAM as one of the root causes of discrimination and rights violations. It observes that the lack of “legal recognition/status as indigenous people” renders “their legal rights/claims unclear or uncertain,” a problem that is “not only related to the non-recognition of control and ownership of indigenous peoples’ territories, but also to the absence of a legal system provided by the state to protect indigenous territories.”380 146. The State could interpret this Constitutional language in accordance with international standards to uphold the principle of self-identification, but it has not done so, adopting instead the least rights-compatible approach to this issue in various laws and regulations,381 including the Forestry Law 1999.382 The explanatory notes to the Plantations Law 2004, for instance,

378 Third periodic report of States parties due in 2000: Indonesia, CERD/C/IDN/3 (2006), id. para. 174. 379 In a Decision adopted under its early warning and urgent action procedures in 1999, the UNCERD determined that Australia’s amended Native Title Act was discriminatory because, inter alia, “[w]hile the original 1993 Native Title Act was delicately balanced between the rights of indigenous and non-indigenous title holders, the amended Act appears to create legal certainty for Governments and third parties at the expense of indigenous title.” Decision 2(54) on Australia, 18/03/99. A/54/18, para. 21(2), at para. 6. See also Xákmok Kásek Indigenous Community v. Paraguay, Inter-Am. Ct. H.R., Ser C No. 214 (2010), para. 273 (referring to a “situation of extreme and special vulnerability of the members of the Community [which] is due, inter alia, to … the prevalence of a vision of property that grants greater protection to the private owners over the indigenous peoples’ territorial claims, thus failing to recognize their cultural identity and threatening their physical subsistence”). 380 Annex 1, National Inquiry on the Rights of Indigenous Peoples, p. 14. 381 The 1999 Law on Human Rights provides considerable scope for interpreting constitutional and other legal norms in accordance with (or at least taking into account) international human rights law. Article 71, for instance, provides that “The government shall respect, protect, uphold and promote human rights as laid down in this Act, other legislation, and international law concerning human rights ratified by the Republic of Indonesia.” 382 Forestry Law 1999, Article 67, provides that indigenous peoples can collect forest products or undertake forest management as long as it is recognized by laws and relevant regulations. Article 67(2) adds that local regulations or perda are required to confirm the existence of an indigenous community).

Page 71 of 82

explains that, to qualify as an indigenous community under that law, it is required, inter alia, that “the local government has recognised the existence of such adat communities in accordance with any local regulation on such a recognition.”383 This approach is also carried over into the Bill on the Recognition and Protection of the Rights of Indigenous Peoples, presently languishing in the legislature.384 147. The issue of (self-) identification of indigenous peoples is a crucial aspect of indigenous rights. Its importance has been stressed by the UNCERD and the UNCESCR in their reviews of Indonesia.385 The UNCERD expressed concern about the lack of “appropriate safeguards guaranteeing respect [in Indonesian law and practice] for the fundamental principle of self- identification in the determination of indigenous peoples,” and recommended that Indonesia “respect the way in which indigenous peoples perceive and define themselves.”386 The UNCESCR recommended that Indonesia “Defines Masyarakat Hukum Adat and provides for the principle

383 See also The Dark Side of Green Growth, supra note 360, p. 39-40 (stating that “the Plantations Law requires that a local regulation first be passed recognizing that the indigenous (adat) community is able to demonstrate that it in fact “exists” before its rights to consultation and compensation by plantation companies can be recognized. The process required to obtain such a local regulation is so complex and expensive that only a handful of communities have been successful”) (footnotes omitted). 384 See Bill on the Recognition and Protection of Traditional Communities, Articles 1(14) and 39, the latter providing unambiguously that “Central and regional governments have the authority to: a. Establish the existence of indigenous communities and their rights.” Article 1(14) explains that “Indigenous community registration is a recording process undertaken by central, provincial and district/municipal governments on the existence of indigenous communities and indigenous community rights in their respective work regions.” 385 See also Tiina Sanila-Aikio vs. Finland, CCPR/C/124/D/2668/2015 (2019), para. 6.3 (referring to “the author’s assertion that the State party fails to acknowledge the CERD Committee’s concern that the definition adopted by the Supreme Administrative Court gives insufficient weight to the Sami people’s rights to determine their own identity or membership in accordance with their customs and traditions;” and, para. 6.6, where “The Committee recalls that under article 33 of the UN Declaration, ‘indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions (…) and the right to determine the structures and to select the membership of their institutions in accordance with their own procedures.’ Article 9 of the UN Declaration provides that ‘Indigenous peoples and individuals have the right to belong to an indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned’”). 386 CERD/C/IDN/CO/3 (2007), para. 15. Note that self-identification is defined here as “the fundamental principle,” indicating that it is the most important or most essential principle. Rather than develop or associate itself with a definition of ‘indigenous peoples’, UNCERD stated in its 1990 General Recommendation VIII that membership in a group “shall, if no justification exists to the contrary, be based upon self-identification by the individual concerned.” See also CERD/C/VEN/CO/18 (2005), para. 15 (recommending that “the identity document for indigenous persons be based upon self-identification by the individual concerned”); and CERD/C/63/CO/5 (2003), para. 11 (stating that the definition of Saami is too restrictive and recommending that Finland “give more adequate weight to self-identification by the individual, as indicated in general recommendation VIII”). UNCERD also applies this self-identification principle to collectivities (e.g., an indigenous people) and has reaffirmed its position on numerous occasions. See e.g., CERD/C/60/CO/5 (2002), para. 18 (concerning “denials by Denmark of the identity and continued existence of the Inughuit as a separate ethnic or tribal entity, and recalls its general recommendation XXIII on indigenous peoples general recommendation VIII on the application of article 1 (self- identification) and general recommendation XXIV concerning article 1 (international standard)”); and CERD/C/304/Add.113 (2001), para. 9 (concerning the Amazigh and referring to General Recommendation VIII concerning the identification of members of particular racial and ethnic groups).

Page 72 of 82

of self-identification, including the possibility to self-identify as indigenous peoples.”387 The ILO Regional Office for Asia and the Pacific also considered this issue to be significant enough in Indonesia so as to warrant an entire box devoted to the subject in its 2011 Guide on Equality and Non-Discrimination at Work in East and South-East Asia.388 148. Recognition and self-identification are also directly related to the right to legal personality and should be considered together with that right. The right to legal personality has been labeled the ‘right to have rights’ and is so fundamental that it is identified as non-derogable under the ICCPR.389 Indonesia’s laws and practice effectively negate this right by vesting authority in various government entities to accredit or certify – or not accredit or certify – the existence of indigenous peoples, and hence their ability to hold, exercise, enjoy and enforce the rights that are vested in indigenous peoples by national laws.390 As Komnas HAM observes in this respect: “Very few indigenous peoples have gained official recognition. In practice, local governments do not give recognition and some even expressly deny the existence of certain indigenous peoples.”391 This is further confirmed by the fact that, as of 2017, “… regional governments have granted a measure of legal recognition to only 48” of the 1,039 indigenous territories registered by the Indigenous Territory Registration Unit created by AMAN.392 In other words, less than five per cent of the indigenous territories registered by AMAN as of 2017 have been officially accredited or

387 E/C.12/IDN/CO/1 (2014), para. 38(a). See also E/C.12/THA/CO/1-2 (2015), para. 9 (recommending that Thailand “give legal and political recognition to its indigenous peoples based on self-identification”); E/C.12/NAM/CO/1 (2016), para. 16(a) (recommending that Namibia “adopts a law recognizing indigenous peoples on the basis of self-identification and protecting their rights…”); and E/C.12/DNK/CO/5 (2013), para. 21 (explaining that it is “concerned that the State party has not applied the principle of cultural self-identification in relation to the recognition of the Thule Tribe of Greenland as a distinct indigenous community…”). Likewise, the Inter-American Commission and Inter-American Court of Human Rights have repeatedly held that “The identification of [an indigenous community or people], from its name to its membership, is a social and historical fact that is part of its autonomy.” See e.g., Xákmok Kásek Indigenous Community v. Paraguay, Inter-Am. Ct. H.R., Ser C No. 214 (2010), para. 37. 388 Equality and Non-Discrimination at Work in East and South-East Asia, supra note 29, p. 27 (“Box 13. Recognition of indigenous peoples – Indonesia”). 389 The Covenant’s derogation clause, Art. 4(2), specifically prohibits the restriction or suspension of the right under any circumstances. See also Human Rights Committee, General Comment No. 29 (2001), para. 7; and CCPR/C/79/Add.93, (1998), para. 21. 390 See e.g., UN Expert Mechanism in the Rights of Indigenous Peoples, Access to Justice in the promotion and protection of the rights of indigenous peoples, A/HRC/24/50 (30 July 2013), at para. 20 (observing that “indigenous peoples have the right ‘to participate fully, if they so choose, in the political, economic, social and cultural life of the State’. Here, the right to self-determination requires recognition of the legal standing of indigenous peoples as collectives, and of their representative institutions, to seek redress in appropriate forums”). 391 Annex 1, National Inquiry on the Rights of Indigenous Peoples on the Territories, p. 14. 392 Forest conflicts and the informal nature of realizing indigenous land rights in Indonesia, supra note 203, p. 165 (further explaining that “A quarter of these territories are located in South . With 12 regionally recognized territories, the province at present counts the most recognized indigenous domains of all Indonesian provinces. More than 80 communities from South Sulawesi are nevertheless still struggling to acquire government recognition of their lands” (footnotes omitted)).

Page 73 of 82

recognized by Indonesia. Again, non-indigenous communities/persons are not required to be formally accredited in order to secure and exercise their property and other rights, and this discriminatory standard is even repeated in legislation that purports to protect indigenous rights.393 149. Attributing its success primarily to good relations with the responsible local government body,394 an anthropologist explains how one community became formally accredited: During the process of formally securing adat forest rights, the community’s longstanding relationship with the government was a considerable advantage. In 2013, several months after Constitutional Court ruling [in the Traditional Forest Community case], regional government officials, NGOs and community leaders formed a task force to draft a district regulation that formally gave the Ammatoa Kajang the status of adat community. The regulation also recognized the sacred forest as communal adat forest. … In November 2015, the district government of Bulukumba approved the regulation. As such, the community became the first indigenous group to have their adat forest rights recognized by a regional government since Constitutional Court ruling 35/2012. Regional recognition was followed by national recognition in December 2016. Through a decree by the Minister of Forestry and Environment, the communal adat forest was released from the state forest.395 150. Respect for core labour rights and other internationally guaranteed rights cannot be dependent of the good will or whim of the State; to allow such a situation to prevail would be to undermine their very rationale. This is precisely the situation in Indonesia at present. At any time during these various certifications, the State can simply refuse to recognize the existence of an indigenous community or this may otherwise be frustrated, obstructed or delayed by the absence of district and/or provincial regulations on such recognition. The latter is presently barring Ompu Ronggur from obtaining recognition in the District in which it lives. A District regulation was drafted by AMAN and submitted by Ompu Ronggur to the District legislature in 2012. Other than making a few amendments to the draft, it has yet to enact the same and has given no indication

393 See e.g., The Return of the Native in Indonesian Law, supra note 204, p. 189 (discussing the (then) draft Bill on Coastal Areas and Small Islands (now Law 27/2007) and explaining that its “Article 74 recognizes the rights of masyarakat adat as owners (pemilik) of the coasts and to use the beaches and waters of the coasts, and respects their adat law. To put this in proper perspective, one should realize that Article 74(7) allows other communities to obtain similar rights without them having to go through the troublesome accreditation procedure reserved for masyarakat adat, so the recognition is not as special as it first appears”). 394 Forest conflicts and the informal nature of realizing indigenous land rights in Indonesia, supra note 203, p. 165 (explaining that “I conclude that informal connections to the state are just as important as formal laws and regulations in shaping the outcomes of attempts to realize indigenous community rights. While indigenous status is presented as a right of communities that meet a number of formal criteria, to be recognized as such requires claimants to seek external support and cultivate relationships with regional power holders”). 395 Id. p. 168.

Page 74 of 82

that it is seriously considering doing so. The effect is to deny Ompu Ronggur legal personality and the capacity to hold, exercise, enjoy and seek enforcement of its rights. It is rendered invisible in the eyes of the law with respect to its rights as an indigenous community and its internationally protected rights are simply disregarded. 151. The situation of the nearby Batak Toba community of Pandumaan-Sipituhuta illustrates that even obtaining national recognition may be insufficient. After decades of forest clearances by TPL and protests by that community, in December 2016, its lands were excised from the TPL plantation.396 This was done by simply revising the company’s Annual Work Plan, based on a map produced by the community.397 While this land was removed, that community is nonetheless still waiting, more than two years later, for the separate district regulation to pass so that it can be recognized and acquire formal title to its lands.398 152. Article 1(2) of C169 states that: “self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply”. The CEACR has relatedly emphasized this “fundamental criterion” when supervising international labour standards. Various national courts have also weighed in, endorsing the view that a definition of indigenous peoples “must include in the broadest possible way all aspects that the indigenous peoples consider to be fundamental for their identity, and in this regard, the element of self-identification is the starting point for that definition.”399 Taking C169 into account, the Inter-American Commission and Court of Human Rights have also underscored that “the criterion of self-identification is the principal one for determining the condition of indigenous people, both individually and collectively.”400 Likewise, the UNCESCR has expressed concern about Thailand’s “lack of recognition of indigenous peoples” and urged it to “give legal and political recognition to its indigenous peoples based on self-identification.”401

396 ‘President Jokowi: Customary Forests Should Not be Traded’, Cabinet Secretary for State Documents & Translation, 30 December 2016, https://setkab.go.id/en/president-jokowi-customary-forests-should-not-be- traded/. 397 Andiko, Comparative Study on Rights Recognition and Permits Procedures in Forest areas for Communities and Companies (ASM Law Office, Bogor, 2017), p. 16, http://rightsandresources.org/wp- content/uploads/2017/10/Comparative-Study_Jan-2017_Andiko_English.pdf. 398 Id. 399 See e.g., Sede, Alfredo and others v. Vila, Herminia and another, (file 14012-238-99), Civil, Commercial and Mining Court of First Instance No. 5, Administrative Office, IIIrd Judicial District of Río Negro, Argentina, 12 August 2004. 400 Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia, Inter-Am. Com. H.R., OEA/Ser.L/V/II, Doc. 34 (2007), para. 216. 401 E/C.12/THA/CO/1-2 (2015), para. 9 (adding “that the State party in particular guarantee the right of indigenous peoples to own, use, control and develop the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired”). See also E/C.12/NAM/CO/1 (2016), para. 15 and 16(a) (expressing concern “that the State party’s legislation does not recognize communities that have self-identified as indigenous peoples,” and recommending that Namibia “adopt a law recognizing indigenous peoples on the basis of self-identification and protecting their rights, including the right to ownership of the lands which they

Page 75 of 82

153. In addition to contravening international standards and constituting discriminatory treatment on its face, the recognition requirement as currently interpreted and applied by Indonesia also creates a discriminatory distinction between indigenous communities that are recognized by the State, and capable of holding rights, and those that are not recognized and, thus, incapable of holding rights. UNCERD has addressed such situations previously, for example, recommending, for this reason, that Guyana “… remove the discriminatory distinction between titled and untitled communities from the 2006 Amerindian Act and from any other legislation.”402 It routinely links this kind of discrimination to the principle of self-identification of indigenous peoples,403 noting that some states “recognize the presence on their territory of some national or ethnic groups or indigenous peoples, while disregarding others,” and that “criteria should be uniformly applied to all groups.”404 It further explains that some states decide at their own discretion which groups constitute ethnic groups or indigenous peoples that are to be recognized and treated as such. The Committee believes that there is an international standard concerning the specific rights of people belonging to such groups, together with generally recognized norms concerning equal rights for all and non- discrimination…. At the same time, the Committee draws to the attention of States parties that the application of different criteria in order to determine ethnic groups or indigenous peoples, leading to the recognition of some and refusal to recognize others, may give rise to differing treatment for various groups within a country’s population.405 154. To conclude, Indonesia has not only failed to amend the above described discriminatory ‘recognition’ requirement in its laws, it seeks to perpetuate the same via the Bill on the Recognition and Protection of the Rights of Indigenous Peoples. This requirement, at least as interpreted and applied at present, is contrary to numerous international standards and represents an insurmountable obstacle for almost all indigenous peoples in Indonesia to obtain legal recognition of and protection for their rights. This in turn facilitates the granting of their lands to companies such as TPL, usually without even basic notice, and the privileging of the occupations of these companies over those of the indigenous peoples. This further leads to the discriminatory impairment or nullification of the right to practice the traditional occupations of their choice, which are also embedded in and inter-dependent with a range of other rights held

traditionally occupy or use as sources of livelihood and the respect of their free, prior and informed consent in decision-making processes affecting their rights and interests”). 402 CERD/C/GUY/CO/14 (2006), para. 15 (noting “with deep concern that, under the Amerindian Act (2006), … indigenous communities without any land title (“untitled communities”) are also not entitled to a Village Council. (Art. 5 (c)”). 403 See e.g., CERD/C/60/CO/5 (2002), para. 18 (concerning “denials by Denmark of the identity and continued existence of the Inughuit as a separate ethnic or tribal entity, and recalls its general recommendation XXIII on indigenous peoples general recommendation VIII on the application of article 1 (self-identification) and general recommendation XXIV concerning article 1 (international standard)”). 404 UNCERD, General Recommendation XXIV concerning article 1 (“international standard”) (1999), para. 1. 405 Id. para. 3.

Page 76 of 82

by indigenous peoples. Indonesia has an immediate obligation to amend the laws and procedures which require recognition by the State and ensure that such recognition is predicated on the principle of self-identification.406 155. This is not to say that amendments to other aspects of Indonesian law are not also required, they certainly are, nor that a framework law on the rights of indigenous peoples is not desperately needed, it is. However, the denial of indigenous peoples’ legal personality that is inherent in the current application of the ‘recognition’ requirement is of such magnitude and so debilitating that amending other laws or adopting a framework law alone will not suffice to address the structural and systematic discrimination it represents. Nor will adopting new laws that maintain the current understanding and application of this requirement. 156. The Constitution may be validly interpreted to provide that where an indigenous people/community self-identifies as such, it shall, absent objective reasons to the contrary, be deemed by law to ‘exist’ and thus be recognized by operation of the law alone. In other words, Indonesian law could establish that self-identification is the starting point of legal recognition and a rebuttable presumption, based on legitimate objective criteria and due process standards. Where not rebutted, the presumption would be validated by the law and without need for further executive or administrative action. It is illegitimate, however, for the State and the law, as is the case now in Indonesia, to entirely disregard self-identification and to vest absolute power of recognition/identification of indigenous peoples, and thus recognition or denial of their rights, in up to three different levels of the State. This impermissibly grants various levels of the State a veto over the recognition, exercise and enjoyment of indigenous peoples’ rights, a prerogative that is wholly antithetical and repugnant to the human rights regime, core labour standards, and fundamental principles of non-discrimination and equal protection. Articles 2 and 3 of C111 demand that Indonesia immediately amend its laws to correct this and other discriminatory treatment of indigenous peoples. IV. CONCLUDING COMMENTS AND REQUESTED REMEDIAL MEASURES Respect our rights, our customary lands, the lands belonging to Ompu Ronggur need to be returned. Our survival depends on these lands. Things are now very difficult and only look like they will get worse. There is no more land left and our ability to maintain and practice our traditional occupations, our livelihoods, are already very restricted, and in some cases impossible. If our lands are not returned, where are we going to go? If we cannot practice our livelihoods in peace and security in our own traditional lands, how we will live? What will be left for our future generations? Our culture and our identity, which are fundamentally related to our lands, are already threatened. Our names contain our clan and the name of our huta,

406 See e.g., CCPR/C/TGO/CO/4 (2011), para. 21 (recommending that Togo “take the necessary steps to guarantee the recognition of minorities and indigenous peoples. It should also ensure that indigenous peoples are able to exercise their right to free, prior and informed consent”).

Page 77 of 82

that is how closely our lands are connected to our identity and survival. What will be left of us if we cannot securely enjoy our land and traditional occupations without living in constant state of fear and anxiety that today or tomorrow or next week TPL will come and cut down or take what little remains?407

157. The preceding statement was made in response to the question, “If you could say anything to the Government or TPL, what would you say?” It both illustrates the perspective of the Community as well as the stakes involved if the discrimination that it currently experiences persists unabated. That this situation contravenes C111 is amply demonstrated by both the proven facts and as a matter of law. Moreover, Ompu Ronggur is emblematic of thousands of such situations throughout Indonesia, a fact attested to by Indonesia’s national human rights institution and numerous other sources. These include the bodies responsible for supervising Indonesia’s compliance with various human rights instruments, which arrived at their conclusions after extensive dialogue with the State, and various multilateral development agencies. 158. SERBUNDO acknowledges that the Government of Indonesia has made some efforts to address some issues concerning indigenous peoples in the past two to three years. The removal of the lands of nine indigenous communities from the State forest estate in December 2016 and nine more in October 2017 are examples of these efforts.408 This has been accompanied by a new agrarian reform decree, which is seen as a major step forward in an ambitious land distribution program.409 However, at the same time, it has announced a policy of only recognizing land where it is “clean and clear,” which “excludes conflicted areas and those where ownership is disputed.”410 This would exclude Ompu Ronggur and do no more than perpetuate the discriminatory treatment it and many other communities have long suffered. The current head of AMAN, Rukka Sombolinggi, explains that “If we go by the ‘clean and clear’ method, it may take another 1,000 years to give everyone titles.”411 She adds that “We should not be held hostage by existing regulations if they deny rights of indigenous people and smallholders.”412

407 Annex 2(1), Affidavit of Pancur Simanjuntak, p. 3. 408 ‘Indonesian president recognizes land rights of nine more indigenous groups’, Mongabay, 12 November 2017 (explaining that “The nine newly designated “customary forests,” or hutan adat in Indonesian, cover a combined 33.4 square kilometers (13 square miles), on the islands of Sumatra, and Sulawesi”), https://news.mongabay.com/2017/11/indonesian-president-recognizes-land-rights-of-nine-more-indigenous- groups/. 409 ‘Indonesia touts agrarian reform, but activists say success hinges on indigenous rights’, Reuters, 26 September 2018 (“Officials distributed more than five million land titles last year, said Moeldoko, who uses only one name. The government aims to issue seven million titles this year, and nine million next year”), https://www.reuters.com/article/us-indonesia-landrights-lawmaking/indonesia-touts-agrarian-reform-but- activists-say-success-hinges-on-indigenous-rights-idUSKCN1M60XN. 410 ‘Millions left out as Indonesia pushes land reform, activists say’, Reuters, 24 September 2018, https://www.reuters.com/article/us-indonesia-landrights-lawmaking/millions-left-out-as-indonesia-pushes- land-reform-activists-say-idUSKCN1M41NZ. 411 Id. 412 Id.

Page 78 of 82

159. Moreover, it is widely acknowledged that land reform will not be successful without the enactment of the Bill on the Protection and Recognition of Indigenous Rights, yet there has been no progress in moving this process forward in the legislature. Enacting the indigenous peoples’ bill “would provide an avenue to clear legal title for much of the country’s disputed land,” and while the agrarian reform decree is an important step, the State “must legalize the rights of indigenous people to land in conflict areas to realize its objective.”413 160. The ILO’s commitment to indigenous peoples and their rights is long-standing and multi- faceted. It has affirmed that the elimination of discrimination in employment and occupation is one of the four core labor standards and long considered that C111 is an important instrument for indigenous peoples in this respect. In receiving and resolving this Representation, the Governing Body has the opportunity to reaffirm and breathe new life into this commitment and these core values. With this in mind, SERBUNDO respectfully requests that the Governing Body: a) declares this Representation receivable and proceeds to examine and decide upon the merits at its earliest possible opportunity; b) fully considers and accounts for the full spectrum and inter-dependency of indigenous peoples’ rights in assessing the nature, scope and content of the discrimination suffered by Ompu Ronggur and its gravity, including the “essential” and inextricable inter-relations between indigenous peoples’ traditional occupations and effective guarantees for their land and resource rights; and c) should it find that C111 has been contravened, that it assists Indonesia to remedy this situation with the full and effective participation of indigenous peoples’ representatives, including policy, legislative and other measures as well as any necessary technical support and cooperation.

413 ‘Indonesia touts agrarian reform, but activists say success hinges on indigenous rights’, Reuters, 26 September 2018 (“Campaigners welcomed government efforts to fight poverty through land distribution, but they said success largely depends on passing draft legislation on indigenous title. … “They should immediately pass the indigenous peoples’ bill, which recognizes the customary and collective rights of indigenous people over land and resources,” said Rukka Sombolinggi of the indigenous peoples’ group AMAN”).

Page 79 of 82

V. Annexes Annex I

National inquiry on the rights of customary law-abiding communities over their land in forest areas Summary of Findings and Recommendations for Improvement of the Law and Policy Concerning Respect. Protection. Compliance and Remedy Relating to the Human Rights of Indigenous Peoples over their Territories within the Forest Zone

Foreword by the Chairman of Komnas HAM

he National Commission on Human Rights (Komnas HAM) has four functions: research and assessment, monitoring, mediation, and dissemination (Act 39 of T1999). The four functions of Komnas HAM embody the objectives the Commission is developing to create conducive conditions for the implementation of human rights and improve the protection and enforcement of human rights. The four functions can be grouped into two categories, promotion and enforcement. The task of promotion is realized through education and research, while enforcement is advanced through efforts to resolve cases through monitoring and mediation.

In the last ten years, the National Commission has received thousands of complaints of alleged human rights violations. Komnas HAM uses its functions and authority to contribute to efforts to resolve cases of human rights violations. Resolution case by case has a positive impact for the victims. The Commission also takes up cases that have similar patterns and are consistently received each year, namely, agrarian cases. These types of cases cannot be solved through the completion of a particular case – as when one case is completed, other cases emerge in other locations. Human rights violations persist despite the improvement of legislation and institutions in Indonesia.

The National Inquiry into Indigenous Peoples’ Rights on their Territories in the Forest Zone is the first national inquiry held by the Commission, as set out in the Plenary Session of the Commission in April 2014. The National Inquiry is an attempt to contribute to the efforts to resolve violations of human rights. The National Inquiry combines four functions in one activity: investigation, research and study to analyse the roots of the problem and formulation of recommendations for resolution of human rights violations. The investigation was conducted by involving communities, witnesses, institutions, researchers, educators and policy experts in a transparent framework of investigation into systematic patterns of human rights violations. The aim was to identify findings and recommendations.

The format of a National Inquiry was selected because it provided a way to generate more systemic recommendations and was also able to educate the general public. The Inquiry was educational in that both the complainants and the actors and entities complained

1 2 KATA PENGANTAR KETUA KOMNAS HAM

about were present. The general public was also able to listen to public testimony during the hearings process.

The theme of the rights of indigenous communities (Masyarakat Hukum Adat - MHA) over their territories was chosen because it has a strong human rights dimension. It also has a high educational value and MHA are marginalized in Indonesian society. Inquiring into this theme will help provide a new awareness for the society and the government that human rights violations concerning MHA and their customary areas are complex and are caused by systems and policies. This theme will provide new information for the various parties involved in these issues that have not been realized and known. This issue has not been addressed thoroughly in the past in part because the roots of discrimination and marginalisation are so deep.

In early 2015 the Commission completed its Inquiry activities. The results and recommendations of the National Inquiry are summarized in this publication and are expected to contribute positively to resolution of the identified issues. The model of the National Inquiry into the rights of MHA could be developed to help resolve other cases involving similar systems and policies. The recommendations are expected to provide material that can be useful for further development of academic discourse. For the government it is hoped that the recommendations can be a basis for policy formulation to comprehensively resolve cases concerning customary territories of MHA.

Komnas HAM thanks the Indonesia’s National Commission on Violence against Women (Komnas Perempuan), the Witness and Victims Protection Agency (LPSK) and the Ministry of Justice and Human Rights, and the Indigenous Peoples Alliance of the Archipelago (AMAN), Sajogyo Institute, Samdhana Institute, HuMa, Participatory Mapping Network (JKPP), ELSAM, Epistema Institute, INFIS, the Partnership for Governance Reform, Rights and Resources Initiative (RRI), the Ford Foundation, and UNDP. We look forward to further cooperation to oversee the National Inquiry’s recommendations.

Amid increased exposure to human rights issues at this time, the Commission remains convinced that Indonesia will continue to evolve into a nation that seriously seeks to respect and protect human rights. The Commission presents the results of this National Inquiry to help remedy the human rights violations that have occurred and for the prevention of such violations in the future. Happy reading.

Jakarta, January 2015 Chairman of the National Human Rights Commission

Nur Kholis FOREWORD INQUIRY COMMISSIONERS

ens of millions of people who are members of indigenous communities (MHA) in Indonesia faces uncertainty over their communal land rights, especially those living Tin areas designated and / or set by the government as the forest zone. The process of appointment and / or determination of the forest zone started during the colonial reign of the Dutch East Indies, but most of the forest zone was designated during the Suharto era and the process continues to this day. Uncertainty continues in regard to indigenous territories as the government ignores the existence of MHA and violates their rights, to the extent of eviction / forcible removal of MHA from their territories. In the process of asserting their rights, thousands of MHA lose more of their rights, as they often face persecution, loss of livelihoods and women are forced to work outside of their traditional territories.

The Report of the National Inquiry documents the voices of victims who are rarely heard. This booklet is summary of Book I of four books published by the National Human Rights Commission (NHRC) based on the results of the implementation of the “NHRC National Inquiry on the Rights of Indigenous Peoples on their Territories in the Forest Zone”. The National Inquiry has successfully organized a series of ethnographic research and policy studies, conducted public hearings at the regional and national level, as well as conducted a public education campaign through various media outlets from August 2014 to January 2015. Also there have been several follow-up activities, among others, discussions of case resolution with the Ministry of Environment and Forestry as well as discussions of the draft Presidential Decree on the MHA Respect and Protection Task Force.

Forty MHA cases were selected to be studied and heard in public hearings spread across seven regions: Sumatra, , Kalimantan, Sulawesi, Bali - Nusa Tenggara, Maluku and Papua. The cases were selected based on region and typology of forestry problems (i.e. conservation, forest production, conversion of forests for non-forestry production, and land for mine operations).

The NHRC, Indonesia’s National Commission on Violence against Women (Komnas Perempuan) and many civil society organizations supporting the National Inquiry felt the need to document the implementation of the results of national inquiry, not just a matter

3 4 FOREWORD INQUIRY COMMISSIONERS 5

of the findings, analysis and policy recommendations, but also aspects of experience in the conduct of the inquiry, data, and facts that were revealed in this national inquiry. The four books produced by the Commission of Inquiry include: 1. book I titled “NHRC National Inquiry Report on the Rights of Indigenous Peoples in the Forest Zone”, which contains information on the National Inquiry as an approach, MHA issues, Land Policy, Forestry and human rights in Indonesia, Findings, Analysis, and Recommendations; 2. book II titled “Indigenous Women’s Rights Violations in the Forest Management”, includes General and Special Findings, Analysis of human rights violations suffered by indigenous women, Conclusions and Recommendations; 3. book III is titled “Agrarian Conflict and Indigenous Peoples in the Forest Zone”. This book includes a narrative ethnography of MHA cases selected for investigation and testimonies in the public hearings. This book became an important document on the results of the disclosure in narrative form of forty cases of MHA in the forest zone and the “former” forest zone. It is divided into chapters based on the regions where public hearings were held; namely Sumatra, Java, Nusa Tenggara, Kalimantan, Sulawesi, Maluku and Papua; 4. book IV is titled “National Inquiry Learning Experiences Blazing the Trail for Resolution of Human Rights Violations”. This book contains a description of the National Inquiry as a breakthrough method, the Implementation Measures and contains an excerpt of the Lessons Learned, and Closing.

This booklet entitled “Summary of Findings and Recommendations for Improvement of Law and Policy” section of the booklet contains the first “National Inquiry Report of the National Commission on Human Rights on the Rights of Indigenous Peoples in the Forest Zone of Indonesia”. This booklet summarizes the background, findings and recommendations.

The NHRC National Inquiry was carried out in cooperation with the National Commission for Women and supported by civil society organizations, namely: Indigenous Peoples Alliance of the Archipelago (AMAN), Sayogyo Institute, Samdhana Institute, HuMa, Participatory Mapping Network (JKPP), ELSAM, Epistema Institute, INFIS , the Partnership for Governance Reform, Ford Foundation, the Rights and Resources Initiative (RRI) and UNDP. The involvement of these organizations was aimed at strengthening the understanding of the issue from various perspectives and mobilization of resources and networks for the successful implementation of the National Inquiry. In the public hearings process, the NHRC also received support from the Witness and Victim Protection Agency (Agency) and the Ministry of Justice and Human Rights.

The national inquiry is the way the NHRC developed efforts for resolution of human rights violations that are widespread and systematic. National inquiry explored the issues and heard testimony from various parties with an adequate and proportionate amount of 4 FOREWORD INQUIRY COMMISSIONERS 5

representation from each of the parties. The goal was to get to the true data, facts and information via the public hearings, research, and analysis.

The National Inquiry is a method that has been used by several countries in Asia-Pacific. This method is more comprehensive because it is not only aimed towards resolution but also public education efforts to prevent similar violations recurring and provide recovery for victims. The general public was involved in this inquiry. In fact, people who have been ‘unreachable’ in terms of lacking access to state mechanisms could be present and involved. The presence of the MHA community in the public hearings was also a mechanism for recovery from the human rights violations that they had experienced.

The National Inquiry is a breakthrough methodology for approaching the issue of human rights violations and formulating policy recommendations in a participatory manner. The national inquiry heard testimony, experiences and the need for protection of the MHA community. Implementation of the national inquiry on the rights of MHA is very important because it becomes a way to approach and contribute to the resolution of the issue of MHA rights violations in Indonesia.

The lack of legal recognition of MHA and the reality of the takeover of indigenous areas is a major issue in the findings of the National Inquiry. The national inquiry found the practice of MHA access restrictions on their customary lands is a result of the issuance of permits of forest management to the management of the corporation and the determination of these areas by government institutions.

For MHA, the forest is part of their living space; the forest is the source of life and the determinant of their existence. In the forest there lives and grows a variety of plants, animals that are the source of their livelihood and contains the essential elements of their spirituality and the source of their traditional medicines. Thus the loss and destruction of forests is equivalent to the loss and destruction of their way of life.

MHA rights violations occur because the governance and policies of the State towards MHA and their territories and natural resources tend to be seen in capitalistic economic terms that count human beings and forests as an economic resource only. The planning process of forest governance since the Dutch East Indies colonial period until now afforded minimal participation of affected communities, including indigenous women. The process of the transfer of rights and functions of forests that have occurred since the beginning of the 19th century not only impaired the functioning of the forest, but led to the development of vertical and horizontal conflicts; conflicts between settlers or companies and MHA and MHA conflicts among themselves. The reform process is expected to correct the mistakes of the past in the land and forestry sectors that have not yet been addressed comprehensively.

The problems become more complicated when government officials, including police, are involved in a conflict but do not remain neutral. They often rely solely on written 6 FOREWORD INQUIRY COMMISSIONERS

substantiation for any claims of rights to a plot of land. However, the government has never issued written evidence to MHA on their ownership so that people do not have official recognition but only recognition between neighbouring MHA and the evidence of nature. When the conflict is not balanced, violence on the part of MHA and the state apparatus is often resorted to as a means of conflict resolution.

The NHRC Commission of Inquiry applauds the spirit of President Joko Widodo and Vice President Jusuf Kalla in their stated commitment for realization of respect and protection of the rights of MHA. When the National Inquiry was first underway, the NHRC delivered a recommendation to the House Transition Team requesting as a priority the establishment of the Task Force on MHA Affairs. While the NHRC appreciates the spirit and goodwill of the Joko Widodo and Jusuf Kalla Government, we lament that the Task Force was not established as of the writing of this report. Conflicts on indigenous territories are widespread and are increasingly complex and cannot be resolved by the Ministry and / or through the existing state mechanisms because of conflicts of interest, so the presence of the MHA Task Force is absolutely necessary.

The development process with an emphasis on infrastructure development and natural resource management and environmental preservation requires certainty of tenure to land and other natural resources. Implementation of development without the settlement of MHA overlapping land rights issues first will certainly complicate the problem. The state as a major stakeholder has an obligation to respect, give protection and ensure fulfillment of human rights and the resolution of this issue must be given priority before any further development affecting MHA is allowed.

Completion of MHA rights issues on their territories in the forest zone is an important agenda that should be prioritized appropriately in line with the promises of the President and Vice President in their statement “Nawacita”. Indonesia’s ability to address human rights problems that result from the policies of previous governments is being tested. The road to the settlement of human rights violations has been embarked upon with the National Inquiry. The next step in the process is in the hands of the Government. The state must step forward to resolve the problems that have lasted over a century. Indigenous peoples are entitled to justice.

Indonesia is the homeland of all of us. Let us realize justice in Indonesia.

Jakarta, December 2015. Inquiry Commissioners,

Sandrayati Moniaga — Coordinator Enny Soeprapto — Member Hariadi Kartodihardjo — Member Saur Tumiur Situmorang — Member 6

Background

he National Human Rights Commission (Komnas HAM) chose to launch an inquiry into the issues of indigenous peoples related to their rights to their territories in the Tforest zone due to the following reasons: • the problem is widespread across Indonesia, from Aceh to Papua • the issues are complex and multi-faceted • recent laws and regulations are conducive to remediation and strengthening rights on behalf of indigenous peoples

While this inquiry is being conducted in an encouraging institutional and legislation climate, human rights violations continue to happen. Violations revealed in the course of this inquiry are often of a structural nature, not readily apparent or frequently overlooked.

Nearly 70% of Indonesian land was designated as the forest zone by the Ministry of Environment and Forestry (previously Department of Forestry) and assumed to be State Forests, without any due process of law between the early 1970s and the early 1980s. In some areas the division of lands into forest and non-forest as well as designated use of the lands is a vestige of the Dutch Colonial period. The Indonesian Government further divided the state forests into specific zones; conservation areas, protected forests, and production forests.

With the implementation of these zonal designations, the Government gave little recognition as to the status and existence of indigenous peoples and their territorial rights, resulting in the arbitrary inclusion of areas traditionally inhabited and used by indigenous peoples into the various designated zones. Furthermore, the Government issued licenses on production forest areas for logging concessions, timber plantations, released permits in the forests zone for mining operations and also converted the forest to non-forest areas and allocated areas for large scale plantation and other commercial ventures.

The number of land disputes cases, including indigenous forest lands, continues to grow. The National Human Rights Commission notes that 20% of the complaints submitted to the Commission are related to land disputes. In 2012 there were 1213 complaint files concerning on land disputes, 1,123 complaints in 2013 and 2,483 complaints in 2014.

Data from civil society organizations shows a similar tendency. The Alliance of Indigenous Peoples of the Archipelago (AMAN) noted that land and natural resources conflicts are

7 8 BACKGROUND 9

greater in number than conflicts related to other issues. Among those cases, more than 140 involve indigenous peoples, and undoubtedly the number of cases is under reported. In 2014, the Working Network for Participatory Mapping (JKPP), tasked with mapping traditional indigenous territories, found that when the map of indigenous territories was overlaid on a map of the State forest zone, 81 % of forest zone designations occurred in the traditional territories of indigenous peoples.

During the 1990’s, utilization of production forests through the establishment of Forest Logging Concessions Permits (HPH) and Timber Estate (HTI) covered about 60 million hectares. With the State forest policy deemed to comply with the principle of legality, the Government (The Ministry of Forestry) has unilaterally granted concessions to large-scale companies over the territories of indigenous peoples. This pattern occurred in a systematic and “legal” way through the various policies, resulting in conflicts with human victims.

According to the Commission, conflicts involving indigenous peoples’ territories in the forest zone claimed as State forests have a high intensity and tend not to be resolved. The potential for conflict will continue to increase, especially considering data from the Ministry of Forestry and National Statistics Agency BPS (2007, 2009) which showed 31,957 villages are located in and around these forest zones. Approximately 71.06% of the villages are dependent on the forest resources. Ironically, until 2014 only 0.5 million hectares of forest zone could be legally accessed by a few dozen communities for a limited time after going through long and complicated administrative procedures.

Based on Law No. 39 of 1999 on Human Rights Article 75, the Commission aims to: a. develop conditions conducive to the execution of human rights in accordance with Pancasila, the 1945 Constitution, the United Nations Charter, and the Universal Declaration of Human Rights; and, b. Improve the protection and upholding of human rights in the interests of the personal development of Indonesian people as a whole and their ability to participate in several aspects of life.

To achieve these aims, the National Commission on Human Rights functions to study, research, disseminate, monitor and mediate human rights issues.

This inquiry was launched by the National Commission on Human Rights (Komnas HAM) in response to the Decision of the Constitutional Court (Mahkamah Konstitusi) No. 35 / PUU-X / 2012, in the case of judicial review of Law No. 41/1999 on Forestry. The Commission argued that the Constitutional Court decision No. 35 / PUU-X / 2012 on judicial review of Law No. 41/1999 on Forestry is an important legal breakthrough in the process of legal reform related to issues of indigenous peoples (Masyarakat Adat). The 8 BACKGROUND 9

decision marks a significant point of State recognition regarding the existence of indigenous peoples and their rights, especially their rights to indigenous territories, which is in line with the principle of human rights.

The Court’s decision creates momentum to recover the status of indigenous peoples’ rights to traditional territories. Earlier, the forest zone was designated and / or stipulated unilaterally by the Government c.q The Ministry of Forestry as ‘State owned forests’ creating conflicts as indigenous forest areas were included in designated forest zones. This Constitutional Court decision should bring improvement in all policies related to indigenous peoples and their territories in forest zones. However, the Government has not yet taken substantive steps towards implementation of the Court Decision, including a legal corrective mandate at the time of writing this report. This inquiry aims to contribute to the implementation of the Constitutional Court decision as a settlement effort of disputes related to indigenous peoples’ rights over their traditional territory in the forest zone.

This inquiry also became part of the action plan in the Memorandum of Understanding (Nota Kesepakatan Bersama) between 12 ministries and state agencies on the acceleration of the Gazettement of Indonesia’s Forest Zone, signed March 11, 2013. Komnas HAM is one of the parties involved in the MoU. The inquiry is in line with the agenda of this agreement, which is for:

• Harmonization of policies and legislation • Technical and procedural coordination • Conflict resolution based on justice and human rights respect and promotion in accordance with the national legislations. 10 BACKGROUND 11

Why did Komnas HAM initiate a National Inquiry

DEPENDENCY UPON FOREST 01 RESOURCES

71.06% 31,957 villages are located in and around the forest zone and 71% of those villages are dependent upon forest resources for their livelihoods.

CONFLICTS OVER 02 INDIGENOUS LANDS

THE NEED TO IDENTIFY THE ACTORS 03 ALLEGEDLY COMMITTING VIOLATIONS

TO PUSH THE ACCELERATION OF THE RECOGNITION OF THE LEGAL STATUS OF 04 INDIGENOUS COMMUNITIES AND THEIR COMMUNAL RIGHTS

THE ISSUE OF UNCERTAINTY AND OBSCURITY WITH LAWS AND REGULA- 05 TIONS RELATED TO PROTECTION OF INDIGENOUS COMMUNITIES

a. Law No.41 / 1999 on Forestry Law

b. No. 4/2009 on Mineral and Coal

c. PMA / KBPN N.5 / 1999 on the Guidelines for dispute settlement on the problems of customary rights: it is applied only to land that is controlled by government agencies, legal entities or individuals 10 BACKGROUND 11

OVERLAPPING CLAIMS OF INDIGENOUS PEOPLES IN THE FOREST ZONE a 06 126.8 MILLION HECTARES OF FOREST b ZONE, MADE UP OF; c 26.8 million hectares of forest zone, made up of; d a. conservation forest (23.2 million) b. protected forest (32.4 million) e c. limited production forest (21.6 million) d. production forests (35.6 million) e. convertible production forest (14 million)

RELEASE OF FORESTRY PERMITS 07 IMPACTING INDIGENOUS PEOPLES

a. Expropriation of indigenous territories with unilateral claims designating these areas as national forest zones

b. Issuance of permits to third-parties in "state forest" that is still ungazetted

c. Article 50 of Law No.41 / 1999 prohibition of some agricultural activities in the forest zone

THE IMPORTANCE OF PROTECTING THE 08 RIGHTS OF INDIGENOUS PEOPLES AND THEIR CUSTOMARY TERRITORIES

a. The right to life (Article 9)

b. Right to welfare (Articles 36 and 38)

c. The right to security (article 29, 33)

DUTIES AND RESPONSIBILITIES 09 OF THE STATE

a. Article 2.6, 71 and 71 of Law 39/1999 on Human Rights

b. TAP MPR No. XI / MPR / 2001 on the land reform and natural resource management

THE CONSTITUTIONAL COURT 10 BREAKTHROUGH DECISION

a. Law No.32 / 2009 on the Protection and Environmental Management (UU PPLH) b. The Court's decision No. 35 / PUU-X / 2012 on judicial review of Law No. 41/1999 on Forestry 12 BACKGROUND 13

MHA Desa Pandumaan dan Desa MHA Dayak Iban Semunying Jaya, Desa MAP DISTRIBUTION 01 Sipituhuta, Kecamatan Polung, 01 Semunying Jaya, Kecamatan Jagoi Babang, Kabupaten Humbang Hasundutan, Kabupaten Bengkayang, Provinsi Kalimantan Provinsi Sumatera Utara. Barat. OF INDIGENOUS PEOPLES 02 MHA Semende, Dusun Lame Banding 02 MHA Masyarakat Hukum Adat Batulasung THAT PROVIDES INFORMATION Agung, Kecamatan Ulu Nasal, (Suku Dayak Meratus), Desa Mentawapan 01 MHA Matteko, Desa Erelembang, Kabupaten Kaur, Provinsi Bengkulu. Mculia, Kecamatan Menteweh, Kabupaten Kecamatan Tombolopao, Kabupaten Tanah Bumbu, Provinsi Kalimantan Selatan. Gowa, Sulawesi Selatan; IN THE PUBLIC HEARING 03 MHA Talang Mamak, Kecamatan Bukit Kulim, Kabupaten Indragiri Hulu, MHA Masyarakat Adat Ketemenggungan 02 MHA Tau Taa Wana, Posangke, Provinsi Riau; 03 Nanga Siyai, Desa Belaban Ella dan Desa Kecamatan Bungku Utara, Kabupaten ON 7 REGIONS IN INDONESIA Nanga Siyai, Kecamatan Menukung, Morowali, Sulawesi Tengah; MHA Suku Anak Dalam Batin Bahar, Kabupaten Melawi, Provinsi Kalimantan Barat. 04 Desa Bungku, Kecamatan Bajubang, MHA Karunsi’e Dongi, Kampung Kabupaten Batang Hari, Provinsi MHA Dayak Benuaq-Kampung Muara Tae 03 Dongi, Desa Magani Kecamatan Nuha, Jambi; 04 Desa Muara Tae, Kecamatan Jempang, Kecamatan Nuha, Kabupaten Luwu MHA Kepulauan Aru, Kabupaten Kepulauan Kabupaten Kutai Barat, Provinsi Kalimantan Timur, Sulawesi Selatan; 01 Aru, Provinsi Maluku. MHA Mukim Lango, Kecamatan Pante Timur. 05 Ceureumen, Kabupaten Aceh Barat, MHA Barambang Katute, Desa MHA Tananahu, Desa Tananahu, Kecamatan Propinsi Nanggroe Aceh Darussalam; MHA Janah Jari (Dayak Maanyan), Desa Janah 04 Barambang, Kecamatan Bonto Katute, 02 Teluk Elpaputih, Kabupaten Maluku Tengah, 05 Jari, Kecamatan Awang, Kabupaten Barito Kabupaten Sinjai, Sulawesi Selatan; Provinsi Maluku. MHA Margo Belimbing, Pekon Timur, Provinsi Kalimantan Tengah. 06 Pengekahan, Kecamatan Bengkunat, MHA Sedoa, Kecamatan Lore Utara, MHA Pulau Romang, Negeri Jaruhu, Kabupaten Pesisir Barat, Propinsi MHA Punan Dulau, Desa Punan Dulau, 05 Kabupaten Poso, Sulawesi Tengah 03 Kecamatan Pulau-Pulau Terselatan, Lampung. 06 Kecamatan Sekatak, Kabupaten Bulungan, Kabupaten Maluku Barat Daya, Provinsi Provinsi Kalimantan Utara. Maluku.

MHA Sawai, Desa Lelilef Sawai, Desa Sawai 04 Itepo, Desa Kove Gunung, Desa Woejerana 05 MEDAN (Kecamatan Weda Tengah) dan Desa Gemaf, Desa Sage (Kecamatan Weda Utara), 06 Kabupaten Halmahera Tengah, Provinsi 01 Maluku Utara. MHA Pagu, Desa Sosol, Desa Balisosang, Desa 05 Gayok, Desa Wangeotak (Kecamatan Malifut), 05 Desa Dumdum (Kecamatan Kao Teluk), 06 Kabupaten Halmahera Utara, Provinsi Maluku Utara. 04 PONTIANAK 06 MHA Tobelo Dalam, Desa Dodaga, Kecamatan 03 01 Wasilei, Kabupaten Halmahera Timur, Provinsi Maluku Utara ABEPURA 03 04 04 05 05

03 02 02 05 02 03 01 02 02 AMBON 04 06 RANGKASBITUNG 01

01 02-06 01 MATARAM 03 04 06 01 04-05 Kasepuhan Ciptagelar, Kabupaten 02 03 Sukabumi, Provinsi Jawa Barat. 01

Kasepuhan Citorek, Kecamatan Cibeber, Kabupaten Lebak, 02 MHA Daiget (Arso), Kabupaten Provinsi Banten. Keerom, Provinsi Papua; 01 Kasepuhan Cibedug, Desa Citorek 03 MHA Wolani, Mei dan Moni, 02 Barat, Kecamatan Cibeber, Kabupaten MHA Pekasa di Desa Jamu, Kecamatan MHA Golo Lebo di Desa Legur Lai, MHA Kemangkuan Tanah Sembalun Kabupaten Paniai, Provinsi Papua; Lebak, Provinsi Banten. Lunyuk, Kabupaten , Provinsi 01 04 Kecamatan Elar, Kabupaten 06 di Desa Sembalun, Sembalun Nusa Tenggara Barat; Manggarai Timur, Provinsi Nusa Simbagading, dan Sembalun Lawang, MHA Yerisiam, Kampung Sima, Distrik Kasepuhan Cisitu, Desa Kujangsari, Tenggara Timur; Kecamatan Sembalun, Kabupaten Yaur Nabire, Kabupaten Nabire, 03 Kecamatan Cibeber, Kabupaten Lebak, 04 MHA Talonang di Desa Talonang, Lombok Timur, Provinsi Nusa Tenggara Provinsi Papua; Provinsi Banten. Kecamatan Sekongkang, Kabupaten 02 MHA Colol di Desa Uluwae, Desa Barat; Sumbawa Barat, Provinsi Nusa 05 Rendenao, Desa Colol dan Desa MHA Malind, Kampung Onggari, Kasepuhan Cirompong, Kabupaten Tenggara Barat; Bejang Mali, Kecamatan Pocoranaka, Distrik Malind, Kabupaten Merauke, 04 Lebak, Provinsi Banten. 05 Kabupaten Manggarai, Provinsi Nusa Provinsi Papua; MHA Berco (Cek Bocek Selesek Reen Tenggara Timur; Kasepuhan Karang, Desa Jagaraksa, Sury) di Desa Lawin, Kecamatan 03 MHA Wondama, Distrik Wondiboi dan Kecamatan Muncang, Kabupaten 06 Ropang Kabupaten Sumbawa, Provinsi Naikere, Kabupaten Teluk Wondama 05 Lebak, Provinsi Banten Nusa Tenggara Barat; Provinsi Papua Barat; 12 BACKGROUND 13

MHA Desa Pandumaan dan Desa MHA Dayak Iban Semunying Jaya, Desa MAP DISTRIBUTION 01 Sipituhuta, Kecamatan Polung, 01 Semunying Jaya, Kecamatan Jagoi Babang, Kabupaten Humbang Hasundutan, Kabupaten Bengkayang, Provinsi Kalimantan Provinsi Sumatera Utara. Barat. OF INDIGENOUS PEOPLES 02 MHA Semende, Dusun Lame Banding 02 MHA Masyarakat Hukum Adat Batulasung THAT PROVIDES INFORMATION Agung, Kecamatan Ulu Nasal, (Suku Dayak Meratus), Desa Mentawapan 01 MHA Matteko, Desa Erelembang, Kabupaten Kaur, Provinsi Bengkulu. Mculia, Kecamatan Menteweh, Kabupaten Kecamatan Tombolopao, Kabupaten Tanah Bumbu, Provinsi Kalimantan Selatan. Gowa, Sulawesi Selatan; IN THE PUBLIC HEARING 03 MHA Talang Mamak, Kecamatan Bukit Kulim, Kabupaten Indragiri Hulu, MHA Masyarakat Adat Ketemenggungan 02 MHA Tau Taa Wana, Posangke, Provinsi Riau; 03 Nanga Siyai, Desa Belaban Ella dan Desa Kecamatan Bungku Utara, Kabupaten ON 7 REGIONS IN INDONESIA Nanga Siyai, Kecamatan Menukung, Morowali, Sulawesi Tengah; MHA Suku Anak Dalam Batin Bahar, Kabupaten Melawi, Provinsi Kalimantan Barat. 04 Desa Bungku, Kecamatan Bajubang, MHA Karunsi’e Dongi, Kampung Kabupaten Batang Hari, Provinsi MHA Dayak Benuaq-Kampung Muara Tae 03 Dongi, Desa Magani Kecamatan Nuha, Jambi; 04 Desa Muara Tae, Kecamatan Jempang, Kecamatan Nuha, Kabupaten Luwu MHA Kepulauan Aru, Kabupaten Kepulauan Kabupaten Kutai Barat, Provinsi Kalimantan Timur, Sulawesi Selatan; 01 Aru, Provinsi Maluku. MHA Mukim Lango, Kecamatan Pante Timur. 05 Ceureumen, Kabupaten Aceh Barat, MHA Barambang Katute, Desa MHA Tananahu, Desa Tananahu, Kecamatan Propinsi Nanggroe Aceh Darussalam; MHA Janah Jari (Dayak Maanyan), Desa Janah 04 Barambang, Kecamatan Bonto Katute, 02 Teluk Elpaputih, Kabupaten Maluku Tengah, 05 Jari, Kecamatan Awang, Kabupaten Barito Kabupaten Sinjai, Sulawesi Selatan; Provinsi Maluku. MHA Margo Belimbing, Pekon Timur, Provinsi Kalimantan Tengah. 06 Pengekahan, Kecamatan Bengkunat, MHA Sedoa, Kecamatan Lore Utara, MHA Pulau Romang, Negeri Jaruhu, Kabupaten Pesisir Barat, Propinsi MHA Punan Dulau, Desa Punan Dulau, 05 Kabupaten Poso, Sulawesi Tengah 03 Kecamatan Pulau-Pulau Terselatan, Lampung. 06 Kecamatan Sekatak, Kabupaten Bulungan, Kabupaten Maluku Barat Daya, Provinsi Provinsi Kalimantan Utara. Maluku.

MHA Sawai, Desa Lelilef Sawai, Desa Sawai 04 Itepo, Desa Kove Gunung, Desa Woejerana 05 MEDAN (Kecamatan Weda Tengah) dan Desa Gemaf, Desa Sage (Kecamatan Weda Utara), 06 Kabupaten Halmahera Tengah, Provinsi 01 Maluku Utara. MHA Pagu, Desa Sosol, Desa Balisosang, Desa 05 Gayok, Desa Wangeotak (Kecamatan Malifut), 05 Desa Dumdum (Kecamatan Kao Teluk), 06 Kabupaten Halmahera Utara, Provinsi Maluku Utara. 04 PONTIANAK 06 MHA Tobelo Dalam, Desa Dodaga, Kecamatan 03 01 Wasilei, Kabupaten Halmahera Timur, Provinsi Maluku Utara ABEPURA 03 04 PALU 04 05 05

03 02 02 05 02 03 01 02 02 AMBON 04 06 RANGKASBITUNG 01

01 02-06 01 MATARAM 03 04 06 01 04-05 Kasepuhan Ciptagelar, Kabupaten 02 03 Sukabumi, Provinsi Jawa Barat. 01

Kasepuhan Citorek, Kecamatan Cibeber, Kabupaten Lebak, 02 MHA Daiget (Arso), Kabupaten Provinsi Banten. Keerom, Provinsi Papua; 01

Kasepuhan Cibedug, Desa Citorek 03 MHA Wolani, Mei dan Moni, 02 Barat, Kecamatan Cibeber, Kabupaten MHA Pekasa di Desa Jamu, Kecamatan MHA Golo Lebo di Desa Legur Lai, MHA Kemangkuan Tanah Sembalun Kabupaten Paniai, Provinsi Papua; Lebak, Provinsi Banten. Lunyuk, Kabupaten Sumbawa, Provinsi 01 04 Kecamatan Elar, Kabupaten 06 di Desa Sembalun, Sembalun Nusa Tenggara Barat; Manggarai Timur, Provinsi Nusa Simbagading, dan Sembalun Lawang, MHA Yerisiam, Kampung Sima, Distrik Kasepuhan Cisitu, Desa Kujangsari, Tenggara Timur; Kecamatan Sembalun, Kabupaten Yaur Nabire, Kabupaten Nabire, 03 Kecamatan Cibeber, Kabupaten Lebak, 04 MHA Talonang di Desa Talonang, Lombok Timur, Provinsi Nusa Tenggara Provinsi Papua; Provinsi Banten. Kecamatan Sekongkang, Kabupaten 02 MHA Colol di Desa Uluwae, Desa Barat; Sumbawa Barat, Provinsi Nusa 05 Rendenao, Desa Colol dan Desa MHA Malind, Kampung Onggari, Kasepuhan Cirompong, Kabupaten Tenggara Barat; Bejang Mali, Kecamatan Pocoranaka, Distrik Malind, Kabupaten Merauke, 04 Lebak, Provinsi Banten. 05 Kabupaten Manggarai, Provinsi Nusa Provinsi Papua; MHA Berco (Cek Bocek Selesek Reen Tenggara Timur; Kasepuhan Karang, Desa Jagaraksa, Sury) di Desa Lawin, Kecamatan 03 MHA Wondama, Distrik Wondiboi dan Kecamatan Muncang, Kabupaten 06 Ropang Kabupaten Sumbawa, Provinsi Naikere, Kabupaten Teluk Wondama 05 Lebak, Provinsi Banten Nusa Tenggara Barat; Provinsi Papua Barat; 15

Root Cause of Human Rights Violations Against Indigenous Peoples

ollowing the completion of public hearings in seven regions, the Commission of Inquiry found several root causations of human rights Fviolations related to indigenous peoples that began in the colonial period and continue until the present, as described in the following:

1. lack of legal recognition/status as indigenous people, which makes their legal rights/claims unclear or uncertain.

The absence of such recognition resulted in the absence of boundaries of indigenous territories and security of tenure. The problem is not only related to the non-recognition of control and ownership of indigenous peoples’ territories, but also to the absence of a legal system provided by the state to protect indigenous territories. This encourages the blurring of boundaries which de facto confers the determination of the state regarding the interpretation of security of tenure. Indigenous peoples’ knowledge regarding the location of boundaries of their communal forest is based on oral tradition (unwritten), which is not recognized by the Government, and so it arbitrarily treats any “forest” as “state forest”. Very few indigenous peoples have gained official recognition. In practice, local governments do not give recognition and some even expressly deny the existence of certain indigenous peoples. On the island of Sumbawa, the Talonang Cek Bocek people are not recognized as an indigenous people by the government. This uncertainty of the status of their adat territories requires them to deal with unilateral claims by the State and corporations that have economic and political interests over the territories.

14 Root Cause of Human Rights Violations Against Indigenous Peoples 15

2. simplification, where the problems for indigenous peoples concerning their rights over adat territories and forest resources is seen by government as nothing more than an administrative or legal problem.

Simplification of issues concerning MHA results in the neglect of the rights of indigenous peoples over their territories in the forest zone. It directly or indirectly encourages the Ministry of Forestry and companies to dominate over indigenous forest areas. Authorization by the government in the form of permits gives legality to the corporations to dominate all management of indigenous forests and to ignore their territorial claims. As a result conflicts continue to arise in all regions. Settlements of these conflicts are usually detrimental to indigenous peoples because of formal law enforcement priorities. If problems are addressed at all they are considered on a case by case basis, not as relating to a broader policy issue. This can be seen in the case faced by Kasepuhan Lebak community in West Java who has lived in the region since 1860. Since that time, they began farming and built a system of spatial planning and management of indigenous territories. In 1930 the region was classified by the Dutch authorities as a state forest, which subsequently became the Gunung Halimun National Park.

3. development policy promoting economic growth has given priority to granting exploitation permits to large-scale economic enterprises over indigenous territories, with the state apparatus and / or the security forces providing protection to the corporate interests (also in forest areas zoned for conservation).

State officials / security only act as law enforcement, not as a patron and protector of society to ensure the fulfillment of justice. Presidential Decree 63/2004 allows the use of the army and police as security for Vital National Industries (OVIN). Feuding over the legitimacy and legality of indigenous peoples’ claims to their territories has caused indigenous people to deal with Government and corporate license holders. This surfaced in public hearings in the case against Merauke Integrated Food and Energy Estate (MIFEE) in Papua. Almost all MIFEE activities are based on the exploitation of natural resources, while human rights impacts and environmental carrying capacity have not major considerations. We have already started to see tensions as a result of the implementation of the MIFEE project. The scale of neglect of public policy is demonstrated by Law 27/2007 and Law 1/2014 on the Management of Coastal Areas and Small Islands, which guarantee the existence and protection of indigenous peoples. The granting of licenses in forestry, farming, and mining in coastal areas and small islands did not consider the provisions on the indigenous peoples protection as intended by the 1945 Constitution, Law 39 of 1999 on Human Rights, Law 27 of 2007 and Law 1 of 2014 as well as relevant international instruments. 16 Root Cause of Human Rights Violations Against Indigenous Peoples 17

4. Inequity regarding the rights of indigenous women

Indigenous women not only face a lack or absence of recognition as members of indigenous peoples, but also a lack of concern about women’s issues within the context of a patriarchy and local customs. Thus, they experience a heavy burden in conflicts over natural resources and in the need to contribute to the family economy through the traditional forest territory economic activities as well as becoming day or seasonal laborers in dehumanizing occupations, for example rock mining. As women they face violations of their right to security, freedom from harassment, stigma, expulsion, persecution and criminalization, lack of access to information and the right to participate in making decisions within traditional patriarchal societies.

5. Vacancies in institutions with the authority to resolve agrarian conflicts and the mandate to resolve conflicts given to license holders, in which they have a conflict of interest.

Many forest tenure conflicts and human rights violations over the indigenous peoples’ territories in the forest zone have not been resolved due to lack of venues and under staffed agencies. No independent ministerial level agencies have been created with the authority and sufficient funding to resolve conflicts and human rights violations against indigenous peoples. Institutions that do exist to fulfil this role are limited in availability and accessibility. Access to claim settlement is through the District Courts, which for some people, especially villagers, has many barriers. Even where using the District Courts is possible, this is difficult administratively as the Ministry of Forestry is reluctant to release forest areas to communities. As has been demonstrated, many tenurial conflicts cannot be resolved by settlement schemes through institutions such as the National Human Rights Commission, Conflict Task Force Handling Forestry, and others. In 2004, Komnas HAM together with civil society proposed the establishment of a National Commission for Agrarian Conflict Resolution (KNuPKA), which was then approved by President Megawati but was not continued in the era President Susilo Bambang Yudhoyono, while its role was relegated to existing agencies. As a result conflict and human rights abuses continue to occur, especially based on the agrarian land and forests. These conflicts lead to many forms of discrimination, stigmatization and criminalization of indigenous peoples. 16 Root Cause of Human Rights Violations Against Indigenous Peoples 17

ROOTROOT CAUSECAUSE OF HUMAN RIGHTS VIOLATIONS AGAINST INDIGENOUS PEOPLES

Following the completion of public hearings in seven regions, the Commission of Inquiry found several root causations of human rights violations related to indigenous peoples that began in the colonial period and continue until the present, as described in the following:

Lack of legal recognition/status as indigenous people, which makes their legal rights/claims unclear or uncer- 01 tain.

Simplification, where the problems for indigenous peoples concerning their rights over adat territories 02 and forest resources is seen by government as nothing more than an administrative or legal problem.

Development policy promoting economic growth has given priority to granting exploitation permits to 03 large-scale economic enterprises over indigenous territories, with the state apparatus and / or the securi- ty forces providing protection to the corporate interests (also in forest areas zoned for conservation).

Inequity regarding the rights of 04 indigenous women

Vacancies in institutions with the authority to resolve agrarian conflicts and the mandate to resolve conflicts 05 given to license holders, in which they have a conflict of interest. 18 Root Cause of Human Rights Violations Against Indigenous Peoples 19

Table 1 Forms of acts, resulting conditions, and rights of MHA that are violated –

TABLE 1

Forms of acts, resulting conditions, and rights of MHA that are violated

No. TYPE OF ACT CONSEQUENTIAL CONDITIONS RIGHTS AFFECTED FOR MHA

01. Lack of government Uncertainty for MHA š The right to recognition as a recognition of MHA community as to their MHA customary rights. š Traditional Rights of MHA

02. Arbitrary takeover of Loss of source of livelihoods š The right to ownership indigenous forest areas š The right not to be deprived through the determination of arbitrarily the forest zone, the š The right to survival and designation of conservation improved living standards functions and through issuing licenses for utilization to other parties including concessions for logging, The loss of forest resources š Right to clean and healthy plantations, mining and / sources of clean and environment transmigration sufficient water

Loss of places of worship, š The right to free exercise of spiritual places worship and belief

Loss of places for traditional š Right to practice and take part cultural activities in traditional cultural activities

Loss of ability to educate š Right to education children (due to loss of resources and livelihoods)

The scarcity of herbs for š Right to enjoy a high standard traditional medicine of health. š Right to traditional knowledge

Difficulties to sustain life in š The right of children to be the village therefore raised, nurtured, cared for, indigenous women forced educated, directed and guided to work in urban areas as by a parent or family guardian domestic assistants and / or labor or as migrant workers abroad 18 Root Cause of Human Rights Violations Against Indigenous Peoples 19

The conflict between š The right to feel safe and secure indigenous peoples and the š The right to protection from government and / or threats to do or not to do corporations throughout something Indonesia over rights to territory in forest areas

02 The impact of changing š Right to traditional knowledge patterns of forest resource š The right to enjoy the benefits management on MHA systems of scientific progress and its for production, conservation and applications; control of agrarian resourc- es, thereby reducing MHA agricultural and conservation practices in their communal areas

03. Takeover of traditional The community is unaware š Right to information indigenous forests / forest that their communal land š The right to participate in sections without prior has been determined decision-making (including consultation/notification as (claimed) by the State to be women) affecting MHA to the purpose and state forest with certain š The right of MHA to prior implications of its use and prescribed functions and consultation and the right to without the full agreement uses. accept or reject a proposed (FPIC) of the MHA The community is unaware development that will affect concerned that their right to them, based on clear management over their information concerning the traditional territory has impacts on MHA been given to other parties (corporations, etc.).

04. Corporate insensitivity Horizontal conflict between š Right to feeling safe and secure to the community on the and/or within community š Right to obtain information part of corporations and / groups. š The right to participate in or government tending to decisions concerning MHA exacerbate tension with the community and create dissent

05. Intimidation Stigmatization as “PKI/ š Right to feel safe and secure DI-TII/OPM” etc. against š Right to protection from threats citizens and members of to do or not do something MHA who defend and fight for their rights. Citizens are afraid to peti- tion and defend rights over their traditional territory

06. Persecution Citizens who are persecuted š The right to freedom from for their rights torture or cruel, inhuman, or degrading treatment š The right to the protection of honor and dignity

07. Discriminatory behavior Limited access for MHA in š The right to obtain legal by the police, military the forest area is inversely certainty and equal treatment and government officials proportional to the benefits before the law against MHA corporations take through permits 20 Root Cause of Human Rights Violations Against Indigenous Peoples

08. Arrest / detention without Citizens arrested / detained š The right not to be arbitrarily warrant of arrest / deten- without understanding the arrested or detained tion without notice of the reasons and legal basis for š The right to compensation reason for arrest / deten- the arrest / detention because of errors in the arrest / tion without compensation arbitrary detention The family of a citizen who is arrested or detained is often not informed when their family member was detained

09. Law enforcement officials The absence of assistance š The right to recognition, deliberately allow MHA to by legal counsel for MHA security, protection, and fair be subject to legal members who undergo legal legal treatment processes without legal processes, due to the lack of š The right to obtain legal counsel. communication about their certainty and equal treatment human rights before the law š Right to legal counsel š The right to be informed about the right of every person to undergo trial and to be accompanied by legal counsel š The right to the protection of human rights and human free- doms without discrimination

10. The shooting of demonstra- The killing of members of š Right to life tors that resulted in deaths MHA during protest demon- š The right to freedom of and injuries (including strations expression in public permanent disability) MHA members fearful and š The right to assemble for did not continue peaceful peaceful purposes protest activities

11. The supervisor of the Lack of equal treatment š No violation of human rights of shooters who indiscrimi- before the law (Impunity) the victims per se, however the nately wounded and killed court decision obviously did not protestors was freed by the fulfill the sense of justice. court while the shooters were subjected to internal review without further legal action

12. Demolition / arson of MHA homes and possessions š The right to protection of self, dwellings and destruction destroyed, damaged and lost family, honor, dignity, and of personal possessions of property members of MHA

13. Alleged evictions and Displacement of a number š The right to freely move and forced displacement of indigenous communities reside within the territory of from traditional areas the Republic of Indonesia š The right to reside as well as a right to a decent life š Right not to be forcibly displaced 20

RECOMMENDATIONS

A. house of Representatives

As soon as possible, ratification of the Bill on the Recognition and Protection of Indigenous Peoples Rights (Bill on Indigenous peoples – RUU PPMHA). This is due to the need for the recognition of the existence and protection of the rights of indigenous peoples, and is mandated by the constitution.

B. President of the Republic of Indonesia

(1) Create an independent institution under the President with a mandate to: a) Prepare various policies and institutions that deal with the recognition, respect, protection and promotion of the rights of Indigenous Peoples; b) resolve conflicts over Indigenous Peoples’ land tenure, both horizontal and vertical, in forest zone; c) Formulate and implement remedies for Indigenous Peoples and citizens who have become victims of human rights violations and prevention of recurrence of human rights violations; d) review permits and policies related to the forest zone and former forest zone areas, including small islands and coastal areas, mines and plantations overlapping with Indigenous Peoples territories; e) examine the existence of sultanates in various areas that have the potential to increase complexities related to the recognition of Indigenous Peoples and their territory rights. 2) Facilitate acceleration of formulation of the Law on the Recognition and Protection of Indigenous Peoples’ Rights; 3) develop and take real, measurable and scheduled remedies for Indigenous Peoples rights violations and without delay fulfil the right to justice inherent to Indigenous Peoples. 4) resolution of cases of human rights violations and forestry tenure conflicts involving Indigenous Peoples in a comprehensive and cross-sectoral way across the nation. In this case, the President needs to explicitly restore the authority of the Ministry of

21 22 RECOMENDATIONS 23

Agrarian and Spatial Planning throughout the territory of the Republic of Indonesia and reposition the authority of the Ministry of Environment and Forestry on the environment and the management of forest resources; 5) Implement Constitutional Court Decision No. 35 / PUU-X / 2012 by the review and improvement of various laws and regulations that are non-compliant with the court’s Decision; 6) Improvement of the licensing system and policy determination of forest management for the prevention of corruption, as part of the Action Plan Memorandum of Understanding with 12 K / L on “Acceleration of Gazettement of the Forest Zone “ coordinated by Corruption Eradication Commission or KPK (since March 19, 2015 is referred to the National Movement for Saving Natural Resources, and includes 29 Ministries and Agencies). 7) Improve the licensing system for utilization of natural resources based on the principles of transparency, participation and accountability, including the principle of free, prior and informed consent (FPIC). 8) Accelerate the development of an information system for natural resources and the environment, including a single map to support implementation and development of natural resource management and environment policies. 9) ensure the disclosure of information on public documents, including: the Minutes Boundary Forest Zone Delineation (BATB – Berita Acara Tata Batas) with attachment maps, map designation and establishment of the forest zone (Penunjukkan dan Penetapan Kawasan Hutan); maps of Land Utilization Rights (HGU – Hak Guna Usaha); Mining Contract of Works (KK, Kontrak Karya); district/provincial spatial plans in a format which can be used for spatial analysis; Environment Impact Analysis (Amdal – Analisis Dampak Lingkungan) study reports; and any assessments by ministries and agencies on overlaps in licenses and designations with indigenous peoples territories. 10) Conduct a review of national government development plans for the Special Area of Papua based on the principles of respect and protection of human rights, using the spirit of the Act No. 21, 2001 on Papua Special Autonomy as a point of reference. Governments, churches and indigenous peoples need to work together to formulate a model of development in Papua that will resolve conflicts and respect the natural resources management rights of indigenous peoples, and eliminate the stigmatisation of Papuans who defend and fight for their human rights as political separatists. 22 RECOMENDATIONS 23

C. ministry of Environment and Forestry

Forestry Planning 1) Conduct an open consultation with indigenous peoples using a mutually agreed process, prior to the issuance or renewal of permits with an evaluation of the corporation’s activities affecting the territory indigenous peoples in the forest zone. 2) ensure the completion of a review and resolution of overlapping land rights before the issuance of any new permits to third parties; 3) redefine the “external” boundaries of the forest zone through the release of the residential areas, rice fields and other agricultural lands to non-forest status. 4) Assign “internal” forest delineation based on the function of forests and reinforce the boundaries between state forest and private forest, which includes indigenous/adat forests, according to the Constitutional Court Decision 34 / PUU - IX / 2011, No.45 / PUU - X / 2011, and No. 35 / PUU - X / 2012 ; 5) redefine the process for determination of the forest zone, so that the creation of forest zone boundaries and provincial spatial planning are conducted jointly by the central government and local governments together with indigenous peoples, and take into account the human rights of indigenous peoples and environmental carrying capacity, as well as designating “rural areas” (Kawasan Perdesaan) in accordance with the District Spatial Planning, mandated by Law No. 26/2007 on Spatial Planning. 6) review the concept of Nature Reserve Areas/Nature Conservation Areas (KSA-KPA) together with indigenous peoples, in order to develop community-based Conservation Area policies, as has been long discussed within Indonesia, and applied in many countries. . 7) ensure review and enact moratorium on forestry, mining and plantation permits that are problematic, illegal and/or ignore the rights of MHA in forest areas. 8) review and apply a model of cooperation between the government and the private sector in public service, management and securing forest areas by placing the main functions and roles with the government, while respecting the self-reliance of indigenous peoples. 9) ensure the participation of indigenous women in the formulation of public policy related to management of indigenous peoples territories in forest areas;

In Forest Management 10) Apply a moratorium of the issuance of forest utilization, conservation and management permits that overlap with indigenous peoples territories, and prioritize on resolve existing boundary conflicts between MHA and concession holders in a peaceful and equitable manner. 24 RECOMENDATIONS 25

11) Perform law enforcement efforts against companies suspected of violating the law and at the same time suspend all related company activities until identified violations are resolved. 12) establish a moratorium on new licenses and community activities, except traditional activities, until the completion of issues of overlapping land rights in the forest zone. 13) revise Government Regulation 44 of 2004 on Forestry Planning, Ministry Forestry (MoF) Regulation No. P.44/Menhut-II/ 2012 on Forest Zone Establishment and MoF Regulation No. P.62/Menhut-II/2013 on Amendment to the MoF Regulation Number P.44 / Menhut-II / 2012 on Forest Zone Establishment, based on the principles of respect and protection of human rights. Maps indicating indigenous peoples’ territories must be used as a reference to resolve overlapping land rights in the forest zone. 14) working closely with the Ministry of ATR (currently Ministry of Agrarian and Spatial Planning/Kemen ATR), Ministry of Public Works and Ministry of Home Affairs to accelerate the establishment and operation of Tim IP4T throughout the districts, referring to PP 44 of 2004 on Forestry Planning and Joint Regulation of the Minister of Home Affairs, Minister of Forestry of Indonesia, the Minister of Public Works and Head National Land Agency in 2014 about Land Tenure Conflict of Local Communities In the Forest Zone.

D. ministry of Home Affairs

1) working closely with the Ministry of LHK, Ministry of ATR, and Ministry of Public Works to accelerate the formation and work of Tim IP4T throughout the districts, referring to PP 44 Year 2004 on Forestry Planning and Joint Regulation Minister of Home Affairs, the Minister of Forestry, Minister of Home Affairs, the National Land Agency in 2014 about Land Tenure Conflict of Local Communities in the Forest Zone. 2) Publish a circular letter on the increase public services available by promoting the differences and needs of indigenous peoples, including indigenous women without discrimination. 3) revise Regulation No. 52/2014 concerning Guidelines on Recognition and Protection of Indigenous Peoples by considering religion of indigenous peoples, the position of indigenous women, and the principle of the special rights indigenous peoples. 4) ensure the main role and function of government in the areas of cooperation between the government and the private sector in the management and protection of the forest zone with orientation to the development of the Indigenous Peoples’ self-sufficiency. 24 RECOMENDATIONS 25

E. ministry of Maritime Affairs and Fisheries

1) revise Ministry of Marine and Fisheries Regulation No. 40 / Permen-KP / 2014 on Participation and Empowerment in the Management of Coastal Areas and Small Islands by integrating the principles of respect, protection and the fulfilment of the rights of Indigenous Peoples. 2) develop empowerment programs on Indigenous Peoples in small islands with reference to the principles of respect, protection and the fulfilment of rights of Indigenous Peoples. 3) ensure that the preparation of a Zoning Plan for Coastal and Small Islands is based on Indigenous Peoples rights approach and the preservation of ecosystems.

F. ministry of Agriculture and Spatial Planning

1) revise Regulation No. 9/ 2015 concerning Procedures for Determination of Communal Land Rights of Indigenous Peoples and Local Communities in Specific Regions, with reference to the principles of respect, protection and fulfilment of indigenous peoples rights including the customary rights of indigenous peoples. . 2) review the various licenses providing land rights, especially HGU, which overlap with indigenous peoples territories. 3) Take resolute action, including revocation of licenses, against actors abusing the rights of indigenous peoples to their customary territories. 4) Issue rules on “Rural Areas” (Kawasan Perdesaan) to accommodate territories of indigenous peoples in the District Spatial Planning (RTRWKab) both within and outside the forest zone in accordance with the mandate of Law No. 26/2007 on Spatial Planning. 5) working closely with the Ministry of LHK, Ministry of Home Affairs, and the Ministry of PU (currently Ministry of ATR) to accelerate the establishment and operation of Tim IP4T throughout the district, referring to PP 44 of 2004 on Forestry Planning and Joint Regulation of the Minister of the Interior RI, Minister of Forestry of Indonesia, the Minister of Public Works and Head National Land Agency in 2014 about Land Tenure Conflict of Local Communities in the Forest Zone. 6) encourage local governments to accelerate their recognition indigenous peoples and their territories. 26 RECOMENDATIONS 27

G. ministry of Energy and Mineral Resources

1) review and revision of the regulations at the district, provincial, and the national levels regarding mining activities that overlap with indigenous peoples territories. 2) encourage the development of resource management technology policies for energy and minerals to preserve the environment and respect Indigenous Peoples’ territories. 3) ensure the review of permits for problematic and illegal/non-compliant mining and those that ignore the rights of Indigenous Peoples in the forest zone and / or on small islands and moratorium for new permits.

H. ministry of Agriculture

1) review and revision of the rules and policies concerning large scale agriculture and plantations, including MIFEE, resulting in infringement of indigenous peoples rights.. 2) revise the regulations and policies for agriculture and plantations by integrating the principle of gender equality. 3) review plantation licenses and enforce a moratorium on operations for problematic concessions including those that break the rules and ignore the rights of Indigenous Peoples in the forest zone and its surroundings.

I. ministry of State-owned Enterprises (BUMN)

Create guidelines for State Owned Enterprises on respect and protection of Indigenous Peoples rights in accordance with the 1945 Constitution, the Law on Human Rights and other human rights instruments, including UNDRIP, as the basis for land-based State Owned-Enterprises (PTPN, Perum Perhutani, INHUTANI, ANTAM etc.)

J. ministry of Law and Human Rights

1) review and harmonization of regulations and policies related to control and management of natural resources based on the principle of respect for and protection of the rights of indigenous peoples including to their territories in forest zone. 2) revise PP 47 of 2012 on Social and Environmental Responsibility of Limited Liability Company to incorporate human rights principles and gender perspective, among others and promote the development and enhancement indigenous peoples’ capacity in participatory ways. 26 RECOMENDATIONS 27

K. ministry of Social Affairs

1) Conduct an audit of human rights and settlement of arrears problems as a result of the resettlement programs (Respen) and the remote indigenous communities program (KAT – Komunitas Adat Terpencil). 2) ensure implementation of Presidential Decree No. 186 of 2014 on Social Empowerment of Remote Indigenous Communities (KAT) with reference to Law No. 39 of 1999 on Human Rights and the UN Declaration on the Rights of Indigenous Peoples.

L. Ministry of Village, Development of Disadvantaged Regions and Transmigration

1) Conduct an inventory and settlement of arrears of land issues between the government and Indigenous Peoples; 2) redesign the to ensure that the allocation of areas for transmigration is free from land rights conflicts, forcible displacement of indigenous peoples, and does not result in disruption of culture roots of indigenous peoples.

M. ministry of Women Empowerment and Child Protection

Coordinate and ensure implementation of the recommendations for respect and protection of the rights of women in the various sectors related to Indigenous Peoples in the forest zone.

N. ministry of Health

Ensure the realization of health care, especially regarding the rights to maternal and child health in areas where there are Indigenous Peoples.

O. district/Provincial Government and Parliament

1) Conduct an in-depth study of the existence of Indigenous Peoples and their traditional territories by involving competent academics and other experts. 2) Accelerate the establishment of local regulations on the recognition of Indigenous Peoples and their rights over their territory. 3) determine regional policy on indigenous people’s participation, including indigenous women, in the process of spatial planning and forest areas boundary delineation so that the living space of indigenous peoples and their mobility is guaranteed. 4) review and revise the District Spatial Planning (RTRW – Kabupaten) to include “Rural Areas” (kawasan perdesaan). 28 RECOMENDATIONS

5) establish a special mechanism at the provincial and district levels for natural resource conflict resolution. 6) Immediately review all permits that have been issued related to forestry, mining, plantations and others given to corporations in the forest zone.

P. the Investment Coordinating Board (BKPM)

1) Integrate the principle of respect, protection and fulfilment of the rights of the indigenous peoples including the Free, Prior and Informed Consent (FPIC) in defining investment areas in the forest zone. 2) ensure that corporations carry out programs of corporate social responsibility (CSR) in order to support the fulfilment of human rights and the traditional rights of Indigenous Peoples in forest zone. 3) ensure respect for the rights of indigenous peoples in corporate activities that intersect with the territories and/or activities of Indigenous Peoples.

Q. national Police

1) establish a Police Chief Regulations on guidelines for handling disputes and conflicts over natural resources between indigenous peoples, the government and corporations, from a human rights and gender perspective. 2) Take forward the process of law enforcement that is accountable and without discrimination, namely prioritizing formally evidentiary material and substantive proof in handling conflicts involving natural resources indigenous peoples. 3) Increase the capacity of the Police to understand and respect the rights of indigenous peoples, their existence and legal pluralism, especially to police members tasked in relation to Vital National Objects or other areas of conflict over natural resources. 4) Avoid heavy-handed security approaches and instead promote dialogue with attention to the rights of indigenous peoples in environmental and forestry conflict resolution. 5) withdrawal of police forces from security details at corporations active in the territories of Indigenous Peoples.

R. indonesian National Military

1) The Indonesian National Military (TNI) Commander must follow up without discrimination on the reports about alleged acts by TNI members of intimidation and / or violence against indigenous peoples. 2) The withdrawal of military forces from the security details at corporations in the MHA areas. 28 ' . . - . - t)._ • • , ' ... ·�· • Annex II: Affidavits

Annex III: Maps

Map 1 The Customary Territory of Ompu Ronggur Simanjuntak within State Forest Area.

Sub-district Sipahutar, District North Tapanuli. Extent of Customary Territory: 971.72 Ha.

Legend:

Administrative Boundary

Boundary of Customary Territory

Road

River

Spatial Plan of Customary Territory

Customary Forest

Forest for getting timber

Cultivated Land

Land for Grazing Buffaloes

Settlement

Old village area

Boundary of Customary Territory

River

Map 2 Customary Territory of Ompu Ronggur Simanjuntak, Sub-district Sipahutar, North Tapanuli District. Legend as Map 1 with Location of timber harvesting (Lokasi Penebangan)

Map 3 Customary Territory of Ompu Ronggur Simanjuntak with State Forest Area, Sub-district Sipahutar, North Tapanuli District.

Legend

Boundary of Customary Territory

Road

River

Forest Areas North Sumatra 2017

Functions of Forest Areas

Protected Forest

Production Forest

Limited Production Forest

Production Forest for Conversion

Nature Reserve

Wildlife Reserve

National Park

Natural Tourism Park

People’s Forest Park Map 4 Customary Territory of Ompu Ronggur Simanjuntak with Industrial Planted Forest permit (HTI) of Toba Pulp Lestari Ltd. Sub-district Sipahutar, North Tapanuli District.

Legend:

Boundary of Customary Territory

Road

River

Industrial Planted Forest permit (HTI) of Toba Pulp Lestari Ltd Annexe 5: Ompu Ronggur statement of endorsement and support

Endorsement of Article 24 Representation concerning the Non-Observance of Convention No. 111 by the Republic of Indonesia

Having requested support to draft and submit the above referenced Article 24 Representation, which concerns the situation of our community;

Having met, discussed and verified the content of this Representation on 29 and 30 July 2019;

We, the elders and members of the Opu Ronggur Community:

1) Verify the accuracy of and endorse the content of the Representation.

2) Fully agree to and support its submission to the International Labour Organization, as soon as possible.

3) Urge the Governing Body of the ILO to declare the Representation receivable and to reach a decision on the merits.

4) Confirm that we require urgent protection for our rights, as guaranteed by Convention No. 111 and interconnected human rights law, as our survival is threatened by the acts and omissions of the Republic of Indonesia, as detailed in the Representation, and because we have no available or effective means of redress at the national level.

Signed on this the xxx day of xxxxx, 2019,

Annex VI: Supporting letters Forest Peoples Programme

1c Fosseway Business Centre, Stratford Road, Moreton-in-Marsh GL56 9NQ, UK tel: +44 (0)1608 652893 fax: +44 (0)1608 652878 [email protected] www.forestpeoples.org

STATEMENT OF SUPPORT

To the International Labour Organisation Dated: 9th August 2019

Concerning the Article 24 representation being made by SERBUNDO on behalf of the Toba Batak indigenous community of Ompu Ronggur under ILO Convention 111.

The following indigenous peoples, social justice and human rights organisations wish to convey to the International Labour Organisation their endorsement and support for the above Representation, which we consider has vital implications for the protection of the occupations of the indigenous peoples of the Indonesian Archipelago. By means of this communication we urge that the ILO gives this representation the most careful attention as soon as possible.

Aliansi Masyrakat Adat Nusantara – AMAN - (the Alliance of Indigenous Peoples of the Archipelago) is the national indigenous peoples’ organisation of Indonesia, with member communities from Nias in the west to Merauke in the east. It’s main office is located in Jakarta. (www.aman.or.id email: Rukka Sombolinggi [email protected] )

AMAN Tano Batak is the local chapter of AMAN based in Balige which provides direct support to the community of Ompu Ronggur and to the other Batak communities in North Sumatra to uphold their rights to their lands and livelihoods. (email: roganda simanjuntak [email protected])

Yayasan Masyarakat Kehutanan Lestari – YMKL – (Foundation for Sustainable Forest Peoples), based in Jakarta, is a national social justice organisation with supportive field projects with forest peoples in 7 provinces across Indonesia. (email: Emilianus Kleden YMKL [email protected])

Asia Indigenous Peoples Pact, based in Chiang Mai in Thailand, is the regional coalition of indigenous peoples’ organisations that promotes the rights of indigenous peoples across Asia and has special consultative status with the UN (ECOSOC). (https://aippnet.org/ email: [email protected])

Forest Peoples Programme is an international human rights organisation based in the UK with NGO consultative status at the UN (ECOSOC) which has a programme of support for

The Forest Peoples Programme is a company limited by guarantee (England & Wales) Reg. No. 3868836, registered address as above. UK-registered Charity No. 1082158. It is also registered as a non-profit Stichting in the Netherlands. Granted United Nations Economic and Social Council (ECOSOC) Special Consultative Status July 2010 forest peoples through local partners in 22 countries around the world including 10 provinces in Indonesia. (www.forestpeoples.org email: [email protected])

……………………………. Rukka Sombolinggi AMAN

…………………………….. Roganda Simanjuntak AMAN Tano Batak

…………………………….. Emilianus Kleden YMKL

……………………………. Kittisak Rattanakrajangsri AIPP

……………………………. James Whitehead FPP

STATEMENT OF SUPPORT To the International Labour Organisation Dated: 9th August 2019 Concerning the Article 24 representation being made by SERBUNDO on behalf of the Toba Batak indigenous community of Ompu Ronggur under ILO Convention 111. The following indigenous peoples, social justice and human rights organisations wish to convey to the International Labour Organisation their endorsement and support for the above Representation, which we consider has vital implications for the protection of the occupations of the indigenous peoples of the Indonesian Archipelago. By means of this communication we urge that the ILO gives this representation the most careful attention as soon as possible. Aliansi Masyrakat Adat Nusantara – AMAN - (the Alliance of Indigenous Peoples of the Archipelago) is the national indigenous peoples’ organisation of Indonesia, with member communities from Nias in the west to Merauke in the east. It’s main office is located in Jakarta. (www.aman.or.id email: Rukka Sombolinggi [email protected] ) AMAN Tano Batak is the local chapter of AMAN based in Balige which provides direct support to the community of Ompu Ronggur and to the other Batak communities in North Sumatra to uphold their rights to their lands and livelihoods. (email: roganda simanjuntak [email protected]) Yayasan Masyarakat Kehutanan Lestari – YMKL – (Foundation for Sustainable Forest Peoples), based in Jakarta, is a national social justice organisation with supportive field projects with forest peoples in 7 provinces across Indonesia. (email: Emilianus Kleden YMKL [email protected]) Asia Indigenous Peoples Pact, based in Chiang Mai in Thailand, is the regional coalition of indigenous peoples’ organisations that promotes the rights of indigenous peoples across Asia and has special consultative status with the UN (ECOSOC). (https://aippnet.org/ email: [email protected])

Forest Peoples Programme is an international human rights organisation based in the UK with NGO consultative status at the UN (ECOSOC) which has a programme of support for forest peoples through local partners in 22 countries around the world including 10 provinces in Indonesia. (www.forestpeoples.org email: [email protected])

……………………………. Rukka Sombolinggi AMAN

…………………………….. Roganda Simanjuntak AMAN Tano Batak

…………………………….. Emilianus Kleden YMKL

……………………………. Kittisak Rattanakrajangsri AIPP

……………………………. James Whitehead FPP Pengurus Besar Aliansi Masyarakat Adat Nusantara (PB AMAN)

A llllt

STATEMENT OF SUPPORT

To the 1 th 1nternati_onil Labour Organisation Dated: 9 August 2019

Concerining the Article 24 representation being made by SERBUNDO on behalf of the Toba Batak indigenous community of Ornpu Ronggur under ILO Convention 111. Thef oUowing ,indigenous peoples. social justice and human rights organisations wish to convey to the :international Labour Organisation their endorsement and support for the above Representation, which we consider has vital implications for the protection of the occupations of the indigenous peoples of the Indonesian Archipelago. By means of this communication we urge that the !LO gives this representation the most careful attention as soon as possible.

Aliansi Masyrakat Adat Nusantara- AMAN - (the Alliance of Indigenous Peoples of the Archipelago) ,s the national indigenous peoples' organisation of Indonesia, with member communities from Nias in the west tC> Merauke in the east. It's main office is located in Jakarta. {www.aman.•or.id email: Rukka Sombolinggi [email protected].,d )

AMAN Tano Batak is the local chapter of AMAN based in Balige which provides directsu pport to the com,munity of Ompu Ronggurand to the other Batak communities in North Sumatra to ·uphold their rights to their lands and Hvelihoods. (email: roganda simanjuntak ;:;�nda�,untak@yah oo.com)

Yayasan Masyarakat Kehutanan lestari - YMKL- (Foundation for Sustainable Forest Peoples), based in, Jakarta,is a national social justice organisation with supportive field projects with forest peoples in 7 provinces across lndonesia. (email: Emilianus Kleden VMKL emil.vmkl

Asia Indigenous Peoples Pact, based in Chiang Mai in Thailand, is the regional coalition of indigenous peoples' organisations that promotes the rights of indigenous peoples acrossAsia and has special consultative status with the UN (ECOSOC). (httos://aioonet.orW email: mail.com

1Forest 'Peoples Programme is an international human rights organisation based in the UK with NGO consultative status at the UN (ECOSOC) which has a programme of support for forest peoples through ,local partnersin 22 countries around the world including 10 provinces in Indonesia. (www.forestpeoples.org email: [email protected])

...... Rukka SombolinggiAMAN

...... Roganda Simanjuntak AMAN Tano Batak

---?...... ---� ···===- Emilianus Kleden YMKL

...... Kittisak Rattanakrajangsri Al PP

...... ,, -� .. _ . . . . .• . . . . James ·tehead FPP