Ompu Ronggur ILO111 Submission
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International Labour Organization Article 24 Representation Non-Observance of Convention No. 111 by the Republic of Indonesia Submitted by SERIKAT BURUH PERKEBUNAN INDONESIA (SERBUNDO) (The Indonesian Union of Plantation Workers) Jl. Garu VI No. 70 Medan, North Sumatra, 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 Indigenous Peoples 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 Batak, 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