Housing, Land and Property Advisor to the Global Shelter Cluster

HLP Scoping Mission Field Review Report

Central Sulawesi and West Nusa Tenggara 20th– 30th May 2019

Background On 29th July 2018, a 6.4 magnitude earthquake struck off Lombok, province of West Nusa Tenggara, Indonesia. Since then, four further earthquakes and multiple aftershocks have impacted the districts of North Lombok, East Lombok, West Lombok, Central Lombok and Mataram in addition to Bali and Sumbawa islands. BNPB estimated that 600 thousand people have been affected by the series of tremors, with over 85,000 houses listed as heavily damaged or destroyed and an even greater number mildly damaged, leaving hundreds of thousands of people in need of shelter and settlements assistance.

On 28 September 2018 a series of strong earthquakes struck Central Sulawesi Province. The strongest of which measured at 7.4 and was just 10km deep with its epicentre in Donggala regency, close to the provincial capital Palu. The earthquake triggered a tsunami whose waves reached up to three meters in some areas, striking Talise beach in Palu and Donggala. The earthquakes, tsunami and resulting liquefaction and landslides have caused significant damage and loss of life in affected areas. Areas affected by the earthquake, tsunami, landslides and liquefaction suffered extensive damage of buildings and infrastructure. An estimated 65,000 houses have been impacted, with approximately 10,000 houses lost in areas requiring relocations and a further 10-15,000 houses heavily destroyed in sites that may allow for reconstruction. It is estimated that more than 35,000 households were left in need of emergency shelter support for a shorter term.

The National Shelter Sub-cluster has responded under the National Protection and Displacement Cluster led by the Ministry of Social Affairs (MOSA). In support of MOSA, IFRC has deployed dedicated coordination support teams at the national level as well as in Palu and Lombok as part of their role as the global shelter cluster lead.

Request for HLP Support This mission was requested by the National Shelter Sub-cluster in early March 2019. In this deployment, the GSC HLP Advisor was joined by an IFRC Asia-Pacific Disaster Law Specialist. The deployment took place from the 20th to the 30th of May 2019.

Scope of the Mission The HLP Advice team - GSC HLP Advisor Ibere Lopes (IOM) and Asia Pacific Disaster Law Advisor Pauline Caspellan-Arce (IFRC) - were deployed to assist the Shelter sub-cluster to identify social and land tenure-related issues impacting the shelter response and suggest actions by shelter cluster partners to ensure increased tenure security for the affected population in the current recovery and on future responses. Specifically, as per the terms of reference, the HLP Advice team is expected to:

§ Conduct a field review of the main HLP issues affecting shelter and settlements response in the current disaster responses in Indonesia, with a focus on the responses in Central Sulawesi and West Nusa Tenggara;

§ Identify the core land tenure issues that may obstruct the provision of shelter and/or permanent housing assistance from both Government and Non-government actors; § Provide a roadmap for the development of a Shelter and Settlements HLP strategy outlining suggested actions (recommendations) that sub-cluster members or the ministry could undertake, or advocate for, to address HLP challenges and increase tenure security and access to shelter assistance for beneficiaries; and § Identify and work with a local organisations capable of providing continued assistance to the sub-cluster and its partners on the identified HLP issues.

Scope of this Report This Field Review Report presents the findings from the 10-day scoping mission of the HLP Advice Team to Jakarta, Palu and Lombok. In addition to the findings, it includes suggestions for next steps in developing an HLP strategy for the response and an account of the activities undertaken in-country by the team.

ToR Attached.

Findings 1. General considerations

1.1 Despite the Indonesian Government’s recent push for land certification1, only 38 million of the 80-100 million parcels in the country are registered2. The lack of one united national cadastral map creates confusion and overlapping between national, provincial and district levels and between the differing ministries and directorates involved in managing land title and land use permit related issues. A unified land cadastre is planned, but still incomplete and facing challenges3.

1.2 Land certification in and on itself is not sufficient to provide security of tenure. The rights acknowledge in property certificates can only be adequately enforced if there is rule of law, a functioning and updated land management system and an accessible dispute resolution mechanism. In addition, land certification can have adverse effects, such as the dispossession of communities holding land under customary tenure4. Community leaders can be co-opted to sign off communal land rights to third parties (e.g. companies with interest in exploring minerals and other natural resources).

1.3 Although no specific research has been found on this topic, discussions with shelter practitioners and a consultation of property records on the National Land Agency’s (Badan Pertanahan Nasional – BPN) website5 seems to indicate that land formalisation appears to be more prevalent in Central Sulawesi than in West Nusa Tenggara (NTB), largely due to a greater level of modern land allocation through the large transmigration programs in Central Sulawesi as compared to primarily customary land transfer and inheritance in Lombok.

1 President Joko “Jokowi” Widodo has announced a plan to issue 5-10 million certificates per year for the next 5 years: https://setkab.go.id/en/govt-to-continue-distributing-land-certificate-to-people-across-indonesia/ 2 Indonesia Land Governance Assessment Framework, WorldBank, 2016. 3 https://news.mongabay.com/2018/12/one-map-to-rule-them-all-indonesia-launches-unified-land-use-chart/ http://cadastraltemplate.org/indonesia.php 4 https://indonesiaatmelbourne.unimelb.edu.au/why-land-titling-isnt-working/ 5 www.atrbpn.go.id/peta-bidang-tanah

1.4 Informants in the visited provinces postulate that NTB is more culturally homogenous, with generational continuity and long standing communities, where residents feel confident relying on custom and tradition for land tenure security. Central Sulawesi is more culturally diverse, with a history of immigration and new settlers. Between 1979 and 1988, 161 Transmigration villages have been established in Sulawesi, more than any other region apart from Sumatra and Kalimantan6. Such an influx of culturally and historically diverse newcomers – and the political and social issues that ensued – contributed to creating an environment of poor social cohesion and mistrust, where residents prefer to rely on State mechanisms to secure their land tenure – hence the tendency towards formalisation.

1.5 This difference has implications for shelter practitioners. Procedures for land tenure verification in Sulawesi may include requests for formal certificates or for an “SKPT” (Surat Katarangan Pemilik Tanah – a letter from the village chief on the tenure status of the land); Verification in Lombok may need to consider alternative means of proof and be satisfied with partially of fully customary forms of tenure recognition.

1.6 The number of HLP issues identified in Central Sulawesi being higher than in NTB may be a consequence of the HLP Advisor having spent more time and done deeper field work in Palu than in Lombok. However, Central Sulawesi is facing a unique combination of underlying transmigration atop of customary ownership that is now compounded by disaster-related displacement and relocation of some households, which may explain the disparity on the number of HLP issues identified.

1.7 The findings below are not an exhaustive compilation of HLP issues in West Nusa Tenggara and Central Sulawesi. It is a list of the land tenure issues identified by the HLP team, in the limited time of the field assessment, that may have the potential to hinder the effective and inclusive provision of shelter and permanent housing assistance in the disaster response in these two provinces.

2. HLP Issues in Central Sulawesi and West Nusa Tenggara

2.1. Exclusion of the “tenure insecure”

“Tenure insecure” are those who do not hold ownership or equivalent formal land right, such as renters, or those who are hosted by extended or other families, or informal dwellers.

The Government housing subsidy program is primarily based on the idea that one household - with one land title and one damaged house - is entitled to only one assistance package.

Both Provincial governments’ approaches appear to indicate that any deviation or lack of ability to prove fulfilment of any one of these criteria has the potential to pose challenges to receiving government assistance.

Property owners are required to prove their title in order to qualify as beneficiaries of Government housing assistance whether through relocation assistance7 or onsite reconstruction subsidy assistance. Regional autonomy laws however mean that the exact approaches of each province on this requirement, however, can differ. Whereas Central Sulawesi authorities appear to have pledged to uphold a strict enforcement of the requirement, NTB agencies claim to have adopted a “no-red lines, more flexible approach”,

6 https://pdfs.semanticscholar.org/3f90/967a554b154e10137e7fdd8adae206398fe5.pdf 7 According to the housing assistance plan, households who have lost their house and cannot rebuild on site due to high risk will be allocated 50m2 of land and a two-room prototype house in a relocation site.

willing to accept alternative means of proof, and allegedly are more open to accepting informal owners as beneficiaries. Exactly how this pans out for individual households is yet to be seen and may vary across individual districts, as under district autonomy laws, implementation lies at the district level. There is a tendency for NGOs to inadvertently emulate this strategy and thereby failing to assist vulnerable families who may not be able to produce proof of ownership and end up unassisted.

In both provinces as in past disasters, there appears to be no provisions for affected renters nor assistance for landlords to replace lost rental housing stock. This is a more relevant issue in Palu, where more urban areas have been affected than in Lombok and where the national census shows a higher proportion of the population as renting.

There are a variety of cases where households that lost their homes in the disaster may not have had any formal right to the property. These include cases where: a household may have been living with extended family, in the same house (owned by the latter – see issue 2.2 below); living in a house as part of a work entitlement; living in a house or on land with consent and knowledge of the owner but no formal agreement. Those who have lost their papers may be able to retrieve duplicates. There is however no clear path for those who did not own their house (tenants, informal dwellers) or who did not hold formal title8.

2.2. Exclusion of multiple households in the same house

According to the government housing subsidy, If more than one household was living under the same roof, only one assistance package will be provided per house9. However, it is common for newly married couples to move in and live with their parents or in-laws (if the family home is large enough) or to build an adjoining house on the same land title of their parents/in-laws. In both cases a lack of formal separation of land title may affect these households entitlements’ to assistance, even if the small house provided in the government housing assistance program would be inadequate for these multiple households to co- inhabit.

The government’s challenge in such cases will be to adequately identify the legitimate need of multiple households sharing one home, and successfully distinguish them from cases where one single household possessed multiple buildings on the same land title and attempts to claim multiple sets of assistance packages (one per building).

2.3. Exclusion of dwellers of multipurpose and multi-tenant buildings

Government housing assistance packages do not appear to allow for assistance to households living in either multipurpose nor multi-tenant buildings. As an example, residents of one common form of housing across Indonesia, rukos ("rumah toko”, houses above shops), don’t seem to be contemplated in the government’s shelter assistance plan, regardless of tenure status (ownership, informal occupancy or rental). The rationale given for this omission was the “commercial nature” of rukos, and therefore the ineligibility of ruko dwellers to housing assistance.10 To date there also does not appear to be any consideration in government programs of multi-lease buildings such as apartments, or single land title villa or townhouse complexes. Again this is more likely to be an issue in urban areas such as Palu city.

8 Interview with Head of the Housing and Settlement Agency in West Nusa Tenggara, Ir. I Gusti Bagus Sugihartha, MT., 29th May 2019. 9 Interview with Provincial Secretary Drs. Mohamad Hidaya. Palu, Central Sulawesi, 27th May 2019. 10 Interview with Provincial Secretary Drs. Mohamad Hidaya. Palu, Central Sulawesi, 27th May 2019.

2.4. Loss of information sources on land tenure

Tenure - the relationship between a person and the land that she/he uses - can be established by several means, including a variety of paper records – land rights certificates (hak milik, hak guna bangunan, hak guna usaha, hak pakai, etc) but also sale and purchase contracts, lease agreements, tax receipts, identity documents, family card, etc) – as well as testimony from family members, neighbours, local elders, community leaders and local authorities.

Affected households may be able to obtain duplicates for some of the lost paper records, but this may require significant cost and or time particularly for those living far from administrative centres or where administrative centres are themselves affected or on overload. Human sources of information on land tenure could have perished or moved away and may not be available to be easily consulted when/if tenure verification is needed. Government and non-governmental organisations providing shelter/housing assistance should take into account the implications of the loss of information sources and more diverse options when planning the next steps of the response.

2.5. Disaster Law and risk of arbitrary eviction

Article 32 of the Law No. 24 of 2007 concerning Disaster Management (the Disaster Management Law) provides the government with broad powers to revoke or reduce a person's property rights as part of disaster management policy. The term 'disaster management' is defined to include disaster risk management and prevention, emergency response and rehabilitation. This means that the government’s police power extends beyond declaring “red zones” as a form of disaster prevention; it also includes the authority to evict households in areas that were initially considered safe for habitation, but are later on assessed as high-risk.

There is a right to compensation in the Disaster Management Law and in BNPB Regulation No. 3 of 2018 on the Rights of Internally Displaced Persons. But the broad government power and lack of due process safeguards increase the risk of arbitrary eviction. Guidelines for expropriating land, consultation with landowners in high-risk areas, community participation in risk assessments, and valuation of just compensation are lacking.

2.6. Land tenure in forest areas

Forests serve as a dwelling place and source of livelihood for the people of Indonesia. The forests of Central Sulawesi Province cover 4.4 million hectares, representing about 64% of the province’s total land area. Some 800,000 people live in and around the forest areas, making up 33% of the province’s population11. In NTB, state forest areas cover 35% of the land.

Inhabitants of forest areas face high tenure insecurity due to overlapping tenure claims, shifting legal framework and contradictory policies between national and provincial levels of government. Organisations working with communities located in and around forests have reported a renewed flare up of some of these conflicts after the disasters in both provinces12.

11 Indonesia Land Governance Assessment Framework, WorldBank, 2016 12 Meeting with NGO Samanta, Lombok, NTB, 28th May 2019.

These reports13 indicate that, as houses were destroyed and the forest population displaced, companies that claim concession rights to explore natural resources in the area are taking advantage of the disaster to take possession of forest lands, hampering return and rehabilitation efforts14. Conflicts over land and natural resources in forest areas precede the disaster, but shelter actors must be aware of the implications that such disputes may have when planning and implementing their interventions.

2.7. Coastal setback zone and land tenure

Law n. 27/2007 establishes that “a coastal setback is a land area along the coast with a width proportional to the shape and physical condition of the coast, at a minimum of 100 (one hundred) meters from the highest tide level toward the land area.15”

This strip of land along the coast is subjected to special restrictions16, which can be imposed by local government for a variety of reasons, including for: a) the protection against earthquake and/or tsunami; b) the protection of the coast against erosion or abrasion; c) the protection of coastal artificial resources from storm, flooding, and other natural disasters; d) the protection of coastal ecosystems, such as wetlands, mangrove, coral reef, seagrass beds, sand banks, estuary, and delta; e) public access; and f) access for canal and waste.

In order to protect these interests, local government are enabled by law to prohibit certain types of construction (or ban construction in certain areas), impose special building standards, disallow certain land uses and impose a wide set of restrictive measures. Despite such restrictions being in place, coastal neighbourhoods have flourished in both Central Sulawesi and NTB, with very little sign of enforcement or control.

As some of the coastal villages have been severely affected and its residents forced to relocate, there is a concern that authorities may take advantage of the displacement to enforce the coastal setback restrictions and forbid return and reconstruction in these areas17. The amplified authority of the State over coastal areas and the lack of clear rules and of enforcement consistency adds another layer of tenure insecurity for residents of these shoreside communities.

3. HLP Issues in Central Sulawesi

3.1. Unclear land tenure status in Red Zones

In Central Sulawesi, the Palu Disaster Hazard Zone Map has identified large areas in the province as “red zones” (ZRB4), such as Petobo, Balaroa, and Sibalaya, where the risk of earthquake, tsunami or liquefaction are the highest. In many cases these Red Zones extend well beyond the areas actually destroyed by the 2018 tsunami, land slippage and liquefaction events, and include houses that may or may not have been damaged. Many of the people that lived in some of the red zones have expressed their intention to return to the

13 High profile examples of tenure conflict in forest areas are the Rempek village (Lombok) and Poso regency (Central Sulawesi). Another recent land dispute involving farmers and mining concessions occurred in the Polanto Jaya village (Donggala, Central Sulawesi). 14Meeting with NGO Bantaya, Palu, Central Sulawesi, 27th May 2019. 15 http://ditjenpp.kemenkumham.go.id/arsip/terjemahan/42.pdf 16 Similar restrictions can be applied in riparian protection zones (strips of land along rivers). 17 Focus group discussion with fishermen in Sirenja, Donggala, 26th May 2019. 17 Interview with key informant from Cumi-Cumi, a coastal area heavily affected by earthquake and tsunami in Palu, 25 May 2019.

area and repair or rebuild their homes on the land that they used to occupy. In some coastal areas, for example, residents have already started to reconstruct their houses, with or without external assistance18.

In such cases, affected households do not have a clear understanding of the strength of their land tenure in the red zones, i.e. they cannot adequately assess the level of risk of eviction from the land19, and must make the decision to return (or not return) based on precarious assumptions. For many it is unclear if they would be either entitled to relocation assistance - if their house was not completely lost - or to reconstruction assistance, if they wanted to return. In many cases the disproportion of limited government assistance to the scale of their land and house loss may pressure households to return. While many households may have lost a house of over 100m2 or land of hundreds of meters, the proposed government assistance package of 50m2 land and a 36m2 house may provide limited incentive to those who are not forced to relocate.

Due to this lack of clarity, non-government actors also remain in doubt about how best to assist families living within these Red Zones.

3.2. Loss or repositioning of physical land

The lowering of the coastline through liquefaction or loss of land through tsunami erosion in some areas after the earthquake have caused an inland shoreline encroachment, submerging a number of land parcels in coastal villages. Liquefaction in and around Palu has provoked significant horizontal shifts in the position and shape of plots, some of which were rendered unidentifiable. These are cases where the land itself (and not only the house) has been lost to the disaster, posing legal and land management challenges to the government.20

The policy for holders of rights to land parcels loss to sea encroachment and liquefaction is unclear. Authorities are unsure if such rights will be nullified and if rights holders will be compensated for the loss of land, regardless of the existence and of the nature of any buildings on these lands before the disaster.

3.3. Precarious tenure in transitional shelter sites

In the rush to provide shelter to the affected population, humanitarian organisations have pursued a variety of arrangements to secure land for the construction of temporary relocation sites. As time passes, some of these arrangements are becoming weaker, leaving temporary shelter residents with increasingly uncertain tenure.

The main reasons contributing to the weakening of the land tenure in the temporary shelter sites are: absence of one party to the agreement (e.g. NGOs who initially negotiated the agreement and have since left the region or the country); expiration of the lease period (some leases were as short as 12 months and will therefore expire in November 2019); interruption of rental payment; and requisition by the landowner for private use.

The provincial government is aware of this risk and has proposed to step in and help renegotiate extensions with landowners on a case-by-case basis21. It is however impossible

18 Focus group discussion with fishermen in Sirenja, Donggala, 26th May 2019. 19 Interview with key informant from Cumi-Cumi, a coastal area heavily affected by earthquake and tsunami in Palu, 25th May 2019. 20 Focus group discussion with fishermen in Sirenja, Donggala, 26th May 2019. 21 Interview with Provincial Secretary Drs. Mohamad Hidaya. Palu, Central Sulawesi, 27th May 2019.

to know how effective these negotiations will be on a case by case basis as post disaster goodwill diminishes over time and landholders themselves try to recover now non- productive livelihood assets. Unsuccessful negotiations may lead to a further round of forced displacement.

3.4. Permanent relocation sites: unclear tenure regime

According to the Provincial government’s reconstruction strategy in Central Sulawesi, eligible households will be granted a 50m2 plot of land and a prototype house in a resettlement area. As per the plan, households will have full ownership rights to the property (hak milik). Pursuant to Indonesia’s land law (Undang-undang Pokok Agraria 5/1960 – the Basic Agrarian Act n. 5/1960), this type of land right is fully transferable (as long as the buyer is entitled to hold the right, i.e. not a foreigner) and is not time-limited.

Government authorities have expressed concern with the possibility that beneficiaries could sell their resettlement property as soon as they receive the hak milik certificate. Considering that some of these relocation houses are situated in areas far from established settlements and therefore distant from markets, basic services, transport networks and livelihoods, there seems to be reasonable grounds for such concerns. This has given rise to speculations that the transferability of the hak milik over resettlement land/houses may be restricted, or that other unique property rights arrangements may be granted instead of full ownership. If this is the case, this conditionality must be adequately communicated to potential beneficiaries, so that they can make informed decisions.

4. HLP Issues in West Nusa Tenggara (NTB)

4.1. Informal marriages and proof of tenure

According to UNFPA the issue of underage marriage in NTB is “an emergency situation” with over 31% of women currently aged 19 to 24 married under the age of 1822. As under age marriage is not legal under formal Indonesian marriage laws, these marriages are conducted through customary arrangements known as ‘nika siri’23. A lack of legal marriage certificate may affect entitlement HLP rights and entitlement to government assistance in a number of ways.

Informally married couples living on inherited land may have great difficulty in proving their status as a separate family, (especially if still underage) even if they live in a separate house. Houses and land purchased or inherited by an underage married household is commonly not formally registered in their names but rather as a second property in the name of their parents which then is unlikely to be entitled to assistance.

Surviving spouses who were informally married (i.e don’t have formal records of their marriage) are likely to encounter obstacles when trying to prove their rights to property if their husband/wife – who were the formal holders of the property title – is deceased or absent. The lack of formal records of a marital relationship can make it extremely difficult for the surviving spouse to prove his/her connection to the property24. This can effectively prevent an affected household to access housing assistance in the province. Authorities

22 https://indonesia.unfpa.org/en/news/child-marriage-ntb-alarming 23 Email exchange with UNICEF Indonesia Child Protection Specialist, Ali Aulia Ramly, 28th May 2019. 24 Interview with affected female-headed household, Lombok, NTB, 28th May 2019. The head of household was married informally and the now estranged husband was working overseas. According to the informants, half of the village received housing reconstruction assistance from government. She was not able to access government assistance for reconstruction and the family rebuilt the house themselves.

have acknowledged this issue, but were not able to indicate how an eligible beneficiary could proceed in such cases25.

Paper records on land tenure can take many forms: formal certificates, land sale contract, tax receipts, statements by local authorities, etc. Rarely these documents adequately include the names of both spouses as rights holders, and usually only the husband’s name features in the papers. In Indonesia, women’s rights to marital property are generally not registered.26 Such omission is ever more likely to occur when spouses are not formally married.

4.2. Absent spouses and proof of tenure

Households with an absent spouse also seem to be common in NTB due to the high rates of locals seeking work in neighbouring provinces or overseas. The province ranks number three in the country as source of overseas workers (behind only East and West Java)27. East Lombok, one of the most affected areas, is the region supplying the highest number of migrant overseas workers in the province. Many are also attracted to work in the neighbouring tourist areas of Bali or southern Lombok where they may or may not send remittances and or ever return.

When an overseas spouse is the property title holder, the wife or husband that remained in country can struggle to establish his/her connection and rights to the land/house, particularly if their marriage is not formally recorded. Many of the spouses left in country are women – NTB has the third highest figure of female headed households in the country, a situation largely attributed to overseas work by husbands28.

The issue of absent spouses, compounded with the high level of tenure informality in the province and the occurrence of informal marriages, will require government agencies and shelter practitioners to adopt flexible models of land tenure verification, allowing for alternatives means of evidence.

4.3. Girik and informal types of tenure

As mentioned in the general considerations of this findings, NTB seems to have a lower prevalence of land formalisation than Central Sulawesi. Affected households in NTB are not to be expected to hold formal certificates to their land or house.

Shelter practitioners and government agencies in charge of housing assistance are more likely to encounter informal – or quasi-formal – types of tenure, where households derive their right from continued possession, inheritance, previous land transactions, and tax payments. In Central Sulawesi these forms of less formal arrangements are now only common in more remote mountain areas, while in NTB informality is much more extensive aside from formal urban or designated tourist areas, where heightened land values have brought increased rates of formal land transfer and title,

25 Interview with Head of the Housing and Settlement Agency in West Nusa Tenggara, Ir. I Gusti Bagus Sugihartha, MT., 29th May 2019 26 https://www.land-links.org/country-profile/indonesia/ 27 NTB Manpower and Transmigration Agency 2014, via Jakarta Post: https://www.thejakartapost.com/news/2014/10/23/west-nusa-tenggara-people-relay-overseas-employment.html 28 Indonesian Women-headed households Association (PEKKA), 2014 survey via Jakarta Post: https://www.thejakartapost.com/news/2015/10/28/female-breadwinners-receive-support-escape-poverty.html

Girik tenure is common in NTB, where individual land plots within a village have not been formally recorded, and households use tax receipts (and sometimes a letter from the village chief – surat girik) as proof of their right to the land or house.

Some of the affected villages may not use the girik system and residents will not have paper records to prove their tenure. The provincial government is willing to accept girik-based paper records as proof of tenure, but is “still looking for a solution” for cases where affected households have no paper records for the property.29

29 Interview with Head of the Housing and Settlement Agency in West Nusa Tenggara, Ir. I Gusti Bagus Sugihartha, MT., 29th May 2019

Recommendations to the National Shelter and Settlements Sub-Cluster

RECOMMENDATION 1: Monitor potential tightening of tenure requirements for housing assistance and advocate for the inclusion of the tenure insecure

The Shelter sub cluster should monitor the government housing subsidy programme’s implementation, understand the land tenure requirements being imposed and advocate for criteria that includes the tenure insecure. If in the early disaster response relevant government agencies adopted a flexible approach when verifying land tenure (i.e accepting informal tenure arrangements and alternative means of evidence as sufficient to qualify as beneficiary of shelter assistance), this tends to change as the response transitions into recovery, reconstruction and the provision of permanent housing.

Government agencies will be required to invest more resources per household, which tends to incentivise stricter rules regarding proof of tenure by beneficiaries, as a way of decreasing the risk of assisting non-eligible households.

This potential tightening of tenure requirements may have the unintended consequence of leaving behind the most vulnerable affected households, which are the ones most likely to hold their property under informal tenure and have no paper records to prove their rights to the land.

RECOMMENDATION 2: Consider “strengthening land tenure” as a shelter intervention

Individual agencies and donors should consider funding and undertaking specific land tenure strengthening programs as part of their overall shelter response. There is renewed enthusiasm for land tenure security in the Indonesian government. President Joko “Jokowi” Widodo has given strong emphasis on land certification and has pushed for the titling of 9 million land parcels in 2019.

Strong tenure security gives households the confidence not only to invest in their shelter, but to invest in their future. It creates multiple positive incentives, including to rebuild better, repair, improve and make it more resilient to existing risks.

Strengthening security of tenure is not necessarily about full-fledged land titling programmes, which can be slow, expensive and have adverse effects. Land tenure security is incremental: small scale, village-level community mapping and recording of land plots, residents and tenure status, even if informal, can have a significant impact in mitigating risks of eviction and dispossession.

Recording tenure information – identify the land, the person and the nature of the relationship between them – is also useful as a preparedness measure. It is easier to assist residents of a disaster-affected village that has some type of tenure record than one that doesn’t.

Strengthening land tenure security is cost effective and scalable. Tenure strengthening projects are about data collection, data management, mapping, community engagement and – in some cases – legal assistance. There are no construction materials to procure and no bill of quantities to fulfil. Interventions that focus on strengthening land tenure should be part of shelter actors’ toolkit.

RECOMMENDATION 3: Establish a forum to discuss HLP

A national HLP forum with regular meetings and discussions should be created, meeting at both national and provincial levels to discuss ways to better address HLP issues. This is particularly important as the response evolves into recovery and reconstruction, land tenure issues will become increasingly relevant. Land issues that emerged during the emergency response phase (such as the ones mentioned in this report) should be taken into consideration in the recovery/reconstruction efforts.

Having encountered land tenure-related obstacles when implementing their projects, shelter actors are in a unique position to identify, discuss, record and seek solutions for these issues. The HLP forum can be established under the co-leadership of the National Shelter and Settlements Sub Cluster and the National Cluster for Displacement and Protection.

A thematic forum – a “technical working group” or an “HLP forum” – helps to focus on issues that otherwise may be forgotten or dealt with individually by the organisation facing them, without broader discussion for coordination and learning. It would also provide a platform to develop targeted responses to HLP-specific obstacles and invite non-shelter or non- emergency actors to provide inputs and ideas (see “Recommendation 5”).

RECOMMENDATION 4: Appoint an HLP Focal Point within the Shelter and Sub Cluster

The Shelter Sub cluster should look to appointing a specific member agency or individual as the National HLP focal point. Ideally the focal point should be from one of the organisations that are active members of the cluster. He or she does not need to be an HLP specialist. His/her role will be initially to: a) be the repository of land tenure-related issues emerging in the cluster discussions; b) identify and map out relevant organisations working on land issues; and c) identify the HLP resources available to cluster partners. The cluster should seek backing from donors and agencies to support this full time position over the coming year.

RECOMMENDATION 5: Engage with institutions and organisation that work on land issues

The National Shelter and Settlements Sub Cluster should connect with Government agencies and non-governmental organisations that have experience working on long- term land tenure issues. Indonesia has a rich constellation of actors that work on land issues, from activists to titling contractors; government agencies and development banks; lawyers and academics. Shelter and emergency practitioners seldom engage with them, even though they frequently hold information that can be valuable to our work. The Shelter sub cluster can benefit from identifying these actors, understanding the type of land tenure- related activities that they have participated in, and gaining access to the knowledge and information on HLP issues that they have amassed. Establishing an HLP Focal point, an HLP Forum or working group could facilitate the interface with these organisations and help to facilitate their involvement with the work of the Shelter sub cluster.

Some of these actors include:

The National Land Agency (Badan Pertanahan Nasional or BPN). The government agency responsible for administering non-forest land. The BPN has offices at the national, provincial, kabupaten and kota levels of government.

The World Bank in Indonesia. One of the leading international actors in housing, land and property issues. The institution was involved in major land certification initiatives in Indonesia and has solid body of accumulated knowledge on land governance in the country.

UNDP. The agency will be involved in recovery/ reconstruction initiatives in Central Sulawesi and has an interest in engaging with shelter partners on HLP issues30. It would be important to assist the agency and its partners in developing a strategy for dealing with land tenure issues in the recovery.

NGOs. Most high profile NGOs working on land issues are focused on land reform, with an advocacy perspective. They can however be valuable resources as repositories of information on customary land tenure, existing land conflicts, and government land policies.

National Level:

§ Konsorsium Pembaruan Agraria (KPA): Consortium for Land Reform. https://www.kpa.or.id/news/profile/ § Jaringan Kerja Pemetaan Partisipatif: Community Mapping Network www.jkpp.org § Indonesian Institute for Forest and Environment http://rmibogor.id/

In Palu

§ Perkumpulan Bantaya31: Legal assistance on forest tenure to communities around Palu Contact: Martje Leninda [email protected]

In Lombok

§ Aliansi Masyarakat Adat Nusantara (AMAN): Indigenous Peoples Alliance of the Archipelago. Focuses on customary land rights of indigenous people. http://www.aman.or.id/

§ Samanta Foundation. Focuses on customary land rights in forest areas. http://samanta.id

RECOMMENDATION 6: Develop an HLP Strategy for Shelter and Settlements

The National Shelter sub-cluster and or Protection cluster should develop a National HLP strategy on shelter and settlements. In emergency response, HLP issues usually come as an afterthought. By the time shelter actors begin to encounter land tenure obstacles, proposals have been approved, funding has been committed and policies are already in place, frequently without proper consideration of HLP implications.

Having an HLP strategy in place allows the cluster to take early measures to mitigate tenure risk and to bring land tenure issues into focus at the beginning of the response. The HLP strategy doesn’t need to be a stand-alone document – it can be an HLP component within the overall shelter cluster strategy.

30 Meeting with UNDP in Palu, Central Sulawesi, 27th May 2019. 31 In the local Kaili language, Bantaya is the traditional hut where issues are discussed and resolved

At this point in time, several months after the initial response and entering into recovery, shelter actors have faced a significant amount of land tenure-related challenges that can inform the development of the HLP strategy for future disasters.

An HLP strategy should be as context specific as possible (and – as mentioned in this report – Central Sulawesi and NTB present relevant difference in tenure practices) and should include considerations on:

1. Understanding the context This includes understanding the tenure regime and practices at play in the affected areas, as well as mapping out available sources of information on tenure (district/provincial level BPN, village chief, community elders, neighbours, CSOs, etc). Early assessments should include information on tenure status (informal, adat, girik, formal, etc).

2. Developing Tenure Verification Procedures The procedure to verify tenure - i.e to identify who has which type of right to a plot of land – will vary according to the context and to the intervention planned. The higher the investment (for example a new transitional shelter site), the more thorough the verification should be. Contexts where formal tenure is expected (such as in Palu kota), will require a verification procedure that includes certificates or paper records. The full tenure verification procedure doesn’t need to be developed in the HLP strategy, but the strategy should mention the need for a procedure and establish guiding principles. One of these principles should be the pursuit of a “secure enough tenure”, i.e. seeking the highest degree of certainty that is possible in the context.

3. Accepting uncertainty No form of land tenure security is absolute. In Indonesia, even a hak milik certificate holder with decades of peaceful possession can have their title overturned by a court challenge. Specially in the contexts where shelter actors usually operate, security of tenure – defined as the degree of certainty that a person will not be evicted from his/her land – can be difficult to assess with accuracy. The risk that someone will be evicted, even after we have conducted tenure verification and were satisfied that the right-holder was correctly identified, is always present. The existence of this risk must be acknowledged by shelter actors and properly communicated to beneficiaries and donors.

The HLP Advice team can support the cluster in the development of the HLP strategy.

RECOMMENDATION 7: Collect data on HLP early on in the emergency

All future Shelter and Settlement assessments should include the gathering of HLP specific data. Early damage assessments and intention surveys can and should be used to gather data on tenure status. Knowing how many of the affected households are property owners, renters, ruko or informal dwellers can help shelter actors better target their interventions and make sure that the “tenure insecure” will not be left behind. IOM’s Displacement Tracking Matrix (DTM) has been playing a crucial role in Indonesia gathering early data in affected areas immediately after disaster events. DTM surveys and enumeration could be used to gather tenure data that can be used to inform shelter cluster approaches on land tenure and help government agencies in crafting the HLP component of their shelter/housing policies. Other assessments such as the ECB JNA and the REACH assessment should also be requested to include clear tenure related questions.

RECOMMENDATION 8: Use and disseminate Indonesia HLP Research Memo

The IFRC Indonesia HLP Research Memo should be translated, shared as a draft and updated then disseminated to provide initial guidance to all Shelter and Settlement actors in Indonesia. International Federation of the Red Cross and Red Crescent Societies (IFRC) and the Australian Red Cross (ARC) have developed a research memo to provide quick and key information of the legal and procedural context relating to Housing, Land and Property in Indonesia. Prepared by an international law firm with help from local lawyers and organisations, the memo presents an overview of land tenure in Indonesia, including formal and informal types of tenure regimes, common practices, and institutions responsible for land management. It is a valuable tool for shelter practitioners and can serve as a quick reference guide on HLP issues. A copy is available on the Global Shelter Cluster website: https://www.sheltercluster.org/hlp (“Indonesia HLP profile”).

Recommendation to the National Cluster for Displacement and Protection

RECOMMENDATION 9: Protection cluster to take an active role in engaging with HLP issues

The National Cluster for Displacement and Protection should take the lead on land property issues and support other relevant clusters, including shelter, wash and CCCM. Housing, Land and Property is one of the key areas of responsibility of the Global Protection Cluster. As such, national protection clusters and cluster-like structures are expected to play a significant role in identifying these issues, seeking context-specific solutions, engaging with relevant government and non-governmental actors involved in land tenure matters, supporting other clusters, and building in-country capacity on HLP.

Annex 1: Assessment Activities

1. Jakarta Date Activity

May 20 Shelter cluster team meeting

May 21 Meeting with Catholic Relief Services

May 21 Briefing for IFRC Jakarta and Timor Leste Country Cluster Support Team

May 22 Briefing for Ibere and Pauline

May 22 Meeting between Ibere and Pauline

May 23 Meeting with pak Asep Firdaus, environmental NGO Epistema Institute

May 24 Meeting with KEMENSOS; briefing, official letter on field trip Palu/Lombok

May 24 Briefing for shelter cluster partners: IOM, OCHA, UNICEF and other INGOs

May 24 Meeting with IOM on DTM, operations in both responses

2. Palu Interview with W., community leader from affected coastal village in Palu kota (Cumi-Cumi May 25 village) | visit to transitional shelter site

May 25 Site visits: earthquake and tsunami affected areas in Palu

Focus group discussion with affected community in Donggala: fishermen village, not willing to May 26 relocate, no fear of tsunami, rebuilding on site

Site visits: liquefaction site (Balaroa); planned resettlement site with prototype home and May 26 demarcated land plot

May 26 Meeting with Andrew Benham, Save the Children Shelter Technical Advisor for Central Sulawesi

May 27 Meeting with UNDP: HLP in debris removal | recovery and reconstruction

May 27 Meeting with Provincial Secretary Drs. Mohamad Hidaya

May 27 Meeting with NGO Perkumpulan Bantaya: forest tenure

May 27 Workshop with Central Sulawesi Shelter Cluster partners

3. Lombok May 28 Discussion with female-headed household: girik tenure, absent spouse

May 28 Meeting with NGO Samanta: forest tenure, legal and community services

May 28 Meeting with Shelter Cluster focal point/NTB Dinsos , Chandra Aprinova

May 29 Meeting with Head of the NTB Housing and Settlement Agency Ir. I Gusti Bagus Sugihartha

May 29 Meeting with Lombok cluster partners

4. Jakarta May 29 Debrief with Shelter Sub-cluster

Annex 2: Terms of Reference Terms of Reference for HLP Support to the National Shelter and Settlements Sub-cluster For the Emergency Response in Lombok and Central Sulawesi

Background On Sunday 29 July 2018, a 6.4 magnitude earthquake struck off Lombok, province of West Nusa Tenggara, Indonesia. Since then, four further earthquakes and multiple aftershocks have impacted the districts of North Lombok, East Lombok, West Lombok, Central Lombok and Mataram in addition to Bali and Sumbawa islands. BNPB estimated that 600 thousand people have been affected by the series of tremors, with 85,000+ houses listed as heavily damaged or destroyed and an even greater number mildly damaged, leaving hundreds of thousands of people in need of shelter and settlements assistance. On 28 September 2018 a series of strong earthquakes struck Central Sulawesi Province. The strongest of which measured at 7.4 M earthquake and was just 10km deep with its epicenter in Donggala Regency, close to the provincial capital Palu. The earthquake triggered a tsunami whose waves reached up to three meters in some areas, striking Talise beach in Palu and Donggala. The earthquakes, tsunami and resulting liquefaction and landslides have caused significant damage and loss of life in affected areas. Areas affected by the earthquake, tsunami, landslides and liquefaction suffered extensive damage of buildings and infrastructure. An estimated 65,000 houses have been impacted, with aproximately 10,000 houses lost in areas requiring relocations and a further 10-15,000 houses heavily destroyed in sites that may allow for reconstruction. It is estimated that more than 35,000 households were left in need of emergency shelter support for a shorter term. BNPB puts the total cost of material damages at USD 910 million. The National Shelter Sub-cluster has responded under the National Protection and Displacement Cluster led by the Ministry of Social Affairs (MOSA). In support of the Ministry IFRC has deployed dedicated coordination support teams at the national level as well as in Palu and Lombok as part of their role as the global shelter cluster lead. These teams are assisting the provincial Department of Social Affairs staff to coordinate the contributions of the more than 200 non-government actors providing shelter assistance. This coordination support function is firewalled from the ongoing shelter contribution of PMI which is also being supported by IFRC in both responses. Social Impact of Housing, Land and Property (HLP) on Shelter and Housing Recovery Globally the Shelter Cluster has become aware that unaddressed HLP issues can seriously impact on the shelter and housing recovery of the affected population, resulting in drawn out negative social impact for years after a disaster. To help reduce this impact in global disasters the Shelter Cluster has appointed a fulltime HLP advisor, with the mandate to deploy to major disaster responses and provide advice on how best shelter actors and coordination teams can reduce the negative impacts of HLP issues The aim of the proposed mission is for the Global Shelter Cluster HLP Advisor to analyse the potential negative social impacts that communities may face in Central Sulawesi and Lombok/Sumbawa disasters. The team will then provide guidance to the Ministry led Shelter Sub-Cluster Coordination team and through them to Shelter Sub-Cluster members on how best to comprehend and navigate the uniquely complex informal and legal context that affected households may be facing and how best to assist within these context. It is highly likely that for some affected families sources of information on land tenure may have been lost, including property documents, official records, and the memories of the deceased in the disaster. The destruction of buildings, erasure or movement of boundaries or buildings caused by the seismic activity, tsunamis and liquefaction compound the problem, likely posing new challenges to the Government and humanitarian actors. Globally in shelter and settlements disaster response interventions, the group most likely to receive assistance are affected property owners with clear land title certificates. This is commonly the case because it is easy to verify that they have a clearly determined loss and land on which to build both temporary shelter and later permanent housing. Confusion over how to assist those with unclear HLP right, can result in increased social impact and delayed recovery. This is often the case for groups such as impacted renters, landlords, or those with unclear or informal title, as well as informal dwellers who despite having the same basic need as those with clear land title, may require different shelter assistance. For these groups returning to their original home or a new relocation site may depend heavily on the will of others (landlords, Government etc), and this in itself may require some support or guidance from agencies assisting them. HLP Mission in Support of the Shelter and Settlements sub-cluster The Global Shelter Cluster supports national clusters with technical expertise drawn from a global stand-by team. A roving HLP Advisor, seconded by the International Organisation for Migration (IOM), is part of this support team and can be mobilised at the request of national shelter clusters. The HLP Advisor’s role is to assist

partners with strategies to address land tenure obstacles to the implementation of shelter interventions and help develop processes to increase tenure security in the context of conflict and disaster response. In this mission to Indonesia, it is hoped that the global HLP Advisor will be joined by a regional IFRC Disaster Law specialist to both bring and to build additional expertise in disaster response in the region. Objectives The HLP Advice team will work in coordination with the Shelter sub-cluster and its members, below the Ministry of Social Affairs (MOSA) and other sub-clusters of the Protection and Displacement Cluster, as part of the IFRC led Shelter Sub-cluster Coordination Support Team to achieve the following four goals: § Conduct a field review of the main HLP issues affecting shelter and settlements response in the current disaster responses in Indonesia, with a focus on the responses in Central Sulawesi and West Nusa Tengara § Identify the core land tenure issues that may obstruct the provision of shelter and/or permanent housing assistance from both Government and Non-government actors; § Provide a roadmap for the development of a Shelter and Settlements HLP strategy outlining suggested actions that sub-cluster members or the ministry could undertake, or advocate for, to address HLP challenges and increase tenure security and access to shelter assistance for beneficiaries § Identify and work with a local organisations capable of providing continued assistance to the sub-cluster and its partners on the identified HLP issues.

Note: All advice provided will be reviewed by the Ministry-led Shelter Sub-Cluster team prior to broader distribution. Pre-deployment - Development of ToR for the HLP Support Mission with sub-cluster co-leads (March 2019) - Remote engagement with sub-cluster partners to discuss land tenure issues encountered in the response (March 2019); - Desk study on land and property institutional framework and tenure practices in the affected regions; - HLP Survey to collect information on land tenure problems and solutions from partners (April 2019); - Initial steps to identify potential in-country HLP partners, with the potential of working with them while in country.

Deployment to Indonesia - Initial briefing with sub-cluster support team and relevant ministry staff in Jakarta - Consultation with sub-cluster partners and other relevant actors in Jakarta, including IFRC, IOM, UNICEF, potential HLP partners - Travel to Sulawesi for consultation with Provincial Authorities, DOSA staff, shelter actors, and other relevant stakeholders in Palu - Travel to Lombok for consultation with Provincial Authorities, DOSA staff, shelter actors, and other relevant stakeholders in Palu - Presentation on initial findings and Debriefing with MOSA and Shelter Sub-cluster in Jakarta Post-Deployment - Remote discussion with sub-cluster partners on the HLP Field Review Report - Presentation to sub-cluster of the HLP Strategy Plan