Migration and Property in Mangrove Forest: the Formation And

Migration and Property in Mangrove Forest: The formation and adaptation of property arrangements of the Buginese in an open access delta in Mahakam, East Kalimantan, Indonesia

Myrna A. Safitri

Abstract By defining local property arrangement as internal rules of the games used by people whose no property rights to protect their land claims and resource utilization, this paper discusses how migrants have invented and adapted their property arrangement in a de facto open access tropical delta in Mahakam, East Kalimantan. Unique due to its diversity of mangrove species and specific geological formation, the Mahakam Delta has been facing devastating mangrove destruction. The Delta land is designated as state forest areas; however, it is open access since pre-colonial times. In such a situation, migrants, mainly the Buginese, have occupied the land. This paper aims to explore the relationship between migration and the formation of property arrangement and semi-formal property rights. Migrants are more vulnerable than indigenous people in the sense that they have not been able to establish their community property rights and the state does not grant them with legal rights. As such, they have to bargain with street-level officials to seek for semi- formal rights by accepting any written documents provided by these officials to confirm their land claims. The case study of the Mahakam Delta migrants conceptualizes that property rights evolve from property arrangement. Migration and de facto open access regime are the formative elements of such property arrangement. This paper describes types of local property arrangements related to land, sea and river in the Mahakam Delta; how these arrangements have emerged; how migration and state regulations related to these arrangements; what the main conflicts of interests between stakeholders are, how these conflicts related to the property arrangements crafted by the migrants and how the changes of livelihood have influenced these arrangements. Keywords: Property rights, sustainable livelihood, migration, open access regime

1. Introduction Mahakam Delta is one of the unique tropical deltas in the world. Its diversity of mangrove species and specific geological formation constitutes to such unique. Since several decades, Buginese of South Sulawesi have been migrating into this area. This paper aims to analyse how the Buginese migrants have developed their property arrangements in mangrove environment in the Mahakam Delta, East Kalimantan. Much social research has been carried out in the Mahakam Delta. Some explain competition and conflicts among stakeholders (Hidayati et al, 2006, Baten, 2009, Timmer, 2011). Another discusses socio-economic changes in the delta communities (Laumonier, Bourgeois, and Pfund, 2008, Sanjatmiko n.d, Lenggono, 2011). The other relates stakeholders’ conflict with the excessive degradation of mangroves (Sidik, 2009). Few of Delta studies, however, describe socio-legal analysis of law implementation and competing state institutions that affect to the competition of land and degradation of forest. The study of Simarmata (2012) was one of that few. In addition to this, I have found no studies that describe relationship between migration and the formation of property arrangement and property rights in the Mahakam Delta.

1 This paper is based on the findings of my post-doc project under a research cluster namely “Linking Forests with Marine Systems: Investigating developmental, biological, legal and economic ties across scales in East Kalimantan (ForMIdable)”.1 The research questioned what local property arrangements related to land, sea and river in the Mahakam Delta are; how these arrangements have emerged; how migration and state regulations related to these arrangements; what the main conflicts of interests between the main stakeholders are, how these conflicts related to the property arrangements crafted by the migrants and how the changes of livelihood have influenced the property arrangements. I divide this paper into nine parts. After this introduction, in section two we discuss relevant concepts to describe the relationship between migration and property arrangement. Then, in section three we can be briefly informed about historical, social and environmental aspects of the Mahakam Delta. Section four focuses on the conversion of mangroves into shrimp ponds. It describes also the dynamics of shrimp ponds business as the major livelihood of the delta people during 1990s-to first quarter of 2000s. Sections five to seven discuss property regime changes, the emergence and invention of property arrangement and people’s strategy to legalize their land claims. Then, in section eight, description is focussed on the impact of the decline of shrimp pond economy toward peoples’ livelihood. More importantly how the livelihood changes influence the emergence of new property arrangement. Lastly, section nine concludes and provides some policy recommendations.

2. Migration and property arrangement Property rights can be conceptualized as any enforceable rights to undertake particular actions toward specific things (Commons in Ostrom and Hess, 2008:11). The normative system of the state or community is the legitimate source of property rights. Instead of property rights, we need to consider another concept that can explained the situation where people without property rights have developed their internal rules of the games to claim and utilize resources. This report uses the term property arrangement to describe such a situation. Migration is one of the formative elements of property arrangement. The key word ‘people without property rights’ in this report is generally attached to migrants. In the beginning, migrants who voluntarily come to their new land do not have any property rights either coming from the state or the community in those areas. To be survival they have to create their own rules in order to protect their land claims and utilization. However, the rules can only be applied in open access areas. It means that migrants cannot create their property arrangement if they live in areas where the state or the community property regimes are effectively implemented. These migrants usually follow the rules of the state or the community. Nevertheless, this is not the case where the areas are de facto open access. They can be part of de jure state property regime; however, they become open access due to among others less control of the state and ineffective law enforcement (Fitzpatrick, 2006a:1000). The migrants have more opportunity to bud their property

1 This is a multi-disciplinary research project funded by the Royal Netherlands Academy of Arts and Sciences (http://www.knaw.nl/Pages/DEF/27/272.bGFuZz1FTkc.html). I was part of a research cluster organized by the Van Vollenhoven Institute, Leiden University. I am grateful to Professor Jan Michiel Otto and Professor Gerard Persoon of Leiden University who supervised this research. I am thankful for Jan van Olden and Dennis Janssen who managed this project; also to my colleague, Rikardo Simarmata and my research assistants, Akhmad Wijaya and Helminsyah. 2 arrangement in such areas. When the migrants’ claims and utilization of resources have taken place for longer time, they can craft their own community property regime. Property rights can be derived from this regime. If the state legalizes these rights they can be part of state property regime. Here we can see that property rights are dynamic. It can evolve from property arrangement. In this sense, migration as one of the formative elements of property arrangement constitutes such a dynamic.

3. Mahakam Delta: The people, environment and law Consisted of 46 small deltaic villages, the Mahakam Delta was formed by long-term deposition of suspended soils came from the upstream of Mahakam River that flowed to the Makassar Strait through the Delta (map 1). The mixture of freshwater from the river and salt water from the sea constitutes various species of mangroves grown on deltaic islands. The largest parts of the islands are Nypa (Nypa fructians) vegetated areas. In 2000, it is estimated that 60,000 hectares of nypa found in around 150,000 hectares of the whole small islands in Mahakam Delta, then made it the largest number of nypa areas in the world. Hundred species of fish can be found in the mangroves (Sidik, 2009: 2-4).

In addition, the Delta contains rich oil and gas. A state-owned oil corporation, Pertamina, holds a concession on oil and natural gas in this area but the daily operators are some foreign companies such as PT. Total Indonesie and VICO. Both companies have operated in Mahakam since 1970s. PT. Total Indonesia is a French company, and PT VICO, -Virginia Indonesia Company, is a US company. Total conducts offshore oil mining in Makassar Strait, and VICO mines natural gas in the mainland Mahakam. The Mahakam Delta is located in the administrative territory of the District of Kutai Kartanegara There are five sub-districts (kecamatan) with several villages whose areas part of the Delta (see table 1).

3 Table 1. Population of the Mahakam Delta sub-districts 1990-2008

Sub- Population Villages/urban quarters districts in the sub-district 1980 1990 2000 2008

Samboja 22,294 30,944 35,944 51,336 Muara Sembilang Muara Jawa Muara Kembang, Taman Pole, Dondang, Muara Jawa Ilir, 11,429 16,692 19,995 28,359 Muara Jawa Tengah, Muara Jawa Ulu.

Sanga- 9,893 10,318 11,294 15,016 Sanga-sanga Muara, Pendingin Sanga Anggana Tani Baru, Kutai Lama, Muara Pantuan, Anggana, Sepatin, 10,521 12,884 18,372 28,756 Sungai Meriam, Handil Terusan

Muara 12,583 20,793 26,450 37,583 Saliki, Muara Badak Ulu, Badak Muara Badak Ilir, Salopalai

Source: Kabupaten Kutai Kartanegara dalam Angka 2009, cited in Bengen, Sarjono and Muhdar, Delta Mahakam: Kawasan strategis dalam perspektif lingkungan hidup serta urgensi pengelolaannya secara terpadu dan berkelanjutan-Naskah Akademik.

In pre-colonial times, the Delta was a territory of Kutai Sultanate. Founded in 14th century, the Sultanate had placed their capital in one of Delta villages namely Kutai Lama. In 19th century, the Buginese who came from other parts of Kalimantan coastal areas entered the Delta (see box 1 for the history of Buginese’s migration to East Kalimantan). A treaty of peace between the Sultanate and the colonial government was signed soon after the Dutch conquered the Kutai Sultanate in 1884. This enabled the Dutch to explore natural richness in the Sultanate’s territory, including in Mahakam Delta. A Dutch engineer, J.H. Menten, for instance, in 1897 found an oil field. He did the first offshore oil drilling in the Delta on the basis of a concession granted by the Sultan of Kutai. In 1902, Menten transferred his concession to Shell, then in 1909, Bataafsche Petroleum Maatschapij (BPM) also found oil fields in another Delta villages (Lenggono, 2011:92; Simarmata, 2010: 121). The Sultanate of Kutai did not intensively oversee their Delta territory. Limited security personals were the main reason of abandoning the Delta. However, in pre-colonial times, Orang Bajo resided in the Mahakam Delta and identified themselves as the natives. Orang Bajo have been mostly known as sea-voyagers in several parts of Indonesian archipelago. A literature said that they came from Sulawesi. However, the Buginese do not consider them as part of their ethnic group. (see, e.g. Dick-Read 2005). The Orang Bajo in Delta said that they obtained permission from the Sultan of Kutai to use natural resources in Mahakam Delta. In the past, they lived on their boats and did fishing on the sea. The second group who resided in the Delta was the Buginese. Their first settlement was located in a village namely Pemangkaran placed nearby Sepatin village in Anggana Sub-district. Previously, the Buginese arrived in the east coast of Kalimantan, in a place

4 named Taleke that is currently located in the District of Paser. A treaty between VOC and the Sultan of Gowa in Sulawesi namely Bongaya Treaty raised protests among the Gowa people. Those who were reluctant to follow the treaty went to Taleke. Their second generation migrated to the Mahakam Delta (Lenggono, 2011:100). The Buginese settlers were Delta fishermen. Shrimp was the major commodity they looked for. Since these Buginese have lived in East Kalimantan for generations, they sometimes consider themselves as the native as well, or else, they identify themselves as ‘Buginese from Kalimantan’ (Bugis Kalimantan, Kalimantan Buginese). This aims to contrast them with other Buginese who came later from Sulawesi who called by the Kalimantan Buginese as Celebes Buginese (Bugis Sulawesi), The Kalimantan Buginese built their settlements in the coastal or banks. Most villages in the Mahakam Delta now were originally their settlements. The third big wave of migration took place in 1950s to 1960s. It was the time when the Buginese from Sulawesi directly went to the Delta. They identified themselves as refugees (pelarian). A rebellion of Darul Islam/Indonesian Islamic Army headed by Kahar Muzakar in South Sulawesi was the factor. When Indonesian Army successfully fought the rebels, most Muzakar proponents left Sulawesi heading to East Kalimantan. Not only to Mahakam Delta, the refugees also landed to other places such as in a place between Samarinda and Balikpapan called Loa Janan. They cleared forest land and converted it to pepper fields (Vayda and Sahur, 1985: 95-7). In 1970s, oil companies started operating. This increased labour demand. Buginese not only from Sulawesi but also form other parts of East Kalimantan and Javanese came to meet the companies’ need. In the same time, East Kalimantan developed its fishery industry. Cold storages were built in mainland Mahakam. A join venture Japanese- Indonesian company, PT Misaya Mitra, operated in 1974 in the capital of Anggana Sub- district, Sungai Meriam. In 1978, a national company, PT Samarinda Cendana Cold Storage followed. Both companies exported fish and shrimps from the Mahakam Delta and Makassar Strait. Local fishermen became their suppliers (Sidik, 2009, Lenggono, 2011). The fishermen equipped themselves with various fishing catch technologies, but mini trawls were their most favourite particularly for those who had more capital and became prominent suppliers of the cold storages. In 1980, Indonesia’s Government gradually banned the use of trawls. The President enacted Presidential Decree 39/1980 for this purpose. In 1982, a Presidential Instruction (Instruction 11/1982) was released to totally ban the use of trawls in all countries’ sea (Lenggono, 2011:123-5). To adapt to the policy of trawl ban, the rich fishermen tried several efforts to sustain their livelihood. Some of them started converting mangrove to shrimp ponds. Key informants in my research stated that in early 1980s there were local officials introduced them about shrimp aquaculture. These officials built shrimp ponds model in some Delta villages such as in Sepatin and Muara Pantuan. The model was part of the central government project of developing intensive aquaculture. However, the project that was called Intam (Intensifikasi Tambak) was not successful in Mahakam Delta. People were not interested in developing the ponds at that time.2 Intam project failed but it had introduced new information and knowledge to the Delta settlers another way of utilizing mangrove forests. In 1998 to early 2000s, people particularly rich fishermen did massive cleared of mangrove forests, and converted them to

2 Interview with former head of Provincial Fishery Services in Samarinda (8-2-2012). 5 shrimp ponds. High export price of shrimp was the main factor. But, the high price as people perceived took place due to unstable Indonesian economics that had made devaluation of Indonesian rupiah toward US dollar. During that time one US dollar reached IDR 20,000 (now the rate is only IDR 9,500). In short, the success story of Delta shrimp farmers reached Sulawesi. Some of the farmers were newly rich person who controlled the shrimp business in Delta. They called as ponggawa. Then, groups of Sulawesi Buginese went to the Delta. Most of them worked as land clearers of the Kalimantan Buginese. Later on they found their own ponds and invited their relatives/friends in Sulawesi to come. In the mid 1990s, the Sulawesi Buginese lived mostly nearby the shrimp ponds. Now, they live in the same villages with the Kalimantan Buginese or the Orang Bajo. Instead of the Buginese, there were also Banjareese from South Kalimantan who cleared the land, particularly in the villages of Saliki and Muara Kembang. They have been residing there since pre-colonial times. Unlike the Buginese who cleared the land for ponds, the Banjarese prefer to utilise the land for their dry paddy field and agroforest gardens. The Banjarese of Saliki and Muara Kembang were known as major suppliers of coconut to Samarinda in the past. Javanese are the other ethnic group migrated to Mahakam Delta. They came to the Delta generally for work in land clearing of mangrove in mid 1990s. Coming mostly from East Java: Kediri, Lamongan, they have been employed by the Buginese. They live nearby the shrimp ponds by building cottages on their employers’ land. In addition to this, there are also Javanese who work for the oil companies and do interaction as well with other Delta settlers. The Buginese dominate ethnic groups in the Mahakam Delta. They were the pioneers of shrimp farming in this area. Such a farming activity is actually illegal. Most of the delta land is state forest. Forest Land Use map in East Kalimantan that was resulted as an agreement between related government agencies (Tata Guna Hutan Kesepakatan, TGHK) in 1983 placed Delta area as production forest. Then, in 1984, Agriculture Minister and Forestry Minister signed a joint decree of prohibiting fishing in mangrove forest.3 Ten years later, East Kalimantan had a provincial regulation on spatial planning (Provincial Regulation 12/1993). The regulation produced a map of harmonizing the forestry (TGHK) map and the map of provincial spatial plan. Areas previously categorized as production forests in TGHK map are called forestry-cultivation zone (Kawasan Budidaya Kehutanan, KBK). Recently, the provincial government of East Kalimantan is reviewing the Spatial Plan Regulation. A draft of new regulation has been being discussed in Provincial Parliament. The draft categorizes Delta Mahakam as a provincial strategic zone (kawasan strategis provinsi). This zone is created to protect the environment of the Mahakam Delta (Safitri and Muhajir, 2012). The history of the Mahakam Delta has proven that it is a de facto open access territory. Since the time of the Sultanate of Kutai to present, government has not effectively controlled this area and enforced their law consistently. The natural richness of Delta has been attracted migration leading to multi-ethnic Delta society. But, Buginese are the most dominant group in number and in their economic power. The potential oil in the Delta becomes a pulling factor for the operation of big foreign companies. In the situation

3 Further reading about law and policies applied in the Mahakam Delta see Simarmata (2012) and Lenggono (2011). 6 of less government’s control, all the resource users in Mahakam Delta have developed their own ways to protect their property. In section 5 we will discuss how the Buginese have invented and applied their property arrangement. Before, section 4 provides us with the dynamic of Buginese’s shrimp farming and its impact to the sustainability of mangrove forest in Mahakam Delta and to people’s livelihood. 4. The golden and dark ages of shrimp-pond economy Mentioned earlier, the shrimp booming in Mahakam Delta started in the mid of 1990s, particularly in the period known as krismon (krisis moneter, monetary crisis). It was the time of instable economic of the country leading to the weakening of national currency towards US dollar. Consequently, export price of Delta shrimp ‘increased’. The golden period of shrimp farming was in late 1990s. People in tani Baru and Muara Pantuan recognized it as the era of President Habibie. Habibie is comes from South Sulawesi. The Buginese in Mahakam Delta were proud of him greater than other Indonesia’s presidents. The highest migration wave of the Buginese took place during this period. Either coming directly from Sulawesi or in-migrated from other places of East Kalimantan, they contributed to the population booming in the Mahakam Delta during the last of 1990s to the mid of 2000s. Table 1 indicated that figure. Census data taken in 2000 and in 2008 showed the significant increase of Delta population. These migrants hunted for land to be used as shrimp farming on the cost of mangrove destruction. These people excessively cut the mangroves and rapidly changed the Delta landscape (table 2). Table 2. The changes of landscape in Mahakam Delta 1982-2003

Types of landscape 1983 1994 2003

Mangroves 1,279 km2 949 km2 0,865 km2 Non-mangroves 459 km2 672 km2 3,874 km2 Sea 2,116 km2 2,687 km2 8,002 km2

Source: Ambarwulan, Hartini and Cornelia, 2006:18. Most informants in Muara Pantua, Tani Baru and Saliki agreed that they coild not depend on their shrimp ponds for their major livelihood. They had failed in many harvest seasons. Shrimps were destructed due to disease or the decrease productivity of ponds. They expressed this situation by saying that working on shrimp ponds now is ‘sakit’ (literally sick, meaning causing much loss). I observed many ponds were abandoned. People let their ponds inactive. Many of the shrimp farmers changed their livelihood such as to be fishermen, to build palm-oil plantation or to build other shrimp ponds in other Delta such as in Berau (see section as further detailed in section 8).

5. The dynamic of property regime Most of deltaic Mahakam islands are production forests that are de jure under the Ministry of Forestry’s authority. Yet, as we concluded in section 3, the land in reality is open access. Theories of property rights believe that such a regime consists of individual private property, community property, state property and open access.

7 Ostrom and Hess (2008:7-8) detail that open access has three forms. The first is that refers to the concept of res nullius as applied to open seas and atmosphere. The second open access is that emerges due to the government policy that states certain areas or resources can be openly accessed. The last is open access that is resulted by government’s inability to enforce their property rules. This leads to de facto open access over de jure state property regime. Ostrom and Hess then add that government has created state property regime by nationalizing community property regime. They show that the changes of property regime follow this line: from community property to de jure state property and finally to de facto open access. The dynamic of land tenure in Mahakam Delta partly confirms Ostrom and Hess’s concept of property regime changes. The current de facto open access in this area is a result of the government’s failure to enforce their law and to implement all the law in harmony. Nevertheless, what has happened in Mahakam Delta indicates another line of property regime change. Literature on Mahakam Delta always started the history of land tenure as the Kutai Sultanate’s territory (Sidik, 2009, Lenggono, 2011). We cannot assume, however, that the Sultanate’s property was community property. The Sultanate was a traditional state, not a community, who controlled people and their land on the basis of conquering or voluntarily subjection of the people. As such, the Sultanate’s property that was originated from the land of the people is not community property. By community property, I mean as rights held by a community, its sub-groups or members over certain resources. The rights may consist of ‘communal rights’ a community exercises over its common property or its whole territory, ‘collective rights’ of sub-groups, and ‘individual rights’ of community members (Safitri, 2010:25). It is clear at this point that Mahakam Delta in 14th century was a Sultanate property, not community property regime. Then the next question is which community resided and utilised land in Mahakam Delta prior to 14th century? Unfortunately, this research as with other research on Mahakam Delta is not able to track information about the pre 14th century land tenure. Some key informants I found stated that the Delta was empty land. For now, I agree to that conclusion that Mahakam Delta was res nullius, another type of open access regime. Afterward, the Delta was formally under the Sultanate’s property regime but empirically was open access. Then, it transformed into de jure state property regime, again with de facto open access. 6. Property arrangement and semi-formal land tenure De facto open access has been the fact of property regime along the history of Mahakam Delta. In such a situation, as stated in section 2, migrants protect their land claim by establishing their property arrangement. The arrangement forms as internal rules of the games among Delta settlers who have not hold property rights yet to claim and utilize resources. The Buginese, either came from Sulawesi or other parts of East Kalimantan, have the same way of land claim. They entered the Delta in groups headed by a person who was like a big man. Several factors made the man had power to control his members. The first is because he covered travel and living costs of his members to come to Delta. Then, he had good connection with local authorities, particularly village heads in the Delta. He also had physical power to force his members to follow his rules. Lastly, he was respected person due to his position as senior relative of his members. The groups claimed the land through various processes. One group asked for permission from village heads before looking for the land. Another group hunted the land, 8 asked for permission and started clearing the land. The other directly cleared the land and obtained permission later. These Buginese explored river and coastals in Mahakam Delta to hunt land for shrimp farming. They usually looked for nypa-vegetated land since it was easier to clear than other types of land. The bigger the nypa tress found on the land, the better land claim on it. The big nypas indicate that no one has reached the land, or else the land has been abandoned for longer period. After finding the land, they put wooden sticks to mark the beginning and the end of their claims. The big man then divided the land to all members who then individually cut trees on the land, dug the land, and built earthen dam as the borders of their land. In their local language, people said the land as their ‘rintisan’ literally meant as ‘pioneering work’. This term strengthens them as the first possessors (see Rose, 1985). These individual claims ended when the claimant could not continue cutting mangroves because of their physical handicaps. The earthen dam is actually temporary borders. If the claimants find no one claim the land, he can continue expanding trees cutting and make newer dam as his new pond borders. The dams can be a hand-digging or excavator-digging one. Ponds made in 1980s had hand-digging dams, but those made in 1990s mostly made by excavator (the local term is ‘beko’). The usage of excavator led to higher value of the ponds. Considering that pond-making was time and energy consuming, the Buginese had trick to make the process faster and easier. Rather than digging all soil, they made small drains in outer borders of the pond, let freshwater flow in, finally submerged the whole soil in the pond. They said that it was their way to faster land claim. Rather than saying that this sort of land claim is traditional knowledge, I believe it as an invention of the Buginese. Being pond farmers were new profession in Mahakam Delta. Not all of the Buginese were fish-pond farmers or fishermen in their home land. Many were peasants. But, in Mahakam Delta they had to seek for the most efficient ways to get land. The pond-making trick as stated earlier was a sort of their invention to achieve control over open access land as much as and as fast as possible. The Buginese settlers perceive the claimed land as their individual ownership. It leads to their exclusive access to resources and freedom to transfer the land either permanently or temporarily. Permanent transfer occurs in the case of pond sales and temporarily transfer is like pond rental, lend-use and production sharing. Most transactions were carried out informally between both parties: the owner/the seller and the user/the buyer. Some used written receipts. There were few who reported the transaction to village heads. The Delta villagers do not craft any rules to prohibit pond sales or to restrict the sales only to certain people such as those live in the same village with the pond owner. Free ponds transaction commonly happen in Mahakam Delta. The same rules applied to pond rental. Pond owners can rent theirs to anyone, including outsiders. Production sharing takes place if the pond owners allow someone to utilize their pond and share the production of shrimp to them. Common formula of sharing is one third for the owner and two third for the users. For abandoned ponds, the owner sometimes agrees to let others use the ponds. Both bind themselves in a lend-use informal agreement. There is no obligation for the users to share shrimp production. Sometimes they do so as a matter of respect for the owners. Rich shrimp farmers employ labourers to manage their ponds. They are newer migrants either came from Sulawesi or Java. This group built their shelters nearby ponds. Having no ponds and no housing land in the village settlement places these labourers on the lowest social status.

9 Pond owners protect their property by using the ponds intensively and placing persons to oversee. Yet, making village heads informed about the existence of their ponds and indicate their oral or written consent could make the ponds claim stronger. Prior to 1990s, the village heads issued letters known in local language as surat garap or segel to declare the truth of land claim. These letters had various forms. In 1995, Governour of East Kalimantan instructed to uniform the format named Surat Pernyataan Penguasaan Tanah (SPPT). This letter states that the name holders are the users of state land. According to Indonesian land law (e.g. Government Regulation 24/1997 on Land Registration), the SPPT is not a formal evidence of land ownership. It is a land certificate that should be the recognized evidence. In practice, however, land certificate is very rare found. This is not because the Delta villages are remote from the centre of government offices of Kutai Kertanegara District. Yet, land registration has not been carried out for the whole land parcels in East Kalimantan. In cities like Samarinda and Tenggarong, people mostly use SPPT to prove their land ownership. The enthusiasm for getting SPPT in Delta villages indicates that in the later stage, the Buginese tried to legalize their land claims over the shrimp ponds. They realize that their land claim is legally insecure but land certificate is unreachable. For middle-upper class of shrimp farmers as I found in my visit to Muara Pantuan and Saliki villages, the SPPT becomes their interim strategy to obtain land certificate. For most ordinary farmers, it is the only option for getting state’s recognition. The SPPT has been a medium to change informal land tenure to semi-formal land tenure. By semi-formal tenure here is meant land tenure of the people that has not been recognized as formal land rights as stated by the land law but it has been validated by any written documents provided by government officials that state the truth of the subject and object of the land tenure.4 This document is semi-formal because it has been derived from the forefront government officials but lack of formal validity according to national land law (Fitzpatrick, 2006b:15).

7. The late enforcement of forestry and spatial planning law and its impact to the SPPT Undoubtedly, SPPT is an important instrument of Delta settlers for getting legal security of their shrimp ponds. Nevertheless, the status of SPPT as semi-formal document of land ownership does not fully protect the people. In my field visits to Muara Pantuan, Tani Baru and Saliki in last quarter of 2011, I found people’s unease to the newest district government policy of ending the issuance of SPPT in Mahakam Delta. The fact that most land in the Delta is located in forestry-cultivation zone (KBK) is the reason of this policy. But, the district or sub-district government and the forestry services never clearly informed the people about the borders of the KBK zone. Certainly, the policy of ending the SPPT’s issuance was shocking for the Delta villagers and their head of villages. In the village of Saliki, for instance, people had sent protest letters to East Kalimantan governor, the head of Kutai Kertanegara district as well as to provincial and district parliament.

4 Cf. Reerink (2011:15) who defines semi-formal tenure as “colonial adat ownership rights (hak milik adat), of which the legal conversion to BAL-recognised primary rights has not yet been validated, but which can be validated on the basis of documentation and other evidence”. In this research, the SPPT as an evidence of semi-formal land tenure does not always refer to adat ownership rights but to any people’s land claims (defined by Reerink as informal land tenure) that has been validated by government officials in any forms of written document. 10 Not only that the KBK zone was not informed to them, people’s protest to KBK in Saliki also raised because the borders of KBK showed to them later by the District Forestry Services were on location where the oil company, VICO, operates. As such, people’s land nearby the location could not be granted SPPT. Villagers whom I met were suspicious of the KBK zone-making as the government’s way to protect the oil company. According to them, located in the KBK zone meant that company did not need to pay for compensation to people’s land and resources if they used that land. Certainly, this dubiousness needs more clarification from the government and the oil company. Unfortunately, I could not get access to do so during my research. Nevertheless, the designation of most Mahakam Delta land as state production forest was actually taken place in 1983. Then, in 1993, the provincial government put it as KBK zone in provincial spatial plan map. Interestingly, in around two decades the government did not prohibit the issuance of SPPT within the KBK-Delta zone. The prohibition of SPPT issuance that has been released since 2011 weakens more the SPPT as semi-formal land tenure in Delta villages. As known, in legal sense, the SPPT has lesser security than land certificate. Considering themselves as migrants make Delta villagers easily accept the fact that they use state land. Even the Banjarese in Saliki who have been residing in that village since pre-colonial times did not reject the state’s claim on the land. What makes these settlers were disappointed is the absence of prior informed policy regarding KBK. This makes the government was inconsistent in implementing their SPPT policy. The people also protested to discriminative policy in enforcing forestry law, in particular the KBK- related regulations. In their eyes, if they were not able to own and use the land within the KBK zone, the oil company, VICO, would not be allowed to operate in that zone too. An interesting statement of them I found was “Hutan negara adalah untuk warga negara” meaning that “State forest (hutan negara) is for citizens (warga negara).” They rejected the use of state forest for foreign company. What has happened in Saliki and other Delta villages indicates that people’s property was less protected not because of the open access regime per se but due to the absence of consistent and punctual law enforcement. Besides, the neglect of prior informed and people’s consent of policy making made the protection of property more awful. Current initiative of East Kalimantan government to place Mahakam Delta as provincial strategic zone in their newly drafted Regulation on Spatial Planning seems does not much promising. The status of such a strategic zone does not relate to the status of land ownership. If the KBK will be changed into provincial strategic zone, what is the status of land within that zone remains unclear. Similarly, the government of Kutai Kertanegara District initiates to draft a district regulation on Delta management. Yet, the same question rises: how this draft regulate the category of land claims, how it can protect such claims. 8. New livelihood, new property arrangement, new conflicts In section 4, we have learned about the emergence and decline of shrimp pond economy in Mahakam Delta. The shrimp booming caused more mangrove cuttings and more semi- formal land tenure letters produced by village heads. When the shrimp export price was decreased, ponds were no more prospective source of livelihood. The villagers in Mahakam Delta tried to be survival with various ways. Those who had more capital, continue pond hunting by exploring other mangrove areas. Some of them came to Berau Delta to seek for new ponds. In Berau such as those I found in Pegat Batumbuk village, the same way of land claim was carried out. These pond explorers also held SPPT for their ponds in Berau Delta.

11 In another case, shrimp capitalists from Mahakam Delta tried to shift their investment to palm oil. One of them called Haji Maming, for example, migrated to one of Mahakam mainland village, Muara Kembang, bought land there and converted it into palm-oil plantation. Those who did not have enough capital to migrate opted to stay in their villages. To be survival, they went to the sea. Now, sea becomes new source of livelihood. Not all of them were fishermen before, either in their home villages or in Delta. Yet, after the decline of shrimp pond economy they had to go fishing to the sea or river. The most important property was small boat that they called in local language ‘dompeng’. Soon they became new fishermen. They borrowed the dompeng from ponggawa but they were obliged to sell their fish or shrimp to that ponggawa who also self-determined the price. The fishermen were fast learners. In a very short time they could operate some traditional fishing technology such as julu. It is a net tied into four wooden sticks placed on the bottom of the sea or river. Installation of julu was carried out against the river or sea water flow. At the tidal waters of the net can be filled with fish. The use of julu is another way of claiming the sea or river. When plugging Julu stick in the river or the sea, it was the beginning of a claim. Fish catched into the nets are the property of the julu owners. It is not clear which rules apply in julu instalation. My informants in Muara Pantuan village said they would not put on Julu on locations where there have been others. In fact, the informants overted several conflicts arised because there were people who secretly deprived others’ julu. Conflicts usually occur in people between villages. Very rarely found ‘julu conflict’ between residents of one village. Interestingly, much julu conflicts happened between people and oil company, in this case is PT Total Indonesie that operates offshore mining in Mahakam Delta. When in their operational activities, PT Total ships damaged Julu, that was the time where julu claims rose. Julu owner came to the company asking for compensation for the damage of his julu. One of field officer of PT Total told me that sometimes they found many julus several days before their activities started. This made them should be careful in order to avoid conflicts with such improptu julu owners.

9. Conclusion By defining local property arrangement as any internal rules of the games people who do not hold property rights have developed to deal with their land claims, utilization and land transfer, I found that such rules were in Mahakam Delta villages. The villages have similarities in many respects regarding this arrangement. This arrangement in many cases indicated inventive rules of the Buginese migrants in their new settlement in Mahakam. De facto open access that has been found along the history of land and resource tenure in Mahakam Delta has provided opportunities for the Buginese to craft their property arrangement. In the later stage, however, the Buginese tried to legalize their land claims. The only available option is using SPPT or a statement letter to utilize state land. The letter confirms a semi-formal land tenure practiced by local officials. Instead of de facto open access, property arrangement and semi-formal tenure also has emerged and changed due to economic activities. The boom of shrimp farming, for instance, had increased the number of claims over empty land in Delta territory and the number of land transaction. These all were implemented on the basis of local property arrangement and the issuance of SPPT.

12 After observing the cases of SPPT in the Delta, we can conclude that it is less certain because it is not a formal evidence of land rights as requested by national land law. Yet, the SPPT has become weaker because the government then forbad to its issuance due to the reason of forestry cultivation zone (KBK) regulation that does not allow people to have land rights in the KBK. Meanwhile, the decline of shrimp production that happened due to low prices of the shrimp and ecological damage to the ponds caused several strategies of survival. Migrating to Berau Delta, developing palm-oil plantation were the choice of rich shrimp farmers. For the ordinary men, changed their profession to be fishermen was the option. The change of the latter determined the newly-invention rules again. Land claim was changed by julu (a sort of tradional fishing technology) claim and property of small boats. Julu became locus and focus of conflicts between the Buginese and the oil company operated also in the Delta. Shortly speaking, we can conclude that people’s property was less protected not only because of the open access regime but also due to the absence of consistent and punctual law enforcement, and the neglect of prior informed and people’s consent of the policy making of land and resource tenure.

The government of East Kalimantan and Kutai Kertanegara District have new policy initiative regarding the Mahakam Delta. The provincial government is drafting a new Provincial Government on Spatial Planning. Within that planning, the Mahakam Delta is placed under the category of provincial strategic zone. Then, the district government is preparing a district regulation concerning the management of Mahakam Delta. Yet, the question for both initiatives are same that is how these drafts regulate the category of land claims in Mahakam Delta and how it can protect such claims. This report suggest for a clear policy design on land tenure protection in Mahakam Delta, besides the issue of environmental preservation.

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