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Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues
125
A COMPARATIVE STUDY OF THE LEGAL FRAMEWORKS
FACILITATING INDIGENOUS LAND MANAGEMENT IN
POSTCOLONIAL SOCIETIES: INDIGENOUS AUSTRALIA AND
INDONESIAN ADAT LAW
Carly Boag1
ABSTRACT
Indigenous Land Management (ILM) promotes environmental justice by “protecting and
fulfilling of human rights through legal empowerment of people”50 through meaningful
participation in environmental decision making from a regional to an international scale,
acknowledgment of cultural differences and the equal distribution of environmental
benefits51. This paper presents a comparative study on Australia and Indonesian practice
of ILM. Although there are historical, cultural and economic differences between
Australia and Indonesia as well as different legal ideologies, a comparative study of the
different legal frameworks surrounding ILM will provide an insight into the benefits and
limitations of divergent policy strategies and the best way forward for Indigenous peoples
in the Asian-Pacific region. While development on both countries on ILM practice can be
seen as positive steps towards effective ILM, however, much remains to be done to
achieve environmental justice for the worlds Indigenous people.
Keywords: Indigenous, comparative study, Australia and Indonesia
123
I. INTRODUCTION
Indigenous Land Management
(ILM) encompasses traditional
philosophies and practices of Indigenous
people with contemporary scientific
techniques to help improve the
management and conservation of
1 Student of Law School, Faculty of Law,
Humanity and Arts, University of Wollongong
2Nyoman Nurjaya, ‘Access to ecological justice
for the marginalised people of Indonesia: Is it a
genuine or pseudo recognition and protection?’
(Paper presented at International Conference on
“Access to Justice: Promoting Public Awareness,
Participation and Action”, Brawijaya University
East Java, 10th to 11th November 2015) 1.
ecosystems. An effective legal
framework for ILM promotes
environmental justice by “protecting and
fulfilling of human rights through legal
empowerment of people”4 through
meaningful participation in
environmental decision making from a
regional to an international scale,
3 Nurjaya, above n, 1, 1-11.
4Nyoman Nurjaya, ‘Access to ecological justice
for the marginalised people of Indonesia: Is it a
genuine or pseudo recognition and protection?’
(Paper presented at International Conference on
“Access to Justice: Promoting Public Awareness,
Participation and Action”, Brawijaya University
East Java, 10th to 11th November 2015) 1.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues
126
acknowledgment of cultural differences
and the equal distribution of
environmental benefits5. Both Indonesia
and Australia were colonised by
European powers with devastating
effects on the Indigenous people. Since
the 1980’s there has been increasing
international attention surrounding the
lack of environmental justice accessible
to Indigenous peoples around the world.
Regional, national and international
legal frameworks are in place in both
Australia and Indonesia to promote
globally recognized concepts of ILM,
however there is a need for more
cohesive and integrated approach at all
levels of environmental governance.
Although there are historical,
cultural and economic differences
between Australia and Indonesia as well
as different legal ideologies, a
comparative study of the different legal
frameworks surrounding ILM will
provide an insight into the benefits and
limitations of divergent policy strategies
and the best way forward for Indigenous
peoples in the Asian-Pacific region. This
paper presents a comparative study on
5 Nurjaya, above n, 1, 1-11.
6 Marett Leiboff &Mark Thomas, Legal Theories
Contexts and Practices (Thomas Reuters
Australia, 2nd ed, 2014).
Australia and Indonesian practice of
ILM. While development on both
countries on ILM practice can be seen as
positive steps towards effective ILM,
however, much remains to be done to
achieve environmental justice for the
worlds Indigenous people.
II. RESULT AND DISCUSSION
Post Colonial Legal Analysis
As law is fundamentally a form
of ideology, social and political
interactions between human and the
natural environment cannot be ignored in
environmental policy. Postmodern
analysis of law rejects the positivist view
that law is separate from the society in
which it operates6. Law is inherently a
social and political entity and can never
be a completely autonomous institution.
There has recently been greater research
into community based resource
management and a stronger recognition
that social actions and human
interactions with the environmental can
play an important role in conservation7.
However there are significant social and
7 Sue Jackson ‘Compartmentalising Culture: The
Articulation and Consideration of Indigenous
Values in Water Resource Management’ (2006)
37(1) Australian Geographer 19.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues
127
cultural barriers to ILM manifested in
national and regional legal frameworks
that either obstruct Indigenous tradition
and culture often through restricting land
rights and traditional economic
activities.
The postmodern concept of
binary opposites is also an important
insight into the barriers inherent in the
Western environmental government
frameworks. Derrida (2004) argues that
binary opposites exist in the Western
legal system where the dominant, often
Western form governs the supposedly
inferior form8. In the context of ILM
binary opposition exists between modern
scientific knowledge and traditional
ways of knowing, as well as between the
human and natural environments.
Indigenous philosophies of land
management traditionally revolve
around stewardship or eco-centric values
and deeply entwine the environment,
cultural identity and community. This is
in direct contrast to Western
anthropogenic views of nature as a
resource to be exploited for individual
benefit. Scientific or western forms of
8 Jacques Derrida Positions (2nd ed, Continuum
London, 2004).
9 Ines Ayari ‘The Dynamic between indigenous
rights and environmental governance: A
preliminary analysis and focus on the impact of
knowledge are just one form of
understanding of the environment.
Sustainable and equitable development
for future generations cannot be
achieved if only egocentric utility-based
views of natural resources are
implemented in management policy.
International Framework for ILM
The international community has
recognised that different groups of
Indigenous people globally have strong
spiritual ties to their natural environment
and have practiced sustainable
management of various ecosystems for
years of generations. Since the 1980’s
Indigenous people have relatively began
to actively participate in United Nations
(UN) Human Rights discussions and
their concerns have gained increasing
international attention9. International
frameworks on the rights of Indigenous
people are extremely broad and there are
relatively few conventions and
declarations that relate specifically to the
implementation of governance structures
for ILM. The UN Universal Declaration
on Human Rights and the International
climate change governance through the
Reducing Emissions from Deforestation and
Forest degradation (REDD) programme’ (2014)
10(1) International Journal of Indigenous
Peoples 81.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues
128
Convention on the Elimination of all
Forms Racial Discrimination form an
important basis for Indigenous rights in
Australia and Indonesia, the more
specific provisions discussed are useful
for providing guidance on ILM standards
and values accepted by the global
community10.
The first specific Convention on
Indigenous peoples rights was the 1989
International Labour Organisation’s
Convention Concerning Indigenous and
Tribal Peoples in Independent
Countries. The convention embodied a
paternalistic approach to ILM stating
that “governments shall have the
responsibility for developing, with the
participation of the peoples concerned,
coordinated and systematic action to
protect the rights of these peoples."11
This legally binding convention was not
ratified by any South East Asian country
including Australia and Indonesia. The
current international law framework has
shifted to a self determination approach
embodied in the 2007 UN Declaration
10 Garth Nettheim et al Indigenous Peoples and
Governance Structures: A Comparative Analysis
of Land and Resource Management Rights
(Aboriginal Studies Press for The Institute of
Aboriginal and Torres Strait Islander Studies,
2002).
11 International Labour Organisation
Convention concerning Indigenous and Tribal
Peoples in Independent Countries Convention
on the Rights of Indigenous Peoples
(UNDRIP). The UNDRIP general
assembly adopted the principle of
recognition that respect of “Indigenous
knowledge, cultures and traditional
practices contributes to sustainable and
equitable development and proper
management of the environment.12”
Further article 29(1) of the declarations
states that “Indigenous peoples have the
right to the conservation and protection
of the environment and the productive
capacity of their lands or territories and
resources.13” Although Australia
initially voted against the adoption of the
Declaration, both Australian and
Indonesia have recognised the
declaration. Although the UNDRIP is
non-binding it sets important global
standards for the implementation of
policies relating to Indigenous people
“based on proper respect for the rights of
Indigenous peoples in terms of their own
law, traditions and culture”14 moving
towards contemporary post-colonial
legal structures.
opened for signature 17 June 1989, No. 169
(Entered into force 05 September 1991) Art 2.
12 United Nations Declaration on the Rights of
Indigenous Peoples, GA Res 61/295, UN GAOR,
61
st
sess, 107
th
plen mtg, Supp No 49, UN Doc
A/RES/61/295 (13 September 2007).
13 Ibid, Art 29(1).
14 Nettheim et al, above n 7.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues
129
Participation of Indigenous
people in environmental management
and the ability to participate in
sustainable development is emphasised
in the 1992 Rio Declaration on the
Environment and Development.
Principle 22 of the declaration
recognises that, “Indigenous people and
their communities…have a vital role in
environmental management and
development due to their knowledge and
traditional practices. States should
recognise and duly support their identity,
culture and interests and enable their
effective participation in the
achievement of sustainable
development.15” Although it is non-
binding, the Rio Declaration reaffirms
and expands upon the principles of the
first UN Conference on the environment,
namely the 1972 Stockholm Declaration.
The 1999 Rio Conference aimed
to draw broad human rights concepts into
more specific standards in relation to
ILM adopting Agenda 21 in the
Programme of Action for Sustainable
Development which states that “national
15 Rio Declaration on Environment and
Development, UN Doc /CONF.151/5/Rev 1 (12
August 1992) Principle 22.
16 Rio Declaration on Environment and
Development, UN Doc /CONF.151/5/Rev 1 (12
August 1992) Agenda Item 21 ch 26 art 26(1).
and international efforts to implement
environmentally sound and sustainable
development should recognise,
accommodate, promote and strengthen
the role of indigenous people and their
communities.16” The 1993 UN
Convention on Biological Diversity
(UNCBD) opened for signing at the Rio
Conference is a legally binding
agreement that carries international
obligations for signatories. The UNCBD
requires participants to “protect and
encourage customary use of biological
resources in accordance with traditional
cultural practices that are compatible
with conservation or sustainable use
requirements”17 and to “preserve
knowledge, innovation and practices of
indigenous and local communities
embodying traditional lifestyles relevant
for the conservation and sustainable use
of biological diversity.18” Both Australia
and Indonesia attended the Rio
Conference and are signatories to the
UNCBD.
17 The United Nations Convention on Biological
Diversity opened for signature 5 June 1992 1760
UNTS 79, 31 ILM 818 (entered into force 29
December 1993) art 10.
18 Ibid, Art 8.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues
130
International governance strategies
relating to ILM are comparatively
fragmented in their regulation and
implementation. UN declarations on the
environment are also criticised for being
unenforceable “soft law” with a lack of
accountability for breaches to the
international community. Issues with
global international framework are
inherent in the structure of international
law as a “top down” approaches
overlooking the often very specific
nature of the environmental management
challenges faced by local Indigenous
communities19. Not all Indigenous
peoples want the same institutional
structures and negotiation must take
place to develop accepted international
standards into a more regional context20.
This is also an issue due to the significant
barriers to the active involvement of
Indigenous people in the development
international environmental governance
strategies. This in part has attempted to
be overcome by the UN establishment of
the Permanent Forum for Indigenous
People in 199721 to allow Indigenous
groups to participate directly rather then
19 Ayari, above n 6.
20 Nettheim et al, above n 7.
18Permanent Forum Within the United Nations
Systems for Indigenous Peoples, CHR Res
through national delegates, in
international discussions on human
rights and environmental governance.
Australia: Aboriginal and Torres
Strait Islander People
British imperial policy in
Australia was based on the false legal
concept of terra nullius, which denied
Indigenous Australians any right to their
traditional lands that they had inhabited
for thousands of years prior to
colonization. The Australian Royal
National Park was established in 1879
following the American ‘Yellowstone
Park’ model of conservation,
emphasizing Western Romantic
paradigms of ‘wilderness’ constructing a
dualism between the human world and
natural environment. These binary
opposites were framed in environmental
management legislation inherently
disadvantaging indigenous participation
in environmental governance.
Indigenous Australian’s were not
recognised as citizens in the Australian
Constitution until 1967 when the so
called “Race Power” Section 51(xxvi)
1997/30, ESCOR Supp No 3, UN Doc
E/CN4/1997/30 (11 April 1997).
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues
131
was amended to allow to Government to
make special laws for any race for the
“peace, order and good government22”.
The Torres Islander Commission
recommends that the Constitutional
framework must recognise Aboriginal
and Torres Strait Islander people as the
first people of the Nation and enshrine
the goal of overcoming disadvantages
faced due to past discrimination23.
Australia began to implement
joint management strategies in the
Northern Territory (NT) in 1976 with the
establishment of the Northern Land
Council under the Aboriginal Land
Rights (Northern Territory) Act 197624
in order to conserve national resources
whilst recognising traditional land rights
of Indigenous people. However the
legislation was implemented
inconsistently among states and
territories. Australian Indigenous people
have been able to claim Native Title over
Crown Land and National Park areas
since the High Court abolished of the
22 Australian Constitution s 51(xxvi).
23 Zia Akhtar ‘Aboriginal Determination: Native
Title Claims and Barriers to Recognition’ (2011)
7(2) Law Environment and Development Journal
132.
24 Aboriginal Land Rights (Northern Territory)
Act 1976 (Cth).
25 Mabo v Queensland (No. 2) 1992 175 CLR 1
‘Mabo Decision’.
concept of terra nullius after the 1992
Mabo Decision25 resulting in the
implementation of the Commonwealth
Native Title Act 199326 to recognise and
protect Indigenous native title rights.
Initially ratifying Australia’s
international obligations into domestic
law was complicated by a lack of
specific Constitutional reference to the
environment27. International treaties and
conventions gain their Constitutional
legitimacy from the “External affairs”
power Section 51(xxix), which was
interpreted broadly after the Tasmanian
Dams Case28 in 1983 allowing the
Commonwealth to enact environmental
legislation in accordance with
International environmental obligations.
Despite this relatively recent
recognition of Indigenous customary
laws, decolonisation in Australia’s
context has not seen a return of legal
autonomy to Indigenous Australians.
The legitimacy of the Indigenous laws
has not been recognised, rather
customary laws such as native land title
26 Native Title Act 1993 (Cth).
27 Donald Anton, Jennifer Kohout & Nicola Pain
‘Nationalizing Environmental Protection in
Australia: The International Dimensions’ (1993)
23 Environmental Law 763.
28 Commonwealth v Tasmania (1983) 158 CLR
1.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues
132
have been incorporated into the
dominant western common law system.
This attempt to codify customary laws
inherently modifies Indigenous cultural
values to subsist within western legal
ideologies29 diminishing the cultural
legitimacy and significance of the laws.
There are arguments that a system of
legal pluralism in Australia would be
more appropriate to recognise customs
and Indigenous values such as in the
context of caring for country that are not
able to be effectively legislated on in the
western common law system due to a
lack of understanding of cultural norms
and beliefs. A shift from Commonwealth
governance to legal autonomy has not
been readily accepted by the Australian
government in the implementation of the
UNDRIP and has drawn criticism from
the international community.
However since the 1990’s
Australia’s legislative framework for
ILM has actively sought to increase
Indigenous participation in
environmental conservation and
development. As The National
29 Leiboff & Thomas, above n 3, 505.
30 International Union for the Conservation of
Nature (IUCN), IUCN Protected Categories
System (15 January 2014)
.
framework has also been guided by the
International Union for the Conservation
of Nature (IUCN) Guidelines for
Applying Protected Area Management
Categories, which are recognised by the
UN as global standards for incorporating
ILM strategies into government
legislative frameworks30. Management
of the area complies with principles of
IPA as well as the IUCN as a Category II
protected area. Category II areas are
“large natural sites set aside to protect
large scale ecological processes” and
ecosystems “which also provide a
foundation for environmentally and
culturally compatible31” opportunities.
The core principles of ILM strategies are
to integrate the protection of the
environment as well as cultural
knowledge, such as by providing
opportunities for the education of
younger generations of Indigenous
people.
The Intergovernmental
Agreement on the Environment was
entered into by all levels of Australian
government in 1992 as a non-binding
31 International Union for the Conservation of
Nature (IUCN), IUCN Protected Categories
System (15 January 2014)
.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues
133
agreement acknowledging that
Australia’s international obligations fall
under Commonwealth jurisdiction,
whilst more specific management plans
for natural resource management are a
state and territory responsibility.32
Australia’s environmental governance
therefore operates under a decentralized
legal system. An effective relationship
between State and government
authorities and legislation is imperative
to ensure a cohesive and consistent
approach to ILM strategies. Australia’s
central legislation facilitating ILM, the
Commonwealth Environment Protection
and Biodiversity Conservation Act 1999
(EPBC) was developed following these
intergovernmental discussions. The
EPBC supports traditional native title
rights under the Native Title Act 1993.
The specific state and territory
provisions are beyond the scope of the
essay.
The EPBC Act aims to
implement a nationally integrated
approach for states and territory to
32 Ben Boer & Stefan Gruber, Legal Framework
for Protected Areas: Australia, International
Union for the Conservation of Nature
Environmental Policy and Law Paper No 81
(2010).
33 Ibid.
34 Jessica Reider ‘An Evaluation of Two
Environmental Acts: The National
administer conservation legislation at a
more regional level under the act due to
Constitutional limitations on
Commonwealth environmental power33.
The act consolidated five pieces of
federal legislation concerning land
management and conservation following
the ratification of the UNCBD in 1993.
The EPBC aims to provide a cohesive
national framework for biological
conservation and managing the
interactions between humans and the
environment for all states and
territories34. Section 3(1)(d) outlines the
EPBC’s objective to “to promote a
cooperative approach to the protection
and management of the environment (f)
to recognise the role of indigenous
people in the conservation and
ecologically sustainable use of
Australia’s biodiversity and (g) to
promote the use of indigenous peoples’
knowledge of biodiversity with the
involvement of, and in cooperation with,
the owners of the knowledge.”35 A
strong collaborative approach embodied
Environmental policy Act and the Environment
Protection and Biodiversity Conservation Act
(2012) 14(1) Asia Pacific Journal of
Environmental Law 105.
35 Environment Protection and Biodiversity
Conservation Act 1999 (Cth) ss 3(1)(d)(f)-(g).
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues
134
in the EPBC aims to provide a legal
benchmark for the active participation of
Indigenous people in all stages of
decision making processes which is key
for access to environmental justice for
Indigenous Australians.
Co or Joint Management
The EPBC act specifically
implements co or joint management
strategies to facilitate the involvement of
Indigenous communities within the legal
system. Section (2)(g) promotes a
partnership approach to environmental
protection and biodiversity conservation
through (iii) recognising and promoting
indigenous peoples’ role in, and
knowledge of, the conservation and
ecologically sustainable use of
biodiversity. Under co-management
plans traditional land is leased back to
the government in order to implement
and fund conservation plans based on
both Indigenous knowledge and
scientific conservation practices. The
Act also established the Indigenous
Advisory Committee under section
505A to advise the Federal Minister for
the Environment on the operation of the
36 Ibid, s 505A.
37 Arturo Izurieta et al ‘Developing Indicators for
Monitoring and Evaluating Joint Management
Act taking into account Indigenous
knowledge of land management.36
These legal structures aim to
incorporate the interests of Indigenous
and Non-Indigenous interests with
shared access to resources and
environmental responsibility. This can
cause conflict with governmental goals
of biological conservation as ideas of
what effective management involves for
a particular area may differ.
Management plans implemented must
take such important cultural objectives
into account in order to reconcile these
ideological differences in a way that is
most beneficial for the conservation of
biological and habitat diversity37.
Indigenous Protected Areas
One of Australia’s most
important ILM strategies is the
establishment of Indigenous Protected
Areas (IPA) first established in South
Australia in 1998. An IPA is defined as
“an area of land over which the
Indigenous Custodians have entered into
a voluntary agreement with the
Australian government for the purposes
of promoting biodiversity and cultural
Effectiveness in Protected Areas in the Northern
Territory’ (2011) 16(3) Australia, Ecology and
Science 9.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues
135
resource conservation.38” These types of
management plans are internationally
recognised under the UNCBD as
Indigenous and Community Conserved
Areas (ICCAs) meeting Australia’s
international obligations under the
declaration and are also in line with
ICUN guidelines39.
The basis for these areas is not
found in any legislation but is completely
based in contract law40 between
Indigenous communities and the
Australian government. This allows
Indigenous communities to design
through collaboration with
environmental agencies their own
autonomous management plans on
freehold title land claimed under the
Native Title Act, in accordance with
international frameworks. Today there
are 60 IPA’s that account for 36% of
Australia’s National Reserve Areas41.
This form of legal autonomy creates
unique difficulties as it is completely
38 Australian Government Department of the
Environment, Water, Heritage and the Arts, The
Indigenous Protected Area Program:
Background Information and Advice to
Applicants (2009) Australian Government
Department of the Environment
.
39 Helen Ross et al ‘Co-management and
Indigenous Protected Areas in Australia:
Achievements and ways forward’ (2009) 16
independent from the EPBC Act. There
is currently no government framework
for monitoring the conservation success
of IPA’s. A cohesive framework in line
with the EPBC goals needs to be
implemented in federal legislation, to
avoid land use conflicts at a regional
level42. However this creates the paradox
that an assessment of success
implemented in federal legislation will
inherently be from a western post-
colonial perspective.
The clear legislative processes to
establish co-management strategies and
IPA’s under the EPBC framework
allows Indigenous people to develop
greater autonomy alongside meaningful
legal recognition of the importance of
traditional knowledge for natural
resource conversation. The success of
the legislative framework has resulted in
the expansion of Australia’s system of
National Reserve Areas. Although there
are significant socio-economic barriers
Australasian Journal of Environmental
Management 242.
40 Nicholas Goldstein, ‘Indigenous Land Rights
in National Parks: The United States, Canada and
Australia compared’ (2013) 9(2) Macquarie
Journal of International and Comparative
Environmental Law 65, 81.
41 Ibid.
42 Benxiang Zeng & Rolf Gerristen, ‘Key Issues
in Management of Indigenous Protected Areas:
A Perspective from Northern Australia’ (2015)
8(3) Global Studies Journal 19.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues
136
to participation in ILM plans in practice,
the current legal framework has been a
positive step towards the empowerment
of Indigenous communities to care for
their country according to customary
law.
Robinson et al. (2014) found that
whilst Indigenous organisations are
highly interested in actively engaging in
ILM projects, they often face key
barriers to participation that need to be
addressed in order to achieve the
maximum ecological and cultural
benefits possible from contemporary
ILM strategies43. Information needs to
be readily available to Indigenous
organisations to support their decision
making process when assessing how
their community can most effectively
become involved in the management of
the land and how to incorporate their
ecological knowledge into contemporary
conservation programs. Power
imbalances and socio-economic
disadvantages experienced by
Indigenous Australians also create the
danger of the dominant roles of
43 Cathy Robinson et al ‘Australia’s Indigenous
Carbon Economy: A National Snapshot’ (2014)
52(2) Geographical Research 123.
44 Ibid.
45 Luke Arnold, ‘Deforestation in Decentralised
Indonesia: What’s Law Got to Do With it?’ 4(2)
Law Environment and Development Journal 77.
education and land management both
being fulfilled by the government or
other powerful stakeholders such as
corporations, rather then the Indigenous
land owners44. The Australian
government must be careful to include
Indigenous leadership in all stages of the
legislative decision making, legal
monitoring, recommendations and law
reform.
Indonesia: Adat Communities
Indonesia is home to some of the
biologically richest forests in the world.
Timber industries are vital to Indonesia’s
economic development with around 30
million Indonesian people also rely on
these forests for their livelihood.45 Adat
broadly refers to customary laws of
different Indigenous groups and is one of
the three components of legal plurality in
Indonesia alongside Civil Law and
Sharia Law. Adat law is “a complex of
rights and obligations tying together
history, land a law in a specifically
Indonesian way,46” there are no uniform
Adat laws as every locality has culturally
46 Jamie Davidson & David Henley, The Revival
of Traditional in Indonesian Politics. The
Deployment of Adat from Colonialism to
Indigenism (Routledge Contemporary Southeast
Asia Series, 1st ed, 2007) 377.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues
137
specific rules to meet the needs of the
community.
Indigenous people in South-East
Asia face significant and pressing
challenges in relation to environmental
justice and human rights abuses. Despite
this Indigenous groups in developing
countries such as the Indonesian Adat
people are unable to maintain active
involvement in international discussions
on Indigenous issues47. The Dutch
colonisers in Indonesia favoured forest
management based on Modernism and
Enlightenment ideas of science and logic
as supreme. Adat communities who
traditionally live in forest areas on
remote islands in the Indonesian
archipelago rely on ecological resources
for their local economy and livelihoods.
These communities were believed by the
Dutch to be responsible for forest
destruction, a stereotype that is still
widely held throughout South East Asian
countries today.48 It has become clear
that Indonesian laws need to empower
Indigenous communities to assist the
47Alexandra Xanthaki, ‘Land Rights of
Indigenous Peoples in South-East Asia’ (2003)
4(2) Melbourne Journal of International Law
467.
48 Arnold, above n 42..
49 Marett Leiboff &Mark Thomas, Legal
Theories Contexts and Practices (Thomas
Reuters Australia, 2nd ed, 2014) 503.
government in curbing the alarming
deforestation occurring due to the sheer
size and biomass of the forest
ecosystems.
In contrast to Australia,
Indonesia underwent decolonisation to a
greater extent, developing a pluralistic
legal system after its independence from
Dutch rule in 1945. The post-colonial
legal systems that developed are “neither
an imprint left by the departed colonial
power, nor a resurrected form of the pre-
colonial culture.49” Remote islands in
Indonesia maintained governance by
customary Adat Law and maintained
legal autonomy to the degree that it did
not interfere with state economic
interests. This autonomy was enshrined
in the 1945 Indonesian Constitution and
a system of legal pluralism was created..
Indonesia has a system of weak legal
pluralism with customary laws
recognised inconsistently and placed
under significant state restrictions.50
In 1950 when the newly
established federal system was replaced
50 Hilaire Tegnan ‘Legal Pluralism and land
administration in West Sumatra: The
Implementation of the Regulations of both Local
and Ngari Governments on Communal Land
Tenure’ (2015) 47(2) Journal of Legal Pluralism
and Unofficial Law 312.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues
138
with the Unitary State of Indonesia,
under the first President Sukarno and the
post-colonial government ironically
inherited the Dutch scientific based
forestry management approach.51 After
the fall of President Suharto in 1998
Indonesia has undergone a major period
of law reform known as the
‘Reformation Era’. Environmental law
reform focused on calls for
decentralisation of environmental
management provisions from central to
regional governments and a greater
recognition of Adat rights to natural
resources52. However this has lead to
renewed uncertainty about the role and
of Adat law in Indonesia and in practice
has not lead to increased involvement of
Indigenous people in forest
management.
Constitutional Recognition
The Indonesian Ideology of the
State that provides the basis for the legal
framework for recognition of customary
law and environmental management is
established in the 1945 Republic of
51 Arnold, above n 42.
52 Tegnan, above n 47.
53 Undang-Undang Dasar Republik Indonesia
1945 [Constitution of the Republic of Indonesia
1945] (Indonesia) Premable [author’s trans].
54 Nyoman Nurjaya, ‘Ideology of the State in
controlling and managing natural environmental
and resources: Its Implication to national law
Indonesia Constitution. The preamble
establishes that state can control natural
resources to “enhance prosperity and
peoples welfare…53” This national
development model is the basis of
Indonesian environmental policy. State
based resource management is
implemented for the central purpose of
economic growth development54. Article
3 of the Constitution further codifies this
economic commodity ideology, stating
that “the earth and water and natural
resources contained therein should be
controlled by the State and shall be
utilized for greatest prosperity of the
people.55” These strong utilitarian values
embedded in the Constitutional
framework are in fact be the source of the
greatest disadvantage to minority people
namely the Adat communities of remote
Indonesia.
In contrast to the historical
context of Australia the Adat people
were immediately Constitutional
recognition of their customary rights.
Ironically it is this recognition that
development’ (Paper Presented at International
Conference on Sumatera Ecosystem Restoration
in Comparison: Lesson Learned and Future
Challenges, Andalas University Padang, West
Sumatera, 24th to 25th October 2011).
55 Undang-Undang Dasar Republik Indonesia
1945 [Constitution of the Republic of Indonesia
1945] (Indonesia) art 33(3) [author’s trans].
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues
139
provides the greatest hurdle to
Indigenous participation in forestry
management. The Constitution sets
specific conditions and restrictions for
the recognition of Adat laws. Article 18B
paragraph (2) of the Constitution states
that “the state recognises and respects the
Adat communities and their traditional
rights as long as these remain in
existence, and are in accordance with the
societal development…56”. Nurjaya
(2015) believes that this condition
creates “pseudo recognition” of
customary law restricting the capacity of
Adat communities to actively participate
in environmental management of their
traditional lands57.
Despite being a signatory to the
Rio Declaration and the legally binding
UNCBD, international standards of the
protection of Indigenous traditional
activities in Indonesia are subsistent to
the interests of the state. Economic
development is valued in the legal
framework above environmental and
cultural conservation. This pseudo-
constitutional ideology enables the state
to “systematically ignore and neglect the
56 Undang-Undang Dasar Republik Indonesia
1945 [Constitution of the Republic of Indonesia
1945]
art 18B(2) (Indonesia) [author’s trans].
57 Nurjaya, above n, 1, 6.
living customary law as a legal entity in
the total system of Indonesia’s national
law58.” The words “as long as” in article
18B effectively creates a legal
framework for the corporate exploitation
the rich natural resources of Indonesia’s
tropical forests by transnational
corporations at the expense of the
environment and the livelihood of
Indigenous people.
Customary law controls the
sustainable management of the natural
resources on which Adat communities
depend on for their livelihood. Adat
communities believe that a “right to land
does not necessarily include any right to
development of that land59” and contain
provisions about harvesting of forest
materials and hunting of rare fauna to
ensure the regeneration of natural
resources.60 “Indigenous forest
management is not recognised as a viable
practice for wildlife and environmental
conservation.”61 These ideological
differences between Adat law and the
Civil Code add to disputes over which
law applies between Indigenous people
and the state. Where contrary interests
58 Nurjaya, above n, 1, 9.
59 Supreme Court of Indonesia (ed), Indonesian
Legal System ‘Lecture 2 Readings’ (2005) 39.
60 Arnold, above n 42.
61 Xanthaki, above n 44.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues
140
exist the state law prevails due the
conditions placed on recognition of Adat
Law.
State Laws
The Indonesian state civil code
under the Constitutional framework
plays a major role in facilitating
environmental degradation. Adat law
recognises two types of customary land
rights, communal and individual
ownership, similar to Native Title in
Australia. The Basic Agrarian Law 1960
(BAL) extinguished many land rights
based on Adat Law in an attempt to unify
all types of Indonesian land law. BAL
emphasises a western system of
registering land title incompatible with
traditional oral systems based on local
knowledge62.
The current Forestry Act, Law
No. 41 Year 1999 specifically mentions
Article 33(3) in its preamble as one
source of its Constitutional legitimacy,
indicating its underlying economic
development ideology. Despite being
implemented in response to principles of
the Rio Declaration the law
unfortunately represents a step backward
62 Kallie Szczepanski ‘Land Policy and Adat Law
in Indonesia’s Forests’ (2002) 11(1) Pacific Rim
Law and Policy Journal 231.
63 Ibid, 244.
for the recognition of Indigenous land
rights and does not facilitate any
meaning participation of Indigenous
people in forestry management63. The
Act does not contain a provision
outlining the process for the recognition
of Adat land rights under the Act. Whilst
Article 67(1) does indicate some
recognition of principles of ILM, stating
“where Adat communities are registered
by state they are able to “collect forest
produce to fulfil daily needs of relevant
customary law community” and are able
to (b) “manage forests according to the
prevailing indigenous law and not in-
contravention of the law”.64 This allows
Adat laws to be undermined by National
laws clearly biased towards transnational
corporations in the interest of economic
development providing an extremely
insecure basis for the recognition of Adat
laws.
The Forestry Law seems to be an
attempt to reconsolidate the federal
government’s power in relation to forest
management with the role of regional
government and customary law largely
ignored65. Article 61 provides that all
64 Basic Forestry Law No. 41 1999 (Indonesia)
Art 67(1)(a)-(b).
65 Arnold, above n 42.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues
141
regional management and any
decentralisation of provisions should be
monitored and regulated by federal
legislation (Article 66)66. This top-down
approach to land management is contrary
to the national goals of law reform and
decentralisation, taking power away
from regional and local governance
structures including Adat law. In a
system of legal pluralism centralisation
this can operate to dominate other less
authoritative sub-systems of law. This
has lead to a situation where both the
central and state governments are able to
use their power to exploit forests and
neither are under any obligation to claim
any responsibility for sustainable
management67. These laws becomes “an
expression of the State’s authority and
legitimacy to control resources tenure
and management68” for the economic
development of Indonesia.
The 2007 UN Committee on
Elimination of Racial Discrimination
noted that the legal frameworks for the
recognition of customary laws do not
provide “appropriate safeguards
66 Basic Forestry Law No. 41 1999 (Indonesia)
Arts 61, 66.
67 Arnold, above n 41, 91.
68 Nurjaya, above n 50.
69 United Nations Committee on the Elimination
of Racial Discrimination, Seventy-first session:
guaranteeing respect for the fundamental
principle of self-identification in the
determination of indigenous peoples.69”
The complex and uncertain application
process and cost of legal procedures to
apply for recognition effectively
removes the function of ILM in
Indonesia’s forests conservation. Quasi-
judicial recognition of Adat councils
with decentralised policy power over
certain aspects of forest management70
could help Indigenous communities
attain greater legal power to assert their
customary land title rights over
transnational corporations. There is also
a lack of political motivation to
implement effective legislative change
with assertions that the legal framework
does not require any further amendment
despite entrenched ideological flaws71.
Although there are significant challenges
faced due to a lack of resources for the
implementation and enforcement of
environmental laws, these issues should
be analysed in conjunction with the
limitations of the Constitutional
framework.
Concluding observations of the Committee on the
Elimination of Racial Discrimination –
Indonesia, Doc CERD/C/IDN/CO/ 3 (15 August
2007) 15.
70 Arnold, above n 42, 98.
71 Arnold, above n 42, 78.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues
142
Indonesia’s system of weak legal
pluralism has created pseudo recognition
of customary Adat laws and has created
significant barriers to any meaningful
participation of Indigenous communities
in the management of their traditional
lands. The Constitutional and State
environment governance frameworks
whilst undergoing significant reform are
designed to support the economic
develop of Indonesia at the cost of
conservation of Indonesia’s rich
ecological resources and the loss of Adat
culture. The Basic Forestry Laws both
passively and actively72 support
deforestation by not only ignoring the
role of Indigenous communities in land
management but by also creating legal
barriers that marginalise Indigenous
people in the legal system. However the
willingness of Indonesia to participate in
International Declarations on the rights
of Indigenous peoples and the Rio
Declaration is a positive step
demonstrating the willingness of the
Indonesian government to work towards
greater environmental justice for Adat
communities.
72 Arnold, above n 42.
73 Haripriya Rangan & Marcus Lane ‘Indigenous
Peoples and Forest Management: Comparative
Analysis of Institutional Approaches in Australia
Australia’s Role in the Asia Pacific
Despite cultural, social and
political differences between Aboriginal
and Torres Strait Islander people and
Indonesian Adat communities, both face
substantive legal barriers to active
participation in access to traditional
lands and natural resource management
due to the continuing impacts of
colonisation and experiences of
disposition.73 Australia is one of the most
developed and economically stable
countries in the Asia Pacific Region and
a world leader in Indigenous land and
heritage management. Part of our
international environmental obligations
are to provide financial and practical
assistance to help developing countries,
such as Indonesia to successfully
develop and implement effective ILM
frameworks to ensure Indigenous people
attain environmental justice. Principle 24
of the Stockholm Decoration enshrines
this principle stating that “bilateral
cooperation to effectively control,
prevent, reduce, and eliminate adverse
environmental effects is necessary.74”
and India’ (2001) 14(1) Society an Natural
Resources 145, 148.
74 Declaration of The United Nations Conference
on the Human Environment UN Doc
A/CONF.48/14/Rev.1 (1973) art 24.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues
143
This is emphasised in Principle 7 of the
Rio Declaration, which acknowledges
the responsibility of developed countries
to assist developing countries efforts to
protect to environment.75
Treaties and Action plans
specific to the needs of the Asian Pacific
Region are an important mechanism for
the implementation of ILM plans. 22 of
the nations that make up the region are
developing countries such as Indonesia
that may not have the economic
resources to fulfill broad international
obligations76. The Australian
government will invest $375.7 Million in
2015-16 mainly to improve economic
development with the majority of this
funding delivered through the Indonesia
Australia Comprehensive Economic
Partnership Agreement (IA-CEPA)77.
The Aid Investment Plan (2015-16) does
not specifically mention the preservation
of Adat culture or the support of ILM
strategies and traditional conservation
practices.
75 Rio Declaration on Environment and
Development, UN Doc /CONF.151/5/Rev 1 (12
August 1992) art 46.
76 Anton et al, above n 23.
77 Australian Government Department of the
Foreign Affairs and Trade, Development
Assistance in Indonesia (2015) Australian
Government
.
78 Robin Davies, The Indonesia-Australia Forest
Carbon Partnership: A Murder Mystery,
Development Policy Centre Australia <
http://devpolicy.org/the-indonesia-australia-
forest-carbon-partnership-a-murder-mystery-
20150610/>.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues
144
III. CONCLUSION
ILM principles are increasingly
being incorporated into contemporary
conservation programs as the broad
environmental and cultural benefits of
traditional knowledge passed down for
thousands of generations, are being
formally recognised by the international
community. Australia and Indonesia
have both moved into a post-colonial
legal era and have developed legal
frameworks surrounding ILM in
response to international principles.
However the vastly different systems of
legal pluralism in Indonesia and legal
centralism in Australia create diverse
challenges for the recognition and
implementation of traditional
conservation strategies based on
customary principles and laws. Australia
must implement Constitutional
recognition of the right to self-
determination of Indigenous people and
ensure the active participation of
Indigenous communities in legal reform
and development, to overcome past
discrimination based on western legal
principles. The Indonesian Constitution
also needs to undergo an ideological shift
from promoting purely economic growth
to provide meaningful recognition of
Adat law and to meet minimum
standards of sustainable development
and the rights of Indigenous people.
Australia has not met its obligations to
the international community and
particularly to the Asian-Pacific Region
to support the development of effective
and inclusive ILM strategies and legal
frameworks. Australia has failed to
provide any meaningful support through
bilateral agreements to Indonesia to
assist in the legal reform of
environmental laws and policy
surrounding the recognition of
Customary Law. Although there have
been positive steps towards effective
ILM regionally and globally there is still
a significant amount of progress to be
made in order to achieve environmental
justice for the worlds Indigenous people.
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