INDONESIA. 1.0 Adat Forest (Customary Law Forest) May 2012 GENERAL COMMENTS

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1 INDONESIA May GENERAL COMMENTS Hutan Desa (Social or Village Forest) Forestry Law N 4/999 and Article 83 and 84(b) of Government Regulation N 6 /7 also establish the possibility of creating a Hutan Desa in conservation, protection and production forests. However, according to our collaborators, this type of regime gives local governments, and not local communities, management rights to forest resources. For this reason we have not included this tenure regime in our comparative analysis.. Adat Forest (Customary Law Forest) General Description Adat Forests are state forests located within traditional jurisdictions (Art. (6), Basic Forestry Law N 4/999). Legal documents consulted: Article 8B of the Indonesian Constitution of ; Basic Forestry Law N 4/999 Legislation confers rights to: Customary communities with recognized status Article 5(), Basic Forestry Law, N 4/999 Access Communities have the right to utilize the forest and forest products in accordance with prevailing laws and regulations (Art. 68, Basic Forestry Law N 4/999). In practice, due to an unclear definition of Adat, communities have difficulties exercising these rights (Written comments by Wulandari).

2 In the best case scenario there are no restrictions on subsistence use (Art. 67, Basic Forestry Law N 4/999). Commercial utilization depends on forest functions and customary laws (Art. 37, Basic Forestry Law N 4/999). NTFP may be used in both protected and production forests and use is dependent upon the procuration of a business license. Business licenses can be given to cooperatives (Art. 6-9, Basic Forestry Law N 4/999). Adat Forests in protected forest areas are subject to stronger restrictions. In the best case scenario there are no restrictions on subsistence use (Art. 67, Basic Forestry Law N 4/999). Commercial utilization depends on forest functions and customary laws (Art. 37, Basic Forestry Law N 4/999). Timber use rights are only possible in production forests and use is dependent upon the procuration of a business license (Art. 6 and 8, Basic Forestry Law N 4/999). Business licenses can be given to cooperatives (Art. 7 and 9, Basic Forestry Law N 4/999). Recognized customary communities may manage their forest resources in accordance with prevailing customary laws, when not contradicting government law (Art. 67, Basic Forestry Law N 4/999). Exclusion Communities cannot exclude state control over their lands (Harwell and Lynch ). Alienation (Lease) Communities only have usufruct rights (Harwell and Lynch ). Alienation (Collateral) Alienation (Sale) Communities within and around the forest have the right to be compensated when access to their surrounding forests is restricted due to its designation as Forest Area (Art. 68(3), Basic Forestry Law N 4/999). Duration of Rights (Years) General Comments Unlimited The Constitution recognizes customary law and traditional rights for as long as customary law communities still exist (Art. 8(b), Indonesian Constitution, ). Even though Adat Forest has been recognized by the Constitution, implementation of this type of forest is difficult due to a lack of specific policy and regulation.

3 3. Hutan Kemasyarakatan (Rural or Community Forest) General Description Rural Forests empower local communities by granting rural institutions rights to exploit forest resources. Exploitation rights cover area arrangement, formulation of a Plan and the utilization and rehabilitation of forests (Art. 87, Regulation N 6/7). Legal documents consulted: Basic Forestry Law N 4/999; Government Regulation N 6/7 Legislation confers rights to: Rural institutions that can form a cooperative Article 87, Government Regulation N 6/7. When managing Rural Forest, rural institutions may form cooperatives Art. 89(3), Government Regulation N 6/7). Local community is defined as "social unity consisting of Indonesian citizens living inside and/or around forest, domiciled inside or around forest area having social community with the same source of income dependent on forest and their activities can influence forest ecosystems" (Elucidation on Art. 83, Government Regulation N 6/7). Access Exclusion Rural Forests empower local communities by granting rural institutions rights to exploit forest resources. Exploitation rights cover area arrangement, formulation of a Plan and the utilization and rehabilitation of forests (Art. 87, Regulation N 6/7). The utilization of NTFP is authorized in both protected and production forests (Art. 87(3), Government Regulation N 6/7). Use is dependent upon the procuration of a business license. Business licenses can be given to cooperatives (Art. 6-9, Basic Forestry Law N 4/999). The utilization of timber resources is authorized only in production forests (Art. 87(3), Government Regulation N 6/7). Use is dependent upon the procuration of a business license. Business licenses can be given to cooperatives (Art. 6-9, Basic Forestry Law N 4/999). Rural institutions are obliged to manage forest in accordance with sustainable forest management principles and Plans. Plans are developed jointly by rural institutions and the head of the Forest Totality (Art. 89(3), Government Regulation N 6/7). Communities can only receive rights to forest resources under this tenure regime in areas where third parties have not been given a license to exploit a particular forest area (Elucidation of Art. 84, Government Regulation N 6/7). Alienation (Lease) Exploration rights regarding Rural Forest are not proprietary and cannot be

4 4 Alienation (Collateral) transferred, or collateralized (Art. 9, Government Regulation N 6/7). Alienation (Sale) This right is granted according to the terms of the contract. There is no right to compensation (Art. 8, Government Regulation N 6/7). Duration of Rights (Years) Limited - 35 years (renewable) The limited nature of these rights is inferred from the legislation (Art. 85-9, Government Regulation N 6/7). 3. Kemitraan (Partnership) General Description The Partnership is a way to empower local communities by giving them access to Forest Resources based on an agreement between those with a business license to exploit forests or those with rights to exploit forests and local communities (Art. 99, Government Regulation N 6/7). Legal documents consulted: Basic Forestry Law N 4/999; Government Regulation N 6/7 Legislation confers rights to: Local communities The Partnership is a way to empower local communities by giving them access to Forest Resources based on an agreement between those with a business license to exploit forests or those with forest exploitation rights and local communities (Art. 99, Government Regulation N 6/7). The local community is defined as "social unity consisting of Indonesian citizens living inside and/or around forest, domiciled inside or around forest area having social community with the same source of income dependent on forest and their activities can influence forest ecosystems" (Elucidation on Art. 83, Government Regulation N 6/7). Access case by case Access rights depend on each Partnership Agreement (Art. 99, Government Regulation case by case N 6/7). case by case case by case Exclusion A community must share the rights with private enterprises (Art. 99, Government Regulation N 6/7). Alienation (Lease) Alienation (Collateral) Alienation (Sale) n/a n/a n/a

5 5 Duration of Rights (Years) Limited This right is granted according to the terms of a contract. There is no right to compensation (Art. 8, Government Regulation N 6/7). The limited nature of these rights is inferred from the legislation (Art. 99(4), Government Regulation N 6/7). 4. Hutan Tanaman Rakyat (Plantation and Siviculture) General Description Legal documents consulted: Hutan Tanaman Rakyat (HTR) is a timber plantation established in degraded production forest areas by individuals, households, or village cooperatives to improve the productivity potential of the forest through enrichment planting and the application of appropriate silvicultural practices (The Ministry of Forestry, Regulation N 3/7). Through the HTR program, the government provides local communities with wider access to law, credit, and market. Each household will receive approximately 5 hectares of land to manage, not to own, for the maximum period of years, and 8 million rupiah per ha in the form of soft loan for this purposes. The 5 hectares per household has been calculated by the government to be sufficient for local communities to make a decent living [sic] (Noordwijk et al. 7, 6). Both individuals and cooperatives can apply for an HTR concession (Art. 7, Ministry of Forestry, Regulation N 3/7). However, cooperatives are preferred and go through a quicker approval process (Obidzinski and Dermawan, 34). Government Regulation N 6/7; Ministry of Forestry Regulation N 3/7; Government Regulation N 3/8; Amendment to Government Regulation N 6/7 Legislation confers rights to: Individuals, households, or village cooperatives Article 4, Ministry of Forestry Regulation N 3/7 Access Once a village cooperative has a business license that has been approved by the authorities, they may access the forest area. Upon approval of a business license, the village cooperative may utilize timber forest products to perform activities such as land preparation, nursery establishment, planting, maintenance, harvesting, and marketing (Art. 4 and 4(5), Government Regulation N 6/7). "The Director General (the one with the duty and responsibility in the field of Producing Forest (Art. (3), Ministry of Forestry Regulation N 3/7) shall implement technical management on the implementation of a HTR development" (Art (), Ministry of Forestry Regulation N 3/7); and the village s Chief shall supervise the development of HTR development activities (Art, Ministry of Forestry Regulation N 3/7). Exclusion A business license is given to an individual or Village Cooperative.

6 6 Alienation (Lease) Alienation (Collateral) Alienation (Sale) Cooperatives are micro-, small-, and medium-business and can be established by communities living in or around the forest (Art. 7(), Ministry of Forestry Regulation N 3/7). The area of forest covered by an exploitation license cannot be used as a guarantee or as collateral (Art. (), Government Regulation N 6/7). Cooperatives are micro-, small-, and medium-business and can be established by communities living in or around the forest (Art. 7(), Ministry of Forestry Regulation N 3/7). The area of forest covered by an exploitation license cannot be used as a guarantee or as collateral (Art. (), Government Regulation N 6/7). However, the plants resulting from activities allowed by a license to utilize timber forest products in HTR can be used as collateral for as long as the business license remains valid (Art. 4 (5), Government Regulation N 6/7). Cooperatives are micro-, small-, and medium-business and can be established by communities living in or around the forest (Art. 7(), Ministry of Forestry Regulation N 3/7). The area of forest covered by an exploitation license cannot be used as a guarantee or as collateral (Art (), Government Regulation N 6/7). This right is granted based on the terms of a contract. There is no right to compensation. Business licenses may be revoked on the grounds that a) the license holder returns it; b) the license grantor revokes it; c) its validity expires; or d) the individual holder dies (Art. 4, Ministry of Forestry Regulation N 3/7). Article 4 of Ministry of Forestry Regulation N 3/7defines the instances in which a license grantor can revoke a license including: leaving a work area, and failing to implement silviculture in accordance with the conditions of the location. Duration of Rights (Years) Up to 6 years Article 4, Ministry of Forestry Regulation N 3/7 General Comments "The main difference between HTR and other community forestry schemes in Indonesia is that HTR supports timber plantation development in the state production forests, whereas other community forestry schemes are mainly located outside of the state forests. HTR projects come in three types. The first type is the independent model (pola mandiri), the second is the partnership model (pola kemitraan) and the third is the developer model (pola developer). Under the independent model, HTR applicants establish plantations at their own initiative and cost. The HTR partnership model is based on joint venture agreements between village cooperatives and plantation companies. Under the developer model, private or state-owned companies lead the application process and the implementation of timber plantations. Under this scheme, timber plantation companies are expected to operate plantation projects for the first 8 years and then distribute parts of the planted areas to participating communities for a management cycle of up to 6 years" [sic] (Obidzinski and Dermawan, 343; Art. 5, Ministry of Forestry Regulation N 3/7 ).