Access to Land: Policy and Processes *

by Maria Sumardjono **

Act No. 5 of 1960 (Basic Agrarian Law/"BAL") was issued to regulate land and related resources. However, due to several constraints (national security, political conflicts, urgent needs), BAL was mainly focused on matters related to land.

The limited scope was often considered as the weakness of the BAL because it should cover the land, water, air, and all substances thereunder, and should not only focus on land.

In the development, the weakness of the BAL was not overcome, but due to pragmatic needs to accommodate the economic growth in 1970s, the unfinished part of the act was taken over by the other sectoral laws, completely neglecting the principles introduced by the BAL (Act No. 5 of 1967 on Forestry/was renewed with Act No. 41 of 1999, Act No. 11 of 1967 on Mining/being revised, Act No. 8 of 1971 on Oil and Gas/being revised, Act No. 11 of 1974 on Water Resources/being revised).

For more than three decades, the developmentalism-based economic growth has been mostly supported by the exploitation of the natural resources. The huge contribution with short-time horizons and which were supported with policies responsive to the massive exploitations of the natural resources results in the degradation of natural resources, both in the qualitative and in the quantitative measures, and also results in social impacts accompanying the irresponsible efforts. The physical, social, cultural, and economical environments suffered from the continuously exploitations.

For examples, forestry damage is 1.8 millions a year, the coral damage 70%, and the mangrove forest damage 64%. Soils are degraded as the result of mining and erosions causes floods.The prolonged monetary crisis did not stop the exploitation. On the contrary, in the effort to solve the severe financial problem, the relatively easy way was to exploit natural resources, without giving necessary attention to the supporting system. As a further result, more and more farmers, indigenous people and other vulnerable groups are being deprived of land and related resources.

The exploitation of the land and related resources has caused various problems. At the empirical level, both structural and horizontal conflicts tend to increase and no action has been taken yet to resolve the conflicts comprehensively.

The knowledge systems of traditional communities to keep, develop, and conserve land and related resources was replaced with the irresponsible use of modern technology. In the mean time, the customary law held by the traditional communities could not be applied whenever the formal legal regulations exist.

As a result of self-interest that has accompanied the sectoral approach, the control and use of the land and related resources overlapped, and there was weak coordination among sectors and between the central and the local government. The various laws and regulations on land and related resources were inconsistent with each other, and to make it worse, they were not implemented consistently.

Institutionally, there was no department to coordinate the policy on land and related resources allocation and its implementation. Each department operated in accordance with its value system and its role or function. The perception of each department/institution on the land and related resources was different from that of another department/institution, depending on their views and agenda.

The various sectoral laws and regulations had the following characteristics:

1. Exploitation oriented, neglecting conservation and the sustainability of resources, used as a means for economic growth.

2. Capital oriented.

3. Centralistic in nature.

4. Having weak cross-sectoral coordination .

5. Neglecting protection of human rights.

To end the lack of coherence among laws and regulations on land and related resources, the People's Consultative Assembly of the Republic of Indonesia issued Decree No. IX/MPR/2001 on Agrarian Reform and Management of Natural Resources, which recommended the issuance of an act to regulate natural resources.

Keeping in mind that in the past the development paradigm which focused on the economic growth failed to provide access to land for those whose livelihood depends on land, revisions to the BAL is based on a new paradigm, which gives emphasis on:

1. Protecting human rights, focusing on eliminating poverty, expanding work opportunities and equal distribution of development.

2. Sustainability of the community's productive capacity.

3. Empowerment of the people through the development of good governance (participation, transparency, accountability, rule of law) in policy-making and implementation.

Proposing an act which serves as a common platform for all sectors on access to land is not a simple task because of the different perceptions and agenda across sectors, and as such partnership is needed. Providing access to land must take into account conflicting interests that stand in the way. The interest of the communities, including traditional communities, can be against the interest of large-scale corporations/investors.

The involvement of a neutral third party is needed from the initial process of policy-making to encourage stakeholders - the government, the people, represented by NGO, CSO - to have open, intensive, and continuous dialogues.

The policy statement should be based on the agreement formulated in the dialogues and it will be used as a basis to develop the white paper and the draft law.         

The government, as the policy maker, needs both the domestic and the international partners (e.g., LAND Partnerships) to play their roles in the following:

(1) Providing insights and knowledge through comparative analysis of land access issues.

(2) Providing opportunity for a comparative study.

(3) Foster necessary space for dialogue.

(4) Acting as mediators in the dialogues among interest groups.

For some reason, it might be necessary to understand that the success of  partnership also depends on the supportive political culture. In Indonesia, transparency and participation are relatively new because for more than 30 years the policy-making processes were dominated by the central government. Therefore, it should be expected that good governance in policy-making (transparency, participation, accountability) through dialogues between stakeholders will take sometime to show its results, but at least the process has started. In the experience of the National Land Agency, the revisions to the BAL started with seminars in 2001 and 2002, which aimed at getting inputs from stakeholders on the substantial points of the act which needed revisions. The legal drafting involved universities, and the improvement was carried through dialogues with NGO, CSO, and other stakeholders.

The existence, degree of acceptance, and functioning of the partners in framing the policy development depend on the consistency with their roles.

The government as policy maker needs information by learning from similar experience which other countries have.

As a global partnership, LAND Partnerships is expected to provide insights and knowledge about the approach taken by the other countries and communities concerning land issues and how they develop their policy on access to land. Besides, it is also expected to help identify the needs of the people (the affected) to match the needs of the government (the affecting) in order to frame policy development.

As the policy maker, the government has the role to create an enabling environment for the dialogues to take place. Local governments are expected to facilitate the participation of the people (the affected) in the policy-making process on resource allocation. NGOs and CSOs are expected to promote the policy and monitor its implementations.

Any violation of the existing roles will make the process ineffective or even counter-productive. Moreover, too much expectation will result in disappointment. To work in a situation like that in Indonesia needs courage, time, and enduran ce.

Partnership programmes should be designed in a common perspective and should be based on a thorough needs assessment of the country, taking into account it's problems and challenges (political, social and economic). In sum, all efforts should be geared toward a coordinated programme. Overlapping programmes are not expected because the result will not be effective, not to mention the waste of money, time, and energy.

To sum up, the National Land Agency supports partnership initiative. In one hand, it is expected that through partnership, stakeholders are encouraged to have dialogues in developing common platform on land policies. On the other hand, following the revisions to the BAL, other laws and regulations (such as Land Reform, Land Registration, Land Rights, Land Acquisition, and Land and Related Resources Conflict Resolution) will be developed subsequently to improve access to land and the use of related resources. The commitment to have a continuous and open dialogue in policy-making is a prerequisite in a democratic society, and partnership has an important role to make it happen.

Paper presented at the International Forum on the Partnership Initiatives for Sustainable Development, held by the Italian Ministry for the Environment and Territory in cooperation with The United Nations Department of Economic and Social Affairs (UN/DESA), Rome , March 4-6 2004

Vice-Head, National Land Agency, Indonesia