The KSDAHE Bill is ratified, Regulating Preservation Areas and Customary Forests: What's in it?

By: Cindy Julianty, M. Ihsan Maulana, Lasti Fardilla Noor

The journey of the KSDAHE Bill can be said to be quite long before it could be ratified. The preparation of this bill was even started by the DPR since 2016 under the name of the Biodiversity and Ecosystem Conservation Bill (KKHE), but this bill has not been intensively discussed and jointly approved by the DPR and the Government.

WGII highlights at least four important points in the context of the dynamics that occurred in the process of drafting the KSDAHE Bill. First, the push to change the approach of Law 5/90 (KSDAHE) to be more inclusive and human rights-based. Second, the division of authority for sector-based conservation management. Third, the alignment of conservation policies with various international changes and commitments related to the environment. Fourth, the improvement of conservation area governance based on law enforcement.

WGII itself has been overseeing crucial issues related to the participation and rights of indigenous peoples and local communities since the initiative to propose the KSDAHE Bill. This is based on various conflict phenomena that occur in Conservation Areas that overlap with customary territories or people's management areas. Including related to the weak human rights dimension of conservation area management and biodiversity management.

Law 5/90 has impacted the increase in the extent of conservation, but it was done by placing the community as a 'threat' to the preservation of the area and causing various practices of community exclusion, rights deprivation, and even impoverishment of communities due to restrictions on community access around Conservation Areas1.

WGII together with Indigenous Peoples and Local Communities, including civil society organizations, have submitted various substantive inputs in the KSDAHE Bill in the form of policy briefs, DIM, and other narrative inputs. However, in the KSDAHE Bill text ratified on July 9, 2024, WGII still observes various articles with 'problematic' tendencies that have not been removed from the KSDAHE Law. Walhi, as a member of WGII, has reviewed these problematic articles in its Policy Brief (Policy Brief: Eight Crucial Notes on the KSDAHE Amendment Bill)

Problematic Regulations in the KSDAHE Law

1. Ambiguity in Preservation Area Regulation

Based on the KSDAHE Law draft document received from various sources, WGII still finds the terminology called Preservation Area. This terminology was agreed upon by the KSDAHE Bill Working Committee team to replace the Important Ecosystem category outside the Conservation Area to meet the global demand to achieve the 30x30 conservation area expansion target, one of which is through the OECMs (Other Effective Areas Based Conservation Measures) approach.

As a replacement for Important Ecosystems outside the Conservation Area, Preservation Areas are regulated in Article 5A, Article 8 paragraphs (3) and (4), and Article 9. Preservation Areas are defined as areas with high biodiversity value but located outside KSA/KPA, because of the issue, many essential or important areas do not receive enough attention, thus having a high threat of deforestation and ecosystem function decline due to land conversion.

Preservation Areas themselves consist of (a) buffer zones of Nature Reserve Areas (KSA), Nature Conservation Areas (KPA), and conservation areas in waters, coastal areas, and small islands; (b) ecological corridors or connecting ecosystems; (c) areas with high conservation value; (d) community-managed conservation areas; and/or (e) areas for the protection of local wisdom. Further implementation of the Preservation Area designation will be outlined in a directive map using the latest technology and regulated in the Draft Government Regulation.

WGII notes that the interpretation of Preservation Areas concerning OECMs is also not very clear. OECMs2 is an approach used to recognize conservation practices carried out by non-state actors that contribute to conservation, where one of the key aspects emphasized in OECMs is the long-term impact of a practice that contributes to conservation based on function, social, cultural, or other local functions. Thus, an area designated as OECMs does not have to function and have a preservation purpose alone but rather emphasizes local values, including traditional knowledge.

Thus, the term Preservation Area with the meaning of preserve or conservation itself becomes inappropriate and will alienate other values such as culture, spirituality, and sustainable use (especially by indigenous peoples) - customary sustainable use. Moreover, Article 9 paragraph (1) orders that permit holders in Preservation Areas carry out conservation activities, with the sanction of land rights release if the permit holder does not heed this obligation. This further shows the "ambiguity" of Preservation Area regulation because if this Preservation Area is not well understood, it can be used as a basis to criminalize communities living in Preservation Areas, amid the ongoing conflict situation and conditions in conservation areas.

This condition is complicated by the absence of articles regulating FPIC free, prior, informed consent, and conflict resolution mechanisms in the designation and management of Conservation Areas (including Preservation Areas). Thus, it seems that the regulation on Preservation Areas is only oriented towards the target of area expansion alone, without considering social, human rights, cultural, and sustainability aspects.

2. Community-Managed Conservation Areas in Preservation Areas do not yet reflect Community-Managed Conservation Areas (AKKM) initiatives from the community

As part of the Preservation Area, the KSDAHE Law defines AKKM in the explanatory provisions as "Areas jointly managed by local communities to protect biodiversity and its ecosystems according to local wisdom, including traditional knowledge related to Biological Natural Resources and its Ecosystems". If referring to this definition, there are 3 key values of AKKM according to the KSDAHE Law, namely 1) the area managed; 2) to protect biodiversity and ecosystems 3) can be in the form of traditional knowledge related to biodiversity and ecosystems.

WGII itself interprets AKKM or ICCA (Indigenous and local communities conserved territories and areas) into 3 main characteristics3: namely 1) the relationship of the community with the area for historical, cultural, or spiritual reasons; 2) the existence of governance (rules, institutions, decision-making) 3) governance or practices 'contribute' to nature conservation.

Although the word conservation is never found in the cultural vocabulary for the community, through this interpretation, ICCAs/ AKKM are understood as a natural resource management practice that has holistic, dynamic values and is based on the cosmological values of various sequences of historical values and traditional knowledge of the community itself, therefore this practice is not merely aimed at 'nature preservation or conservation', but rather as part of life and lifestyle also a way of looking at treating nature.

For example, the simplest AKKM/ICCAs practice can be a traditional farming system that in the long term contributes to the conservation and sustainability of local rice varieties and extended habitats of various key species within the ecosystem. In its experience, WGII has documented various models of AKKM/ICCAs such as tana ulen, leuweung tutupan, tembawang, sasi, awig-awig, and others.

One important aspect of AKKM/ICCAs itself is tenure rights as the first characteristic of AKKM, AKKM as an area cannot be separated from its practice, so the regulation of land rights release in the AKKM area (as a Preservation Area) is contradictory to the goal of protecting the practice, traditional knowledge, cultural values, and history itself.

The regulation of AKKM in the KSDAHE Law has been reduced from its true meaning, as it still uses the 'protection-conservation' motive as the main indicator in biodiversity management. In fact, the July 2022 version of the KSDAHE Bill was quite good in translating AKKM according to the views of WGII and civil society.

3. Elastic Articles on Customary Forests

Article 8 paragraph (2) of the KSDAHE Law includes the existence of Customary Forests as part of a specific area as a life support system protection area covering KSA/KPA, Aquatic Conservation Areas, and Preservation Areas including Customary Forests. Although not explicitly mentioned, if carefully interpreted, Customary Forests [are considered] as part of KSA/KPA, Coastal Conservation, and Preservation Areas. In fact, Customary Forests are a status rather than a function, namely as Right Forests with collective rights and not under state control.

The Constitutional Court Decision 35/2012 in its consideration has quoted and reinforced Article 18B paragraph (2) and Article 28I paragraph (3) of the 1945 Constitution of the Republic of Indonesia which has recognized and protected the existence of customary forests in conjunction with the ulayat rights area of an indigenous legal community. The Constitutional Court stated that this is a consequence of the recognition of customary law as a "living law" that has existed for a long time and continues to this day.

Therefore, the Constitutional Court mentioned that placing customary forests as part of state forests is an omission of the rights of indigenous legal communities, the Constitutional Court finally decided "customary forests are forests located within the territory of indigenous legal communities", not as interpreted "customary forests are state forests located within the territory of indigenous legal communities".

The Constitutional Court is even more progressive by translating the phrase "considering" in Article 4 paragraph (3) of the Forestry Law, which must be interpreted more firmly, namely the state recognizes and respects the unity of indigenous legal communities along with their traditional rights, in line with Article 18B paragraph (2) of the 1945 Constitution. The Constitutional Court also emphasized the phrase "as long as it still exists and is in accordance with societal development", because customary law is generally unwritten law and is a living law, meaning it is law that is accepted (accepted) and practiced (observed) and obeyed by the community concerned because it fulfills a sense of justice for them and is in accordance and recognized by the constitution.

The article on customary forests that is not implicit certainly allows for various interpretations that can be used by law readers, the regulation of customary forests also eliminates the spirit of Constitutional Court Decision 35/2012 to release customary forests from the domain of state forests and which gives sovereignty to indigenous peoples over their land and customary territories. The regulation of Customary Forests in the KSDAHE Law appears as an effort to 'nationalize' the right forests that have been released through Constitutional Court Decision 35. Especially considering that civil society has experienced difficulties in proposing customary forests in Conservation Areas.

Conclusion

Preservation Areas and Customary Forests are just a few of the many critical notes on the content of the KSDAHE Law, Walhi (Indonesian Forum for the Environment) for instance, notes 8 crucial points that are still problematic in the June version of the KSDAHE Bill which was then ratified in July 2024, some of which include articles on environmental services in Conservation Areas and criminal penalties for individuals that do not clearly differentiate subjects, thus allowing the potential for criminalization of indigenous and local communities living in and around Conservation Areas. Thus, in the view of Civil Society working on human rights and Indigenous Peoples' Rights issues, the KSDAHE Law does not yet reflect the spirit of policy transformation and a more inclusive, fair, and human rights-friendly conservation paradigm. The government should be able to mitigate these critical notes and various inputs in drafting the Draft Government Regulation (RPP) as a technical regulation implementing the KSDAHE Law which will be completed within 1 (one) year.

Footnotes:

1. BPS data (2021) shows that 36.7% of the 25,863 villages located around forest areas are in the poor category and the Ministry of Acceleration of Development of Disadvantaged Regions states that 58% of all disadvantaged villages in Indonesia are located around forest areas, including conservation areas.

2. "A geographically defined area other than a Protected Area, which is governed and managed in ways that achieve positive and sustained long-term outcomes for the in situ conservation of biodiversity, with associated ecosystem functions and services and where applicable, cultural, spiritual, socio–economic, and other locally relevant values"

3. 1.) There is a close and deep connection between a territory or area and an indigenous legal community or local community. This relationship is generally embedded in history, social and cultural identity, spirituality, and/or the community's dependence on the area for material and non-material well-being.

2.) The guardian community or community makes and enforces decisions and rules (such as access and use) regarding the territory, area, or species habitat through functioning governance institutions.

3.) Governance decisions and management efforts made by the community or community concerned 'contribute' to nature conservation (ecosystems, habitats, species, natural resources), as well as community well-being. see: iccaconsortium.org