Ulrich Löffler, (1996):
Land Tenure Developments in Indonesia

7.1 The impact of land tenure in the project area of the "Kalimantan Upland Farming Systems Development Project" and the "Social Forestry Development Project" in West Kalimantan

Land use

Both the Kalimantan Upland Farming Systems Development Project (KUF) and the Social Forestry Development Project have their project areas in the District of Sanggau in West Kalimantan. The District of Sanggau [FN 243] covers a total area of 1,830,200 ha (12.47 % of West Kalimantan Province). Of that, around 216,043 ha (14.3 %) are village forests and 714,637 ha (39 %) are state forest areas. The state forest areas are divided up as follows:

Although more than 50 % is forest land according to the classification, in 1991 only about 27.9 % was "really forest".[FN 244] The remaining areas were bushland, Imperata grasslands and "barren" land.

Around 249,317 ha (13.6 %) are used for plantations (rubber, oil palm, coconut, cocoa, cloves, coffee and pepper). Conversion forests are used for Nucleus Estate Smallholder Systems (PIR) in which rubber and oil palm plantations are predominantly set up. Shifting cultivation is practiced by the Dayak communities on 77,531 ha.[FN 245] Of course, the fallow areas covering 202,902 ha have not been calculated into this figure. They are identified separately in the statistics as "temporary cultivated land". The home gardens, forest gardens and mixed rubber gardens which are important for the Dayak communities take up 148,144 ha (8.1 %). The remaining areas cover swamp land (3.7 %), Imperata grasslands (0.7 %) as well as wet rice lands (3.2 %), fish ponds (0.1 %) and settlement areas, 37,437 ha (2.0 %).

In 1991, 442,556 people lived in the District of Sanggau, 70 % of them being Dayaks, with a yearly population growth of 2.85 %. In addition, in 1991 alone more than 4,000 households (17,079 people) were resettled in the district under the transmigration program. The population density of the total area is 24 people / km². The land / person ratio is 4.14 ha / person. However, if the population figures are only related to the land not classified as forest land, the resulting land / person ratio is 1.93 ha / person. [FN 246]

Some important land tenure issues in West Kalimantan have been summarized in the following pages:

Written law versus Adat law

The BAL recognizes the rights to the Adat community under hak ulayat. In principle, hak ulayat allows every member of the adat community to use the land and the products of the land. This hak ulayat can be made valid taking the following three aspects into consideration:

• "that there is still a holder of traditional rights of control over the land who maintains the traditional ways,
• the authority of the traditional rights holder is still acknowledged and obeyed by the adat community,
• the adat community is conscious of a boundary that separates their local hak ulayat from the hak ulayat of a different community."[FN 247]

At the same time, hak ulayat should not be in conflict with national interests and the interests of the people of Indonesia according to the BAL. The Basic Forestry Law does not recognize the existence of a hak ulayat.

As already presented in more detail in section 3.4., there are maximum limits for land holdings under ladang and sawah agriculture which are dependent on population density. For West Kalimantan and the District of Sanggau, which belong to the low density category (1-50 persons / km²), the maximum for sawah land is 15 ha, and 20 ha for dry land. These upper limits must be taken into account if land is to be registered.[FN 248]

The Dayak communities follow the parental system, i.e. men and women have the same inheritance rights. There is no difference between written law and adat law for the Dayaks. The basis for obtaining control and possession of land in the Dayak community is that male and female heirs live in the parents’ house (or in a rumah panjang).

The rights to land are dispensed according to adat law in the Dayak community. Individual rights to land are acquired through the clearing of an allocated land parcel. This is still the case today, and new family couples especially acquire individual rights to a parcel of land this way.

Some regulations for the strengthening of Dayak land ownership rights are disadvantageous. If parcels are to be registered individually, the adat leader or village head must confirm that the landholder is a member of the adat community and holds individual rights to the parcels. Along with this it is a lengthy process since an official letter granting the right must be issued by the governor.

Adat institutions for conflict resolution

In spite of the great diversity of the Dayaks with more than 200 different small groups, common ground and similarities can be found in their power structure. In a hierarchical structure, the Temenggung [FN 249] (Royal Official) is the highest leader at the pinnacle of a Dayak tribe. He stands above the Patih or Menteri (Minister), and they in turn stand above the Pengurus Adat (Governor). There are of course different variations and one also finds special officials in some Dayak communities, for example an official in charge of oaths called Bilal Tomang of the Dayak Merui tribe.

In the district of Sanggau there are only 23 Temenggung left who are no longer today in charge of one Dayak tribe as they used to be, but instead preside over several tribes. This is the result of a Gubernatorial Decree where the Governor as the head of the provincial Government, decided that only two groups of traditional functionaries, namely Temenggung and Pengurus Adat would represent the issues of the adat communities within the framework of the simplification and restructuring of traditional power. Thus a Temenggung was positioned in one district village and was in charge of several "dusun". This Temenggung is superior to the Pengurus Adat of the various adat communities. "In this specialization process, traditional power was not destroyed, but also acknowledged to exist. This is apparent from the letter of Promotion from the Governor, especially for the position of Temenggung. The letter of promotion ("Surat Pengangkatan") was published after a public election was held, because in any case it was acknowledged that the Dayak society - which still has a strong attachment to the adat norms - would be more likely to follow the decisions of an adat functionary." [FN 250]

DHARMAWAN, however, sees a clear weakening in traditional power here: "Under the strong influence of the UUPA and powerful government regulations, the head of the tribe has less power to exercise control on the land in his regions.[FN 251]" The Governor’s decree sets down in case one of the Temenggung who was promoted by the Governor’s decree dies, there will be no new promotion. Thus, traditional power will die out in the future along with the Temenggung. Through the restructuring of traditional power by the provincial government, the role of the Pengurus Adat has become very strong. They now have various functions to fulfill for which there used to be a multitude of adat functionaries under the Temenggung. The Temenggung has rather more to fill the role of a "coordinator" who makes decisions if the problems cannot be solved by the Pengurus Adat. Temenggung can also take oaths from community members ("sumpah selam air" or "sumpah selam tali") in order to find out the truth. In many villages in which a Temenggung can no longer be found, the Pengurus Adat takes over his function (for example in Lubuk Sabuk).

The hierarchical and autonomous authority of the Temenggung also appears in conflict resolution. If the conflict cannot be resolved at a lower level, the next highest level of decision is brought in. The highest level for decision making is the Temenggung. These mechanisms for resolving conflicts can be applied in the following conflicts:[FN 252]

• Exploitation / use of land by a second party, which has been already cleared by the first party
• Disputes over the boundaries of land or ownership disputes
• Permission for the opening of new land
• Destruction of plants / trees by another person
• Letting tree branches fall on the road, and not being removed
• Theft
• Taking another man’s wife

As a rule, these conflicts are dealt with by the adat functionaries under the Temenggung, and the Temenggung is only asked for advice if no resolution can be found at this level. The Temenggung possesses the autonomous power of decision in the following cases:

• Manslaughter or murder

In the case of manslaughter, the punishment imposed is called sekati nyawa, where goods equated to the value of the parts of the body of the victim must be surrendered, and in the case of murder, it is sekati delima, where goods equal to three times the value of the punishment required for manslaughter must be surrendered.[FN 253]

• Overstepping the boundaries of an adat area controlled by another tribe.

"Vacant" land

The government and the "newcomers" (individuals from different ethnic origins, and agro-businessmen with commercial agricultural and forest plantations) view fallow land within the confines of shifting cultivation as "vacant" or "unused" land. Thus it passes automatically to the State according to Indonesian law. The State can then award the land to commercial farmers and business people for agricultural and forest plantations.[FN 254]

Immigrants have also tried to use this "vacant" land.

On the other hand, the Dayaks believe that they have ownership rights to the resources since they have received these rights from the traditional functionaries and see no reason why they should have to have these rights recognized as "their" ownership rights again in a lengthy and complicated procedure.

It is often overlooked that the Dayaks also use numerous products from "fallow" land and of course use the land continuously. This, of course, differs from continuous use as seen from the official side which is that "tree crops must be planted in rows and preferably as a monocrop".[FN 255] In some regions, this has led to the Kenyah Dayaks, for example, planting their trees in a row so that government officials will acknowledge that the land is being used and is thus owned. [FN 256]This change leads, of course, to less sustained, unstable and unproductive forms of land use in contrast to the complex, mixed cropping agroforestry systems. "Acknowledgment and formal clarification of shifting cultivators’ claims to land is an important prerequisite for environmentally suitable forest management which incorporates the knowledge, abilities and rights of the indigenous people."[FN 257]

Agricultural land versus forest land

The Consensus Forest Land Use Plan (Tata Guna Hutan Kesepakatan (TGHK)) was passed in 1984. Through the classification at the time, wide areas of land were declared as state forest. This land-use regulation not only reduced the amount of land suitable for shifting cultivation;[FN 258] it also led, for example, to land under hak ulayat or other adat land now being in state forest. According to the Basic Forestry Law, there are no personal rights in these state forest areas (Kawasan hutan), and the BPN cannot issue land certificates.

This means that as long as the land is classified as forest and is subject to the Forestry Department, no individual or communal property rights can be registered under the BPN.

Individual rights and communal rights

In section 3.5., attention has already been drawn to the fact that individual rights and communal rights cannot always be clearly differentiated. There can be a whole range of rights from pure communal rights (which can be available for fallow land under hak ulayat) to pure individual rights (which exist, for example, in the towns of the Sanggau District) which cannot clearly be regarded as the equivalent of individual or communal rights.[FN 259]

Individual rights to land are dependent on the status of individuals in the adat community to a great extent, and here one must differentiate between "insiders" and "outsiders". The following criteria can be used to differentiate between those two:[FN 260]

• member of the lineage of the said Dayak group
• through marriage, both males and females might become "insiders". Following an inter-tribal marriage, the pair can choose if they live with the family of the husband or the wife. After the presentation of a gift, the husband / wife is accepted as an insider in the district of his / her partner. But they also retain the right of inheritance from their parents if they should end up returning to the parental community.
• an "outsider" can become an "insider" through "adoption" which results from a "plate giving" ceremony. Following this ceremony, such people may clear land and receive certain insider rights.

An "insider" can have the following rights:

"Ownership rights"

• The Pengurus Adat is asked for permission to clear land and where this land may be cleared. After that, a boundary sign is erected which is accompanied by a "ngusak", "ngudas" of "motan muat" ceremony. The clearance of the forest land indicates the beginning of the "slash and burn" cultivation. The person who clears the land has the "ownership" of this parcel of land. The land must be continuously worked on. Part of this is a fallow period of 5-10 years following on after about 3 cultivation periods, but the signs of ownership (a big tree or a hut) remain on the "fallow land". The owner can sell or bequeath the land whereby a sale can only be made to an insider and only takes place as a rule in the vicinity of growth centers. The land can be bequeathed equally to sons and daughters. The only condition is that the prospective heirs live in their natal homes.[FN 261]

"Rights of use"

• Land can be used for a set period of time. This right can be awarded to an "outsider" and also to a family member who is already married and has left the family home.

"Rights to enjoy produce"

• This means the awarding of the right to trees and their products.

Trees and their products on tanah tembawang land can only be harvested by the heirs of the owners of tanah tembawang.[FN 262] In adat forest areas, only the "insider" can use the forest products. Dayaks differentiate between the rights to land and the rights to trees. This means that the tree is looked upon as the property of the person who planted it, regardless of who owns the land. However, there can be restrictions as to how many trees may be planted on someone else’s land. It has been reported from the Kenyah on East Kalimantan that they are not allowed to plant more than ca. 10 trees on someone else’s land.[FN 263] The rights to trees are likewise not an absolute right: "Anyone is allowed to pick someone else’s fruit to satisfy hunger on the spot; but one is not permitted to take it home, sell it, or destroy it without special permission. Similarly, plants from people’s forested fallow lands which have useful parts (e.g. banana leaves, medicinal plats, bamboo, pandanus) belong to the land owner."[FN 264] (See also box 7 with an example from Long Ampung / East Kalimantan.)

Box 7: Tree tenure on Long Ampung [FN 265]

Watas ompuk is the term amongst the Dayak in West Kalimantan for communally owned land. This is primary forest land which has not yet been cleared for swidden cultivation and is limited by the boundaries with other adat communities. The villagers know and respect these boundaries between the communities.

Watas oko (my land) is the term for individual land ownership. This is the term for land which the individual has cleared within the watas ompuk.[FN 266] Bawas is the term for "fallow". This fallow land is newly cultivated after 5-10 years dependent upon soil fertility and secondary vegetation. This means that the individual owns about 5-10 "parcels" which he uses in a "rotation cycle".

Along with watas oko, the Dayaks have further terms for forest land within the watas ompuk which is prohibited to cultivate: [FN 267]

• utak sunge: forest land around springs (watershed area)
• penyaren: very old cemeteries
• hutan adat: customary forest reserved for the provision of building timber
• land reserved for cemeteries

Protection of ecological values versus the need for food and other produce

Through the strict application of the legal regulations for the management of ecosystems and the protection of conservation areas, illegal use has been made punishable, and thus "legal" traditional utilization rights have been restricted.[FN 268] The further planned extension of protected areas of land in Indonesia and the further increasing value of (plant)genetic resources in the future means that adat communities can expect further restrictions, while on the other hand their demands on food, timber and non-wood products is growing with the increasing population numbers.

Rights of adat communities versus the resettlement of excess population from other islands

The spontaneous and planned resettlement of population groups from the densely populated islands to the "outer islands" is bound up with lots of problems (which are set out in the next section). In the Sanggau District alone, more than 17,079 people have been resettled under the transmigration program.

The local government is planning to integrate a self-supported transmigration program (Transmigrasi Swakarsa Mandiri, TSM) into the region of the PFMA. This implementation of the TSM will lead to at least two problems:

• As a rule, participating transmigrants ought to receive a land certificate after three years, but this is not allowed in forest areas.
• If the transmigrants are given land certificates, the "original inhabitants" will also make claims to this land.

Rights of adat communities versus commercial agricultural and forestry land uses

The adat communities set the boundaries of the territorial lands through the "historical experience of the founder". The boundaries are dependent upon the rotation of the crops and the utilization of forest products. They are usually separated from other adat communities by distinctive land marks such as mountains, rivers, large rocks, high trees and huts. Cropping and gathering activities have been carried out on these territorial lands for generations and have led to a "magical relationship" between the Dayaks and their territorial regions.[FN 269]

The boundaries of the adat areas have approached the administrative boundaries of the desa or dusun in the course of time in particular with the building up of villages and their administrative boundaries. Thus the boundaries of adat areas are the same as the village boundaries in some Dayak communities.[FN 270] But as a rule, the boundaries of adat areas are still in existence and are known well to the individual members even if administrative village boundaries have been drawn inside this adat area.

Following the re-structuring of the adat authorities as already mentioned above, there have been alterations to the boundaries which are controlled by a Temenggung. According to the re-structuring, a Temenggung can be in charge not only of one Dayak group, but rather of several, and thus his sphere of influence can extend beyond the regional boundaries of an individual adat group.[FN 271]

Registration of Land

Thus far, only inhabitants in the villages which border onto the state road connecting Kambayan and Balai Sebut, such as Sejuah, Mobui, Bantai and Majel in the project region of the SFDP have applied for land certificates from the BPN. Those applications are usually only for land for houses.

In Bantai, 58 land certificates are supposed to have been issued by the BPN under PRONA by 1995. In addition, 39 land certificates have been issued to the participants in a rubber plantation under the People’s Rubber Regeneration Project (PPKR) by the BPN which will be held by the PPKR until the participating farmers have paid back their credits.[FN 272]

Only a few land certificates have also been issued in the project area of the KUF. These are also certificates for land for houses as a rule. In the 80s, the government tried to register individual parcels in the confines of the intensification program for rubber and cocoa cultivation.

Pressure on land in the border regions of Sarawak / Malaysia

In the project area of the KUF near the border of Sarawak, cocoa and pepper are cultivated all along with rubber trees. Cocoa and pepper have a high value in the markets in Malaysia. At the same time, swidden cultivation is still practiced which is significant not only for subsistence supplies, but also for traditional belief, ritual and ceremonial activities.[FN 273]

Individual land rights are strongly marked in this regions and reflect the economic value of the land in the community. If a person rented in land from another villager, the tenant must plant rubber trees on this as a kind of compensation to the land owner before the land is returned. In so doing, the owner of the land becomes the owner of the rubber garden (adat penyasih). Here, the influence of the nearby capital of Kuching in Malaysia, which can be reached on the "highway" in about a three-hour drive, is distinct. [FN 274] The economically favorable location attracts many people to the region of course, which "may push the farmers into giving up or selling their land and to moving up to the forest areas".[FN 275]

Participatory Forest Management Area (PFMA) of the SFDP

A model project for the establishment of a long-term, sustainable, multiple use forest management system is the Indonesian-German Social Forestry Development Project (SFDP), Sanggau District, West Kalimantan. The SFDP has supported the local population in getting a concession for an area of 103,000 ha from the Ministry of Forestry. The area of land involved is land identified as state forest until now on which 17,000 people live in 50 settlements. The types of vegetation vary from grassland (result from clearing with fire), through agricultural land to primary forest.

The villagers have formed a "communal association" for getting the concession and for cultivating the land. A formal agreement between the Ministry of Forestry and the communal association for participatory management of the model concession was signed.[FN 276] This participatory model concession[FN 277] is looked upon by the Indonesians as an important example for "a development of "local people participation" model in the management and utilization of public production and protection forests in West Kalimantan".[FN 278]