I.

Research Topic Recognition of the indigenous people and indigenous land right in Indonesia

II.

Definition of Problem At the end of July 2007, an organization for indigenous people in Indonesia together with

nine other civil society organizations eight were also from Indonesia and one was international organization had filed a request under the 71st session of the Committee of the Elimination of Racial Discrimination. They filed the request under the urgent action and early warning procedures of the Committee. The organizations were seeking the Committees attention with regards to the situation of the Indigenous People in Kalimantan, Indonesia, namely the Dayak people. The request focused on the possible threat for indigenous people concerning the establishment of oil palm plantations over some 850 kilometers of land in Kalimantan, in which the lands are traditionally owned by indigenous people. The establishment plan is threatening 11.4 millions Dayak people who are living in their ancestral territories.1 The claimants also elaborated the general situation faced by indigenous people in Indonesia. One important condition is the partial recognition of the indigenous people, in Indonesian laws and practices. The Government of Indonesia had used several terms and definitions in addressing indigenous people, and they are scattered in some regulations and laws. They complain that the terms do not fully accommodate their existence and their rights thereof.2 Moreover the claimants explained the Governments failures in practices in protecting their rights as indigenous people, in particular their rights towards their ancestral lands. This land rights is very significant for them, because it is much related to their subsistence, both physically and culturally.3

Request for Consideration of the Situation of Indigenous Peoples in Kalimantan, Indonesia, under the United Nations Committee on the Elimination of Racial Discriminations Urgent Action and Early Warning Procedures. Committee on the Elimination of Racial Discrimination Seventy-First Session, 30 July 18 August 2007. Para 29.
2

Ibid. Para 7. Ibid. Para 25.

Eventually, they asked the Committee, among others to recommend Indonesia to not proceed with the Kalimantan palm oil project mentioned above at least until the State has legally recognized and secured the rights of ownership of the indigenous people towards the lands involved; and obtain their free, prior, and informed consent regarding the plan. They also requested the Committee to recommend the State to adopt legislative, administrative and other measures to give full effect to the rights of indigenous people.4 The request made by these organizations gives a clear picture of the two important issues concerning the situation of indigenous people in Indonesia: the recognition of indigenous people and indigenous land right the important right derivates from the recognition as such. The General Assembly of United Nations adopted the Declaration on the Rights of Indigenous People (UNDRIP) on 2007, and Indonesia is one of the countries which signed the UNDRIP. This Declaration is a mile stone for the indigenous people since it marks the acknowledgment of indigenous people rights as human rights, thus making this right a concern of whole nations.5 The world is now sharing the same perspective on indigenous people rights. Due to the early stage of its international development, the jurisprudences of some regional human rights courts on the matter of indigenous people can be valuable in the improvement of indigenous people rights discourses worldwide.6 The earliest important cases as such were Awas Tingni and Saramaka cases, which were tried by the Inter-American Court of Human Rights (IACHR) and Endorois case, judged by the African Commission on Human and Peoples Rights (ACHR). The judgments of these regional cases are important in the issue of the definition of indigenous people. The IACHR decided Saramaka as a tribal people, instead of indigenous

Ibid. Para 50.

Meijknecht, Anna. The (Re-)Emergence of Indigenous Peoples as Actors in International Law. Tilburg Foreign Law Review No 315. 2002-2003. Downloaded from Heinonline. Page 320-321
6

Gilbert, Jeremie. Indigenous Peoples Human Rights in Africa: The Pragmatic Revolution of the African Commission on Human and Peoples Right. International and Comparative Law Quarterly Vol. 60, January 2011. Downloaded from Cambridge Journals. Page 268-270.

people, although they shared the same rights and protection7, while the ACHR had used pragmatic instead of theoretical approach in defining Endorois people as indigenous people8. The Awas Tingni judgment had contributed to the indigenous land discourses in a way that it developed a connection between the lands with the indigenous peoples spiritual condition9. Adding to the contribution was the Endorois case which concluded that the indigenous peoples traditional possession of land has the equivalent effect as that of a state-granted full property title10. These judgments should be relevant to enlighten the development of indigenous people rights not only in the American and African regions, but also worldwide, including the situation of indigenous people in Indonesia. III. Research Goal To analyze the relevance between the regional courts judgments on Awas Tingni, Saramaka, and Endorois cases with the recognition of the indigenous people and indigenous land right in Indonesia.
IV.

Central Research Questions How the recognition of the indigenous people and indigenous land right in Indonesia

should be influenced by the regional courts judgments on Awas Tingni, Saramaka, and Endorois cases? V. Sub-questions
1. What is the status of the indigenous people and the indigenous land right in Indonesian

laws and practices?

7

Inter-American Court of Human Rights Case of the Saramaka People v. Suriname. Judgment of November 28, 2007. Para 78.
8

Gilbert, Jeremie. Ibid. Page 247.

Vuotto, Jonathan P. Awas Tingni vs Nicaragua: International Precedent for Indigenous Land Rights? Boston University International Law Journal. Vol. 22. 2004. Page 227.
10

Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya. Judgment of February 4, 2010. Para 209.

To find out the influence of the regional courts judgments, the current situation of indigenous people in Indonesia must be examined. The first part of the research will be focused on the situation of indigenous people in Indonesia, which mainly concerns the recognition and the indigenous land right of indigenous people in law and in practice. This part will explore the domestic legal instruments related to the recognition and the indigenous land rights, which are the Indonesia Constitution and its amendments, the Basic Agrarian Law, the Forestry Act, and the Plantation Act. Moreover, an overall analysis on the regional laws will be made.
2. How do the regional courts judgments contribute on the definition of indigenous people

and the concept of indigenous land right? To answer the central research question, there must be an attempt to find out the contribution of the regional courts judgments to the issue of definition of indigenous people and the indigenous land rights. This part of the research will elaborate the regional courts judgments on Awas Tingni, Saramaka and Endorois cases. The elaboration will be focus mainly on their judgments in the issue of definition of indigenous people and indigenous land rights and what kind of contribution they made to the substance of indigenous people rights.
3. What are the links between the regional courts judgments and the situation on indigenous

people recognition and indigenous land right in Indonesia? Lastly, in order to answer the question of influence, the links between the situation in Indonesia and the regional court judgments must be made. The last part of the body of the research will explain the linkages between the regional court judgments and the situation in Indonesia and how should the judgments influenced the situation in Indonesia and what should happen in the future for the indigenous people in Indonesia concerning their recognition and their land rights. VI. Theoretical Framework One of the main focuses of this research is the recognition of indigenous people, thus it is consequently essential to understand the existing definition of indigenous people. In order to

look up the definition of indigenous people, it is important to examine the definition brought up by the first international law instrument in this matter, i.e. the ILO Convention No. 169. The authoritative definition developed by the experts, in particular Martinez Cobo is also essential to explore. Another international instrument on indigenous people rights that also needs to be sought is the UNDRIP, as it is important in relating to the definition. These definitions will be essential to compare with the definition of indigenous people used in the three cases examined in this research. The other focus relies on the indigenous land rights. Although the indigenous land rights are developing beyond the ILO Convention No. 169, but it is an important instrument because it gives foundation for the discourse, thus it is relevance to explore the instrument with regards to this matter. The work of Martinez Cobo and the UNDRIP are also vital to compare with the judgments of the regional courts concerning the substance of the indigenous land rights. VII. Methods of the Research To find the answer with regards to the status of the indigenous people and the indigenous land right in Indonesian laws and practices, the researcher will examine existing national laws and literatures to gather the information and the current knowledge on this matter. This will be done by accessing the website on the national laws, articles and news concerning this matter. Several interviews will also be done to find out the process of the request under the 71st session of the Committee of the Elimination of Racial Discrimination and also the follow ups on this matter. The most that can be done within the time frame available is to interview the indigenous people organization in Indonesia and also the NGO included as the claimants of the request. However, if there is a possibility in the future, interview would be made to the Government representatives to gain their perspective on the situation of indigenous people in Indonesia. In order to discover the contribution of the regional courts judgments on the definition of indigenous people and the concept of indigenous land right discourse, the researcher will analyze the American Convention on Human Rights (American Convention) and African Charter on Human and Peoples Rights (African Charter) and also relevant judgments of the three cases, as well as referencing scholarly journals in West Law, Heinonline, Cambridge Journals, American

Journal of International Law; and other journals related to the cases. In addition, the researcher will examine existing related text books in the Tilburg University Library. In order to develop the links between the regional courts judgments and the situation on indigenous people recognition and indigenous land right in Indonesia, the researcher will make an interpretation from the judgments contribution linked to the indigenous people situation existing in Indonesia. As a complement, the researcher will take into consideration the meeting notes of UN Permanent Forum on Indigenous Issues (UNPFII) prior to the adoption of UNDRIP and the comments from Indonesian Government regarding to the adoption and also the work of UN Special Rapporteur (s) on the Situation of Human Rights and Fundamental Freedoms of Indigenous People. The works of African Commissions Working Group of Experts on Indigenous Populations/Communities regarding indigenous people rights will also be taken into considerations. The researcher will extract all the findings, as well as, develop a conclusion and possible recommendations.