Fixing legal loopholes in Indonesia’s forest and land use governance

January 27th, 2011

Published on East Asia Forum, Author: Fitrian Ardiansyah, ANU

As a country with one of the largest areas of rainforest in the world, it is not surprising that Indonesia is also considered a pioneer in the development of REDD+ (Reducing Emission from Deforestation and Forest Degradation).

In early 2007, the Ministry of Forestry (MoF) formed the Indonesia Forest Climate Alliance (IFCA) with the help of various government departments, donor agencies, research institutions and NGOs to initiate the development of REDD+ policies. Later that year, IFCA managed to outline key elements of REDD+, including methodologies, land-use policies, institutional arrangement and benefit distribution mechanisms.

Following the work of IFCA, the MoF has issued a number of ministerial decrees, which aim at governing REDD+ demonstration activities and providing an umbrella for benefit distribution mechanisms.

Last year in Oslo, on the same occasion as the signing of a letter of intent between the Indonesian and Norwegian governments, to signal his support for REDD+, the Indonesian President Susilo Bambang Yudhoyono announced his commitment to halt all new concessions for conversion of peat and natural forests in two years, supposed to start in January 2011.

To realise this, the Indonesian government has to produce a clear strategy and legal framework which guides the moratorium of forest conversion and the overall REDD+. However, these existing and potential future regulations may not be sufficient to provide firm legal direction in developing and exercising REDD+.

A number of organisations argue that to have successful REDD+ the country has to reform its forest and land use governance, starting from the regulations that have shaped this governance system.

The latest institution to speak out about this issue is Indonesia’s Corruption Eradication Commission (KPK). When releasing its study on forestry late last year, the KPK emphasised that unclear definitions of forest areas in Law No. 41 of 1999 on Forestry and other relevant regulations (i.e., Government Regulation No. 44 of 2004, and MoF’s Decree No. 32 of 2001 and 50 of 2009) can be considered as one of the indirect causes of deforestation.

According to the KPK, this unclear definition and boundary of forest areas, coupled with the lack of applied fair procedure in designating forest areas, has weakened the legitimacy of 88.2 per cent of forest areas (more than 105.8 million hectares).

To make things worse, the KPK found that not all of these forest areas have been gazetted in law.

A study carried out by the MoF in 2009 concurs with this argument by stating that one of the indirect causes of deforestation is the difficulty of controlling the boundaries of production and protected forests, leaving them vulnerable to illegal logging.

This situation, according to the commission, has created a legal loophole for illegal loggers and illegal miners to continue their actions and avoid legal implications.

Another revelation by the KPK is that the division of authorities, roles and responsibilities among different layers of governments remains unclear and problematic, especially in determining forest areas in the spatial planning process.

In its study, the KPK found that an agreed synchronised map of forest areas which can be used by stakeholders does not as yet exist. Instead, there are at least four different versions which, utilising various scales, are not compatible with each other.

It is of course very challenging to resolve this given the variety of sectors that have interests in forest and land use — sectors which, furthermore, are regulated under different ministries and layers of government. These institutions are known to have issued overlapping policies on land use and land use changes, and influenced the issuance of different documents and maps of forest and land use.

For example, based on Law No. 41 of 1999, the authority to manage state forest is under the national-level MoF. The ministry has control over almost every activity in state forest and this law has repealed much of the authority decentralised under Law No. 22 of 1999 on Regional Governance.

This arrangement appears to be centralistic and contradict with the authority of local governments in their spatial planning under the decentralised system. As a result, there are often cases in which spatial planning which allocates forest areas at district level is contradictory with the planning at the higher ruling.

With de facto decentralisation processes, particularly in the forestry and land use sectors, occurring more quickly than de jure ones it is therefore imperative to deal with this issue seriously. The KPK has recommended the MoF to patch these legal loopholes, at the latest, by the end of this year. And, if REDD+ is to be actively and effectively carried out, it is urgent this advice is heeded.

Fitrian Ardiansyah is advisor to WWF Indonesia on climate and energy, a PhD candidate at the Crawford School of Economics and Government at the Australian National University and a recipient of the Australian Leadership Award and Allison Sudradjat Award.

Original link: http://www.eastasiaforum.org/2011/01/27/fixing-legal-loopholes-in-indonesia%E2%80%99s-forest-and-land-use-governance/

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