BEYOND SPECIAL AUTONOMY AND CUSTOMARY LAND RIGHTS RECOGNITION: Examining Land Negotiations and Re-production of Vulnerabilities in Papua

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1 BEYOND SPECIAL AUTONOMY AND CUSTOMARY LAND RIGHTS RECOGNITION: Examining Land Negotiations and Re-production of Vulnerabilities in Papua Laksmi Adriani Savitri (UGM) and Susanna Price (ANU)

2 Otsus (2001), Customary Land Rights & Resource Extraction: Two failures : 1. Post-Reformasi: Distrust toward Otsus capacity to empower indigenous Papuans 2. New Order: Experience with Freeport as a model of corporate-based resource extraction. Continuation or discontinuation? Jokowi s policy approach: backwardness and in need of economic growth the Business as Usual mode: more projects, more negotiations

3 Otsus (2001), Customary Land Rights & Resource Extraction: Does Otsus recognition of indigenous Papuan customary rights to resources (hak ulayat) give indigenous communities more control in negotiations over their resource base, leading to better livelihoods and living standards? Perdasus Implementing regulation 2008 Project case studies: MIFEE; LNG Bintuni

4 Special Autonomy Law 21/2001 (Otsus) Perdasus Hak Ulayat no. 23/2008 General Principles Focus Defining Resource rights Compensation for Hak Ulayat loss Broad Empowering the customary community Land, water or sea to certain limits, forests and natural wealth in them Consensus with customary community on cash, land substitution, resettlement, or as shares. Limited Proving existence of customary community Rights to manage, negotiate and release land use rights for the third party, but not to own it Not regulated

5 Negotiations in practice MIFEE Project Negotiations during transfer of land and resource rights Written MoU and Agreement as a contract model Compensations: recognition and unrecognition of loss Role of the State as middleperson or company s power brokers

6 Negotiations in practice Compensations MIFEE Project (cont) Land was not compensated gift money as symbol of brotherhood Forest wood loss was compensated Compensation for loss of livelihood: Rp 2000 per m3 of forest wood daily wage labour employment rebuilt houses CSR programs: electricity, transportation, school and church renovations

7 PROCESSES OF NEGOTIATION PIG SLAUGHTER CEREMONY COMPEN- SATION MONEY

8 Production and reproduction of vulnerabilities: the Unanticipated Effects MIFEE 1 st negotiation/ agreement Renegotiations Loss of food and other livelihood sources from the forest, recruitment and dismissal of workers, illness and malnutrition due to changing diets, water and air quality Unfulfilled promises: Dismissal of workers due to difficult adjustment Farming creates market dependency toward corporation due to no alternatives

9 Production and reproduction of vulnerabilities: the Unanticipated Effects 1. Social differentiation was created due to: individual successes and failure to adapt or tapped by the CSR programmes Degree of ownership rights toward land and resources 2. Feeling of deprivation is established jealousy, tensions, anxiety lead to internal conflicts

10 TYPES OF VULNERABILITY 1. Drastic landscape changing 2. Social conflicts 3. Poverty, malnutrition, sickness & deaths

11 Negotiation Basis Legal basis for negotiation Status of MoU/A Negotiation Parties Grievance Redress access Legal support to landholders Security arrangements LNG BINTUNI Papua Barat 1999 Agreement pre-otsus / GOI standard Supplementary negotiations post-otsus, pre Perdasus Supplemented for international standard Resettlement with Development 1999: Project staff & clan leaders/ members with Bupati s Tim Penyuluh : Project staff & community Only after negotiations concluded No Local security guards Security protocols excluded military

12 Basis for Resettlement LNG BINTUNI Social assessment Social survey/census 2001 Information to customary groups Compensation for Resource loss Compensation for Income loss Transition assistance Disclosed: Agreements, lists, booklets, ff. Meetings informed by project staff. Marine, land and tree crop compensation in cash & kind Yes (see below) Transfer allowances & assistance Food during transition to newly built/serviced villages Livelihood development Fisheries development for marine resource loss USD $200 m foundation for resource losing clans Resettlement sites & services Replacement land under hak milik title Project based employment Agricultural livelihood programs Access to sago/fishing camp

13 Conclusions Recognising hak ulayat rights does not necessarily empower customary communities. Recognise & address vulnerability Regulate & limit land deals Improve protective basis of Otsus & Perdasus / FPIC Beyond compensation - develop livelihood programs Local people to set priorities & select projects