Clearing land, obscuring rights:

Transcription

1 Clearing land, obscuring rights: seeking benefits and claiming property in a process of oil palm plantation expansion in West-Kalimantan, Indonesia Petra Rietberg

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3 Clearing land, obscuring rights: seeking benefits and claiming property in a process of oil palm plantation expansion in West-Kalimantan, Indonesia MSc thesis report, ENP Law and governance group Environmental policy group Wageningen University Supervisor and examiner: Dr. Otto Hospes Second examiner: Dr. Peter Oosterveer Petra Rietberg Wageningen, May 2011

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5 Abstract Since the 1990s, oil palm production has grown tremendously in Indonesia, especially in Kalimantan. Oil palm plantation expansion is expected to continue in the coming years. Expansion of oil palm plantations has been associated with conflicts between communities and companies. Notably, these conflicts relate to rights and control over land. This thesis aims to contribute to a better understanding of oil palm plantation expansion processes and the role of communities in such processes. Notably, it aims to answer the question how claims over land are made by an oil palm company in the plantation expansion process, and how villagers have mobilized their rights to land in response to the incoming of the company. This question was investigated by means of a qualitative case study, conducted in a hamlet in Sanggau district in West-Kalimantan province. In 2005, ten years after having first visited the village, oil palm company PT MAS started establishing an oil palm plantation in this area. At the time of research, part of the oil palm plantation was planted, though not yet ready for harvest. Through a description of the different phases in the process of expansion, the changing property rights on the lands in the hamlet will be described. It will become clear that the outcome of the expansion process is not fixed yet at the onset of the process - both in terms of what rights villagers will have related to the plantation, as well as what possibilities to benefit from the plantation they have. Through a discussion of two different schemes that will possibly be concluded between the villagers and the company, the outlines of the rights and benefits that are to be expected are sketched. Furthermore, attention will be paid to the negotiation process between the villagers and the company over the conditions for cooperation, and the position both parties take within these negotiations. Using a theory of access, insight will be given in the villager's motives to engage with the oil palm company. Initially, they take a positive stance towards the incoming of the company because of expected roads, facilities and economic improvement. However, their enthusiasm vanishes when those expectations are not met. Ultimately, this leads to a protest action against the company in the form of road fencing. Furthermore, special attention is given to the role of local authority in the expansion process. The way in which the oil palm company is making of use of local authority in gaining access to land and in obtaining recognition for their claims to land is discussed. Whereas the local authorities played a key role in the land acquisition process, they also took the lead in the protest action conducted. The interactions between the state institutions and customary institutions in the land conversion process are investigated by drawing on the concepts of legal pluralism and interlegality. It will be argued that the notion of interlegality appears apt to describe the mingling of institutions that is taking place in this process, but nevertheless shows some shortcomings, that will be discussed. The conversion of swidden land under customary management to oil palm plantation takes place via a complicated process that involves pioneering, measuring and clearing of the land, as well as formalizing the customary rights to land in an administration process. By means of an extensive discussion of this land conversion process, it will be shown that customary property rights seem to be taken as a point of departure, but nevertheless become obscured in the course of the oil palm plantation expansion process. Finally, some of the RSPO criteria for expansion of oil palm plantations will be reflected upon.

6 Content List of illustrations... 4 List of abbreviations Introduction Problem statement Research objectives Research methodology Scope and limitations of the study Structure of the report Conceptual framework Legal pluralism & interlegality Property Access Access and property RSPO and sustainability Sustainability: a pluralistic concept RSPO as a new institution Sustainability as understood by the RSPO National political and policy context Political context of post-suharto Indonesia State policies and legislation Adat law regarding land tenure Study area West- Kalimantan province Sanggau district Hamlet Mua Oil palm estate PT MAS III in hamlet Mua: perspectives of villagers Main phases in the process of expansion of PT MAS in Mua Reasons to engage with the oil palm company Shifting perspectives Conclusion Expansion on family lands and individual lands: recognition of customary property? Customary property regime Claim-making in the field

7 7.3 Claim-making in the administration process Conclusion Shifting property regimes: contract Plasma-inti-scheme Oil palm plantation partnership pattern Negotiating the contract Conclusion Lack of access to authority? Claim-making in the open: a fencing act Close connection between the company and authorities Conclusion Communal lands Participatory assessment Pedagi and cemetery area Rimpu-area Conclusion Conclusion Legitimization strategies employed by the company Villagers mobilizing rights? Searching for recognition RSPO-influence Discussion The position of villagers in the expansion process Dynamics between access and property in a context of legal pluralism RSPO criteria for sustainable expansion of oil palm plantations Acknowledgements References Appendix I List of interviewees Appendix II List of documents Appendix III RSPO principles and criteria for expansion of plantations IIIa RSPO principles and criteria: principle IIIb Indonesian interpretation of HCV-assessment IIIc Guidelines for new plantings established after 1 st January

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9 List of illustrations Box 1. Principles of sustainable palm oil defined by RSPO 23 Box 2. Oil palm company PT MAS III 36 Box 3. RSPO: yet unknown by villagers. 47 Box 4. Booklet hold by the koperasi 50 Box 5. Fear for repression 64 Box 6. Trapped by the police? 65 Box 7. Access to information: attempting to interview an employee of PT MAS III 67 Figure 1. Geographical map of Indonesia. 30 Figure 2. Map of West-Kalimantan showing the administrative division in districts (Kabupaten). 31 Figure 3.Obtaining a plantation business permit and a business utilization right: overview 33 Photo 1. Oil palm trees in West-Kalimantan 8 Photo 2. A row of bamboo trees marks the border between two neighbouring fields 44 Photo 3 and 4. The road from Mua to Pinsam 62 Photo 5. A grave at the communal cemetery of Mua 66 Photo 6. Remnants of the hut of mythical forefather Bay Bokap in the Rimpu area 68 Table 1. Excerpt of a notebook of a Satlak-member from Mua, left page 49 Table 2. Excerpt of a notebook of a Satlak-member from Mua, right page 49 Table 3. List of interviewees, and dates and location of interviews 86 4

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11 List of abbreviations AMDAL BAL LBBT HCV HGU FL FPIC KKPA Musdat NES NGO OPPPP Perda PIR PT MAS RSPO Satlak Satgas SEIA SPKS TP3K Analisis Mengenai Dampak Lingkunan (Environmental Impact Assessment) Basic Agrarian Law Lembaga Bela Banua Talino (Institute for Legal Resources Empowerment) High Conservation Value Hak Guna Usaha (Plantation Permit to use State Land) Forestry Law Free, Prior and Informed Consent Koperasi Kepemilikan Perkebunan untuk Anggota (Primary Cooperative Credit for Members) Musyawrah Adat (an adat convention) Nucleus estate smallholder Non Governmental Organisation Oil Palm Plantation Partnership Pattern Peraturan daerah (district regulation) Perkebunan Inti Rakyat (Nucleus Estate Smallholder) Perusahan Terbatas (Propriety Limited) Mitra Austral Sejahtera Round Table on Sustainable Palm Oil Satuan Pelaksana (executing team, village level) Satuan Tugas (task force at the sub-district level) Social and Environmental Impact Assessment Serikat Petani Kelapa Sawit (union of oil palm farmers/peasants) Tim Pengawasan dan Pembinaan Perkebunan Kabupaten (task force for land acquisition, district level) 6

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13 1 Introduction 1.1 Problem statement In Indonesia, oil palm agriculture entails an area of ha (FAO, 2008; FAO, 2009). Palm oil is extensively used in food and non food products such as soap and detergents. Furthermore, palm oil can be used as a biofuel. Palm oil agriculture is expanding fast (Koh, Wilcove, 2008) and production is expected to increase in the coming years. Since the 1990s, oil palm production (Photo 1) has grown tremendously in Indonesia (Potter and Badock, 2004), especially in Kalimantan (USDA, 2009). In West-Kalimantan, an Indonesian province on the island Borneo, the area under oil palm has grown annually by 13% on average in the first decade of the twentieth century (USDA, 2009). The largest area of oil palm in West-Kalimantan is located in Sanggau district (BPS 2006, cited by Rist et al., 2010). Photo 1. Oil palm trees in West-Kalimantan Smallholders' involvement in oil palm production Oil palm production has been widely adopted among smallholders (Rist et al., 2010). In 2003, 33% of oil palm production in Indonesia was grown by smallholders 37% of the area under palm oil was managed by smallholders in that year (Government of Indonesia, cited by Vermeulen and Goal, 2006). Smallholders are engaged in palm oil production as independent smallholders and as shareholders in various schemes. Under those schemes, they provide land in exchange of financial compensation and/or support to cultivate palm oil on their land. In addition, Vermeulen and Goal (2006) distinguish collective landowner schemes, via which local communities can be involved in palm oil production. In such schemes landowners provide oil palm companies with land in exchange for rent or a share of the profit. The involvement of local communities and smallholders in oil palm production is not without drawbacks. Marti (2008) reports 94 conflicts over palm oil production in West-Kalimantan in Potter (2008) notes over 25 conflicts between oil palm estates and local people between 1998 and 2001 in West Kalimantan, as accounted by the Kalimantan Review. Sources of conflict and contestation have been described by national and 8

14 international NGOs (e.g Marti, 2008; Sirait, 2009) as well as scientists (Potter, 2009a; Feintrenie et al., 2010; Rist et al., 2010). NGO s generally are very critical on livelihood and other social impacts of palm oil production (cf. Marti, 2008, Sirait, 2009). The schemes offered by companies have been criticized for disempowering local communities and contributing to conflict and social disruption, especially when agreements made between the company and the communities are not met (Sirait, 2009). In addition, Sirait (2009) describes conflicts between plantation companies and local communities - both with those who engage in palm oil production or resist to it - and increased tensions and inequalities between and within communities after the arrival of palm oil companies. Scientists take a more modest stand, and point to the large number of smallholders that embrace palm oil production (Potter, 2009a; Rist et al., 2010). Rist et al. (2010) perceive the economic benefits that can be derived from oil palm production as the main reason for its embracement by local communities. They indicate that most communities are eager for economic development and see palm oil production as the best way to achieve it. Oil palm gives higher return to labour (at high oil palm prices) than clonal rubber, rubber agroforest or inundated rice (Feintrenie et al., 2010; Rist et al., 2010). Rist et al. (2010) and Feintrenie et al. (2010) are optimistic about the potentials of palm oil production for smallholders. Their conclusions contrast the findings of Sirait (2009). He states that only few indigenous communities, and mostly only their elites, benefit from oil palm production. Potter (2008) argues that Dayak communities have opposed the hegemony of oil palm companies in West- Kalimantan in both overt and covert ways. Previously, Potter and Badock (2004) have described the engagement of villages and hamlets with oil palm companies in the Sanggau district. Their analysis shows diverse responses of local inhabitants to production of oil palm and oil palm companies. Whereas oil palm became a prominent crop in most villages, some rejected the offers made by oil palm companies because they did not agree with them. There is an apparent gap between the large number of farmers that seems to be eager to get involved in palm oil production schemes, and the conflicts between communities and companies reported. Taking a farmers' perspective could provide more insight in this seeming contradiction. Why do they get involved in oil palm plantations? And how can their position in the oil palm plantation expansion process be understood? Furthermore, enhanced insight in conflicts that accompany oil palm plantation expansion is necessary to solve and to prevent such conflicts Overlapping claims to land Land tenure is one of the main issues around which conflict arises (Vermeulen and Goad, 2006; Potter, 2009a; Sirait, 2009; Feintrenie et al., 2010; Rist et al., 2010). The conflicts that arose upon arrival of oil palm companies described by Sirait (2009) all relate to property of land. Disagreement on land allocation may exist, with local inhabitants opposing allocation of land to oil palm companies without their consent. Smallholders have accused palm oil companies of land grabbing or stealing their land. According to Rist et al. (Rist et al., 2010), such claims may lack adequate justification. The conditions under which land is sold or leased to a company are contested, too. Specifically, complaints over the debt farmers face after engagement with oil palm companies are widespread. Feintrenie et al. (2010) and Rist et al. (2010) argue that the time span over which these debts are being repaid greatly differ between farmers. Oil palm plantation development takes place on state lands on which land lease permits are given to oil palm companies. Such companies are either state-owned, a national private company or a foreign investment company. Colchester et al. (2006) point to the absence of adequate procedures for land titling, despite formal recognition of customary land rights. Moreover, if such procedures are in place, authorities do not always act accordingly. Contestations over land tenure are closely related to recognition, or lack thereof, of customary rights on land. Where the state considers land as non productive lands or bare lands they qualify as potential area for oil palm plantations, despite smallholder agricultural activity (Sirait, 2009). 9

15 Debates over land tenure are complex, even more so since they take place in a context of legal pluralism. In such a context, there is no single legal (state) order, but multiple normative orders exist simultaneously. Besides theories on legal pluralism (such as developed by for example Von Benda-Beckmann, 2002; De Sousa Santos, 1987), the concepts of property and access may help shed light to this complexity. In the concept of property, emphasis is put on the rights that actors may hold to natural resources, and the relations between those actors (Lund, 2002; Von Benda-Beckmann et al., 2009). The importance of the ability to benefit from a certain resource, rather than the right to do so, is highlighted by the concept of access (Ribot and Peluso, 2003). According to Sikur and Lund (2009, p.1), "the central dynamic is created by people s attempt to secure rights to natural resources by having their access claims recognized as legitimate property by a politico-legal institution. Investigating how this dynamics is taking place in processes of oil palm plantation expansion can shed light on the struggle over natural resources that is taking place, and help to understand the position of different actors in this process Sustainable oil palm and the RSPO In addition to social problems, oil palm expansion has been related to severe ecological problems. Koh and Wilcove (2008) reported that at least 56% of palm oil expansion in Indonesia took place at the expense of forest areas. This, in turn, severely decreased tropical biodiversity. Palm oil plantation expansion may also contribute to climatic change by direct or indirect conversion of forests and peatlands. Greenhouse gas emissions after drainage of peatlands are at the centre of attention of environmentalists. Awareness on the downsides of oil palm production has spurred the demand of Western consumers for oil palm that is produced in a 'sustainable' way. The Round Table on Sustainable Palm Oil is a consortium of different stakeholders involved in the oil palm chain, like oil palm producing companies, industry, banks, NGO's. The RSPO aims to address the negative impacts of palm oil production like deforestation (Hospes et al., 2009). More specifically, the RSPO aims to develop sustainable palm oil production chains through the formulation of principles and criteria to which the different actors in the production chain should adhere, and the implementation of those principles and criteria. In addition, the RSPO aims at facilitating communication between stakeholders involved in oil palm production (RSPO, 2009a), thus seeking to avoid and solve conflicts that have accompanied palm oil production. Within the RSPO, principles and criteria for the expansion of oil palm plantations have been developed. A better understanding on the process of the shift in property regime can help to assess the potential of those principles and criteria. 1.2 Research objectives This thesis aims to contribute to a better understanding of processes of expansion of palm oil plantation and the role of local communities in such expansions. The following three objectives are formulated: 1. To enhance a better understanding of the consequences of expansion of palm oil plantations for local communities by assessing how access to and control over land have changed in practice in the process of expansion of oil palm plantation. 2. To contribute to theory on the interplay between access and property by assessing how legitimization of claims on land and negotiation of rights took place in the process of expansion of palm oil plantations in a context of legal pluralism in West-Kalimantan. 3. To contribute to the assessment of the local situation with respect to land use planning and the possibilities for participatory land use planning of the project global sustainable biomass fund by BothEnds 1, by assessing 1 The project 'Land use planning to promote sustainable biofuel production in West Kalimantan, Indonesia' aims at 'enhancing participatory land use planning (spatial zoning) as a means to achieve sustainable palm oil production as a source of sustainable biofuel in two districts in West Kalimantan'. To reach that goal a multi-stakeholder process will be facilitated, involving district and provincial governments, local communities, oil palm companies and NGO's. The project is run by a consortium of Dutch and Indonesian NGO's and universities, including BothENDS (Environment and development NGO, Amsterdam), Cordiad (Catholic Organisation for Relief & Development Aid, Amsterdam), VU (Free University, Amsterdam), University of Amsterdam, ICRAF (World Agroforestry Institute, Bogor), LBBT (legal empowerment NGO), Pontianak) and PPSDAK (community mapping NGO, Pontianak), and runs from August 2010 until The project starts with an assessment phase, to which this thesis makes a modest contribution. 10

16 perceptions of villagers on benefits of palm oil plantations and by reflecting on the concept of and criteria for sustainable expansion of oil palm plantations as developed by the RSPO. 1.3 Research questions The main research question is twofold: how was oil palm company PT MAS III organized claims over land in its plantation expansion process and how have villagers mobilized their rights facing claims over land in Mua? This question will be investigated by means of the following sub-questions: 1a. Which phases can be distinguished in the oil palm plantation expansion process at village level? 1b. How have villagers perceived the benefits of engaging with the oil palm company? 2a. Which claims were made over land in the expansion process? 2b. How were these claims legitimized? 3a. Which claims were made in the contract between the koperasi and the company? 3b. How were these claims legitimized? 4. How have RSPO criteria for sustainable expansion of oil palm plantations been used in the land acquisition process in Mua? 1.4 Research methodology This research consists of a case study that was conducted using qualitative methods. Background information about case studies and qualitative methods can be found, for example, in Mason (2002) and in Bernard (1994). This section describes how the study was conducted. Possible methodological shortcomings are discussed in section Time frame After a preparatory phase, consisting of a short literature review and the writing of a proposal, field work was conducted in West-Kalimantan, Indonesia from September to December This period took off with a project week that was part of the project Land use planning for sustainable biofuel production in West- Kalimantan 1. This project week took place in Pontianak, the capital of West-Kalimantan, and Sanggau district and provided the opportunity to hear different accounts of the oil palm expansion process and problems associated with it specific for the region. Furthermore, several field visits were made and local people were met as well as NGO-personnel and civil servants. The project week was followed by a stay in Pontianak of two and a half weeks. In this period, practical arrangements were made for a stay in the field. Being hosted by LBBT, a legal empowerment NGO based in Pontianak, provided the possibility to gain more specific information about suitable locations for research and for further preparation. Then, field work was conducted in Sanggau district, notably in sub district Bonti from October 25th until December 10th 2010 (interrupted for a two-week stay in Pontianak for practical reasons). Of this period, two weeks were spend in Empodis village, hamlet Koca 2. The remains of the period was spend in neighbouring hamlet Mua. From these hamlets, on occasions trips were undertaken to hamlet Pinsam (part of village Kampuh), sub-district-capital Bonti, Bodok and Sanggau-city to conduct interviews there. The village of Empodis was selected for several reasons. First, it is located at the oil palm plantation expansion frontier, where the agrarian transformation that is topic of the study could be observed. Oil palm plantation expansion recently took place in this region, so that the way the expansion took place in the field and the effect of the incoming of the company to the village probably would be well remembered by the people. Second, colleagues from LBBT had contacts in this region which would greatly facilitate the possibility of doing research. Third, the operating oil palm company is part of Sime Darby, an important player in the 2 Officially, the hamlet is named Empodis, but in former times it was called Koca. To distinguish between the village Empodis (consisting of four hamlets: Mua, Tapa, Entanjan and Empodis) and the hamlet Empodis, the name Koca will be used to refer to the hamlet Empodis. 11

17 global oil palm field and member of the RSPO. Fourth, in contrast to other villages in the region of Sanggau, this village had not been topic of prior investigations related to agrarian transformation (see for example (Potter and Badock, 2004; Colchester et al., 2006; Sirait, 2009). Within the village Empodis, hamlet Mua was selected. In the region of hamlet Mua, oil palm plantation expansion had already taken off and part of the plantation was already established, whereas in hamlet Koca the plantation development had yet to start Informal and formal interviewing Informal interviews (Bernard, 1988; Bernard, 1994) were conducted mainly at the initial phase of the study, during the project week and the stay at LBBT. These talks provided an opportunity to gain information on the and the way different actors speak about the issue. In the villages, informal interviewing was used, but to a more limited extent, mainly because of the language barrier. Formal, semi-structured interviews (Bernard, 1988) were conducted using a topic list. The topic list was refined and adapted during the research process, based on findings in previous interviews. The topics for the interviews with farmers included: the customary system of property rights prior to the incoming of the company, the way of practicing agriculture before the incoming of the company, reasons to engage with the oil palm company, the oil palm plantation expansion process, the land conversion process, the registration system, derasa. Other topics that were discussed in some but not in all interviews because of the position of the interviewee and/or time restrictions include the communal lands and the Rimpu-area, the fencing act, sustainability, HCV-areas, participatory assessment and the RSPO. Interviews mainly took place mainly with farmers in the villages, some of them being part of the management of the koperasi or belonging to the elders of the village. Furthermore, informants like religious leaders, adat council members or NGO-employees were interviewed. In total, 37 people were interviewed one to four times. In Appendix I an overview of respondents and interviews is given. Initially, interviewees were selected via the snowball-method, by asking interviewees who else would be knowledgeable about the topics at stake. To avoid to have only respondents from the same social group within a village, some households were selected randomly in a later stage. Initially, mainly farmers who had given large areas of land for oil palm were interviewed. Therefore, farmers who had given a small area of land (less than 5 ha) were actively sought for later on 3. The interviews and other talks were conducted with help of an interpreter who was a native speaker of the Indonesian language and held a bachelor degree in law. Most interviews were conducted in Indonesian an translated to English, one interview was conducted in English. Extensive notes were taken during the interviews and transcripts were written immediately after each interview (Participatory) observation and document analysis A meeting between villagers, company representatives and government officials about the oil palm plantation development in Mua and Pinsam was observed in the village house of Empodis on October 5th In order to gain trust of the villagers and a better understanding of their position, I participated in several social and working activities. Groups of villagers going into the field were joined a few times, for example during planting and grassing activities, at the festivities at the end of the planting period, and at the annual honouring day at the cemetery. Furthermore, visits to the pedagi and the Rimpu-area were organized whereby villagers provided information about those locations. II. An overview of the documents that were used as a primary source of information can be found in Appendix 3 This was done after a document listing the farmers that had registered their land at the koperasi was obtained. From this document it became clear that the villagers who were registered with relatively large amounts of land were overrepresented in the study. Then, the document was used to select farmers who were registered with smaller amounts of land. 12

18 1.4.4 Remarks related to this report For a more lively description of the findings, the present tense is used in the chapters in which the empirical findings are presented (chapter 6-10). Quotes of respondents however are not adapted - so the past tense is used in those quotes whenever used by the respondents. To ensure the anonymity of the interviewees, their names are not mentioned. Where respondents are quoted while mentioning other people's names, the names are changed. For recalculating monetary values, the following conversion rates are used: 10,000 rupiah = 0.78 and 1 United States $ = Doing social-scientific research in a different culture, abroad, is not without methodological challenges. These difficulties, as well as the scope of the study, will be discussed in the next section. 1.5 Scope and limitations of the study This study focuses on the process of oil palm expansion in a village. The experiences and knowledge of the inhabitants of that village are a main source of information and of interest. This study limits itself to one village. In a qualitative study like this one, time is needed to obtain an understanding of the processes and issues at stake in a particular locality. In this way, a more in-depth understanding of the agrarian transformation in a particular place can be obtained. However, such an approach limits the extent to which the results can be generalized to other villages or regions. Smallholders can be involved in oil palm production in two main ways: as independent smallholders or via a liaison with an oil palm company (Vermeulen and Goad, 2006). These are two distinct modes of production, each with their own dynamics and in each case, smallholders face different issues (McCarthy, 2010). This study focuses the position of smallholders involved in a corporate plantation expansion, and thus on farmers involved in the oil palm commodity chain via contract farming. At the time of the research, the oil palm trees were not ready for harvest yet. As will be described more extensively in later chapters, the negotiations over the rights and duties of the farmers and the company related to the oil palm plantation had not yet finished, and a contract between the farmers and the company had not been signed. This complicates assessing the shift in property that is taking place, and the precise consequences of the land acquisition process. It also complicates assessing the possibilities for villagers to state their claims vis-à-vis the company - for what will be the effect of their efforts is yet unknown. Obviously, it would be of interest to assess, for example, the ways in which farmers will be able to benefit from the oil palm plantation in the future, whether and how their perception of the plantation shifts in later stages of the oil palm plantation and how the relation between the villagers and the oil palm company further develops. Simultaneously, the process of change might be ongoing, and the struggle over natural resources is probably never "finished". The study started with a prime focus on the RSPO, and expansion of RSPO-certified plantations. However, no RSPO-certified oil palm companies seemed to operate in the study area 4 - let alone companies that were certified and expanding their plantations. Likewise, RSPO-members that were expanding their plantations after January 1st 2010 could not be found in the study area. The plantation company on which this study focuses is a member of the RSPO. However, the possibility to assess the effects of RSPO-membership 'on the ground' was severely hampered by a lack of willingness or ability of oil palm company PT MAS, holding Sime Darby and the RSPO secretariat to provide information, as well as by the lack of knowledge of villagers about the RSPO. 4 No specific overview of the location of RSPO-certified oil palm plantations is available. The RSPO however provides a list of certified growers at its website. From these 13 growers, (at least) two produce palm oil in West Kalimantan: Sime Darby and Wilmar International Limited. However, no certified plantations seem to exist in West Kalimantan the reports on past audits, audits in progress and forthcoming audits are not about plantations in this area. 13

19 Consequently the RSPO has moved from the centre of the attention somewhat to the side, and it's role in the expansion of PT MAS III might be underexposed. During the course of the field work, the my attention was drawn to the Rimpu-area, one of the communal lands of Mua. This swamp forest is located in the middle of the plantation estate of oil palm company PT MAS. People from several villages and ethnic background laid claim to this area. The investigation of the claims over this area was challenged by the limited availability of people knowledgeable about the area, the contrasting accounts of interviewees, the limited availability of written documents referring to this area, and limited time to travel to other villages to find interviewees that would possibly be willing and able to participate in the investigation. Due to the complexity of the topic and the limited availability of data, the description of the process should be considered as no more than an exploration of the matter. Nevertheless, it is included for its relevance in relation to the main topic of this study - shifts in land use and property rights provoked by oil palm plantation expansion in a context of legal pluralism. My limited knowledge of the Indonesian language required that interviews were conducted with an interpreter, which caused inevitable loss of information and, sometimes, misunderstandings. In order to limit misunderstandings and the loss of relevant information, all interviews were discussed before and after the interview. All interviews were conducted in Indonesian, as an interpreter who was fluent in both the local language and English was not available. In a few interviews, limited knowledge of Indonesian language of the respondents might have lessened the quality of the interview. It proved to be difficult to interview women - whenever a man would be present, woman would usually keep silent. Furthermore, they often questioned whether they were knowledgeable enough to be interviewed or said that the interview should be conducted with their husband. Six interviews were conducted solely or mainly with women, in other cases women sometimes added to the answer of their husband. Although various attempts to avoid it were made (for example by stressing the importance of including the voice of women, by approaching women when their husbands would be in the field), female respondents are underrepresented, which may have caused a gender bias in the study. When being interviewed, people may adapt their answers to what they think the interviewer likes to hear, they may keep things to themselves or they may give information contrary to information found in other sources - the man who said he had never visited a particular meeting and was not involved in decision-making, while his name was on a list of persons present. This issue was dealt with by probing during the interview and by searching for information in multiple sources. Some respondents were unable or unwilling to participate in the research. The head of village Empodis asserted me that he did not have time, that interviewing him was useless since no definite decision over the plantation was taken yet and that I should better talk to the village secretary instead, who had been working as a civil servant much longer than he had. (The secretary, in his turn, referred to the head of the village at times). For medical reasons, the head of hamlet Mua was not staying in the hamlet during the largest part of the field work. He was only interviewed shortly in the initial phase of the research. As a consequence, the role of the village and hamlet head -the main local government officials- remains somewhat underexposed. Furthermore, the role of the national, provincial and district governments in oil palm plantation expansion processes was not directly investigated in this research - no interviews were conducted with civil servants other than at village level. In order to obtain an overview of relevant legislation and policies, and implementation of those policies, secondary sources were used. Furthermore, oil palm company PT MAS did not want to participate in the investigation (as explained in more detail in Box 7). The head of adat in Mua was, after cooperating in a first interview, unwilling to be interviewed again. The lack of willingness to participate in the research of some actors indicate that the expansion activities of the oil palm company are a sensitive topic. Not all documents that would be of interest for the study could be obtained. The minutes of the fencing act were not finished yet at the time of the field work. The minutes of the meeting in Mobui about the Rimpu-area 14

20 were held in the sub district office on half a day travel away - and probably would not be made freely available for the study. Several interviewees indicated the head of hamlet Mua possessed documents such as a list of farmers involved in the oil palm plantation, but as written, he was mostly out of the hamlet due to his physical condition and the documents thus could not be obtained. 1.6 Structure of the report In chapter two, the conceptual framework used in this study will be elaborated on. Chapter three, four and five provide background information. The concept of sustainability, the RSPO and the RSPO's understanding of 'sustainable expansion of oil palm plantations' are shortly discussed in chapter three. Chapter four focuses on the Indonesian context. The political situation in post-suharto Indonesia will be briefly examined, with special reference to the role of adat (4.1). Thereafter, relevant laws and policies regarding oil palm plantation development and land tenure will be discussed (4.2), as well as adat laws regarding land tenure (4.3). More information about the context in which the research takes place is given in chapter five. The specific situation in the study area is described: first, at the provincial level (West-Kalimantan, 5.2), then, at the district level (Sanggau, 5.3). Besides some general characteristics of the area, attention is paid to the importance of oil palm production in the region and policies and (again) legislation regarding land tenure and oil palm plantations. Finally, hamlet Mua and the way villagers are practising agriculture there is the topic of chapter Empirical findings are presented in chapters six to ten. Each chapter is provided with a conclusion, in order to give the reader some guidance in following the common thread and to indicate the relation between the chapters. First, a general overview of the process of expansion at village level is given (6.1). Thereafter the initial reasons of the villagers to engage with the oil palm company are explored (6.2). The way the perspective of the villagers is shifting in the expansion process is topic of section 6.3. Chapter seven describes the actual oil palm plantation expansion process as it took place in Mua. After a description of the customary property regime (7.1), the land acquisition and land conversion process are described. Special attention is given to the role of customary law and authority in the land acquisition process. A distinction is made between the process in the field (7.2) and the way this process is administrated and property rights are formalized (7.3). This formalization of property rights is closely related to the scheme that will be applied. In Mua, a contract between the villagers and the oil palm company is not agreed upon yet. In chapter eight the outlines of two different schemes that are on the table will be discussed, as well as the negotiations between the villagers and the company about these schemes. The negotiations over land are not limited to the land conversion process and the discussion over the contract only. Access to government authorities seem to affect the process, and are the topic of chapter nine. By discussing a protest action of the villagers, light is shed to their discontent over the current course of affairs, as well as their possible lack of access to government authorities. The chapters so far mainly considered shifting property regimes of lands considered individual lands or family lands by villagers. In contrast, chapter ten focuses on possible shift in property regime of the communal lands of Mua. The majority of the chapter is dedicated to a discussion of the multiple claims made over the Rimpu-area, a swamp forest located in the concession of the oil palm company. The main research question in answered in the conclusion (chapter 11). In the discussion, an attempt is made to realizing the goals of this thesis by comparing the research findings with findings of others, identifying gaps and discussing some implications of the findings (chapter 12). 5 Although empirical findings are presented in this sub-chapter, it was decided to include it in chapter five since it provides background information about the study area and contributes to an understanding of the context in which the research takes place. 15

21 2 Conceptual framework 2.1 Legal pluralism & interlegality In many post-colonial countries such as Indonesia, policy making takes place in a context of legal pluralism. In the words of Meinzen-Dick and Pradhan (2002), this is the co-existence and interaction of multiple legal orders within a social setting or domain of social life. This means that there are different legal frameworks in place to which people can adhere to rationalize and legitimize their decisions or their behaviour. For example: state laws, adat laws, religious laws, organizational laws (Meinzen-Dick and Pradhan, 2002). In the article Who s afraid of legal pluralism Franz von Benda-Beckmann (2002) elaborates on his understanding of legal pluralism as an analytical concept. Specifically, he focuses on law and plurality as analytical tools to be used for intercultural and historical comparison. He argues these concepts can be useful devices to make sense of the multitude of normative and cognitive conceptions that may exist within a society. The theoretical outlines of what law and plurality look like, do not specify anything about their substantive content, or even their existence, in a particular society. What, then, is exactly meant by law and by plurality? Law is the summary indication of those objectified cognitive and normative conceptions for which validity for a certain category of people or territory is asserted is Von Benda-Beckmann s rather abstract definition. Those conceptions have a disciplining effect, as they limit people s ability to act and to create their own conceptions. Furthermore, those conceptions shape how people categorize, evaluate and give relevance to the world around them. In this view, not only those rules and regulations produced and sanctioned by state institutions are called law. Rather, law is understood as a broad term that can refer to a variety of empirical phenomena. It has several dimensions that can be described: the extent to which general legal cognitive and normative conceptions have been institutionalized and systematized (p. 49) the extent of professionalization, theoretization and scientification (p. 49) the ground on which it is based the extent to which legal rules are defined as mandatory (p. 50) the geographical area it applies to the social scope it applies to its substantive content Von Benda-Beckmann (2002) furthermore argues that functional characteristics should not be incorporated in the concept of law. The functions of law differ from case to case, as does the degree to which law is effective. Also ethical consideration should be left out of the concept. Rather, those should be subject to empirical investigation. According to Von Benda-Beckmann, law does not necessarily have to refer to state law, but can relate to other normative legal orders, too. Von Benda-Beckmann suggests to study manifestations of law. He mentions four areas where law could be found. First and most obviously, law is embodied in written and spoken texts. Knowledge of people is a second area in which law exists. Third, law manifests itself as legal status of people (who can be a citizen in a country), of organizations (for example a propriety limited) or of social relationships (for example, when people are married). Fourth, law is present in social processes and social interactions. Plurality refers to the duplicatory or parallel character of legal forms or mechanisms. Those legal forms or mechanisms should refer to the same issues. Defining which issues are the same, however, is an intricate task since different normative orders may conceptualize social phenomena differently. For example, the death of a person may be perceived as killing by witchcraft in one normative order, whereas another normative order would frame such death as accidental. Therefore, it is necessary to define analytically the field of study one is interested in. 16

22 In the scholarly literature no consensus exist on the scope of the concept of plurality. Von Benda-Beckmann suggests to distinguish between intra-system plurality and between-system plurality. The first term would refer to different legal mechanisms within the same legal order, whereas the second term points to differences between legal orders. Furthermore, plurality may also refer to different interpretations of the same law. By comparing laws with maps, De Sousa Santos (1987) refers to different ways in which laws and legal orders can work, and what consequences this has for their functioning and the way they interact. Specifically, laws may operate on different scales, make use of different types of projection (egocentric - applying to a certain group of legal persons - and geocentric - applying to a geographic area - law are distinguished) and work with different forms of symbolisation. Different legalities often refer to the same social objects but do so in different ways. According to De Sousa Santos (1987), different legal orders do not operate in isolation from each other, but rather interact, clash and mingle. He proposes that a theories on legal pluralism need to be complemented by the concept of interlegality to refer to this "conception of different legal spaces superimposed, interpenetrated, and mixed in our minds as much as in our actions" (De Sousa Santos, 1987, p.298). What matter here is that multiple legal orders play a role in society. In this thesis, legal pluralism will be understood as the kaleidoscopic normative context in which rural development is taking place. This is a point of departure from where questions about the importance of one legality over the other and the interactions of legalities can be posed. 2.2 Property Property: about things and people Property involves social relations between people concerning objects of value. The rights to those objects of value, and the way they are defined and organized, are central to the study of property, rather than the objects themselves (Lund, 2002). Three elements are central to the concept of property rights (Von Benda-Beckmann et al., 2009): first, the holders of the property rights individuals or groups of people. Second, the construction of valuables as property objects (p.15). Third, the kind of rights and duties that property rights holders may have with respect to objects of value. Property is thus a term that connects social and (bio)physical spheres, and material and immaterial worlds. Since property is about social relations, it is not fixed and static, but contested. In their conceptualization of property as an analytical concept, Franz and Keebet von Benda-Beckmann and Wilber (Von Benda-Beckmann et al., 2009) distinguish two types of social practices affecting property: concrete and categorical. Concrete practices regarding property rights refer to concretised relations that find expression [...] in relationships between actual property-holders with respect to concrete valuables. Categorical practices, on the other hand, relate to property at a more abstract level. In those practices, the nature of property law is explained, discussed or disputed in interaction settings such as courts parliaments, universities, the mass media or local forums. Obviously, categorical and concrete practices interrelate with each other. Furthermore, those practices take place in a context and are part of a wider set of social practices. This embeddedness affects both categorical and concrete practices. Furthermore, they propose to study three different layers of social organization and their interrelations. The ideological layer concerns philosophies, ideologies and ideas. These affect how property rights are perceived, both in a cognitive and a normative sense. Such ideologies often contain some internal contradictions - they are seldom completely coherent. The layer of legal-political organizations refers to the institutions through which property rights are formalized. Rights discussed at this layer are categorical. At this layer, large differences between societies and culture exist, for example with respect to the degree of institutionalization and differentiation of property rights. Moreover, as explained in the previous section, a number of normative legal orders may co-exist within a society. At the layer of social relations, property rights find their concrete expression. Therefore, Von Benda-Beckmann et al. consider property rights at this level concrete. 17

23 In this thesis, property will be understood as a "bundle of rights" as described in the following section. Furthermore, property is seen as closely connected to claim-making and authority, as described by Lund (2002) and discussed in section and Property as a bundle of rights Property is an aggregate term that can consist, among other things, of the right to have, to exploit, to inherit or to dispose of it is thus not synonymous with possession (Ribot and Peluso, 2003). As Lund (2002) states: property is a heuristic rubric for a focus on how access to, use of, and control over things or resources are organized in society. The metaphor that property is a bundle of rights is often used in this respect. This metaphor can refer to the total number of rights identified in a certain society. It is also used to refer to a specific form of property, that itself consists of multiple rights (Von Benda-Beckmann et al., 2009). In discussing common property, Schlager and Ostrom (1992) discern the following strains of a bundle of rights : Right of access: physical possibility to enter an area Right of withdrawal: the rights to usufruct and harvest from a certain area Right of management: the right to decide on the internal management of Right of exclusion: the right to allow or prohibit others to access an area Right of alienation: the right to decide on internal and external access to an area The concept of property is layered also in another sense: it relates to the land, to the trees and crops planted on this land, the water available from and needed for this land, and the seeds used to plant on this land. Different rights of access, withdrawal et cetera can apply to different layers (Hospes, 2010). Different categories of property rights can be discerned. An often made distinction is between regulatory rights ( rights to regulate, supervise, represent in outside relations, or allocate property, p. 17) and exploitation rights (Von Benda-Beckmann et al., 2009). An example of the first would be to sell a piece of land to someone. A right to exploitation on the other hand points to the possibilities to make use of a certain valuable and utilize it economically for example, plant and harvest a crop at a field. According to these definitions, the rights of exclusion and right of alienation defined by Schlager and Ostrom (1992) could be considered regulatory rights, whereas the right of access, withdrawal and management should be seen as exploitation rights. Furthermore, different master-categories of rights can be defined in a certain society, to which a set of rights and duties are attached. Examples given by Von Benda-Beckmann et al. include private ownership and state domain Property and claims Property is defined by Macpherson (1978) as...a right in the sense of an enforceable claim to some use or benefit of something. Such claims can be made by individuals, communities or the state. They can find their basis in legislation, but also in custom or convention. Although the term claim is regularly used in discussions about property rights, its meaning is hardly ever defined. In Oxford Dictionary (2011), two definitions of claim as a noun are given. First, a claim is a statement of a fact. Second, a claim is 'a demand considered one s due'. Examples of the latter meaning include a right or title to something, and a piece of land allotted to or taken by someone in order to be mined. Both meanings are of interest in analysing and understanding the dynamics wherein actors attempt to securing rights to natural resources. In addition, two meanings of the verb to claim are relevant: 1. 'state or assert that something is the case', and 2. 'formally request or demand'. In this thesis both claims about land (claim as a statement of a fact) and claims to land (claim as a demand considered one s due) will be considered. Claims as statements of facts about the land may include statements on the size of the land, its vegetation and its location. Such claims may be used in order to secure access to land. Claims to land include means to demarcate borders, the act of cultivating or otherwise changing the use 18

24 of the land. Both categories can overlap with each other, for example when statements about the legal status of a certain piece of land are made Property and authority The tight relation between property and authority is emphasized by several authors (e.g. Fay 2005, Lund 2002). As Fay (2005) remarks, two meanings of authority are often used interchangeably in discussions about authority and property. Authority as a countable noun refers to political-institutions or persons representing such institutions. Authority as a mass noun may refer to the power or right to give orders, make decisions, and enforce obedience and to the power to influence others, especially because of one s commanding manner or one s recognized knowledge about something (Oxford Dictionary, 2011). Fay (2005) states that those two meanings often but not necessarily overlap. He illustrates his argument by referring to land tenure relations in South Africa. There, the actors that hold power in the allocation of land are senior family members rather than the subheadman and the headman that are considered the authorities in a customary land tenure system. He argues it is important to distinguish between those two meanings, since conflating them involves the risk of overlooking the holders of authority in a certain society and focusing on the institutions instead. Fay thus does not deny the importance of recognition by others in securing claims to land, but he puts less emphasis on the importance of political-legal-institutions. Power is central to the concept of authority. An extensive literature on this concept exist and an elaborate discussion of power is beyond the scope of this thesis. Ribot and Peluso's understanding of power will be used. They base themselves on Weber, Lukes and Foucault and state they see power as "the capacity of some actors to affect the practices and ideas of others" and as "emergent from, though not always attached to, people" (2003, p ). Property is only property as it is recognized by others. For this recognition, a legitimizing institution is indispensible. At the same time, an institution that recognizes certain claims as property establishes its authority (Lund, 2002). The process of recognition is central to the establishment and maintenance of property regimes: recognition of property claims and, at the same time, recognition of authority-granting institutions. Lund (2002) therefore argues that, in order to understand how property relations work in a society, one should focus on those processes of recognition. The practices of the legal-political institutions that grant authority to claims should be studied as well as the practices of the claimants turning to specific political-legal institutions. Lund thus not distinguishes the layers of ideology and social relations as important arena s to study, as the Von Benda-Beckmanns and Wiber (2009)do. In context of legal pluralism, political-legal institutions tend to compete for authority (Sikor and Lund, 2009). By adhering to a certain political-legal institution for authorization of property claims, authorization is also granted to this institution. Political-legal institutions that search for claims to authorize are referred to as shopping forums. Searching for authorization of property claims by different political-legal institutions is called forum shopping (Meinzen-Dick and Pradhan, 2002; Sikor and Lund, 2009). Bakker and Moniaga (2010)present cases of such forum shopping in the Indonesian context. They describe how different communities turned to different levels of government in order to legitimize their claims on natural resources. 2.3 Access Following the above mentioned definition of property by MacPherson, Ribot and Peluso (2003) define access as the ability to benefit from things the things in this context being natural resources. Access encompasses both legal and illicit mechanisms by which actors can benefit from natural resources. Legal mechanisms are closely connected to property rights as discussed above. Illicit mechanisms can consist of violence, corruption or theft. Ribot and Peluso (2003)distinguish three dimensions of access: who has access control can determine who can benefit from a natural resource. Maintenance of access entails keeping the door to a particular resource open. Establishing the first entry to natural resources is captured in the term gaining access. 19

25 The ability to benefit from things is closely connected to power by analogy with a bundle of rights, which is commonly associated with the notion of property, Ribot and Peluso (2003) perceive access as a bundle of powers. The strains of these bundles, then, are the means, processes and relations by which people are able to derive benefits from a particular resource. In addition to the right-based mechanisms mentioned above (legal and illicit), they describe structural mechanisms: access to markets, access to capital, access to labour, access to knowledge, access to authority, social identity and social relations. All these mechanisms are forms of social relationships. Ribot and Peluso (2003) perceive those relations as access mechanisms and as strains in the bundle of powers, as forms of power. Understanding these relationships and how they affect access to natural resources is key to access analysis. Such analysis can contribute to understand, in a particular case, who benefits in what way from a natural resource, and why. Ribot and Peluso (2003) propose three steps that should be included in access analysis: 1. identifying the flow of the benefit to be analysed 2. investigating the mechanisms of the distribution of benefits 3. exploring the power relations that form and are formed by these mechanisms. 2.4 Access and property Social relations between actors with respect to valuable objects or benefits are central to both analysis of access and of property rights. In agricultural transformation processes benefits are not static, fixed things but rather changing and developing. This complicates the discussion on property and access, for what is it that the struggle about the right or the ability to benefit is about? Benefits cannot be understood solely in economic terms, for such an understanding does not adequately capture changes in for example culture, feelings, identity, independence or beauty of the scenery. What is considered a benefit will depend on the perspective of the actors involved and cannot be identified 'objectively'. Therefore, investigations on access and property should not take benefits for granted but rather take the perspective of the involved actors into account. Only in this way, it can be assessed whether the distribution of benefits can be considered 'fair'. According to Sikor and Lund (2009), access and property partially overlap. Access is a broader term than property: actors can derive benefits from resources by other means than property relations alone. At the same time, people can have property rights to natural resources without being able to gain benefits from those resources. Access theory is thus broadening the scope of analysis in order to describe which actors are able to benefit from a certain resource and to understand why they are able to do so, rather than merely focusing on who has the right to benefit from that resource. Sikor and Lund (2009) describe relations between access and property and power and authority. According to them (p.1) the central dynamic is created by people s attempt to secure rights to natural resources by having their access claims recognized as legitimate property by a politico-legal institution. They stress the importance of investigating processes and practices of legitimization of claims on natural resources in order to grasp the struggles over natural resources and the outcome of such struggles. This is complementing the call of Meinzen-Dick and Pradhan (2002) to pay attention to negotiation processes in situations of legal pluralism. Sikor and Lund (2009) consider legitimization by a political-legal authority the distinguishing factor between property and access. Whereas property refers to claims over natural resources that are considered legitimate, such legitimization is not a precondition for access. This is in line with earlier thoughts on this issue by Lund (2002). This reasoning sheds another light on the case presented by Fay that is described above. Since the local authorities do not play a role in recognizing claims made to land, it could be argued that this case is more about access to land than about property. In general, a context of legal pluralism complicates marking a sharp distinction between access and property especially when competing legal-political institutions do not recognize each other s authority. For example, villagers may have certain rights to land that are being recognized and sanctioned by a customary 20

26 institution, such as an adat council. However this does not necessarily mean that this property is recognized by national state institutions from this perspective villagers may have access to land rather than rights. In this thesis, customary rights to land are considered property, too. First, because customary land use is about relations between people with respect to objects of value, and second, because these relations are sanctioned by customary institutions. 21

27 3 RSPO and sustainability 3.1 Sustainability: a pluralistic concept The debate over sustainable development is characterised by normative crowdedness: many different conceptions over what the word means or ought to mean exist (Redclift, 1992; Langhelle, 1999; Meadowcroft, 2000; Carruthers, 2001). The concept has been embraced by many precisely because of its vagueness, allowing for different interpretations and meanings. Simultaneously, the notion has been disguised as being hollow and ambiguous, and, therefore, meaningless (Langhelle, 1999; Meadowcroft, 2000). The concept of sustainability entered debates over environment and development in the seventies of the nineteenth century, as part of a discourse that pointed to limits that the earth's natural resources would put to human activities (Carruthers, 2001). Since the appearance of the World Commission on Environment and Development's report "Our common future" (WCED 1987), the concept of sustainable development has found its way to political agendas. Probably the most well-known part of the report is the often-cited definition of sustainable development as "development which meets the needs of the present without compromising the ability of future generations to meet their needs". Less often referred to, is the addition that priority ought to be given to the needs of the poor, whereby the environments ability to meet those needs is limited (WCED 1987, p. 43). Questions about the meaning of sustainability relate to questions about scale: what are the temporal and spatial scales that should be considered? According to this definition, one can run with the hare and hunt with the hounds: economic development and environmental concerns are not mutually exclusive. Moreover, sustainability is constructed as an open concept, leaving ample room for interpretation and for context-specific operationalization (Meadowcroft, 2000). 3.2 RSPO as a new institution Policy making is no longer the domain of the state only. Hajer (2003) argues that policy making now often takes place in an "institutional void" where "there are no generally accepted rules and norms according to which policy making and politics is to be conducted." This leads to new forms of governance, whereby other actors than the state alone actively are involved in determining policy outcomes and actions. The RSPO is such a new form of governance. The notion of an "institutional void" seems to be in contrast with notions of legal pluralism, for in theories on legal pluralism, the existence of a multitude of normative orders and institutions that govern people's conduct is emphasised- an institutional crowdedness rather than a void. An extensive comparison of the theories of new forms of governance and legal pluralism is beyond the scope of this thesis. Here, it suffices to note that the RSPO is emerging as a new institution, that stands in a certain relation to other institutional arrangements already in place such as state and customary institutions. The RSPO consists of stakeholders in the oil palm production chain (growers, processors, manufacturers and retailers), as well as bankers and investors, social and development NGOs and nature conservation and environmental NGOs. It presents itself as a round-table, wherein the voice of each members is weighed equally and decisions are taken by consensus (RSPO, 2009c). 3.3 Sustainability as understood by the RSPO Although the RSPO's mission is "to advance the production, procurement and use of sustainable oil palm products", the RSPO does not give a clear definition of its perception of sustainable palm oil. In its questionand-answer-section, sustainable palm oil is defined indirectly as a negation: "Sustainable palm oil is produced without these negative social and environmental side effects." Displacements of communities, violation of workers' rights and replacement of high value conservation areas are mentioned as examples of those negative 'side effects' (RSPO, 2009b). 22

28 Given the different backgrounds of the parties involved in the RSPO provide for a continuous negotiation over what contains sustainable palm oil. Defining what sustainable palm oil is, seems to be one of the tasks the RSPO has set itself: one of the core activities of the RSPO is developing and implementing a certification system for sustainable palm oil. The basic tenets of sustainable palm oil as agreed by the RSPO members are captured in eight principles (Box 1) These principles are operationalized in criteria and indicators. In order to produce certified oil palm, plantations should adhere to these principles and criteria. The RSPO-rules for the production of sustainable palm oil are additional to state legislation. The perceived unsustainability of the oil palm sector has all to do with replacement of ecologically or socially valuable areas by oil palm plantations. The following section focuses on RSPO-rules aiming at regulating expansion of oil palm plantations. Box 1. Principles of sustainable palm oil defined by RSPO 1. Commitment to transparency 2. Compliance with applicable laws and regulations 3. Commitment to long-term economic and financial viability 4. Use of appropriate best practices by growers and millers 5. Environmental responsibility and conservation of natural resources and biodiversity 6. Responsible consideration of employees and of individuals and communities affected by growers and mills 7. Responsible development of new plantings 8. Commitment to continuous improvement in key areas of activity High Conservation Value-areas The concept of high conservation value areas (HCV-areas) is central to RSPO certification. As the name implies, these are areas, often but not necessarily forests, that are considered to be worth protected because of their importance. The RSPO recognizes six categories of high conservation value, and defines those as follows (RSPO, 2007): HCV1. Forest areas containing globally, regionally or nationally significant concentrations of biodiversity values (e.g. endemism, endangered species). HCV2. Forest areas containing globally, regionally or nationally significant large landscape level forests, contained within, or containing the management unit, where viable populations of most if not all naturally occurring species exist in natural patterns of distribution and abundance. HCV3. Forest areas that are in or contain rare, threatened or endangered ecosystems. HCV4. Forest areas that provide basic services of nature in critical situations (e.g. watershed protection, erosion control). HCV5. Forest areas fundamental to meeting basic needs of local communities (e.g. subsistence, health). HCV6. Forest areas critical to local communities traditional cultural identity (areas of cultural, ecological, economic or religious significance identified in cooperation with such local communities). HCV five and six are referred to as social HCVs, because of their importance for local communities. The rules and regulations regarding expansion of existing oil palm plantations or establishment of new oil palm plantations that will be described now frequently refer to HCV-areas. Expansion of oil palm plantations taking place after November 2005 can no longer take place on HCV-areas. Prior to expansion, a participatory assessment of HCV-areas is required for RSPO members. Detailed information about the criteria for expansion of oil palm plantations for RSPO members and the Indonesian interpretation of those criteria can be found in Appendix III. 23

29 4 National political and policy context 4.1 Political context of post-suharto Indonesia From 1966 until 1998, Indonesia was governed by a strictly authoritarian and centralized regime, the so-called New Order. After the fell of then-president Suharto, a process of Reformasi begun in which the political situation in Indonesia changed radically. Most importantly, it entailed a process of decentralisation of government authority to the district level and an increase in civil liberties (Peluso et al., 2008) Decentralisation This decentralization process was set in motion mainly during the Habibie presidency between May 1998 and October It was regulated mostly by two laws: 22 and 25. Law 22 regulated a shift of authority to the district level. Among others, it included the establishment of elected, instead of appointed, leaders at regional and district level and the relocation of 2.1 million state employees to the regions, and regional autonomy on many issues such as education and culture, health care, agriculture, labour and land (Ray and Goodpaster 2003 in Schult Nordholt, 2003). Simultaneously, Law 25 prescribed that the central government remains in charge when it comes to revenues and income. Decentralisation thus entails a shift of administrative authority to the district level, whereas financial power remains with the central state (Schulte Nordholt, 2003). Schulte Nordholt (2003) argues that this decentralization process is not, as is often though, synonymous with increased democratization and a strengthening of civil society. As he formulates it (p.572): we witness a decentralization of corruption, collusion, and political violence that once belonged to the centralized regime of the new order but is now moulded in existing patrimonial patterns at the regional level. This is caused by so-called changing continuities that constitute Indonesian society and find their origin in precolonial times. Schulte Nordholt (2003) elaborates on three of those. First, patrimonial patterns deeply affect the functioning of Indonesian bureaucracy and the military. Second, boundaries between government, state and society are blurred. Third, regional elites have played important roles in the colonial period and the regimes thereafter Revival of Adat After the fall of the New Order regime, adat has become increasingly important in Indonesia (Henley and Davidson, 2007). Although the concept is omnipresent in the literature about Indonesia, what is precisely meant by adat often remains vague. Henley and Davidson (2007) distinguish three connotations that adat can have. First, adat refers to particular time-honoured practices and institutions, inherited by communities rather than imposed by the state (p.817). Second, adat is a complex of rights and obligations that ties together *...+ history, land and an law in a way specific to Indonesia (p. 818). Third adat can be a normative concept, referring to the organization of the ideal society. The seeds for a revitalization of adat in the post-suharto period were sown during earlier periods. During the period of colonization by the Dutch, legal scholars were concerned with the customary property rights systems of indigenous people (Henley and Davidson, 2007). The Leiden school of adat-studies, lead by professor Van Vollenhoven, attempted to write down those systems. Thereby, they draw customary rights into the sphere of law. By doing so, they were able to protect part of the rights of indigenous people to land against alienation by the state and private companies (McCarthy, 2006) p.12. At the same time, this process entailed a transformation of adat, as the informal, flexible system of customary law was forced into the language of legislative books and fixed, written-down law. During the New Order, indigenous people were suppressed in various ways. Among others, a discourse of harmony and solidarity was used to suppress groups or people that were different or critical towards the system. Under the guise of civilization, swidden farmers were forced to relocate and abandon their land. In addition, ancestral lands were alienated for logging and mining purposes. 24

30 The increased political freedoms of the Reformasi period provided room for calls for restoration of the rights of indigenous people. The number of NGOs promoting adat and defending rights of indigenous people increased rapidly after In this period the alliance of indigenous people, AMA, was erected in Pontianak, aiming to secure land rights and defend land management methods of Dayak communities. One year later this club turned into the national organization for the rights of indigenous people, AMAN. Doing so, it broadened its focus to the rights of indigenous people in general (Potter, 2008). At least formally, the state increasingly recognized the importance of adat law at the local level. The abovementioned regional autonomy laws 22 and 25 provide the formal basis for that. Among other things, they stress the importance of customary institutions at local level (Henley and Davidson, 2007). Laws and policies on natural resources and land tenure should be in respecting and protecting adat law communities, according to a decree announced by the Indonesian Supreme Parliament in 2001 (McCarthy, 2005). Henley and Davidson (2007) argue that there were other than only idealistic motives for the promotion of adat during the Reformasi. As elaborated on above, Reformasi did not immediately eliminate the problems the Indonesian state was facing in the previous period. The Indonesian state did not manage to provide stable conditions for a safe life for its citizens. The legal system was weak and well-established democratic institutions were absent. Those conditions of uncertainty and injustice motivated people to turn to tradition. Furthermore, the promotion of adat was related to struggles of power. Adat law provided opportunities for farmers to safeguard or regain access to land. Furthermore, elites of adat communities could use adat law to gain power at a local level. The paradoxes and dynamics of the Reformasi-period thus nurtured the revival of adat in Indonesia. At the same time, the revival of adat was fostered by an emerging international discourse on the recognition of rights of indigenous people. Western NGOs and public beliefs were increasingly pointing their attention to the position of common people in developing countries. NGOs promoting rights of indigenous people in Indonesia were able to connect to NGOs in other parts of the world with similar beliefs. The conceptualization and promotion of adat has been influenced by those collaborations Legal pluralism and forum shopping in Indonesia Legal pluralism in Indonesia has its roots in Dutch colonial law. During the colonial period, different ethnic and religious groups were subject to different law systems. First, Dutch law did not apply to the Indonesians, but only to the Dutch and the so-called Foreign Orientals. The indigenous population was assumed to be governed according to their own systems and rules, who differed between ethnic groups. In addition, the Dutch supported Islamic institutions in regions were the Islam was the dominant religion (Henley and Davidson, 2007). Von Benda Beckmann (2002) notes that in Indonesia, invoking a certain legal order in order to legitimize claims might take the character of making a political statement. By referring to a certain law, one refers to the whole subsystem that law is part of for example, adat law. As there is more than a single legal order, reference to a certain normative system is not self-evident. An explicit argumentation explaining the choice for the invocation of a certain legal order may be required. The concept of legal pluralism itself may be used for political purposes, too. It could be used to refer to legal systems not or insufficiently recognized by the state, such as adat law. At the other hand, it could be used symbolically. Referring to legal pluralism then serves to silent more radical demands by certain underprivileged groups in society. In Indonesia, access to land is regulated by different laws (Bakker and Moniaga, 2010). In addition, differences in interpretation and implementation of these laws exist. This provides room for claim making processes by different actors in different areas. Bakker and Moniaga (2010) describe how legitimization of land claims was sought by individuals and communities after decentralization. They identify three key areas were legitimization is sought: national state institutions, regional autonomy and extra-legal arrangements. 25

31 4.2 State policies and legislation State policies and legislation regarding land tenure In Indonesia, access to land is primarily regulated by the Basic Agrarian Law (BAL) and the Forestry Law (FL) (Bakker and Moniaga, 2010). Both laws stem for the sixties of the previous century and proved to favour state or private rights to land over customary or community rights (Peluso et al., 2008). Although the BAL seems to recognize adat law and customary rights, the terms and conditions under which it does so are very strict (Bedner and Huis, 2008). Under the BAL, land rights are alienable if they are conflicting with national interests. The FL states that all rights of forests belong to the state (Henley and Davidson, 2007). The BAL and the FL thus provide little legal basis for recognition of adat or customary rights to land. However, those rights are acknowledged in several other laws. For example, the adat land registration policy instructs governments to respect adat rights to own and use natural resource that they have been using since a long time (Sirait, 2009). In addition, two amendments of the 1945 constitutional law respect and protect adat law communities (Bakker and Moniaga, 2010). Recognition of adat communities by the district government is necessary for adat communities for their rights to be recognized under other laws, such as the Plantation Estate Law. Otherwise, if no district regulation of the adat community exist, indigenous people can be accused of damaging the plantation (Sirait, 2009) State policies and legislation regarding oil palm Palm oil production is promoted by the Indonesian government. The government stresses the potentials of palm oil in bringing about rural socio-economic development (Rist et al., 2010). This is reflected in the ambitions of the government to expand production of palm oil. According to FAO-statistics, the Indonesian government aims to quintuple Indonesia's oil-palm-based biodiesel production to 3 billion litres by 2017 (FAO, 2008). Since the 1970s, the Indonesian government has developed and implemented several policies and laws aiming at increasing smallholder involvement in the oil palm sector 6. Particularly, the promotion of nucleus estate smallholder schemes 7 deserves attention. Under such schemes, a palm oil plantation is developed that consists of an estate core around which smallholders have oil palm-plots called plasma. The area for the oil palm plantation is cleared and planted with oil palm by an oil palm company, which also provides inputs such as fertilizers, technical assistance, and processing facilities. Smallholders thus receive loans in the form of investments made on the plasma-lands, that are to be paid to the oil palm company via a repayment scheme. Nucleus estate schemes are a form of contract farming. Three periods can be distinguished in the development of these schemes: the New Order, a transitional period and a laissez-faire-period (McCarthy, 2010). During the New Order, notably from 1978 onwards, the government strongly promoted oil palm development via heavily subsidized Perkebunan Inti Rakyat (PIR: Nuclues Estate Smallholder) schemes (Potter and Lee, 1998; Zen et al., 2005). Five PIR-schemes were developed, each slightly differing in the exact outlook of the scheme, the financiers and the parties involved (Zen et al., 2005). Initially the estate comprised 20% of the area of the plantation, and the plasma-lands 80% (Zen et al., 2005). Later, this ratio shifted to 40% for the estate and 60% for the smallholders (Zen et al., 2005; McCarthy and Cramb, 2009). 6 As indicated in chapter 1.6, this thesis does not consider independent smallholders growing oil palm, hence policies and legislation considering independent smallholders are left out of consideration here as well. 7 In the scholarly literature, the phrase nucleus estate smallholder scheme is used slightly differently by different authors. For some authors, nucleus estate smallholder scheme is synonymous with the various PIR-schemes developed during the New Order period. Others seem to use it as a general phrase that also covers the KKPA and partnership-schemes developed from the nineteen nineties onwards. In this thesis, the term plasma-inti scheme will be used to refer to a specific scheme discussed in the village of study, order to be able to distinguish between different schemes, as will become clear in chapter 8. 26

32 First, only state-owned companies where involved in such schemes, later private investment companies joined as well (Zen et al., 2005). Beside direct investment in state-owned companies, the Indonesian government provided a financial impetus by providing technical extension services and by developing infrastructure (McCarthy, 2010). Further financial support came from the World Bank and the Asian Development Bank (Zen et al., 2005). The initial PIR-schemes only involved people living in the direct surroundings of the oil palm company. Yet later schemes such as the PIR-Trans-scheme, were coupled to large transmigration programs, whereby inhabitants from densely populated Java where send to 'outer Islands' with a lower population density, such as Kalimantan. The development of PIR-schemes was facilitated by "mutually advantageous mutual hostage"-relationships" between businesses and government" (McCarthy 2010, p. 829). The government provided companies with access to village lands and forests, infrastructure and credits. In exchange for that, the companies developed oil palm plantations and included smallholders (Zen et al., 2005; McCarthy, 2010). During the nineteen nineties, a new category of schemes entered the scene: the Koperasi Kredit Primer untuk Anggota (KKPA: primary cooperative credit for its members). Under this scheme, too, a plantation core around which plasma-plots are located is developed by an oil palm estate, and some of the basic tenets underlying the PIR-scheme are remained (Feintrenie et al., 2010). Individual smallholders are involved via farmer cooperatives, that are developed with credit from the Bank of Indonesia (Sirait, 2009). At a minimum, 60% of the area is allocated to smallholders 8. The government was less directly involved in the execution of these schemes: the responsibility for the development of the plantation as well as the provision of infrastructure and other facilities was shifted to the oil palm company. The oil palm company held a direct relation with the farmer's cooperative. The government took up a more facilitating role by providing the apt institutional surroundings for oil palm development. In addition, the government provided financial back-up in the form of advantageous credit arrangements (McCarthy, 2010). At the end of the New Order, an increase in conflicts over land could be witnessed (Zen et al., 2005; McCarthy and Cramb, 2009). During the New Order, lands had been expropriated from local users. This was related to increased political freedom of landowners whose land had been appropriated (McCarthy and Cramb, 2009), as well as to growing land scarcity after the end of the new order (Zen et al., 2005). Since the Reformasi period, the central government acts as a facilitator of oil palm plantation development rather than as a direct investor. It facilitates the establishment of so-called partnership models (pola kemitraan). Under these models, smallholders engage with capital intensive companies in the development of oil palm plantations. The requirements for these partnerships seem to be less stringent than for previous partnerships. The obligations for the area of land that should be allocated to smallholders is 20%, whereas a maximum of 80% can be assigned to the oil palm estate (Zen et al., 2008). In addition, oil palm companies are no longer required to conform to a particular landholder model (Zen et al., 2008). According to McCarthy and Cramb (2009), many companies continue to involve smallholders via nucleus-estate-schemes developed in earlier periods. Sirait (2009) however points to a new generation of oil palm plantations whereby lands planted with oil palm are managed and controlled by an oil palm company and farmers receive passive income from those. McCarthy and Cramb (2009), too, observe the establishment of partnerships in which smallholders receive a share in the cooperation or payment of dividend based on the amount of land they provided to the estate. At the onset of the shift to the partnership-models, Potter and Lee (1998, p.32) state that "the government has emphasised that all estates must establish a partnership relationship with locals but this is a 8 Different numbers go round about the exact requirements for land allocation to farmers under the KKPA (and earlier PIR)-schemes: McCarthy and Cramb (2009) mention that approximately one-third of the land is allocated to farmers; Zen et al. (2005) note that the estates initially are developed on 20% of the area, but that this later increases to 40%.. McCarthy states that, according to the regulations, a minimum of 80% of the area should be allocated to smallholders (McCarhy, 2010). Finally Zen et al. (2008) report that according to legislations, smallholders should be assigned 70% of the area, and estates 30%. This is in accordance with Feintrenie et al. (2009), who note that a ratio of 70/30 is commonly applied in KKPA-schemes. 27

33 broad unenforceable concept which does not specify standards that must be followed by companies." More recently McCarthy and Cramb (2009) emphasised that the term 'partnership' is very broad. The national regulations thus provide ample room for local initiatives and regulations. The extent to which smallholders are able to benefit from this schemes is depended on local contexts (Zen et al., 2008). 4.3 Adat law regarding land tenure The notion of right of avail (called hak ulayat in Sumatra and elsewhere, or beschikkingsrecht by the Dutch) is key to adat law related to land tenure. This right refers to the rights of a community to an area of land. Individuals within the community own and can use the land, but they cannot sell or lease it to third parties (Bakker, 2008). The importance of adat law in issues related to land tenure has been advocated by scientists and NGOs alike (Potter and Badock, 2004; Colchester et al., 2006; Henley and Davidson, 2007; Sirait, 2009). This is not to say that adoption of adat law is unproblematic (Schulte Nordholt, 2003; Henley and Davidson, 2007). Henley and Davidson (2007) point to customary inequality that may be promoted by adat laws. They argue adat law promotes economic inequalities within communities, considers women after men, and favours adat elites, often senior men. This is reflected by the cases described by Sirait (2009). He argues that it is mainly adat elites that reap the harvests of palm oil production. The case of palm oil expansion in Barito quoted by Rist et al. (2010) points in the same direction. Here, only those village members who had close connections to local authorities were able to benefit from land sales to oil palm companies. 28

34 29

35 5 Study area 5.1 West- Kalimantan province West-Kalimantan is one of the four provinces of the Indonesian part of the island Borneo (Figure 1). It s area mounts up to 14 million ha (Sirait, 2009). West-Kalimantan is inhabited by 4 million people (Sirait, 2009), the majority living in the countryside. In 2000, it was estimated that 74% of the population lived in rural areas and 26% in urban areas (Potter, 2008). In the rural areas, average population density is 20 persons/km 2 (Sirait, 2009). A variety of ethnic groups populates West Kalimantan. Almost 34% of the population is considered Dayak, who can be subdivided in 223 different sub-ethnic groups. Another 34% is considered Melayu, again to be subdivided in different groups. Melayu are related to the Dayak but practicing Islamism. Furthermore, Chinese, Madurese and Bugis inhabit the area, as well as groups with ethnic backgrounds that remain unspecified (Sirait, 2009). Rubber and palm oil are the most important export commodities (Potter, 2010). Currently, over 0.35 million ha is planted with oil palm (Potter and Badock, 2004; Colchester et al., 2006). In addition, a large area is cleared for oil palm production but not yet planted. West-Kalimantan s contribution to Indonesia s palm oil production is estimated at 6% (USDA, 2009). Figure 1. Geographical map of Indonesia. The red circle indicates the province of West-Kalimantan at the island Borneo (source: viewed 20 July 2010) 5.2 Sanggau district The Sanggau district is located in the centre of West Kalimantan (Figure 2) and borders Malaysia in the North. The district is intersected by the river Kapuas, along which a high way connects Sanggau to Sintang in the east and Kapuas Hulu in the west. Another highway provides the connection with West Kalimantan s capital Pontianak and the Malaysian province Sarawak (Potter and Badock, 2004). 30

36 Sanggau makes up 8.8% of West Kalimantan and has an area of 1.3 million ha (Gaiser, 2009). It is divided in 15 administrative sub-districts (kecamatan) and consists of 159 villages (desa) and 586 hamlets (dusun) (Gaiser, 2009). Over half a million people live in Sanggau, of which in the district capital of the same name (BAPPEDA, 2001 in: Potter, 2004). During the nineties, population densities have increased considerably due to immigration (Rist et al., 2010). Currently, Dayak ethnic groups form the majority of the population (64%). Malays form 23% of the population whereas the remaining 13% is categorized as other (Colchester et al., 2006). Traditionally, Sanggau has been an important oil palm district. At the end of the seventies, the government set up the first palm oil estates in the area (Potter, 2008). Parts of these government plantations are still important today (Potter and Badock, 2004). In 2005, over ha was estimated to be under oil palm production (Colchester and Jiwan, 2006). Figure 2. Map of West-Kalimantan showing the administrative division in districts (Kabupaten). The red area is Sanggau district (source: viewed 20 February 2011) Policies and legislations regarding oil palm As the national government, district and local governments are often in favour of developing palm oil production in their locality. District governments are known to support palm oil production in different areas of Indonesia, like on Sumatra (Feintrenie et al., 2010) and in Sanggau (Colchester et al., 2006; Zen et al., 2008; Sirait, 2009). In the Sanggau district, palm oil made up 17% of the annual regional domestic income in 2002 (Colchester et al., 2006). In 1998, a so-called integrated economic development region was set up aiming at stimulating 31

37 palm oil production in the region (Colchester et al., 2006). Pro-plantation policies were implemented in order to attract (foreign) investors and increase the income of the region (Zen et al., 2008). The Sanggau region was also one of the areas in which the megalomaniac oil palm corridor project was to take place. Between the Indonesian-Malaysian border the world s largest oil palm plantation, measuring 1.8 million ha, should be established. However, due to opposition by NGOs, villagers and academics, these plans were never turned into reality (Colchester et al., 2006; Potter, 2009b). In the Sanggau district, the institutions of indigenous people are recognized at the village level (district regulation no 4/2002). Every village (kampung) can be ruled according to its own rules and institutions. At the same time, the village has the responsibility to support district and provincial tasks (Sirait, 2009). Two district regulations relate to the establishment and expansion of oil palm plantations: district regulation no 3/2004 regarding oil palm estate schemes and district regulation no 207/2004 regarding the implementation of guidelines for oil palm estate schemes. In these district regulations, different forms of collaboration between oil palm companies and local communities are described. Notably, according to district regulation no 3/2004, oil palm companies should conduct a so-called socialization process, wherein they convince the villagers to opt-in the oil palm plantation (Zen et al., 2008). In addition, the creation of task forces to support the land acquisition process preceding plantation establishment is regulated by these decrees (Sirait, 2009). These task forces support the land acquisition process by oil palm companies in the Sanggau district and other districts in West Kalimantan. They are established by the local government and operate at three levels: at district level (TP3K: Tim Pengawasan dan Pembinaan Perkebunan Kabupaten, land acquisition team), at county level (Satgas: Satuan Tugas, task force) and at village level (Satlak: Satuan Pelaksana, executing team). Typically, they consist of government representatives, military and police officers, representatives of indigenous people s institutions, village (kampung) chiefs and sub-village (dusun) chiefs. The task forces are financed by the oil palm company. Their primary aim is to identify lands suitable for oil palm plantation expansion and to smoothen the relation between local communities and oil companies (Sirait, 2009). These land acquisition and negotiation processes are part of a wider trajectory that an oil palm company has to go through in order to obtain the necessary permits to start an oil palm plantation (Figure 3). In practice however, this trajectory often is gone through as a matter of form only (Sirait, 2009; McCarthy and Zen, 2010) Implementation of laws regulating expansion of oil palm plantations Decentralization has brought with it specific challenges for the (environmental) regulation of oil palm production. In particular, the capacity of local governments to deal with such regulation should be increased. Furthermore, responsibility and accountability for implementation of laws and policies would need to be enhanced (McCarthy and Zen, 2010). Currently, incentives for large companies to take environmental management seriously are lacking (McCarthy and Zen, 2010). Schulte Nordholt (2003) fears that the environment will pay a high price for decentralization. As described above responsibility for environmental and land issues has shifted to district and municipal governments (Schulte Nordholt, 2003). However, these governments often lack the capacity to do so adequately (McCarthy and Zen, 2010). The authority of different agencies is ambiguous. Furthermore, environmental issues are often assigned to government officials with a low status and/or to inappropriate agencies, with limited political and organizational clout. In addition, funding for these agencies is often limited (McCarthy and Zen, 2010).. After decentralization, the responsibility of districts to raise income from local sources has grown. This encourages them to attract private investments like oil palm companies (Potter, 2008). Districts thus are depended on taxes and investments from industries (McCarthy and Zen, 2010). In addition, these industries create jobs. Employees of palm oil industries depend on these industries for their livelihood. The company could mobilize these people in order to protest against measures government agencies are to take against the 32

38 company (McCarthy and Zen, 2010). These factors contribute to a political bias of government agencies towards oil palm companies. Corruption has continued to be an important obstacle towards regulation of palm oil production. As money is disappearing in the hallways of government agencies, the need for governments to raise extra income is increased. This exemplifies the need to attract investment and taxes from industries (Schulte Nordholt, 2003). Companies, in their turn, may bribe government officials to avoid the need to comply with regulations (McCarthy and Zen, 2010). Corruption exists because of, and at the same time contributes to, the dependency relation between local level government officials and factories. Notably in Sanggau, it seems that "large scale producers and powerful local investors -often including plantation shareholders and key public officials - often worked in a collusive fashion to mobilise support for particular outcomes." (Zen, et al., 2008, p.3). Enforcement of law regulating palm oil plantations is challenging in contemporary Indonesian society (McCarthy and Zen, 2010). Political and organizational problems lie at the basis of those challenges. Stricter legislation or clarification of law will not solve those problems. Therefore, the potential of improved legislation e.g. clearer or stricter legislation - is limited. This holds as well for legal solutions regarding issues in which adat plays a role (Schulte Nordholt, 2003). However, others advocate the need for improved legislation, especially related to land tenure, in order to solve problems surrounding oil palm plantation expansion (e.g. Rist et al., 2010). Figure 3. Schematic overview of the procedure an applicant has to go through in order to obtain a plantation business permit and the business utilization right. Both permits are required to start an oil palm plantation (Sirait, 2009). 5.3 Hamlet Mua Mua is located in the middle of Sanggau district in West-Kalimantan, and part of the village of Empodis. A mud road of approximately two kilometre leads to neighbouring hamlet Koca. The hamlets of Pinsam and Mobui can be reached via another dirt road. River Mua divides the village into two parts, which are connected by a suspension bridge. 33

39 Four hundred twenty eight people live in Mua, divided over 107 households, according to numbers available at the Empodis village office. The village is ethnically homogenous, with a vast majority of the population being Dayak-Muduk. Protestantism (42%) and Catholicism (58%) are the main religions. Sanitation facilities are very basic: only few houses are equipped with a toilet and bath room and most people use the river as such. The level of education of most of the inhabitants is low. Many interviewees have not finished primary school and the number of inhabitants that has finished high school seems to be below ten. There is no school in Mua, and most children go to school in Koca Agriculture in Mua Rubber tapping is the main source of income for the inhabitants of Mua. Furthermore, most people produce rice, pulut (a grain similar to rice that is the main ingredient of tuak, a traditional alcoholic beverage) and/or vegetables. This produce is mainly for auto consumption, although some villagers sell vegetables on the market. Agriculture is conducted in an extensive fashion, whereby people move their planting field from one spot to the other over the years. This system of shifting cultivation has several phases. First, an area of land of approximately 0.5 to 2 ha is cleared. This is either done by slashing the vegetation of the land and burning the remnants thereafter, or, on fields with only grasses, by spraying herbicide to kill the vegetation. Thereafter, people plant rice or vegetables, conduct maintenance activities (mainly berumput, literally: grassing, removing grasses and other weeds) and harvest the crop. Then, a new cycle can start. When the soil quality is good, for example because there had been a forest in that location previously, the field may be planted for two subsequent years. Usually, a field is worked on for one year only. People return to the same field after a number of years, when the soil has become old or the trees are big enough. Opinions about the appropriate time span differ from 3-5 years to 12 years. Rubber plantations and continuous rice cultivation (that takes place under wet conditions in fields called sawah) are not included in this system of shifting cultivation. Several interviewees indicate they have some swamp lands, that are either used to plant padi in a system of wet rice cultivation, or are inhabited by forest. All agricultural labour is done manually: farmers do not have cattle or machinery for ploughing, seeding, weeding or harvesting. Usually, people work together on their fields, in order to finish the labour in the appropriate time. This holds especially for sewing (nugal) and harvesting. Such mutual labour may be organized more or less formally through an arisan-group: a regular social gathering whereby its members often contribute to the group financially, for example to buy food for the annual Gawai-festivities. It can also be arranged informally, whereby a family announces to some relatives it wants to work on its fields on a particular day. In any case, food and drinks are provided by the host during the working day and the subsequent evening. The landless mostly make a living as agricultural labourer. They work on other people s fields, or as an employee of oil palm company PT Mitra Austral Sejahtera (PT MAS). 34

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41 6 Oil palm estate PT MAS III in hamlet Mua: perspectives of villagers In this chapter, the engagement of hamlet Mua with oil palm company PT MAS will be sketched. First, the phases in the expansion process of will be described (section 6.1). The subsequent section (6.2) provides an account of the reasons why the villagers opted for involvement with the oil palm company and transferred their land to be included in an oil palm plantation. It will become clear that the perceived benefits of engaging with the company as well as the limits to their current livelihoods experienced by the villagers are key to understanding this engagement. In section 6.3, attention will be given to the dissatisfaction about the oil palm company that has grown in Mua. 6.1 Main phases in the process of expansion of PT MAS in Mua First socialization phase Meeting at sub district level (around 1995) Around 1995, local leaders like the head of adat are invited to a so-called 'socialization' in sub district Bonti, organized by a palm oil company that later would become PT MAS (Box 2) and the regional government. This is the first time villagers of Mua hear about the possibility of an oil palm plantation in their region. People of other villages attend the meeting, too. Representatives of the company sketch the advantages of engaging with PT MAS: it will bring economic advancement to the people of Mua, and the plantation will create employment. Furthermore, the company will develop facilities: roads, houses, sports facilities and buildings like churches, schools and hospitals. In this way, the company will contribute to the development of Mua. A palm oil plantation would be developed according to a so-called plasma-inti scheme. Under this scheme, the villagers would give 7.5 ha of their land to the company. The company develops a palm oil plantation on 7 ha. When the trees bear fruits, 2 ha of the land will be returned to the farmers, whereas 5 ha remain under the management of the company. Roads and facilities will be developed on the remaining 0.5 ha. The villagers of Mua do not make notes during this meeting, nor do they obtain any minutes. Box 2. Oil palm company PT MAS III PT MAS came into existence in 2002, after a merge of several other oil palm companies. (Colchester et al, 2002). Oil palm estates PT MAS I, II and III are part of Sime Darby. In Malaysia and Indonesia, Sime Darby runs another 62 'operating units'. The total plantation area of those operating units was ha in Indonesia in Sime Darby is one of the largest oil palm producers worldwide (Sime Darby, 2010)."Making a sustainable future real for everyone" is its mission (Sime Darby, 2010). Sime Darby is a member of the RSPO, and aspires to have all its operating units RSPO-certified by the end of 2011 (Sime Darby, 2009). Meeting in hamlet Mua (1996) The meeting in Bonti is followed by a meeting in hamlet Mua in The head of the hamlet hits the gong and people leave their houses and gather in the open space. The meeting can count on a massive attendance, as, in the words of an interviewee, "anyone who can walk, was present". The head of the sub district (camat), the head of the police (kopelsek) and the head of the military (dan ramil) attend the meeting, too. Representatives of the company repeat the message conveyed at the previous meeting: the entrance of the company means development of Mua and economic advancement for its people. This vision is welcomed by the attendants. People massively raise their hands to indicate they consent with the company entering Mua. 36

42 6.1.2 Between the first socialization and the second socialization ( ) After this meeting nothing seems to happen. The activity of the company in Mua is pending, apparently. In this period, oil palm estates PT MAS I and II are being developed. Food retailer Indofood is interested in using the land of Mua for its businesses. According to some, this has revived the activity of PT MAS in the area. The company declares to start its activities in the region in a second socialization phase in Second socialization and formation of the Satlak and koperasi Sekayam Jaya In 2005 renewed activity of PT MAS takes place in Mua: the company states they will start developing an oil palm plantation in Mua. A so-called Satlak (an abbreviation of Satuan Pelaksana: executing team at village level (Sirait, 2009)) is formed. This is a committee formed by the elders of the village: the head of the village, the head of the hamlet, the head of adat, the heads of RW and a few other 'local public figures'. In Mua, the Satlak consists of eleven people, in Koca of six. Some interviewees perceive the Satlak as the extension of the government, whereas for others the committee is closely related to the company. The task of the Satlak is to act as a bridge between the people and the company, and to mediate conflicts that may arise between people related to the expansion of the oil palm plantation. The Satlak executes the land acquisition process at village level, and facilitates the land conversion process. Via the Satlak, families convey information about the lands that they want to give to the company, to the company. The company instructs the Satlak where, when and how to conduct the land conversion process. In 2007, the plantation koperasi 'Sekayam Jaya' is established and registered at district Sanggau. This koperasi consists of the management, an observatory body and four counsellors. The koperasi should communicate with the company on behalf of the farmers. At the same time, its task is to convey information from the company to the villagers. At the time of writing, the main task of the koperasi as perceived by the management is to make an agreement with PT MAS III about the plantation and the role of the company, the koperasi and the villagers. In this agreement, the plights and duties of the koperasi as well as the company are laid down. Koperasi 'Sekayam Jaya' relates to the area of PT MAS III Land conversion process In 2007 the land conversion process starts. Details of this process are given in chapter 7.2. Here, a general description will be given. In each location, this process consists of several phases: pioneering, measuring and clearing the land. In the pioneering phase, the owners of the land and the Satlak explore the land to be given to the company. In a certain location, the borders of the land with neighbouring lands are examined, as are socalled 'enclaved areas': areas that people do not want to give to the company. The area of land pioneered is measured by a release team from the company. This process is observed by the owners of the land as well as by the Satlak. A distinction is made between 'global measurement', 'individual measurement' and 'big family individual measurement'. In global measurement, the land belonging to a group of people, for example a village, is measured as a whole. This method offers little possibilities to indicate that certain parts should not be converted to oil palm. In Mua, most land is measured either individually or 'big family individually', meaning that areas being used by different people or different families are measured separately. Within the plantation area lands can become 'enclave': they are not given to the company and the villagers keep the rights to them. After the measuring, the land is cleared by employees from the company. In some instances, pioneering and measuring are conducted on the same day. In that case the two may be overlapping, as becomes clear in the following statement by a Satlak-member from Mua: "We did this pioneering phase with the owner of the land, and the owners of the land that have borders with this particular land. The measuring team with their tools will follow behind the owner of the land, while he can show the limits of his land." In other cases, measuring is conducted several months after pioneering. The villagers as well as the Satlak receive an incentive for their presence during the pioneering, the measuring and the clearing, of about 30,000 rupiah ( 2.35). In addition, the members of the Satlak receive a 37

43 monthly payment of 100,000 rupiah ( 7.85). Presence of the villagers is required during the pioneering phase, but not in the measuring and clearing phase. In some cases, only the 'head of the family' is present, but in other cases the whole family is brought along to observe the process The area of the plantation in Mua Different numbers exist about the actual size of the plantation in Mua planned and realized. In a a so-called socialization booklet, a number of stapled sheets consisting of information and promotion from PT MAS III of November 2008, the 'data of land transfer' in Mua are estimated. 'Preliminary estimation: 1700 ha, realized: ha.' it reads. Another booklet produced by this company, probably of a later date, states that ha of land have been given in Mua. This number is based on the amount of land registered under the names of the would-be-member-farmers of the koperasi. In November 2010, the land conversion process is not yet finished, as these numbers show. Representatives of the koperasi and the Satlak indicate the conversion process has not yet finished, because of the swampy nature of part of the land. Swamp lands are included in the areas that cannot be planted by the company, but should be preserved as a conservation area, they say. Other reasons mentioned for the perceived impasse in the conversion process include lack of funds available and lack of suitable seedlings. 6.2 Reasons to engage with the oil palm company The prospect of development In the first socialization phase, the villagers decide to let the oil palm company enter the area of Mua. The villagers are eager to experience development that they believe will be brought by the company. Especially the promise of a road and other facilities triggers their enthusiasm. Several interviewees clearly express they were willing to hand over their land to the company only because of those promises. One of them is the head of adat of Mua, who says: "So the people said: if we need the facilities [housing, schools, and health care], then let the plantation in, but if we don t need the facilities then let the forest stay adat land." Beside facilities, economic advancement seems to be glimmering at the horizon for the inhabitants of Mua during the socialization phase. When they are asked for the reasons to accept the incoming of the plantation, the villagers talk about the possibility of a higher income for the families living in Mua and the hamlet as a whole. One interviewee expresses it as follows: "We cannot stay in this state, within this condition forever. And observing from the experience from the neighbouring village, we can see that now they have a better condition economically. To depend ourselves on the result of the cultivation of rubber is not enough. That's why we decided to join the plantation." Following others The decision to engage with the oil palm company is taken in Anno 2010, part of the people who were involved in this decision has passed away or is not active in public life anymore. In addition, part of the inhabitants of Mua who are now adults were still in their childhood in 1996, or not yet living in Mua. The people who took the decision are thus not necessarily the same as the ones who are experiencing the consequences. The same holds for the decision at household level to give or give not particular plots of land to the oil palm company. Several interviewees express that their father or their parents in law decided to dedicate land to oil palm, and which lands. Similarly, elder interviewees state they opted for oil palm to provide a future income for their children. This is related to the customary property regime discussed in chapter 7.1. Whereas some villagers deliberately provide an area of land to be planted with oil palm, other inhabitants just seem to follow others. They say they "just followed the other people", they "also want to have their share" or they "don't want to be left out". Some interviewees experience social pressure to join as well: "People said to us: if you don't plant palm oil, you will have nothing to eat." 38

44 Some interviewees tell that they gave their land, because it is located in the middle of the plantation. According to them, oil palm attracts certain bugs, as well as rats and birds. Those pests would severely hamper the cultivation of rice or vegetables. Therefore, the land cannot be planted with anything but oil palm Comparing oil palm and rubber Several interviewees compare oil palm with rubber, like the respondent who explains: Actually, if we rely for the overall income on rubber, the result is quite big, if we work on it every day. But here in Kalimantan, the situation of the climate is quite unpredictable. Within the rainy season, it is quite hard to rely on rubber. The yield from the palm oil is quite steady. That s why we want to plant palm oil. Generally, people expect that oil palm will provide them with a more steady income than rubber tapping, as oil palm trees will be harvested and sold twice a month. Rubber trees can only be tapped when it isn t raining. However a woman from Mua notices that the income from rubber is quicker since the ripe trees can be tapped anytime and the result sold immediately Limits to shifting cultivation The availability of labour and capital are limiting the area of land that can be worked on in one year: the size of a planting field mainly depends on the workforce available to work on that field. "Usually [the size of a planting field is] half a hectare, and generally people work on half a hectare and if it is wider than that, they won t have enough manpower to do the work, like the grassing." says a woman from Mua. Obviously, the availability of labour is related to capital, as money can be used to pay others to work on a field, and is needed to provide food and drinks for the traditional nugal and other activities whereby people work on each other's fields. In addition, people may lack the fund to buy herbicides to kill grasses and weeds, and to buy seeds and fertilizer. This limited ability to benefit from their land can be a reason why people opt for oil palm, as is illustrated by the following statement of an interviewee from Mua: "Previously, there were trees on that area, but after that we used it for planting field continuously, and after that the only thing left on that soil are grasses. If the soil is eaten by the fire, there are only grasses. Because we could not provide herbicide at that time, we decided to give the land to the company and work on the other land." The distance of the fields plays a role, too, as several interviewees indicate to reserve locations far away from their house for oil palm rather than locations close to their house Why don't the villagers plant their own oil palm? Money is the single most important reason for the villagers not to plant oil palm independently from the company. Almost all interviewees mention that lack of capital is the main reason why they cannot plant their own oil palm field. This capital would be necessary to buy seedlings, fertilization and herbicide. Especially the costs for fertilization and maintenance are perceived to be high. To the question why he doesn't plant oil palm independently, a young man from Mua answers: "Because we didn t have the capacity to provide the capital to buy fertilizer, pesticide, herbicide, the cost for slashing, the cost to buy seedlings. That s why the company is in charge to manage the land now. We just wait for the result." In addition, some interviewees say the company has better capability to open the land and to provide infrastructure into the land. One interviewee argues he needs the company in order to cultivate and sell oil palm in a legally correct way: "[...] the company is the only one that has the right to release the fertilization and the spraying. And if we have that fertilization and spraying, somebody might suspect us from stealing. [...]We can t buy it from the ordinary stores, but there are some places we can get it from, but they are also related to the company and the KUD. So we can obtain it only from the KUD with the necessary papers. If we buy it from other places, they will examine the process, they will ask where we bought it and how we got the fertilization. [...] That s why we have to give part of our land to the company, rather than simply planting palm oil independently. By following the scheme of the company, we will have the papers and permits related to the land. And with it, we can gain fertilization, herbicides and we can sell the fruits to the company. A similar point is made by a young man who planted his 39

45 own oil palm: Our father was also listed as would-be-member-farmer at the company. We, the children that planted privately, can sell the fruits through the kapling of our father. So we can sell our fruits to the KUD through our father. According to the secretary of koperasi Sekayam Jaya, it is possible for outsiders to sell their produce to the koperasi, too. However, the price of the fresh fruit bunches will be cut with a tax of 10%. Several interviewees express their intention to plant their own oil palm field in the future. Some hope that the future yield from their plasma-field will provide them with the necessary capital to build an oil palm field that is not related to the oil palm estate Categorization of land by the people as 'empty' "If the people have empty lands, on which only grasses can be found, they would usually give it", or "the majority of the land given in Mua was grassy field" In accordance with those general statements made by village elites, many interviewees mention that the land that they dedicate to oil palm was empty or grassy field. On a closer look, all those grassy or 'empty' fields are used previously as planting field, in a system of swidden agriculture. Furthermore, almost all interviewees admit that some part of the area they gave for oil palm was planted with vegetables, rice or rubber. A member of the Satlak generalizes: "There are a lot of people who have given their productive land." Tembawang however, are not given. Several interviewees mention the disappearance of forest after the incoming of the company. This seems to be at odds with the notion that people mainly gave their grassy or 'empty' land. But what exactly is meant by 'empty' land? This is explained by a farmer from Mua: "It depends on what you consider an empty field. Here, people consider a field empty when it is not productive. Even though there might be a lot of trees on the field. Also, when it is planted with small trees or with rubber that is not yet productive, people consider it an empty field. This is how the elders speak about it, and we do not speak up to them because that it considered impolite, we respect their point of view." 6.3 Shifting perspectives Growing dissatisfaction Anno 2010, dissatisfaction about the conduct of the company has taken root among the villagers. There are several topics of discontent. A first cluster of critiques relate to the employment opportunities at the company. Workers for the company would get paid less than they were promised, or they would not get paid at all. In addition, they do not have a fixed contract but are employed on a day-to-day-basis. Furthermore, there is a lack of Dayaknese in managerial positions. At the same time, there are rumours about bad managers who are not able to fulfil their task. Second, complaints relate to the lack of communication from the company to the Satlak and the villagers, also referred to as socialization. Apparently, this is related to the shifts in management of the company and its name-changes. Some people feel they do not know exactly with whom they have to do anymore. A farmer in Mua tells about speaking names: The company has had three names: in the first phase, it was called PT MAS sejahtera means prosperous, and it lived up to its name. In the second phase, it was Golden Hog and it did quite well, too. At meetings, it would reimburse the costs for fuel people had made and it would pay for consumptions. Now in the third phase, its Minamas, and it is quite terrible. It is not paying its employees Third, respondents criticise the apparent impasse in the development of the plantation. The clearing and planting of the land has not been finished, and this makes part of the villagers suspicious. Because we have already trusted the land to the company, but it has not been cleared completely, this made we have doubts. says a respondent in Mua. Fourth, several respondents, mainly members of the Satlak, express their dissatisfaction about the realization of facilities promised during the initial socialization. Churches, schools and buildings have not been build and the road is in a poor condition, they say. 40

46 In Mua, two Satlak representatives express the intention of the Satlak to withdraw from their function. They feel the payment they receive bears no relation to the responsibility assigned to them. Furthermore, one of them expresses concern about the value of the plantation for the villagers he fears oil palm will not benefit those who gave a small area of land. The growing sense of dissatisfaction among the Satlak and a wider audience lies at the base of a so-called fencing act, that will be described in Conclusion A theory of access can help understanding the engagement of local people in Mua with oil palm company PT MAS. The villagers perceive the lands they gave for the oil palm plantation to be of little benefit. They claim that the land that they gave was 'empty'. The ability of the villagers to benefit from their land is limited. The size of a field worked on in one year is mainly restricted by the availability of labour and capital. Villagers expect that oil palm will bring them more income than the current mode of farming. However, they lack the mechanisms of access to obtain the benefits of an oil palm field by themselves. Capital is the most important one. However, it is too short-sighted to say that it is solely the economic benefits of oil palm that seduced the villagers to opt for oil palm and engage with the company. Initially, people are tempted by the prospect of development: roads and facilities like housing and public buildings such as schools or churches that the company is offering. Villagers thus were willing to give up the right to benefit from land in order to obtain the ability to benefit from oil palm, and from the infrastructure and facilities that came along with it. This attitude marks the onset of the shift in property regime that is taking place in the oil palm plantation expansion process. As the benefits of the oil palm plantation and the incoming of the company are not experienced by the people as they expected, their initial enthusiasm is tempered and replaced by discontent. 41

47 7 Expansion on family lands and individual lands: recognition of customary property? This chapter starts with a description of the way in which the villagers of Mua perceive rights to land on family lands and individual lands, and how they practice this system of rights. This system of customary rights is taken as a point of departure in the oil palm plantation expansion process in the field. To what extent are customary rights and claims recognized in the oil palm plantation expansion process? An answer to this question will be sought by looking into the process of claim-making. Section 7.2 and 7.3 will look into the mechanisms by which claims on land were made in the oil palm expansion process, and into the effects of this claim-making. Section 7.2 deals with claims that are made in the field in the actual land conversion process. This process consists of a pioneering phase, a measuring phase and a clearing phase. Special attention will be given to conflicts brought about in the land conversion process, and how they are solved. Thereafter (section 7.3), the focus will shift to the claims made in the administration process for example by producing maps and lists of land holders and their land. In the conclusion, attention will be paid to the consequences of this recognition or lack thereof of customary property rights for the eventual ability to benefit from the oil palm plantation for the villagers. 7.1 Customary property regime My father had the right to sell the land, because it was owned by the father of my father. My father has seven siblings. When the father of my father passed away, the children can sell the land because each of them already has his or her share of land. Now, because my father has already passed away, if it is a land where there are no crops, we [me and my siblings] should talk to each other before anyone of us can sell part of the land, and also to decide the price of it. But if for example I plant rubber trees on one part of the land, then automatically I have the right to sell that land with the rubber trees because I am the one that s working on it. This quote by a man from Mua encompasses several important aspects of the customary property regime in Mua: the importance of an ancestral relationship in obtaining rights to land, inheritance of land, the custom of obtaining rights to land by cultivating it, and family relations (between parents and children and between siblings). These issues will be discussed subsequently. Most of the lands in Mua are considered ancestral lands - land that are obtained via an ancestor. Once, predecessors of the current inhabitants cleared patches of forest for cultivation. Those lands where inherited by their children, and by their children, and so on. This is illustrated by a man from Mua, who says: According to the tradition, to adat, the people whose ancestor previously cut the forest to be planted, the offspring of the individual that cut the forest, have the right to plant on the land. Our family has the right to plant on that land. Such ancestral lands can be divided between the children of a parent who inherited rights to that land. In those cases each child is assigned a patch of land. He or she can cultivate it and share the harvest with his or her own family partner and children. Parents decide how the land is divided between their children. Such division does not necessarily only take place after the parents have passed away: it can take place when the children are grown up and start living with their own family. Part of the land still remains under the management of the parents, if they are still alive and able to manage the land. After they pass away, the will of the parents will determine what will happen with the land under their management. Beside lands that are assigned to individuals, there are also lands to which more people can lay claim. In such cases, anyone within a family can cultivate a certain patch. A man from Mua expresses it as follows: We have this custom here, that if we have an unproductive land, if someone from the children is cultivating the land, if he or she can plant rubber or anything on it, then he has the right to use the land as much as he or she can work on. By cultivating a piece of land, one obtains right to the land. For example, if someone plants rubber on a piece of land and manages the field for some years, it becomes his field. Cultivating a patch of land simultaneously means making a claim on that patch of land and gaining rights to it. This also means that 42

48 someone obtains rights to sell the rubber trees and the land, as the quote at the beginning of the chapter illustrates. However, the elder still has a say in the fate of the land. The son of the head of RW in Mua talks about the decision to give part of the land, where he planted rubber, to the company: My father asked me whether I want to sell the land or not, because I planted the rubber trees. Because part of the rubber on that soil was eaten by fire, so I decided to give it. When I agreed, my father gave the land to the company. Usually, permission to farm the land has to be asked to the parent. Or, as a young mother from Mua says: Actually, the permission will be given anyway, but it is more proper if we ask the permission. Also in other decisions over the land, the elders play a pivotal role: the key is the parent as a young man from Mua formulates. Besides their age, the knowledge and experience of the elders gives weight to their opinions. Obviously, parental approval cannot be given anymore when the parents have passed away. Then, coordination and agreement between the siblings gains in importance. If a group of siblings manages a piece of land and there is no discord among them, they will consult each other when planting something on the land. Decisions on selling or giving away the land will be taken after agreement has been reached among them. However it is not common for the Dayaknese in Mua to sell their land. Several respondents assure the interviewer they would only do so when there is an emergency situation and they are in dire need of money. It depends on the preferences of a family and the amount of land they have whether people from another family can cultivate the land. Some respondents clearly state that no-one from outside the family can use the land. Others tell that it is possible for outsiders to work on a certain part, if the host gives permission to do so. Usually, the outsider will need to provide retribution to the host of the land, such as a part of the harvest. In any case, the land has to be returned after it is being used. Use right may interfere with inheritance rights on land, as shows the following case. A woman from Mua was given a piece of land by her parents. However, her brother planted it with rubber trees contrary to the wishes of his sister. The son of the woman explains why this is problematic: My mother can t sell it, because even when she asked for a piece to build a house, she was not given the right. It is a family field nobody can sell the land right now, because the mother owns it, and the brother owns it, too. The overlapping claims made on the border land between Mua and Koca, discussed in chapter 7.2 provide another example of such colliding rights. A few respondents have bought some land, and with it, the right to plant it or sell it. As may become clear from what is written above, there is no single way in which the rights to land are organized: different families may have different ideas and practices. This becomes clear from differences in responses by interviewees from separate families, and from remarks about those differences. Several interviewees state that they don t know how for example inheritance of land is arranged in other families, and that those families should be asked themselves. Notwithstanding, the basic tenets of the social norms and practices of which rights to land consist seem to be similar for the inhabitants of Mua. None of the interviewees has dedicated all his or her land for oil palm, and according to the head of the hamlet, no-one has done so in Mua. On these lands, the customary right system applies. The transformation of the lands that are being given to the company is the central object of interest of the remaining part of this chapter. 7.2 Claim-making in the field Recognizing borders The villagers recognize the borders of their fields in different ways. Commonly, the limits of a planting field are marked by vegetation, such as a row of bamboo trees (Photo 2) three rubber trees planted closely together or a large ironwood tree. Positioning cut-down trees along the limits of a planting field is another way to sign the boundaries of an area. Several interviewees mention that the owner of the field knows about its borders, 43

49 without specifying how those borders are visible in the field. Some villagers may thus not mark the borders in the abovementioned ways. In addition, on fields that have not been used for cultivation since many years, vegetation once planted as a marker may no longer be recognizable. Boundaries between fields may therefore be difficult to discern. Knowledge about the locations of the land that belongs to the family and the borders of those lands is transferred orally from parents to their offspring. Photo 2. A row of bamboo trees marks the border between two neighbouring fields Pioneering In the field, the process of converting the land to oil palm plantation starts with a pioneering phase. In this phase the boundaries of an area that will be converted to oil palm are marked. The aim of pioneering is twofold: first, to specify which area will be measured, and second, to indicate which part will be converted to oil palm. The pioneering is conducted by the Satlak, the owners of the field and the owners of the neighbouring fields. Together, they walk around the field. The borders of the land are marked by slashing a small path, and/or by planting wooden poles that are painted green. Areas that should not be converted to oil palm are called 'enclave' by the villagers. Those are marked as well, if their location is close to or within the location that will be converted. For those areas, poles with red paint are used. The company instructs the Satlak to use red and green paint for demarcation. In practice however, paint is not always used. During and after the pioneering and measuring process, (small) conflicts arise between the villagers and the company, between the owners of neighbouring fields and between neighbouring communities. Demarcation may play a decisive role in such disputes, as shows the case of one of the villagers of Mua. He did not want to give part of his land that was located in the oil palm plantation area. This enclave area was being pioneered by himself and members of the Satlak. According to him, employees of the company had replaced the poles that indicate the border of an enclave area inwards. This was done after the pioneering process, when the interviewee and the Satlak had left the field, but the employees of the company stayed there. Upon return, the interviewee put the poles back in their original position, using his own borders as a reference: "In the pioneering process [the people of the company] will say: 'Your land, we have already known the borders of your land.' And then the owner of the other land and I will go home. But when I came back, the poles have 44

50 been placed further in than they should be. The good thing is, I also used some wood as the border of my land. So I can use that as the base. So when I said to the people of the company that they have already made mistakes, I used these woods to support my claims." His comments were accepted by the company, and the interviewee was satisfied with the solution of the dispute. Furthermore, pioneering may bring about conflicts between people of neighbouring lands. It is the task of the Satlak to solve such conflicts. This is done in the field, by discussing the location of the border with the owners of the neighbouring fields. As a farmer explains, disagreements with his neighbour about the boundary of the land were discussed both at home and in the field. The quarrel was successfully mediated by the Satlak. That s why the Satlak does not consist of people that are randomly picked," explains a member of the Satlak in Koca. "The members of Satlak can come to the hearts and minds of people, they already have extensive experience with people. So when small incidents would occur, we can go to the field and settle this, and everybody would accept the result. If the council of the Satlak cannot be accepted by the people, naturally we will have our people fighting each other. This is the important role of the Satlak." Conflict in the field may grow violent, as a member of the Satlak in Mua expresses: "Satlak enjoys the worst working conditions; we are the point of spears. We have already come face to face with swords and all kinds of weapons, but the company doesn t seem to notice this." When being asked where incidents took place in Mua, several interviewees mention that in Mua, it was relatively calm Measuring After the pioneering is finished, the area of the land is measured. By and large, people do not know the size of their fields before this measuring. Measuring of the fields is conducted by the so-called release team of the oil palm company. In some instances a compass and a measuring band are used to determine the size of a field. This method is perceived as less reliable as the method whereby GPS-tools are used. In Mua, most measuring is conducted by using GPS. This technique does not seem to be well understood by the members of the Satlak and the villagers, as illustrated by the following quote of a Satlak member from Mua: "This tool, a computer. There were four people doing the measuring, we only followed them. They brought this tool around the area, but we don t know how it was used. " This lack of understanding is perceived as problematic by some individuals, like the Satlak-member from Koca who states: "The general problem is that there is no transparency in the act of measuring, because the people don t really understand the process of measuring. They can only accept the result." A similar point is raised by a PT MAS-employee from Pinsam: "When [the people] gave the land to the company, they also gave the authority of the correctness of the result of the measurement to the company. The company did the measurement. [...] There is nothing wrong with the tools. They can depend on the accuracy of the tools. As for the GPS tools, 100 cm. should mean 1 m. But it s the people conducting the measuring that can be the source of the problem. One meter could mean 80 cm. [...] there is always the possibility that a certain individual would cheat." Border area between Mua and Koca Several interviewees mention that conflicts arise notably between neighbouring communities. The disagreement between villagers from Mua and adjacent hamlet Koca is an example of such a struggle. The border area between Mua and Koca is a disputed region. In this area, several families intend to give part of their land to the oil palm company at the end of However, the claims on the land overlap each other. In this case, border signs do not offer a way out: "Since it is so long ago [that the land was used by my ancestor], we cannot decide which sign we can use as borders, because the borders by the older generation area already lost. The borders have not been recognizable since a long time". This leads to passionate discussions: "At that time, it was quite heated, because some people claimed that the border set by their grandfather was this or this. Luckily, there was no usage of weapons, there was only oral conflict." The conflict arises especially between people from Koca and people from Mua. A member of the 45

51 Satlak in Mua expresses his opinion: "Only because they cultivate the land more often they had the feeling they own the land, the people from Koca. But it's just the same, we came from one ancestor, the rights of the grandfather and the grandchildren are the same." Apparently, use rights on land and rights obtained via an ancestral relationship collide. The Satlak makes several attempts to settle the conflicts in the field, without success. Either the Satlak or the company proposes to have the area measured globally. In any case, a solution should be found, since "the company did not want to accept the land before the conflicts had been solved." as an interviewee explains. Then, a meeting is conducted with the Satlaks of Mua and Koca, the head of the hamlet of Mua and around 30 families involved. Even though many families insist on individual measurement of the land, eventually the decision to measure the land globally is made. On the maps produced by the company, an area of almost 55 ha is indicated as belonging to the "people of Mua and Koca". According to a member of the Satlak in Mua, the land measured globally in the border region will be distributed between those who made a claim on the land. Each of them will "receive" 3.5 ha - the amount will be added to complete 7.5 ha, which is the area of land required by the company in order to receive a kapling. A similar conflict takes place on the border land between Mua and Pinsam, although on a much smaller scale. In the list that the koperasi holds, ha is registered under the name of the people of Pinsam and Mua High Conservation Value areas: claim-making in the clearing phase After the measuring, bulldozers come to clear the land. This process is conducted by employees of the company. Both the field supervisor and the ex-manager of PT MA, the sole interviewees that are familiar with the term RSPO (Box 3) relate the RSPO to conservation areas. Yes, I ve heard of this RSPO, in the categories that I recognize when I was working in PT MAS, land with high altitudes, and also mountains cannot be used. To big rivers, we have a planting limitation of 50 meters from the border. Deep precipices cannot be used, even though the people transfer it. Sacred land, cemeteries cannot be used, including the tembawang, especially on the precipice land. These were the categories that I recognize, I don t know whether it has been carried out or not. says the former manager. The field manager has a similar understanding: PT MAS is quite strict upon the implementation of analysis of environmental effects [AMDAL]. PT MAS will not work on conservation land, historical places, swampy areas, were the swampy areas also relate to the analysis of environmental effect. But swampy areas with very small width are not included within the criteria. * + Until this moment, the land that is cultivated for palm oil plantation, is the land that is suitable for this kind of plantation, it has solid soil. High, hilly places are not planted with palm oil. The representatives of the koperasi, a Satlak member from Mua and a field supervisor in PT MAS say that swamp lands are included in the conservation areas. Therefore, the Rimpu-area cannot be cleared. According to the ex-manager and the head of the hamlet in Mua, those locations are identified in the field. The head of Mua says: They, the company, would observe it in the location. The people from the company conducted this observation, because they are the ones that understand about it, and they are the ones to decide that *these lands that need to be protected+ shall be planted with fruits and big trees. 46

52 Box 3. RSPO: yet unknown by villagers. In Koca, the head of adat, the head of the hamlet and the secretary of the village say they have never heard of the RSPO. In Mua, the head of the hamlet and a religious state the same. None of the interviewees in the villages mention the RSPO by themselves. A field supervisor of PT MAS from Pinsam, that initially is interviewed about the meaning of RSPO in his job, asks the interviewer: Could you tell us what the RSPO really is about? Because we recognize the title of it, but we cannot really understand these kind of things. What about the position of farmers within RSPO? Later, the head of RT of Pinsam adds: We are not really familiar with it. * + We still have little experience with the RSPO. In Mua, one interviewee is familiar with the RSPO. He is a former employee of PT MAS, and explains that a Dutch person has told him about it later, it appears to be the deputy director of a Dutch NGO involved in the RSPO. 7.3 Claim-making in the administration process Transfer of information about the size of the land to the farmer One of the tasks of the Satlak in the field during the pioneering and measuring process is to make notes. Among other things, they should write down the name of the location that is being measured, the name of the owner of the location and vegetation type, choosing between four categories of land use distinguished by the company. Information about the size of the land is processed by employees from the company after the measurement: GPS data are entered into a computer and a map of the area measured is produced. The data of the width *of the land+ are given instantly to the people, along with the map. says an ex-employee of PT MAS. This seems to be an idealized impression: in Mua, the information about the size of the land as measured by the company is given to the Satlak first. The Satlak should convey this information to the family concerned. The company would usually publish a letter, a notification to the Satlak, and via the Satlak the owners of the land are informed, says a member of the Satlak in Koca. Mostly, the information is transferred orally, as in the case of this farmer from Mua: The Satlak and the head of the hamlet came into our house to notify about our land and the amount of ha, and they showed the map to us. Within the map there was the position of the land and the amount of ha. But we forgot to ask the map. * +: I only know the approximation of the size of the land, no details. I regret that I didn t ask the map from the head of the hamlet. Two interviewees mention that his son or daughter received a written notification of the size of the land, whereas another family claims not to be informed at all about the size of the land up to the time of interviewing. In other cases, the time between the measurement and the transfer of information takes up to one month Each farmer gives 7.5 ha : administrative issues The land that people intent to dedicate to oil palm is often scattered over various locations. When the land is measured by big family individual measurement, the assumption is used that the land is still united as a family land. Several interviewees state that the family land has not been divided yet, or was re-united for the purpose of transferring the land to the company. After the measurement, the land is supposedly divided between the siblings (again) on paper. Farmers usually do not know the size of their land prior to measurement. The land they intent to give to the oil palm company may therefore be smaller or larger than 7.5 ha in size. The same holds for family lands that are to be given: the area of land a family intents to have planted with oil palm may be smaller or larger than the number of family members that aspires to be a member farmer multiplied by 7.5 ha. How is this issue dealt with? Two different understandings are going round. According to one group of farmers, in cases where the land is not reaching the amount of 7.5 ha, a percentage system will be used. The farmer receives an area of plasma, based on the percentage of the land that he has given. This is explained by the head of adat in Mua as follows: Usually, the way we count is that people who get 7 ha would get 2 ha back, and the people that gave less than 2 ha would get a portion of the 47

53 land given back in the form of the amount of the trees. * + Generally, 1 ha = 280 trees of oil palm. So the people that gave 7.5 ha would get 2 ha back as 1 kapling = 2 * 280 trees. If the land that has been transferred is 3.75 ha, perhaps we can get back 1 ha, and if the land that we transfer is only 2 ha, we can only get our portion back by the amount of trees of the palm, about 100 trees. Others explain that the land that is more than 7.5 ha, should be combined with the land of somebody else, who have less than 7.5 ha, in order to make portions of 7.5 ha. In a similar vein, people whose land seizes less than 7.5 ha should find others to combine their land with, in order to reach 7.5 ha. This somebody else or other usually would be a relative, as explained by a religious leader in Mua: The rest of the land that is given to the other families the families should be related to my parents in law, it is not just given to anyone. This second interpretation is in line with what is written in the agreement between the company and the koperasi used in PT MAS II, and shared by the management of the koperasi. With regard to these two different interpretations of the scheme proposed by the company, the director of the koperasi clarifies: It is one of the tricks of the company. It is a rule of the company that the farmer should provide 7.5 ha of land. If the farmer has less than 7.5 ha, then his land should be combined with the land of someone else. And the company says the division of the land should be solved at an individual level. They proposed a percentage scheme of 26.6% to do so. So the farmers should solve it between them. The system of administration of land is explained by a Satlak member from Mua (Table 1 and 2). On paper, family members unite their land in order to distribute it again over different family members, who will be registered as the would-be-member-farmer. The lands that are selected to be given for the plantation are measured. When the size of the locations is known, the family members gather to decide how the land will be divided between the possible would-be-member-farmers, so they will be registered with 7.5 ha each Consequences of the complexity: administrative chaos This approach however does not seem to be followed by all Satlak-members. The manager of the koperasi, and the Satlak representative who shows the notebook described above claim that the Satlak lacks the capability to fulfil its task properly. In an informal interview, the manager of the koperasi says: The problem is, the people in the Satlak are chosen from the elder people of the village. And their educational background is not quite high. They are not really capable of what they have to do they could not even write and read. The koperasi holds a booklet (Box 4) in which 112 would-be-member-farmers are listed in Mua, including the people of Mua, and the people of Mua and Pinsam. Of those 112 registrations, only 12.5% is administrated with an area of land between 6.75 and 8.25 ha. Almost 50% is registered with 5 ha or less. The data in the booklet hold by the koperasi differ from the data in the notebook hold by a Satlak member (of which an excerpt is shown in Table X) for three from the seven would-be-member-farmers. For two of these farmers, the difference in land size is more than 10%. Comparing the data in the booklet with the accounts of the farmers interviewed gives more indications that the data in the booklet are lacking. Some interviewees are not listed at all meaning that their lands are not (yet) administrated or that the lands of their family are registered under a relatives name. Other interviewees are listed, but the size of their land differs remarkably from the size of the land mentioned in the interview. In addition, as said, vegetation type is ex-planting field in the booklet, whereas interviewees mention all kind of land use. The same ambiguity holds for the maps that are hold by the koperasi and members of the Satlak. A member of the Satlak in Koca shows a map with lines in three colours: black lines marking the border of different fields, red lines showing areas where land claims overlap each other, and blue lines demarcating locations where land claims overlap three times. He says farmers can ask the Satlak for the map, if they want to support their claims on land, but that so far no-one has done so. In those cases where land claims overlap, farmers would be notified to take part in settlement (as described in chapter 7.2) 48

54 Table 1. Excerpt of a notebook of a Satlak-member from Mua, left page. Five locations to be included in the oil palm plantation (column: name location) are measured (column: area). Those areas are divided in three portions of approximately 7.5 ha (column: area). The fields belong to a certain family or individual (column: name and remarks) and are assigned to three would-be-member-farmers (column: name accepted would-be-member-farmer). Number Name Name 2.1 (Sotem) Wesu.2 (Sotem) Wesu location Area Name accepted would-be-member farmer Area Remarks Nyahoh 4.6 Wesu 7.66 Nyaho/Landong portion from big family Sotem Landong (Ango) Wesu Sungi Mua Pangut 7.5 Sungi Mua portion from big family Ango.4 Wesu Rimpo Minja Mak Mua 1.0 Minja 7.5 Size Table 2. Excerpt of a notebook of a Satlak-member from Mua, right page (the columns gender, date and place of birth and address are left out). Name of the location, area of land (columns: land use and size) and land use (columns: land use) assigned to three would-be-member-farmers (column: name). According to this table, the area Sungi Mua, measuring ha, is assigned to three people. Previous to clearing of this land, =3.89 ha was planted with rubber that is not yet productive, whereas the remaining =10.1 ha was bawas. Name Name of the location Land use Size Bawas Wesu Nyamih 4.6 Ex-planting field Non-prod. rubber Sungi Mua 1.89 Prod. rubber tembawang Rimpo Pangut Sungi Mua 5.6 Landong Minja Sungi Mua Tak Mua There seems to be a mismatch between the 7.5-scheme and the practical situation in the field with respect to land rights. The administration system should function as a bridge, but because of the complexity of the administration process and the misunderstanding of the rule of the company this does not seem to work properly. This leads to an administrative chaos, in the sense that not all members are registered as they should according to the rule of the company, and that the data in different sources about the same objects differ. 49

55 Box 4. Booklet hold by the koperasi The koperasi holds a booklet, titled Recapitulation derasa, result measurement and map. It includes a list of hamlets included in PT MAS 3, and the area of land dedicated to oil palm plantation, and a calculation about the amount of derasa that should be paid. For each hamlet, two lists are included, that contain names of would-be-farmers, along with the area of land ( area delivered and area paid ) and the previous land use (bawas, ex-planting field, nonproductive rubber or productive rubber). Furthermore, the booklet contains a map of the land to be given by the group of big family and individual of each hamlet, that is unreadable for the largest part. For Mua, 112 would-be-farmers are listed, of which two are people and people of Pinsam (see chapter 7.2.4).In all cases, vegetation is filled out as ex-planting field Dealing with the chaos: administration of the koperasi The management of the koperasi does not want to be held responsible for creating the list with data about the people who gave their land, and about the locations they gave. The manager of the koperasi says: The koperasi should not create the data, it should only collect the data. Because when the measurement process started, the koperasi did not exist yet. The Satlak is responsible to make the data. * + The land topic is quite sensitive, therefore the koperasi is reluctant to collect the data of the size of the land. We can collect the data about the names of the would-be-farmers. In the first interview with the manager of the koperasi, he shows the registration system of land hold by him: a number of stapled copied and handwritten sheets in a folder, with the data of land transfer by the farmers. In an informal interview, he questions the validity of the data in this system. There are many errors in the data on the lists we don t know which are the valid data to use. In addition, he claims to be uncertain about the data the company hold: And we don t know whether the data on the list that I gave to the secretary of the koperasi are the same as the data used by the company. * +The koperasi has requested the data at the company but they are unwilling to give it to us. So we don t know which data the company is using. In a later interview, however, the existence of this list seems to be denied by the manager and the secretary of the koperasi. Instead, they point to a booklet entitled Recapitulation derasa, result measurement and map, given to them by employees from the company. Initially, in the interview, the secretary states that: This list is given to us by the company, so that we would have the same information within the list. So there won t be any differences between the koperasi and the data the company has. But later, the manager says: *The koperasi does+ not *have its own administration+ yet, because the koperasi has to follow the data in this book. *We don t have a list of would-be-farmers+ yet, because we don t have any data yet. If we have any data, the people would be suspicious toward the differences between the data we collect ourselves and the data from the company. In any case, the koperasi intends to use the booklet received from the company as a starting point in their administrative system Consequences of the organization of the administration According to the chair of the koperasi, the fact that many people have given less than 7.5 ha of land, and the administrative chaos, are among the main reasons for the company to propose a new scheme (described in chapter 8.2) Furthermore, several interviewees express fear for fraud by employees of the company. Among them is the manager of the koperasi, who says: There are probable indications that the company manipulates the data. For example, if the land of a farmer is measured as 5.5 ha, they would put 5 ha in the computer. Later he gives another example: There is the probability of the indication that some people from the company would suddenly own a kapling or two in this area. Because we want to avoid that the people from the company get here and suddenly have a kapling, we need to see whether there really is a purchasing agreement with the head of the RT, and whether witnesses were present when this purchasing agreement was made. 50

56 7.3.6 Derasa Both the contract between PT MAS and koperasi Mayting Hija and the drafts of the agreement between PT MAS and koperasi Sekayam Jaya mention the payment of derasa. The amount of derasa paid by the company supposedly depends on the size of the land given, and the type of land use previous to the establishment of the plantation. Four categories are recognized by the company: bawas, field with only grasses; ex-planting field; non-productive rubber; productive rubber and tembawang. Derasa is 50,000 rupiah ( 3.95) per hectare for bawas up to 200,00 rupiah ( 15.80) per hectare for tembawang. Some lands do not fit well within the categories - for example a grassy field in which some rubber trees are planted. In addition, at first sight, 'forest' does not seem to fit well in the vegetation categories defined by the company. On a second look, forest could fit in the category 'bawas' - this seems to be fallow land that was last used for planting more than one year ago. One of the interviewees explains: "Bawas is land where you can find dense vegetation. [...] There are grassy bawas, and also bawas that are filled with trees. [...] Bawas can be inhabited by forest, it is not really old, not really young, and if we want to plant on it, we would have to slash and cut the trees." In Mua, none of the interviewees has received such payment. Different accounts about the meaning of derasa and the reasons for this lack of payment are given. A villager of Mua and ex-manager of PT MAS explains that derasa in adat scope is a payment to compensate for the use of someone else's land. Traditionally, he argues, derasa is a payment to lease the land. However, the company uses derasa to buy the land, because the price of derasa is much lower than the price buying land: "They use derasa, because they can t pay the costs that are mentioned in official regulation, derasa is cheap." An informant involved in growing oil palm and active in oil palm farmer-union SPKS, talks about different perceptions of the nature of derasa between indigenous people and the company as well. "The people have the assumption that derasa is not actually selling their land, but the company assumes that people do actually sell their land," he says. These differences in opinion were reasons for demonstrations in other areas of Sanggau district previously. The villagers in Mua however, seem to understand derasa as a purchasing-payment for the land. In their perspective, the fact that they have not received any derasa yet, implies that the land has not been sold to the company. A woman from Mua expresses it in this way: "Derasa is the payment for the land, the price of the land, the purchasing of the land by the company. Related to the land that already has been cleared and planted. The company hasn t paid this derasa. That means that the lands are still owned by the people." The following statement of a farmer in Mua clearly expresses this sense of ownership of the land: "If the conduct of the company cannot match with the intentions of the people, we will do something. If, after the harvest, the company still cannot pay the derasa, we will take back our land. It is true that the company has planted the palm oil, but it is still our land. It is up to the company to pull the palm oil and take it back, the land still belongs to us." Why is derasa not paid yet? Two interviewees from Mua, of which one is a religious leader, say that people intentionally refuse derasa, so that they can claim the land is still theirs. However, this opinion does not resonate in the answers of the villagers. None of the interviewees expresses any intention to refuse derasa if it would be offered to them. Several interviewees mention that derasa will be paid when the fruits can be harvested, and the farmers will receive kapling, a part of (plasma-) land that will be theirs. Others do not know why they had not received any derasa yet. According to representatives of the koperasi and the Satlak, the delayed payment of derasa is related to the administration of would-be-member-farmers and the locations that are given for the oil palm plantation. An interviewee from the Satlak argues that derasa has not been paid yet, because the list with the names of the people who gave their land, and the area of land they gave, on which the payment should be based, is not complete yet. This list should have been finished two months ago. They would usually point to Satlak, related 51

57 to this issue. * + After the list has been finished, derasa will be paid. The people are unwilling to finish the list. The measurement have already been done, the information is just not on the list. The payment of derasa is put on the agenda in a meeting between the koperasi and the company in October The koperasi asks the company to pay the derasa. The company says the data are not valid and they can t be used says the manager of the koperasi. There should be data on the size of the land and also on what is or was on the land, whether the lands were productive or not, whether there were rubber trees or grassy fields. Because the land with rubber would have different derasa then unproductive land. The company says that they will pay the derasa as soon as they receive the valid data. In a later interview, the abovementioned booklet Recapitulation derasa is shown. In this booklet, all land has been categorized as ex-planting field even though not all land dedicated for oil palm is ex-planting field. According to the head of the koperasi, this is done to accelerate the formation of the list. For the payment of derasa, he says, previous reports will be used. Administrative chaos seems to be one of the reasons why derasa is not yet paid, since derasa demarks the transfer of rights to the company, the administrative chaos also is the reason for an impasse in the shift in the property rights regime. According to a member of the Satlak, apparent misunderstanding about the scheme is at the root of the delayed payment of derasa, and one of the reasons why the company proposes a partnership pattern. He says: The people want to register as a would-be-member-farmer individually, not as a family, because they assume then they will get 2 ha of land. But they are combined, because they didn t give enough land, so they are registered as one would-be-member-farmer. This seems to be a reason for the company to change the scheme. 7.4 Conclusion Customary rights to land Prior to the incoming of the company, customary rights are the most prominent (legal order) in everyday (agricultural and land use) practice in the village of Mua. This customary rights system is based on ancestral relationships and on use rights and relates to a system of swidden agriculture and small scale rubber plantations. Within families, the authority of the parents, notably the father, is of great importance. In case of conflict, customary property is sanctioned by the local authorities - either the adat leaders or state officials such as the head of RT or the head of RW. However as in the vast majority of Indonesia's rural areas, customary property is not recognized by the state. This lack of legal recognition may weaken the bargaining position of farmers in relation to the company. Customary rights to land and customary authority are taken as a point of departure in the land acquisition process and the land administration process. The decision to dedicate land to oil palm is left to the villagers currently having rights to that particular land. In the measurement of the lands, the border claims made by the villagers in the form of tree rows are recognized as legitimate means to distinguish between plots. The presence of the owner of the field is required during the transformation process, and conflicts are solved by the elders of the village. Recognition of customary claims to land further takes place in the first phase of the land administration process, the name of the lands measured to be included in the oil palm plantation are noted down accurately, along with the ones having rights to those lands - though in practice the extent to which this is done may depend on the capacity of the person executing this task Transformation of customary rights and concepts Simultaneously, customary rights to land and customary authority are transformed and changed in this land acquisition and administration process. In the measurement and administration process, the company recognizes either individual lands and big family lands - measurement is either 'individual measurement' or 'big family individual measurement'. Although the villagers distinguish between individual lands and family lands 52

58 themselves, for the sake of fitting the scheme of the company they say to 're-unite' lands - for example when the land of siblings who are assigned a plot is registered under the name of the family - or to 'divide' lands - for example when the. According to the guidelines of the company, the land measured and administrated is 'redistributed' on paper, so that 7.5 ha of land are registered under the name of one person. This is closely linked to a second point - the shift from a dynamic system of use rights to a more static system of "ownership" of an area. In the system of shifting cultivation, the area of land cultivated shifts each year, and along with it, the rights of different members within the family. Who labours a certain area this year may work on a different area next year, and that area may be smaller or bigger in size. This dynamism is lost when the size of a field is written down under someone's name in the oil palm administration system. For the transformation of rubber fields into oil palm fields this argument does not hold since the use of a rubber field, and thus the use rights associated with it, do not shift swiftly. Another example is the role of the concept of derasa in the land acquisition process. In Dayak culture, derasa originally stood for a payment to a land-owner as a compensation for the use of the land by an outsider. In the plantation expansion process, the company intended to use derasa as a payment for purchasing of land. Currently, it seems to be understood by the villagers as being that. During the plantation expansion process, the meaning of the concept thus transformed. By using derasa in this way, the company draws on a concept familiar to the villagers while at the same time being able to purchase the land at low costs. The formation and functioning of the Satlak is an example of mixing of customary authority and "rule of the company", too. For it is the elders of the village that are the members of the Satlak, and their authority that is being recognized by appointing them as Satlak members - but the Satlak an sich is a new institution, established by the government and the company at the onset of the plantation expansion process, that would not have been there if the expansion would not have taken place Consequences What then, will eventually be the effect of this recognition and transformation of the customary system of rights to land? Regarding the claims made in the field, the detailed pioneering of the land offers villagers the possibility to exclude areas from the oil palm plantation and to keep them as 'enclave'. In a system of global measurement used in other areas, such isolation of fields seems to be impossible. For the lands dedicated to be planted with oil palm the effect is less obvious. Fields that previously belonged to different families or individuals, and borders between fields or other markers can no longer be distinguished. As islands in an oil palm sea, small plots that are 'enclaved' are the only physical remnants of the system of customary land rights. As the land is cleared, the rights to those lands are obscured. Aiming to fit the customary system of use rights into the 7.5-pattern proposed by the company seems to be an intricate task for the members of the Satlak. In addition, there are different understandings of the way in which this could be done. The complexity of this system caused it to be poorly applied in practice. This may be a reason for the company to deviate from the nucleus-estate-scheme. Furthermore, overlapping claims exist. Even though the Satlak and the koperasi have their own administration systems, the administration held by the company seems to be used as the basis for the distribution of benefits. As far as the administration system goes, the main thing that seems to matter is what area of land is noted down with whose name. This is what the distribution of benefits (be it in the form of kapling or in the form of a percentage of income of the partnership field) will be based on. The scheme agreed upon will only apply to the one registered as member farmer at the koperasi. Registering names of family members or farmers who will not be a member of the koperasi does not seem to have any practical implications for the company or the koperasi. The administration system might thus contribute to a shift in the distribution of benefits from the land among the villagers, whereby the ones registered obtain relatively more benefits than they do under the current system. However, the benefits of the oil palm plantation for the villagers will most likely be shared among family members. Registering the names of family members who are not a member farmer may have implications, though, for the way in which family members 53

59 share (or do not share) the benefits of the oil palm plantation between them. This would be an interesting area for investigation in a few years time. The exact consequences of the administration system depend, among other things, on the contract that will be signed between the company and the koperasi. The content of the contracts currently on the table will be described in the next chapter, as well as the negotiation process between the koperasi and the company in which they are discussed. 54

60 55

61 8 Shifting property regimes: contract In the contract between the koperasi, supposedly representing the villagers, and the company, the basic outlines of those benefits are laid down. Furthermore, this contract provides a legal basis that can be used by the koperasi and the company. The exact realization of the contract between the villagers and the oil palm plantation will look like remains yet to be seen. At the time of writing, the negotiations between the koperasi and the oil palm company have not yet ended. During the research, a contract between koperasi Sekajam Jaya and PTMAS III has not been signed yet. In the first socialization phase, the company proposes a so-called nucleus-estate (plasma-inti)-scheme to the villagers. Such a scheme is said to be applied in PT MAS I and II. Many villagers believe the plantation will be developed according to this plasma-inti-scheme. Among them is the head of hamlet Mua. According to him, everyone in Mua who gave land for oil palm adheres to the contract signed in February 2006 between koperasi Mayting Hija, related to the area of PT MAS II, and PT MAS II. The contents of this contract will be shortly discussed in However, in 2010 the koperasi and the company are discussing a so-called partnership pattern. In 7.2.2, the basic tenets of this pattern will be discussed as described in draft versions of an agreement between the company and the koperasi of March and November 2010, discussed in a meeting between the management of the koperasi and the company in October 2010 and understood by several interviewees. 8.1 Plasma-inti-scheme The details of the scheme are written down in a contract between koperasi Mayting Hija, related to the area of PT MAS II. This contract contains twelve articles and is dated February The contract states that per family, 7.5 ha of land should be given for the development of oil palm plantation. After 4 years, each family will receive back 2 ha of land planted with palm oil through the koperasi. For this land, credit has to be paid to the company. The articles on this credit payment are rather vague. The company decides yearly on the investment to be made for the development of the oil palm plantation on the plasma land. Those costs apparently will be paid to the company from the moment the fresh fruit bunches can be harvested and sold. The koperasi pays 30% of the result of the selling of the fruits to the company, most likely until all costs are repaid. People who give their land to the oil palm company will become would-be-member-farmers of the koperasi. At the moment the land is being measured and returned to them, they are obliged to become member-farmer of the koperasi. Families that give their land will receive compensation for the loss of productive land. Four categories are recognized: bawas, land with only grasses; ex-planting field; non-productive rubber field and productive rubber field or tembawang. The compensation varies from 50,000 rupiah ( 3.95) per hectare for bawas until 200,000 rupiah ( 15.80) per hectare for productive rubber field or tembawang. Furthermore certain criteria are posed to the location and status of the land to be given for the development of the oil palm plantation - for example, it should be free of conflict and located in the inti-area. In addition, farmers are not allowed to sell or buy plasma-land as long as it is still in the process of creditpayment. The company decides on the location of plasma-land. No explicit reference to specific laws or policies are made in the contract. However, the scheme is written to be developed as a 'large plantation company-partnership scheme' (pola PBS kemitraan). Furthermore, reference is made to TP3K, an institutions whose set-up is prescribed by district regulations. In the final article reference is made to positive law in Indonesia: in case of conflict both parties resort to this legal system. 56

62 8.2 Oil palm plantation partnership pattern OPPPP: management of the oil palm plantation The new draft is called partnership pattern. According to this agreement, a palm oil plantation is developed by the oil palm company on land provided by local communities through the koperasi. This plantation will be separated into an area for the oil palm company and a so-called partnership field. Three phases are distinguished within this pattern: a plantation building phase of four years, followed by a credit payment phase of 9 years and a final phase after the credit is paid. The koperasi as well as the company have specific rights and duties in each phase. The agreement under discussion is also called 'full management scheme'. A manager of PT MAS III explains this as follows: "As to why the term full management system is being used: because the farmer won t have to think about fertilization, maintenance, roads, transportation. This everything shall be managed by the company." As becomes clear from the articles in a draft of the agreement of November 2010 (for example: article 2r, 3.3, 4, 5.2), this includes among other things planning and designing the plantation, measuring the land designed for the plantation and determining the location of the partnership field. The company would be in charge of the development and management of the plantation until the credit payment phase is finished. Thereafter, the koperasi is allowed to manage the partnership field as well. In a meeting between the management of the koperasi and representatives of the company and the government, managers of the company stress the possibility for farmers to work on the plantation as an employee of the company. In the draft of November 2010, clause 8.1a III states that "If the second party [the company] needs work force, the first party [the koperasi] has the right to provide work force, as long as it complies with the rules of the second party." OPPPP: Amount of land In a meeting with the management of the koperasi held in October 2010 in Koca, one of the representatives of the company states that: "The new scheme is similar to the old scheme if the land is counted per kapling, if seen as the percentage of land given back to the farmer. The difference is that there is no scheme anymore. Instead the land is counted as a unity." The old scheme, in this case, refers to the plasma-inti-scheme applied in PT MAS II. His statement thus implies that the percentage of land to be given to the farmers as palm oil plantation is 2/7.5 * 100%, which is 26.6%. During the meeting, a sub district-representative asks whether these 26.6% includes the space for roads and other facilities, and the highest manager present answers: "These 26.6 % supposedly is the total of the field. Let s discuss this issue the 5 th of October." This is also how the manager of the koperasi understands the scheme, as he explains in an interview: "Here is the situation, it is just an example. If the total is 750 ha, 200 ha shall be given to the farmers, and the rest shall be given to the company." However, the statements by the company representatives and the management of the koperasi are not in accordance with the draft agreements between the koperasi and the company. In the draft agreement of March 2010, article 4 called partnership pattern states: 4.1 The 2 nd party has the obligation to build a partnership field, a partnership palm oil plantation, at 26.6% maximum from the width of this new land, outside the land owned by the partner, with the following detail: a. the partnership field set aside is 20% from the total plantation that will be worked on by the second party exclusively b. the second party, based on the agreement of both parties, will allocate land for facilities and other necessities as much as 6.60% from the total width of the plantation. In the draft of November 2010 these articles are replaced by the following: 5.1 and within the percentage is included the division of land for all the facilities of the plantation, like roads, ditches etcetera. 5.8 The second party [the company] has the obligation to build a plantation with the maximum size of 26.6% of the planted size and included within it, all the facilities of the plantation such as roads, small 57

63 canals, et cetera from the land and/or plantation that will be under the authorization of the first party [the koperasi]. Both drafts thus clearly state that this 26.6% of the total area transferred by the farmers will be used for plantation field as well as roads and other facilities making the plantation area to be returned to the farmer less than under the plasma-inti-scheme (where it is 2/7.5*100%=26.7%) OPPPP: Credit payment scheme The financial relation between the koperasi and the company is captured in a credit payment scheme. Under this scheme, the koperasi has the obligation to sell the results of the fruits of the partnership field to the company. The result of the sales will be cut by the company. The division of gross result has to be divided as follows: 30% credit payment (during the second phase) 9 30% fertilization and maintenance (during the second and third phase) 5% replanting fee (from the second phase onwards) 5% management fee (for the period of the agreement) 30% to be divided among the members of the koperasi. The manager of the koperasi understands the credit payment scheme in a different fashion. During an interview, he explains the scheme by giving two examples that are not compatible with each other. First, he says that the farmers obtain 26.6% from the overall result of the sales of the fruits. From this 26.6%, 30% should be dedicated to fertilization and maintenance costs. (Thus farmers would obtain: 26.6*(100-30)/100=18.6% of the overall sales of the fruits). In a second example he assumes that the overall result is divided as follows: 30% to the farmers, 30% to the company, 30% credit payment, 5% management fee and 5% replanting fee. From the 30% for the farmers, another 30% would be for fertilizer and other maintenance materials. (Thus farmers would obtain 30*(100-30)/100 = 21% of the overall sales of the fruits. In the scheme described in the draft agreement, farmers would obtain 26.6*30/100=8.0% of the overall sales of the fruits during the phase of credit payment. Thereafter it would be 26.6*60/100=15.96%) OPPPP: Land 'ownership' The transfer of land from the farmers to the company is one of the pillars on which the partnership stone is based. In the drafts of the agreement and during discussions with the koperasi, the company proposes that a HGU (business use permit) will be issued for all land under the partnership scheme. Two HGU-permits will be obtained: one for the land of the company, and one for the partnership field. According to the contract, HGU is: the right to work on the land which is directly under the control of the state within a certain period of time, and the HGU certificate is a proof of ownership of land and/or inti-palm oil plantation (second party) and partnership or plasma (first party). Under Indonesian law, the HGU is a lease right given to a company for a period of 30 years, that can be prolonged up to a maximum of 60 years. After expiration, the land that was managed under a HGU 'returns' to the state. The koperasi does not obtain the actual HGU until the end of the second phase, when all credits have been paid. Until that time, the HGU is kept by the company or the bank, as leverage (article 7.5, 7.7 and 7.8 of the draft November 2010). "The koperasi and the company will join together within the scheme of partnership. The koperasi will act as the holder of the certificate, and the 692 ha of land, these plasma-lands, will be put under a HGU, whereby the koperasi acts as the holder. So there will be no certificate for each family," explains a manager of PT MAS III in a meeting with the management of the koperasi. The manager of the koperasi realizes this, too. While explaining the proposal of the company to some other farmers, he states: "The difference between the old and the new 9 From what is written in the contract, it is not completely clear whether the koperasi has to pay 30% from the results of the sales of the fruits during nine years, irrespective of the investment done by the company, or whether the koperasi has to repay the exact investment plus interest that was made for the partnership scheme. 58

64 pattern is, that under the old pattern, the land is given back to the farmers but under the new pattern, only the result of the fruits are given to the farmer." While talking about the partnership scheme with representatives of the government and the company, several farmers state they do not want the partnership field to be under a HGU. One of the farmers expresses his dissatisfaction with both the partnership scheme and the permit in this way: "The bad side of the full management scheme is that there is no individual certificate to the farmer. So the people would lose their sense of ownership of the land." A company representative acknowledges this point as he says: "A problem might arise if a kid asks his or her dad where is our land? In that case the father won t know where to point." According to the contract, the koperasi should 'keep farmers from transferring their land to other parties' (article 7.1b IV). In the meeting between the management of the koperasi and company and governmental officials, both governmental officials and company representatives stress that the land cannot be sold under any circumstance. In addition, the contract states (article 4.2) that farmers cannot take part in another partnership similar to the one discussed OPPPP: Legal context Finally, the draft for a new agreement refers to regional governmental officials and to Indonesian local or national law in several of its articles (for example 6.2, 8.1, 9.2). Other clear examples can be found in the closing articles. Article 1b is simply stating that 'the applicable law is the law of the Republic of Indonesia whereas 1g reads: 'If the conflicts cannot be solved by discussion or arbitration, the parties go to state court in the region of district Sanggau state court'. Customary law systems and related authorities such as adat councils are not mentioned in the draft agreement, and do not seem to be recognized. 8.3 Negotiating the contract Which contract will be signed eventually? According to the chair of the koperasi, several parties have to agree on the scheme: the government, the company, the koperasi and the people. Those parties however differ in their capacity to steer the negotiation process over the contract and affect the outcome. Several aspects will be discussed subsequently. The company decides where and when meetings will be conducted, and what will be on the agenda. They thus seem to be in charge to set the boundaries within which negotiations over the contract take place. The draft contracts are written by company employees - they propose how the benefits of the oil palm plantation will be divided between the farmers and the company, and which additional rights and duties those parties have regarding the oil palm plantation. The discussion over the outlook of those rights and duties thus is strongly steered in a specific direction. What is being discussed is determined by the contract or draft contract proposed by the company. There seem to be no possibilities for the koperasi or the villagers to propose a completely different scheme. The long and rather complicated legal documents are not easily understood by villagers who have a limited educational background. Therefore, the villagers depend on the company to explain the details of the contract. In a meeting between the koperasi and the company, company representatives assure the members of the koperasi that the draft is just a proposal, and that the people should reject it if it is such a bothering scheme. The scheme should not yet be socialized to the farmers. The oil palm plantation partnership pattern however is not a new scheme. According to an ex-employee from PT MAS, the management was already thinking about ways to socialize this scheme a few years ago. According to a respondent, the chair of the koperasi refuses to sign the contract in a meeting between the company and the chair of the koperasi aiming at signing the draft contract. The chair of the koperasi does not want to sign the contract before discussing it with the people in the affected villages more extensively. He furthermore contents to hold on to the nuclues-estate scheme in case people reject the partnership pattern. However, he says that "either way, the people have a weak position because the company is large and has a large lobby. Possibly, the people need to go to their last resort, like fencing, and anarchy could come up." 59

65 In PT MAS II, de facto a scheme similar to the OPPPP seems to be applied, although de jure under a plasmainti scheme (Sirait 2009). Under this arrangement, re-allocation of land did not take place. The plantation was managed by the company and farmers received a monthly fee. This is another indication that it is unlikely that the plasma-inti-scheme will be applied as described in the contract between Mayting Hija and PT MAS. 8.4 Conclusion Whatever final scheme will be applied, villagers will lose a great deal of their customary rights to land. Most obviously, this holds for the lands that are managed and harvested by the company - at least 74.4% of the area 10. Villagers will have no more regulatory or exploitation rights to that land whatsoever. On the remaining lands included in the scheme with the company, villagers loose most of their regulatory rights, especially under the OPPPP. Under neither of the schemes, they are allowed to sell their land, and under both schemes they need to pay investments made by the company, interest, and other fees. Furthermore they are obliged to sell the fruits to the company through the koperasi. Under the OPPPP, farmers are not assigned a piece of land individually, but as a group. Individual farmers are no longer allowed to decide on the management of the land. Instead, the company and/or the koperasi are responsible for this. The OPPPP contract further restricts the rights of the villagers by listing additional duties and obligations. The status of the land of the villagers will depend on the outcomes of the negotiations between the villagers and the company. If both parties decide on a plasma-inti-scheme, farmers will obtain permits for the plasmaland, and the state will acknowledged those lands as being privately owned. However, if the oil palm plantation partnership scheme will be signed, the koperasi will receive a HGU for the land assigned to the farmers. This implies that the land will be returned to the state after the HGU is expired. This holds as well for the land that will be either inti-land (under the plasma-inti-scheme) or company plantation (under the oil palm partnership) - the company obtains an HGU-permit for this land and it will become state property after expiry. Both in the contract applied in PT MAS II (a plasma-inti scheme) and in the draft contract about the oil palm plantation partnership, reference is made to the legal order of the Indonesian state. The laws on which the plantation scheme is said to be based are all Indonesian state laws - be it at a national, district or sub-district level. The political-legal institutions that can sanction the new property are part of the administration of the Indonesian state. No reference is made to customary institutions or the RSPO, neither as basis for the contract nor as possible sanctioning institution. In the negotiation process over the contract between the koperasi, supposedly representing the villagers, and the oil palm company, the company employs several mechanisms of access that the villagers lack. Access to education and legal knowledge are among the factors directly affecting the negotiation process. Representatives of the company explain the contract proposed to the villagers. They may do so in a way that causes the understanding by the koperasi to differ from what is written down. The example of the 26.6% including or excluding the roads illustrate that such misrepresentation may be disadvantageous to the villagers - the villagers supposedly agree with, in this case, a scheme whereby they will have access to oil palm on 26.6% of the land dedicated to the plantation, whereas to the letter of the contract, this 26.6% includes roads and other facilities. The contract, once signed, may serve as a base for the company to justify that the partnership field is developed on an area less than 26.6% of the total oil palm plantation area. 10 Under the plasma-inti scheme, 26.6% will be plantation land for farmers. Under the oil palm plantation partnership scheme, infrastructure may be included in this 26.6% 60

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67 9 Lack of access to authority? The negotiations about the ability to benefit from the oil palm plantation are not limited to the office rooms of PT MAS only. As mentioned in chapter 6.3, villagers are dissatisfied about the conduct of the company when their expectations are not met. What options do people perceive to state their claims vis-à-vis the company? They do not turn themselves to governmental authorities, but instead challenge property (or rather: access) in the open by conducting a fencing act. The reasons for this act will be described in 9.1, as well as the act itself and the response of the company to this act. Possibly, this form of claim-making is related to lack of trust in political-legal institutions, as well as apparent oppressiveness of those institutions. Indications therefore are described in 9.2. Finally, indications for the apparent relations between the company, governmental agencies and the police are described in chapter Claim-making in the open: a fencing act In July 2010, villagers from Mua, Koca, Pinsam and Mobui place fences to close the roads between Mobui and Mua, between Mobui and Pinsam and between Mobui and Koca. Around forty people are involved in this socalled fencing act, among whom the members of the Satlak of Mua and Koca. The main reason for this fencing act is dissatisfaction about the conduct of oil palm company PT MAS. According to the villagers, promises made by this company in the socialization phase have failed to materialize. The main points of discontent include: the poor condition of the roads (Photo 3 and 4), lack of employment opportunities notably for local people, lack of payment of employees of the company. Interviewees emphasize different points in the explanation of the motives for the fencing act. Some stress that they want the company to work on the land that has already been measured, but not yet cleared, immediately. For others the lack of buildings such as churches and schools seem to be more important. Furthermore, villagers expressed frustration about the frequent changes in name and management of the company. Photo 3 and 4. The road from Mua to Pinsam. Discontent about the road seems to be widespread among the villagers and a cause for conducting road fencing. 62

68 The conflict is related to the struggle for land, as clearly expressed by one of the interviewees: 'We were willing to give our land because of the promises of life improvements. But presently, we haven't got anything." Conducting a fencing act is considered an ultimate possibility for many respondents. Some explicitly use the term anarchy in this respect, as does a representative of koperasi Sekayam Jaya: The people have a weak position because the company is big and has a large lobby. Possibly they need to go to their last resort, like demonstrations and fencing, and anarchy could come up. In a letter directed to the head of hamlet Koca, Mua and Pinsam, the company responds to the fencing act. They state they have never received any demands from the villagers prior to the fencing act, and thus do not know the demands of the villagers. They ask the villagers to open the fence and to discuss their demands with the company. The fencing act is followed by a settlement meeting in sub-district capital Bonti. This meeting is facilitated by the adat council and the sub-district government. Presentations by the head of the sub-district and a local military chief are followed by a talk of representatives of the company. The local government, local public figures and other people from the villages attend the meeting as well. Three representatives per hamlet are given the opportunity to express their opinion. The head of the sub-district and the adat council urge the company to fulfil its promises. Representatives of the company acknowledge that they have made promises that await implementation. They explain they have postponed their activities among others because of changes in management. They promise to fulfil their promises gradually: they intent to work on the road, job opportunities and facilities. After the protest action, the company repairs the road between Mua and Mobui. Some villagers consider the road was made half-heartedly: it has not been layered with rocks as promised earlier. After the settlement meeting, the fences are opened. At this occasion, villagers and managers of the company eat and drink together. Chicken and pigs are slaughtered for a shared feast. The opening involves a kibau ceremony: a chicken is slaughtered ritually and its blood is spread around the fence. Such a ritual is conducted to repel any bad omen that may relate to the opening of the fence. Little mechanisms of enforcement of the agreement made at the settlement meeting exist. No sanctions are agreed upon that would be exacted in case the company does not keep its word. If the response of the company is considered inadequate, the villagers may conduct new fencing acts, physically withdraw their land from the plantation or demand that the company will lose its permits. However, it is questionable to what extent the claims of the people would be sanctioned by governmental authorities. Nevertheless, there are indications that the company is closely connected to governmental authorities and to the police, and that these connections might be of a corrupt nature. This will become clear from the following section. 9.2 Close connection between the company and authorities Fear may hamper the willingness of people to further stand up against the oil palm company [because of the close connection with the police and subdistrict officers]. The Reverent in Mua argues people may not protest, because they fear imprisonment. Without specifically searching for it, I come across cases of intimidation of individuals by the police or government officials. A representative of the Satlak narrates he is being threatened by the vice-head of the district, because of a contact with a journalist (Box 5). When attempting to attend a meeting between the company and the koperasi, I am denied access, directed to the police station and subsequently intimidated by a policeman (Box 6). 63

69 Box 5. Fear for repression During an interview, a member of Satlak narrates about verbal intimidation: "I have this information, that a certain journalist wanted to meet me. But I don t know the origin of this journalist yet. But I already received a message saying that I should be careful talking to journalists, because I might go to prison. The purpose of the journalist, perhaps they want to see the present condition. If we don t put this in the new, the company can monopolize and manipulate as they like. It seems there is the connection between the company and the government. [...] [This message came] actually, from Kecamatan. From the vice-camat, who said he wanted to meet me. And when we met, I he said that I should be careful talking to journalists, because if I say something wrong I might go to jail. But I think a journalist has a good purpose to come here. We accidentally met in a shop. This journalist wanted to know about the development in our region, but the people from Kecamatan heard this and stopped me. I said this is for a good purpose, what s wrong with this. We, in the kampung, also want to reach to the outside. Also to convey about our future. And if we, as the citizens, feel too much restriction, how can we tell about our feeling of being fooled about the promises that haven t been kept? But if we, the people from the kampung, weak as we are, want to take a step, there is always somebody that says we shouldn t." There are some other indicators for close connections between subdistrict government, company managers, military officers and the police. During virtually all meetings between company managers and representatives of the koperasi, subdistrict government officials, military chiefs and police officers are present. In addition, these authorities receive copies of all communication between the company and the koperasi and are included in the decision making about the nature of the contract between the koperasi and the company. According to a representative of the koperasi, the relations between government officials and company representatives may be of a corrupt nature: We know that the government of Indonesia has this custom were money is a decisive factor. The situation is like this. If this is the area of West Kalimantan (he points at a package of cigarettes), there are many investors who want to invest in this area. So the government, who gives the permit, has to decide to who they should give the permit. And usually, they would give the permit to the highest bidder. It depends on the people, on each individual. A representative from a legal empowerment-ngo from Pontianak says that it is not uncommon for companies to hire policemen to work for them, for example to prevent people from looking over their shoulder. A similar argument is made by a representative of a Pontianak-based NGO specialized in participatory mapping. He presents the use of political and military forces by companies, as a backing-up for investors, as one of the trends in oil palm plantation development for the coming three to five years. 9.3 Conclusion The fencing act shows that the people see little arena's where they can make their claims and have their voices heard. The settlement meeting that followed the fencing act, and the labour conducted to improve the condition of the road temporarily improved the relation between the villagers and the company. However, it remains to be seen whether there will be any consequences for the company, and what form these consequences will have, if the company fails to fulfil the promises made at the settlement meeting. A properly functioning sanctioning institution, that would enforce sanctions in case the company would not comply with the agreements made at the settlement meeting, does not seem to be in place. The negotiations between the company and the people over the ability to benefit take place in a setting that seems to be characterized by a close connection between the company, governmental authorities and the police. This setting may influence the negotiations in three ways. First, fear for oppression may limit the 64

70 willingness of people to state their claims. Second, the villagers perceive no other options than to conduct fencing, because of lack of trust in governmental officials. More acts of resistance of the villagers might follow in case the relation between the villagers and the company further deteriorates. Third, the consequences of fencing-acts for the company may remain limited if they are not sanctioned. Moreover, oppressiveness of governmental political-legal institutions, whether perceived or 'real', might be a threat to villager's property rights over land rather than a way to safeguard them. Box 6. Trapped by the police? In order to attend a meeting between the koperasi, the management of the company and district authorities, my interpreter and me head for the office of PT MAS II in Seribot. Red mud roads lead to the office, that is located in the middle of the plantation. After passing a barrier and filling out a guest book, we enter the site. Participants of the meeting gather in front of the building. Their location is illustrative: company managers, uniformed sub-district officials and equally shining police officers chat at the entrance of the office, whereas the farmers - in their best suits - gather in the bicycle shed. I hand over copies of my letters of recommendation and travel permit to the company officers at their request. My interpreter can enter the meeting room while I have to wait outside - but not for long. We are denied access to the meeting, since it is a private meeting, permission of Jakarta should be obtained, and in addition "foreigners may have bad intentions". Thereafter a tall, broad-shouldered police officer takes care of us. The company office is located at a private area, and thus, by coming to the place without prior permission, we are already conducting a (minor) offence. In addition, since I am conducting research in the area, I should have informed the police about my activities. Therefore, we need to come to the police office immediately. There, the police officer gives another reprimand for not having come to the police earlier. In addition, he asserts that I should report my activities in person at the police office every day, "for my own safety". Alternatively, he will visit us every other day. While I fill out a form with another police officer in an obscure cabin in the office, the police officer talks to my interpreter in another room. He boasts about his status as danger of the town, and he says: "I would like to trap her, wait until she makes a mistake so that it will be very difficult to leave this place." Then the police officer pictures me with his cell phone and we can leave the venue after paying 100,000 rupiah ( 7.90) "administration fee". Later, a local village authority asserts the reputation of the particular police man. "The people are waiting for a cause to get him. [...] He will be dead before he has time to get his gun." 65

71 10 Communal lands In addition to lands governed by individuals or family groups discussed in chapter 7 and 8, there are communal lands. These lands include the cemetery and the area for the pedagi, and the primeval jungle called Rimpu, Ripo or Rempeae. This chapter is about the shift in property regime in the communal lands of Mua. Related to the expansion of the oil palm plantation, a participatory assessment of these areas is conducted, that will be described in In section 10.2 the customary management of the cemetery and the pedagi will shortly be described. In the major part of the chapter (section 10.3) the Rimpu-area is elaborated on. Since this primeval forest is included in a HGU-concession, its status as conserved adat forest is under pressure. The negotiation processes that are leading to an uncertain outcome are explored Participatory assessment Between March and August 2009, a participatory assessment is taking place related to the activities of oil palm estate PT MAS III. In Koca, the head of adat, the head of the hamlet and a religious leader are involved in this. In Mua, the head of the hamlet, the son-in-law of the head of adat and another elder are involved. This assessment encompasses several villages, and is conducted in cooperation with company managers. The villagers show the investigators the pedagi, the cemetery, the Rimpu-area and the places used for bathing, sanitation and washing. During the audit, the researchers seem to convey to the villagers those areas should not be given for the oil palm plantation. The head of RW in Pinsam claims the research is conducted, because the people complained about the conduct of the company: There was this environmental research in This team, did auditing related to the environmental problems and the conservation area. This was the follow-up from the letter that we send, about the company breaking the rules of AMDA, the analysis of environmental impact. This news reached the RSPO, and they warned the company. After that, the auditing team came to investigate the location. No documents or statements confirming or weakening this claim could be found. No other research takes place in which the villagers are actively involved. Whether this participatory assessment is conducted to fulfil the obligations of the RSPO remains unclear. Despite a "commitment to transparency", the management of PT MAS is unwilling to answer questions about a HCV-assessment or any other topic (Box 7). The RSPO secretariat in Kuala Lumpur does not provide any further information either, despite promises to look for the information at PT MAS. Photo 5. A grave at the communal cemetery of Mua. 66

72 Box 7. Access to information: attempting to interview an employee of PT MAS III Saturday 2 October 2010, in Empodis, Bonti, I pose the first request for an interview orally to Mr. Amon, a manager of PT MAS III. He answers that he should ask the management for approval first. On October 5th, I deliver my letters of reference to the office of PT MAS II in Seribot. Company representatives state that approval from Jakarta and possibly from Sime Darby is needed before an interview could be conducted, and that I should pose my request there. Several s are send to the contact person of Sime Darby, both in English and in Indonesian. A response is never received. Via other connections, contact with the sustainability manager of Sime Darby is established. However, s with a request for an interview are repeatedly left unanswered. When my interpreter phones to the office in Jakarta however we are redirected to an office of Minamas in Pontianak. There, the receptionist informs us that we should contact Mr. Teddy. From October 15 to October 29, numerous phone calls to the office of Minamas are made, in order to contact Mr. Teddy. In those conversations, the receptionist states that Mr. Teddy is out of the office, that she does not have his mobile phone number and that we should try again after three to four days. On October 29, the receptionist gives us the mobile number of Mr. Teddy and we attempt to contact him. On November 8th, my interpreter is able to contact Mr. Teddy. He then conveys the message that I should hand in a written request for an interview, along with my letters of reference and a topic list, at the office of PT MAS I. Tuesday November 16th me and my interpreter are received in the office of PT MAS I and the letter, the topic list and my letters of reference are faxed to Mr. Teddy. I stress that if there is a particular topic that they do not want to talk about, it should be no problem and it could be skipped from the list. We are kindly informed that PT MAS is part of RSPO, and therefore commits itself to transparency. Therefore, my request most likely will not yield any problem. Furthermore we are told that my interpreter will receive an answer to the request later. We do not receive any response, and my interpreter calls Mr. Teddy again on December 3rd. He then conveys the following message: "I have already conveyed the response of the management to Mr. Isa Rodin and to the top management. I don't have the responsibility to take the decision. The higher management says that they cannot fulfil Petra's request, because it is a hot issue right now, and our position within the media is quite compromised presently. The top management, our investor that came from Malaysia, is worried that Petra is related to some kind of NGO, even though I have already explained that that is not the case, that she is requesting the information for educational purposes. But the top management stays with their decision. Furthermore, the top management reasons, because Petra comes from The Netherlands - perhaps is the request had been done by an Indonesian citizen, it would be different." 10.2 Pedagi and cemetery area The pedagi is a wooden sculpture of approximately 60 cm. in height, located in a small open shed close to the village of Mua. The area around it is considered sacred and should not be burnt. During the annual Gawaifestivities in June, the elders of the village conduct ceremonies on this spot. Furthermore, individuals in need of spiritual assistance may go to the pedagi for guidance and strength. The cemetery is located on a hill close to the forest. Once a year, large maintenance activities are conducted. A large group of villagers then sets out for the cemetery, to cut the lush vegetation covering the graves of their relatives and ancestors (Photo 6). This place, too, is considered sacred, and no other use than as burial place is allowed. 67

73 The pedagi and the cemetery will not be given to the company. There are no indications that the establishment of the oil palm plantation and the incoming of the company provoke any changes in the property regime related to the pedagi and the cemetery. This does not hold for the third communal area: Rimpu 10.3 Rimpu-area Rimpu is a primary swamp forest located in between the hamlets Mua (part of the village Empodis), Pinsam (part of the village Kampuh), Kampuh and Mobui. Currently, the area of the forest is around 15 ha, whereas a larger area still bears the name Rimpu. With the incoming of the company, the status of this area as an adat forest that cannot be touched comes under pressure. A process of negotiation starts between the villagers of different hamlets and the company. Among other things, this process is influenced by the history of the area, the position of different ethnic groups, the company and the local government, the relation between village elites and other villagers and different laws History of the place and customary property regime Originally, the area of Rimpu belonged to the people of Darok, who build a tembawang in the middle of the area. It was first claimed by the mythical forefather Bay Bokap (Photo 6), whose legend is told in several variations. The descendants of the people of Darok lived in Mua. Photo 6. Remnants of the hut of mythical forefather Bay Bokap in the Rimpu area. These woods here are the remnant of a hut, from the legend of Bay Bokap. There was a blind old man, he was a Darok. He builds this hut, not because he wanted to live here, but this is the place where he would feed his pigs and chickens. He came here to do so and prepared a meal. After that, he went to the river Sekayam in the Sekayam area. He put traps for the fishes. When he came back, the pigs and chicken had not finished eating and the cooking that he conducted earlier had not been done yet. This makes the people wonder about the speed he took going back and forth. In the past, the area of Rimpu forest decreased considerably, due to farming activities, as explained by a man from Mua: Actually, the land was very vast, but because of the wrongdoing of the farmers, some of them changed the usage of the land, some stole the land. The vast area became narrow. Adat sanctions that should have been given were not implemented properly, according to the same interviewee. As a consequence, the area of communal land decreased: Huge areas have been used by the people. When the people used the area for planting, in the end it became their personal right. In the nineteen eighties, an agreement is made between the people of Kampuh and Mua, to prevent further reduction of the forest. The people agree that the forest cannot be touched anymore, that the area should not be disturbed. According to an interviewee, the adat status of the forest has been acknowledged by the Musdat, the Musyawrah Adat, an adat convention, in the nineteen nineties. 68