Increasingly in Southeast Asia, the issue of indigenous peoples gains considerable attention. Studies on the revival of indigenous politics emerge along with the implementation on decentralization. Additionally, indigenous politics also surface in the context of development; particularly when one connect the entitlements regarding indigenous tenureship on resources, usually land or forest with the access they have and require to securing their livelihoods. In this regard, many struggles as well as academic reporting usually refer to human rights.
There is something paradoxical about indigenous peoples invoking their entitlement to control their native resources with universal human rights. In a legal perspective, the term peoples constitutes a collective entity and social identity of a specific community, with special needs to ensure their historical continuity to include occupation of ancestral land, language, religion and tradition as well as culture of living under tribal system. In the context of international law, the idea of establishing indigenous peoples as a specific legal subject with specific legal rights, still faces some unresolved issues, although it is a generally accepted that a distinctive treatment is required given to their identity, collectively and more importantly their survival.
A common outlook on human rights is to regard is as individual right, with a binary relationship to the duty of the State as a main subject of international law. Individual identity, with special attention to the protection of individual dignity by means of law is central core for human rights to work as a legal instrument. Recognition to the subject of peoples is presence, particularly with regard to their collective right to self-determination, something that is crucially important for the modern making of nation states. However, in term of the connection between human rights as individual rights, many apply the subject of peoples as a sort of environment for the realisation of individual human rights. Particularly in economic, social and cultural rights, and the right to development, the inclusion of peoples in the discussion for implementation provides us with an understanding that one could not have a realisation of their right outside the context of community. The realisation of their rights and the identification of violations remain to be measured at the individual context.
The foregoing shows a paradoxical connection between indigenous peoples and their application of human rights in their struggles to sustain livelihoods. Against this backdrop, I wish to return to my narrower theme: should indigenous peoples apply human rights to secure their access to livelihoods? Let me refine my topic a bit before going further, what is application of human rights? Does this entail the issue of enforceability of international human rights law in the national domain? Or does it refer to a social practice of activating, or perhaps negotiating and constructing claims, with human rights as basis for legitimacy, expected to deliver results? I principally concern about the latter. The proliferation of human rights in the age of globalisation has posed the question on the realisation of human rights beyond the monopoly of legal studies. Enforceability and justiciability of human rights are as important as the social practice of human rights, to become discursive, to create a dialectical space where grievances are being connected with norms, claims are constructed in plural legal orders and institutional responses are being expected. If such are achieved, could we then say that human rights have been relevant, in this context to secure access of indigenous peoples to sustain their livelihoods? Further, upon reflection on the paradox between indigenous peoples and individual human rights, the discussion might also need to touch the question can indigenous peoples apply human rights to secure their access to livelihoods? Or do indigenous peoples apply human rights to secure their livelihoods? In order to answer the very question on should indigenous peoples apply human rights to secure livelihoods?
Given to the limit of the time, I need to decide to answer the last two questions and skip the first one on; can indigenous peoples apply human rights. To tell you briefly an answer for that question would derive from legal and historical examination, to explain the construction of current process application of human rights in the context of indigenous peoples. The second question, I will try to answer based on my field research I did last year on negotiations of socio economic rights in the context of agricultural modernisation in Merauke, Papua, Indonesia. In that province, the Indonesian government is planning to implement company-based agricultural and energy production, called the Mifee project, which include the appropriation of land and forests that in reality are still governed by the indigenous peoples. A reflection of the process of negotiations in Merauke, will help me to answer the main topic of this presentation.
For the first question, several observations and findings regarding the way indigenous peoples apply human rights to secure livelihoods:
- The application is initiated by external actors, at the grassroots it is the agricultural and energy companies that initiate the usage of human rights discourse. However with a focus on collective nature of the community in the negotiations process.
According to formal laws companies wish to acquire permissions to exploit natural forest in Merauke would simply follow official procedures, unless there is a formal registration of indigenous land rights. However as there are also legal recognition of customary law, the communities’ ways of arranging their ancestral land should also be considered. Companies are aware of this, therefore regardless that they have received formal permission for investment and to exploit the forest negotiations with local communities with their indigenous rights and laws are performed as well.
Here negotiations are initiated by companies. These are executed between representatives, usually their local officers of corporate social responsibility. Heads of margas are courted for months. Meetings held informally and incidentally. As acquaintances become regular, friendships can easily be spotted between them. Socialization of their investments plan could thus be initiated in a relaxed way and agreement can slowly be formalized.
- Quasi-formal agreements achieved based on the collective nature of the indigenous communities. Compensations towards the decreasing access to indigenous forests are issued on charity based gifts and facilities.
The agreement between indigenous communities and companies do not take the form as transfer of land ownership, or formal financial transactions. They defined this agreement in the context of dowry, using the form as tali asih (compassionate agreement), piagam penghargaan (appraisement plaque) and other similar and arbitrary outputs. These are chosen to symbolize companies’ highest appreciations towards people cooperation and to euphemize their inability to balance the spiritual value of the indigenous land. Materially, building schools, churches, village offices, cultural centers, providing electricity generators, waters and telecommunication facilities are part of the agreement, as well as securing jobs availability and elementary education.
Observing the process and the result of local negotiations, it is shown that people claims and their demands for compensations on land tenureship are generally organized without the presence of the state. This situation shows that granting official permission to private actors lead to a weakening presence, if not isolated position, of the state and the duty to fulfill basic necessities become transferable to the private actors.
- The application of human rights by multiple actors leads blunders and tensions in the conflict of rights.
An example is in Buepe village, where the company failed to identify the ‘true’ ownership of the forest and therefore mistakenly provide payment to the community living in the village, instead of the Senggase clan who is the owner of indigenous land. Negotiations regarding that misstep escalated into conflicts between the two groups. After both groups could internally solve the issue, the Senggase tribe continued the struggles to the regional level, demanding formal negotiations with the company to be facilitated by the governor.
Interesting from the case of Buepe is that claims made using customary law were no longer exclusivity belongs to the indigenous peoples. The representatives of the company also pressurize the flow of the formal negotiation process by threatening to apply customary law to be implemented against the Senggase.
In another instance, some elites in the population of Domande village used the claim of individual rights, as is understood similar to property rights, attributed to their ancestor land. They demanded financial compensation according to proper market arrangements while seeking for continuation of their claims after the payment of the informal agreement, tali asih. Dissatisfactions between members of the clan and competitions between tribes observably continue to spread.
Based on this preliminary observation, could we make a general answer regarding should indigenous peoples apply human rights to secure their access to livelihoods?
As observed in the field, in the long term such a particular situation of strong de facto recognition towards indigenous identity and rights, by multiple actors, especially the private actors, may actually do more harm than benefit the right holders in getting appropriate legal responses. In effect it also creates a blunder in which rights and which identity necessary to claim the rights.
However, human rights for the indigenous community have also serves more as a source for legitimacy and a flexible space where connection to local needs and dynamics can be made. The flexibility demonstrates its adaptability. Consistency to the procedural and substantial contents of international human rights law are here of little relevance. The discourse of rights presents as a powerful tool that allows redefinition, reconceptualization and recognition of vulnerabilities and needs that are concrete and relevant to people.
Furthermore, human rights have been central to the general thought when finding alternatives vocabularies to engage with other actors. Based from the idea that rights imply obligations, actors can shape the adversities into a problem that is claimable, where responds can be expected. However, situations in Merauke show that while actors are actively engaged in political activities, the outcomes of the process are still somewhat charity ones. Nevertheless, the question is whether and in which ways the creation of such a dialectical process could promise legal empowerment as well as legal certainty in the future as well. Perhaps one question that need to be asked is: should indigenous peoples apply human rights differently?