by. Irma Halima Hanafi

Abstrac

Indonesia state appreciates the understanding of national unity have great respect for the diversity-diversity in society. Specifically related to indigenous peoples, in the UUD 1945 in Article 18 B paragraph 2 that the state respects entities indigenous people and their right to traditional whole is still alive and in accordance with the development of society and the principles of the Unitary State of the Republic of Indonesia, which is regulated by law.
But in fact indigenous interests not addressed by the state government in this regard As with implementing the activities of the state. Many of the lands of indigenous peoples in the country and the use of certain parties for their benefit without paying compensation or solution that can bring benefits as well as benefits for indigenous people

Sectoral provisions governing land-related, such as the Forestry Law No. 41 in 1999, Article 5 states that recognize the ownership by state forest and forest land, but the explanations are described that are included also in the state forest is customary forests are dominated by indigenous peoples. Meanwhile in Article 5 of the UN Declaration on Indigenous Peoples states that indigenous peoples have the right to maintain and strengthen their characteristics are different in the political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so wish, in the political, economic, social and cultural state.
Related to the above issue, the Declaration of Human Rights, Article 22 asserts that every person, as a member of society, has the right to social security and is entitled to terlaksanannya of economic, social and cultural rights indispensable for his dignity and the free development of his personality, through national effort and international co-operation and in accordance with the organization and resources each country.

Indigenous peoples can participate and contribute to science, especially for the cultural life of the country Indonesia, should be given to those freedoms to protect their interests as a people and as a group of individuals who have rights.

Keywords: Indigenous peoples, human rights, Indonesia

Preliminary

World uphold the rights of indigenous peoples, this can be seen with the respect for the rights of indigenous peoples internationally declared by the purposes and principles of the UN Charter. The basis for the declaration of the rights of indigenous peoples noted that indigenous peoples have suffered from historical injustice as a result of, among other things, colonization and pencerabutan lands, territories and their resources, preventing them to use, especially their right to development in accordance with their needs and interests.

Indonesia is a unitary state with many tribes and nations and the famous slogan varies but remains the unity in diversity that is meaningful even vary but essentially remain the Indonesian nation is a unity. The motto is used to describe the nation and the unity and integrity of the Unitary Republic of Indonesia which consists of diverse cultural, language, region, race, ethnicity, religion and belief. This variety of Indonesian culture grown in indigenous communities spread throughout Indonesia.

In Indonesia, indigenous peoples’ rights stipulated in the Constitution of 1945, Article 18 B, paragraph 2, which states: The state recognizes and respects units of indigenous people and their traditional rights of all are still alive and in accordance with the development of society and the rule of unitary Republic of Indonesia, which is set in the law. From this it is clear that the provisions of the State of Indonesia recognizes the indigenous peoples within the territory of the Unitary Repoblik Indonesia. But in practice, the protection of the rights of indigenous peoples are not reflected in the sectoral rules that should be in terms of the sectoral rules were also malakukan respect and protection of the rights of indigenous peoples, especially the right to their natural resources . This contrast can be seen among other

the provisions of the Forestry Law, Law no. 41 of 1999 and the provisions of Law No. Fisheries Management. 31 of 2004.

Law no. 41 Year 1999 on Forestry. In Article 5 states that the state recognizes the state forest and private forest. However, state forests may be indigenous forest. In his explanation of Article 5 of this law says that state forests can be indigenous forests, the state forest was left to indigenous people (rechtsgemeenschap). Indigenous forest was previously called communal forest, woodland clan, seignorial forests, or other designations. Managed forest indigenous people are included in the definition of state forest as a consequence of the right to control by the state as an organization of power all the people at the highest level and the principle of the Unitary Republic of Indonesia. Logically, if the state controlled forests customary means that indigenous peoples do not fully have the right to their customary forests which for indigenous forest is a natural resource that can benefit the lives of their economies.

The fact above is contrary to the UN Declaration on the Rights of Indigenous Peoples, Article 26 states that indigenous peoples have the right to the lands, territories and resources-resources which they have traditionally owned or occupied lands or otherwise, territories and resources that have been used or have been getting. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources-resources that they possess reason of traditional ownership or the placement and use of other traditional, as well as the lands, territories and resources power-owned resources in other ways. The State shall give legal recognition and protection of lands, territories and resources – those resources. Recognition must be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

The same thing can be seen in other sectoral laws that Law. 31 of 2004 on Fisheries Management. Article 61 paragraph (1) which determines

that fishermen catch fish freely throughout the territory of the Republic of Indonesia fisheries management. Provisions such a positive impact on indigenous peoples in particular. That is their right hereditary legally declared by the State, so as to obtain a strong position against the other party. But the provision is otherwise adversely affect local land, because they are indigenous people of any other place to use formula settings, it does not respect the rights of local indigenous people who are real and factual mengusai waters around them as areas of traditional fishing grounds .

Lack of knowledge of indigenous peoples’ rights occurs because of lack of recognition of their role in natural resource management. This situation makes the public does not have access to decision-making that can be a big influence for improving the welfare and improvement of their lives. When indigenous peoples benefit from or participate in the management of natural resources, it is done by investors as a gift and not because their rights are recognized. Kedaan like this and then have an impact on the strengthening of political and social dynamics among indigenous peoples in that there has been a systematic neglect of the rights of indigenous peoples to natural resources that are within the jurisdiction of traditional or customary law. This situation also has caused social injustice and economic management of natural resources, in addition to rising tensions between the company / investor with indigenous peoples, also led to increased tensions between the government and the public. At the same time the demands of justice also came from local GOI requiring benefit-sharing and a more equitable management in natural resource management.

                                                                                                                         
Ketidaktercerminkannya protection of indigenous peoples in Indonesia can mengakibatkan incidence of problems related premises indigenous peoples and their rights. In Indonesia, at least there are approximately 530 conflicts have occurred in indigenous areas until now. Most conflict is about land ownership

overlap with the interests of other sectors. According to the Secretary General of the Alliance of Indigenous Peoples of the Archipelago, Abdon Nababan, generally indigenous territories controlled by another party through a licensing system by the government in the form of leasehold, Broking, Business License Timber Forest Management, Forest Management License for Industrial Plants and Mining Regions.

Meanwhile, in the Universal Declaration of Human Rights, Article 22 asserts that every person, as a member of society, has the right to social security and is entitled to terlaksanannya of economic, social and cultural rights indispensable for his dignity and the free development of his personality, through the efforts of -national effort and international co-operation and in accordance with the organization and resources each country.

                                                                                                                      
Is not indigenous people also participated in contributing to science, especially for the cultural life of the country they are supposed to be given freedoms to protect their interests as a people and as a group of individuals who have rights. Accordance with the provisions of international human rights and in accordance with the rules of law of Human Rights in Indonesia. In the United Nations Declaration on the Rights of Indigenous Peoples asserts that indigenous par with all the other communities, while still recognizing the right of all people to be different, to view themselves different, and to be appreciated because of these differences.

Definition of Indigenous Peoples

Behaviors that lead to continuous individual personal habits. If the person is in the habit imitate other people, then it will also be, that people’s habits. Gradually, between the one with the other in the unity of the community were also implementing the habit. Then, if all of the people doing custom behavior before, then gradually it became a custom of the community. Communities within the meaning of anthropology is a unity of human life

interact with one another according to certain customary systems, which are ongoing and are bound by a sense of shared identity.

Before discussing how indigenous peoples in Indonesia, the beginning of the issue of indigenous peoples began in the protest movements of indigenous North American native peoples are demanding justice development, after the presence of a number of transnational mining companies operating in their territories, and the development of a number of conservation areas by the U.S. and Canadian governments. Inuit communities in Alaska (U.S. state near the North Pole) is the victim of injustice development of the mining industry in the United States. In Canada, Inuit communities in the region are also protesting the Canadian policy that forced them to leave the area governance to the villages on the outskirts of the city, because the company will process the oil, gas and coal region. Mississippi National Parks Development in Central America also depriving other Indian indigenous community governance, such Mohak. While the construction of Rocky Mountain National Park in western sebalah also life threatening Apache Indian. Several protests of native peoples in the plains of North America in the 1950s, provoked the ILO as the UN agencies engaged in the protection of labor to perform a variety of field research. In 1957, the ILO Convention 107 and issued 104 recommendations concerning the Protection and Integration of Indigenous and Tribal Peoples. In 1989, the Convention was renewed by the ILO Convention No.169.

Accordance with Article 1 (1b) ILO Convention 169 Concerning Indigenous and Tribal Peoples in Independent Countries, defined as the Indigenous Peoples in independent countries who are regarded as Indigenous ruling, based on the geographic area in which a country is, at the time of the conquest or colonization or the establishment of the boundaries of the new state, without having part of all institutional forms of social, economic, cultural and political. While Tribal Peoples, as the content of Article 1 (1a) is defined as those who live in countries where these conditions independent of social, cultural and economic differentiate them from other communities in the country, and whose status is regulated wholly or partially by customs and tradition

community or by specific laws and regulations, which translates as indigenous peoples. From the formulas above it is clear that in Indonesia there are people who can be categorized as Indigneous and Tribal Peoples.

The term indigenous peoples closer understanding gemeinschaft which in English translates as a community, to show a primary social ties between members intimate relationships, personal and exclusive. Besides having its own social order, is also a form of indigenous identity battle that is a combination of complex relationships, both with natural, social relationships with internal and external relationships. Alliance of Indigenous Peoples of the Archipelago translate indigenous peoples as a community-based living komuitas ancestral origins fell down on top of an area that has sovereignty over indigenous lands and natural resources, social and cultural life are governed by customary law and traditional institutions that manage the sustainability of community life . According to Prof. Juned, the rights of indigenous peoples such as the right to run its own system of government;’s right to control and manage the natural resources in the region, especially for the benefit of its citizens; act to regulate and manage people and ligkungannya. Quit acting on behalf of the partnership on behalf of the body corporate; participate in any transaction involving the environment; establish customary rights; rights to run a kind of justice.

From the socio-cultural realities that exist in Indonesia, the indigenous peoples are very diverse and have varying dynamic development. Broadly speaking, indigenous peoples can be classified into 4 typologies;
1) The group of local people who still firmly adhered to the principle of ascetic earth did not change the traditional way of life such as farming, dress, consumption patterns, and others. Even the They still exist by not dealing with

outsiders, and they chose to preserve the natural resources and the environment with their traditional wisdom. This first group of entities, such as the community can be found To Kajang (in Kajang) at Bulukumba, and Kanekes in Banten;

2) The group of local people who are strict in maintaining and implementing custom, but still open enough space for any commercial relationships with external parties, such groups can be found for example in the South Banten Kasepuhan community and Naga Tribe, both in Java West;

3) communities living entity depends on the nature (forests, rivers, mountains, sea, etc.), and developing natural resource management systems are unique, but not strict custom developed for housing as well as the choice of plants when compared to the the first and second groups, indigenous communities belonging to this typology, among other Dayak Penan in Borneo, Pakava and Lindu in Central Sulawesi, Dani and Deponsoro in West Papua, Krui in Lampung, and Haruku in the Moluccas;

4) Entities that have been uprooted indigenous peoples of the order of the original natural resource management as a result of colonization that have developed hundreds of years. Fall into this category are Malay Deli in North Sumatra, and Betawi in Greater Jakarta.

Explanation of Article 67 paragraph (1) of Law No. 41 Year 1999 on Forestry states that indigenous people recognized, if in fact meet the elements, among others: a. people still in the form of association (rechtsgemeenschap) b. No institution in the form of the customary rulers, c. there is a clear area of customary law; d. existing institutions and legal instruments, in particular judicial custom, which is still adhered to, and e. still held a harvest of forest in the surrounding forests to meet the needs of everyday life.

Terms of indigenous people are recognized by one state are also set out in Article 3 of Law No. 5 of 1960 on Basic Agrarian, namely: Along by the fact still alive; accordance with the development of society, and keeping with the principles of the Unitary Republic of Indonesia are regulated in the legislation.

Classification of various ethnic groups in Indonesia based on a system of customary law circles that disususun by van Vollenhoven, divided into 19 regions Indonesia: Aceh, Gayo–Alas and Batak, Nias and Stone, Mingangkabau, Mentawai, Toraja, South Sulawesi, Ternate, Maluku Ambon, Southwest Islands, South Sumatra, Enggano, Malay, Belitong Bangka, Borneo, Sangir–Talaud, Gorontalo, Guinea, Timor (now separated from Indonesia), Bali and Lombok, Central and East Java, Surakarta and Yogyakarta, west Java.

Indonesia’s ethnic diversity is what has its own uniqueness based customs is a great contribution to the Indonesian culture, including language, knowledge systems, social organization, religious and artistic systems all of which are part of a universal culture. It can be encountered in the indigenous communities. Unwittingly indeed indigenous peoples have participated pegetahuan contribute to science, especially for the cultural life of the country. Ideally the state can provide a clear legal protection of the rights of indigenous peoples, and also given the freedoms to protect their interests as a group of indigenous peoples and individuals have rights. Not only are given the freedom that ultimately only apparent in favor of the interests of certain parties only and are not in favor of the interests of indigenous peoples.

In the United Nations Declaration on the Rights of Peoples, Article 18 states that indigenous peoples have the right to participate in decision-making process with regard to the things that will have an impact on their rights, through representatives of their choice in accordance with their own procedures , as well as to maintain and develop their decision-making institutions have traditionally.

Overview of Human Rights setting

The link between the protection of human rights at the national and at the international level very closely. All international setting legal system requires each state to provide adequate compensation to those whose rights have been violated.

Legislation on Human Rights in Indonesia came from the Bill of Human Rights to the House for discussion. The discussion in the House did not take a long time because on 23 September 1999 reached an agreement to No. passed the law. 39 Year 1999 on Human Rights. The law was born as a descendant of the provisions of Decree No.. XVII/MPR/1998 on Human Rights. Law No. 39 Year 1999 on Human Rights, which consists of 106 on indigenous peoples settings contained in the provisions of Article 6, paragraphs 1 and 2. Penjalasan the article suggests that customary rights are actually still valid and upheld in the environment of indigenous peoples must be respected and protected in the context of the protection and promotion of human rights in a society concerned with respect to laws and regulations. In order to uphold human rights, national cultural identity of indigenous peoples, indigenous rights are still significantly firmly held by the local indigenous people, are respected and protected as long as not contrary to the principles of state law cored justice and welfare.

One of the considerations formed the basis of legislation on human rights is that Indonesia as a member of the United Nations assumed a moral and legal responsibility to uphold and implement Dek1arasi Universal Human Rights established by the United Nations, as well as various other international instruments on human rights ratified by the Republic of Indonesia.

Universal Declaration of human rights is seen as an official interpretation of the meaning of human rights in a number of provisions of the UN Charter. At the time of drafting of the Universal Declaration of human rights, acknowledged that the declaration did not create legally binding obligations, but only a standard of achievement for all peoples and all nations (The Declaration consists of 30 Articles). It was agreed that the CHR (human rights commission) served up a human rights instrument, legally binding by making the declaration as a model. Covenant referred to include economic, social and cultural rights, as well as civil and political rights, raises issues about the appropriate method of implementing the right to categories–those different categories of rights. So diusulkanlah that the two instruments was passed, one of the economic rights, social and cultural rights and the other on civil and political rights. Both of these covenants proposed to the General Assembly, and was approved in 1966 and become effective in 1973 after 35 countries (the required nominal amount) ratified. Both covenants are: the International Covenant On Economic, Social And Cultural Rights (International Covenant On Economic Rights, Social and Cultural Rights), and the International Covenant On Civil And Political Rights (International Covenant On Civil Rights and Politics). Which was later shortened to the ICESCR and the ICCPR.

ICCPR prepared to address practical problems in the protection of human rights. Covenant outlines more specifically the rights to dilidungi. Included the state’s obligation to allow individuals who are members of a minority ethnic, religious or language to enjoy their culture, declare and practice their religion or to use their own brand of language in community with other members of the group (Article 27). Covenant consists of 53 chapters.

ICESCR, a covenant that the regulation does not require states to immediately streamline the rights that have been recognized but that is just the start pedekatan and programmatic advice to implementation. Monitoring methods set by the ICESCR devolving periodic reports to ECOSOC on the measures that have been taken by the participating countries and the progress made in fulfilling the rights that have been recognized. Covenant consists of 31 chapters.

Indigenous Peoples in the Context of Human Rights

Affirmation of the United Nations Declaration on the Rights of Indigenous Peoples that indigenous par with all the other communities, while recognizing the right of all people to be different, to view themselves different, and to be appreciated because of these differences. The declaration also conscientious urgent need to respect and promote the inherent rights of the indigenous peoples from the political, economic, social and cultural structures, religious traditions, history and philosophies in particular their rights to land, territories and resources of indigenous peoples.

UN Declaration on the Rights of Indigenous Peoples is also believed that the recognition of the rights of indigenous peoples will enhance harmonious and cooperative relationships between states and indigenous peoples, based on principles of justice, democracy, respect for human rights, without discrimination. Countries are expected to carry out effectively all the duties applicable to the indigenous peoples in accordance with international instruments, especially those related to Human Rights in consultation and cooperation with indigenous peoples in the country.

In Indonesia, the government’s efforts to respect and uphold human rights begins with the issuance of Presidential Decree No.. 129 of 1998 on the National Action Plan on Human Rights of Indonesia, after it passed also Law. 39 Tahun1999 on human rights, is also equipped with the Law. 26 Year 2000 on Human Rights Court. Indonesia has also ratified international human rights insrumen with Law No. 11 Year 2005 on Ratification of the International Covenant On Economic, Social And Cultural Rights (International Covenant On Economic Rights, Social and Cultural Rights), Act No.. 12 of 2005 on the Ratification of the International Covenant On Civil And Political Rights (International Covenant On Civil Rights and Politics).

Ratification of international instruments on Human Rights have consequences on the implementation of human rights, because the state of Indonesia have entered into
legally. Among others, the Indonesian government should undertake an obligation to adopt a treaty that has been ratified into law, both designed and which have been enacted into law. The Government has a binding obligation to take various measures and policies to implement the obligation to respect (to respect), protect (to protect) and satisfy (to fullfil) human rights. This obligation is also followed by other government obligations, namely to create a report relating to the adjustment laws, measures, policies and actions.

The number of national legal rules that have been made by many countries and international instruments ratified by the country of Human Rights does not guarantee the implementation of human rights in the country will go well, this sentence is not to downplay the purpose of establishment of rules of national law because in fact they are still widely associated problems of Human rights that occurred on indigenous peoples within the territory of the unitary Republic of Indonesia. It is the duty of our common national elements to try to always prevent or reduce the occurrence of violations of human rights in Indonesia against indigenous peoples.

Various problems occurred as a result of violations of the rights of indigenous peoples, for example between people Sugapa in North Sumatra and PT Inti Indorayon President and Head Porsea; between Moi tribe in Sorong with PT Intimpura; between Amungme and Kamoro with PT Freeport Indonesia in Irian Jaya; In Central Sulawesi Kaili people are forced to accept the construction of hydropower projects in the Lake Lindu; in the Toraja coffee plantation development more urgent indigenous lands; In East Kalimantan indigenous group Bentian calling itself Sempekat Jato’Rempangan dealing with PT Kalhold Main. Mid-August 1994, the indigenous Dayak communities in the district and the river Laur Sandai Ketapang district of West Kalimantan

to attack the camp of PT Teja Linga Wana forest tenure holders as industrial land in the region because they feel pride and dignity are being trampled and her voice was not heard. In Java there is also the issue of indigenous peoples such as the case of an increasingly desperate man Kenekes; case Kedung Ombo, where most msyarakat initially did not agree to be moved from the land of his fathers legacy. In North Maluku are cases Capping, PT Nusa Halmahera Minerals is one of the licensee Contract of Work (CoW) issued by the Central Government, and started to exploit the mine in Gosowong first time in 1997, and recently completed holes Toguraci mines, which was originally a forest protection and forest tribal Hoana Capping. Currently, the company expanded its operations to the Orchid, Langsa, Donga, Maruwit, and Cinnamon. The region is indigenous forest Capping Soa. Concession area of 29 thousand hectares. Permission up until the year 2029. Community rallies to take the fight with the mining companies. In 2011, indigenous ceiling began mapping their traditional territory, but has not been resolved. Problems between PT Bukit Nickel with Spare Tugutil, according to sources in the can directly from one member of the Board of AMAN North Maluku, obtain complaints from some residents Togutil (Village Tukur – Tukur, Tipita and Totodoku), that on May 20, 2012, the village Subaim claimed about 16 hectares of land as their own and will be sold to companies that exploit nickel in the region. Denial of the claim is received much interest Togutil already declared it theirs with proven there are 3 pieces of the same ancestral graves sago hamlets which they belong, and they make the place where hunting and never be a place of settlement. Access to the rights they’ve lost to the region had converted to exploitation of mines in the region. Sago as their staple food is reduced because it has sold out to the company. They also had to open another room to be able to build hidunya through sources – other economic resources.

The issues of indigenous peoples in the protection suggests that the rights of indigenous peoples can not be implemented, ironically advocacy efforts

the interests of indigenous peoples are often accused of being against development activities, mbalelo, dissident, obstinate and also subversive. UN Declaration on the Rights of Indigenous Peoples, Article 10 states that indigenous peoples should not be forcibly removed from their lands or territories. There should be no relocation occurs without the consent freely and consciously, without coercion of the indigenous peoples concerned, and should only be after no agreement regarding compensation are fair and satisfactory, and if possible with the option to come back again. While the Law No. 39 Year 1999 on Human Rights under the provisions of Article 6, Paragraph 1 and 2 state that in order to uphold human rights, diversity and needs of indigenous peoples must be considered and protected by law, society, and government. The cultural identity of indigenous peoples, including customary land rights are protected, in line with the times.

Further provisions of Decree No.. XVII/MPR/1998 on Human Rights confirmed that the recognition and protection of indigenous people are part of the respect for human rights. It can be seen in Article 32 which states that: Every person shall have the right to private property and property rights should not be taken arbitrarily. Furthermore, Article 41 stated that the cultural identity of traditional communities, including customary land rights are protected, in tune with the times. Because the law concerning human rights, the promotion of the protection, promotion of human rights, especially the government’s responsibility.
Because the enforcement of human rights in the field of civil and political as well as economic, social and cultural rights is the responsibility of the government, then the omission or neglect, or deliberately negate the enforceability of rights in the field of civil, political, social, cultural and economic development is also referred to as violations of human rights by the government, although not included as human rights violations are severe.
Stakeholder obligations fully Human Rights is the state, in this case is the government. State should run the Human Rights obligations in the form of, among others respect (to respect), protect (to protect), and meets (to fullfil).

Cover

Required the principles of natural resource management conducted an open indigenous peoples in working with employers and the government, which was agreed between all parties. Some of the principles that should at least be visible in the management of natural resources such as: transparency, accountability, responsibility and principles; establish general guidelines drafting legal norms of natural resource management in an effort to build consensus on the overall consensus, clarity jurisdiction of each party (indigenous peoples, governments and the private sector); principle stakeholder involvement and decision-making processes and mechanisms, taking into account the principle of equality between all parties; establishment of conflict resolution processes; establishment of evaluation and monitoring systems.

The lack of real protection of the rights of indigenous peoples, including over their customary lands and all natural resources in the order of their customary illustrates that Indonesia has not fully succeeded in implementing human rights in Indonesia. Because indigenous peoples and their lands is a unity. The place where their ancestors originated that blends in their lives.

Efforts must be dilakukakan government is immediately gather all orders indigenous peoples in Indonesia for infentarisir and then from the variety of indigenous fabric stretcher government should be able to make a national rule governing indigenous khsusus individually as well as the rules of sectoral legislation other national. One thing that is hard and sounds may not make sense but this is one solution to keep the existence of indigenous Indonesian society that is not removed by existing kemodernisasian increasingly pervasive in all aspects of community life.

The government should provide effective mechanisms to prevent and compensate for any action aimed at or resulting in the loss of integrity of indigenous peoples, any action aimed at or resulting in deprived indigenous peoples of territories or resources of these communities.

The post INDIGENOUS PEOPLES AND HUMAN RIGHTS IN INDONESIA appeared first on Fakultas Hukum Universitas Pattimura.