President Joko Widodo shows a tendency to pursue economic growth in his development policies. This political phenomenon places Jokowi on a new development orientation called by Australian political scientist, Eve Warbutron (2016), the new developmentalism, with three main mantras of development: deregulation, infrastructure and debureaucratization. The relevance for the recognition of MHA in Indonesia and Papua is quite important because in Jokowi’s Nawacita there are TORA and Social Forestry programs (with five schemes), in which customary forests and development programs are included.

The recognition of MHA as a neglected policy departs from the analysis of critical legal studies that have been put forward by many scholars (Balakrishnan Rajagopal, 2004; Brabazon, 2017; Helena Alviar Garcia, 2021) that the law was actually created deliberately to provide an arrangement that accommodates various interest groups through laws, government regulations, and ministerial regulations. Law here has the function of distributing and redistributing interests, but at the same time it is also a contested battleground.¹ But such a face of law is often overshadowed by the dominance of doctrinal approaches that claim that law must be neutral from social, political and economic interests, as well as that it must be universally applicable.²

As a result, this condition is able to create an unequal arena of contestation, because the regime’s policy choices will follow its development character. In other words, the rational choice for the regime is to prioritize development policies that are technocratically listed in the RPJMN. In this situation, the law often becomes an instrument of denial of human rights because the policies available to the community are easy to ignore. The reason for this neglect is also influenced by the tendency of policies that adopt market rationality such as e_siensi, very economical profit and loss (cost and benefit analysis) from the government in the formation and implementation of policies, including the recognition of MHA.³

The assumption is that some development projects will be prioritized based on considerations of being more effective in pursuing economic growth. For example, at the banquet table, there are many choices of snacks; corn cakes (PSN Food & Energy Estate, PBPH Forestry, Oil Palm Plantations, etc.) are preferred over Sago cakes (recognition of Customary Forests). Data on the area of Indonesia’s forest cover until 2023 states that the largest is in Papua at around 34.13 million ha (databooks, 30/12/2024). In 34 million ha, the forest cover is home to indigenous peoples and biodiversity in Papua. Now and in the future, its security is threatened because the recognition of customary territories and customary forests in Papua has been “running in place” in the ten (10) years of President Jokowi’s regime.

Why can the disregard of MHA’s recognition occur?

MHA Recognition Regime and Its Problems

This situation also contributes to the deposit of many problems, one of which is the Constitutional Court Decision No.35/PUU-IX/2012 (MK 35). Signi_kasi MK 35 actually only corrects the error of Law No. 41 of 1999 concerning Forestry which nationalizes customary forests since the New Order into an area called ‘state forest’ (Eko Cahyono, Tempo, 08/2022).⁴ Another expression that customary forests are not part of state forests that were previously regulated by Article 1 number 6 of the Forestry Law.

Another affirmation is that all legal products of conditional recognition that interpret Article 18B paragraph (2) of the 1945 Constitution are still justified as long as they guarantee legal certainty and justice, as long as there is no special law on Indigenous Peoples (MK 35, pp.183-184). In other words, the Constitutional Court’s argument strengthens that conditional recognition is the main mechanism for the recognition and protection of indigenous peoples and becomes a general reference for the national indigenous peoples’ recognition policy. This has consequences for the formation of the MHA Recognition Regulation at the Regional Government (Pemda) level. The problem is that not all local governments understand constitutional obligations and understand their crucial role in fulfilling human rights, even though there has been Permendagri No.52/2014. In addition, the budget burden for the formation of regional regulations is not cheap. In this problem, many indigenous peoples are forced to fight endlessly to encourage the local government to carry out its obligations.

In addition to normative problems and their implications, the state of government institutions also experiences institutional constraints. One example of a government institution that has a big task in managing customary forests is the Ministry of Environment and Forestry (MoEF). In several media reports, MoEF officials said that their duties were hampered by the lack of an annual budget for the technical veri_kasi of customary forests, while there were far more proposals for customary forests (Mongabay, 27/03/2022 and Mongabay, 21/03/2024). The Ministry of Environment and Forestry has an important task in administering an area into the state forest area, including removing customary forests that are included in state forests as a consequence of PMK 35. The high cost of customary forest technical veri_kasi has never been ter_kirkan in PMK 35 and has become an obstacle in the long process of recognition after the MHA Regional Regulation. As a result, the role of this financing is often charged to outsiders. Especially in social forestry policy, especially customary forests, it is not a priority for President Jokowi’s development.

In such conditions, it is actually impossible to call the absence of a legal norm (vacuum of norm) for recognition of MHA provided by state law, because after PMK No. 35 the government also issued ministerial-level regulations that were very sectoral and sometimes contradictory.

For example, the rules of the Ministry of Environment and Forestry, the Ministry of Home Affairs, the Ministry of KKP, and the Ministry of ATR/BPN. It must be admitted that the spark of the above problem is one of the fundamental impacts of the weakness of the Constitutional Court 35. Arizona in Rethinking Adat Strategies; the Politics of State Recognition of Customary Land Rights in Indonesia, 2022, said that the negative effects of conditional recognition strengthened by the Constitutional Court also impede the fulfillment of the rights of indigenous peoples. In his ruling, the Constitutional Court judge did not consider the conditional recognition clause as a fundamental issue that impedes the fulfillment of human rights.

Papuan MHA recognition ignored

Data from the Ministry of Environment and Forestry in October 2024 shows that the achievement of social forestry is only 8 million ha. This figure has accumulated nationally since social forestry was included in the 2015-2019 and 2020-2024 RPJMN priority programs, which totaled 12.7 million ha (Antara, 20/11/2024). But in Papua, social forestry, especially customary forest schemes, can be called “neglected.” For example, in West Papua Province, data from the Ministry of Environment and Forestry states that there is only one determination of MHA Marga Ogoney customary forest, Bintuni Bay in 2022 (https://gokups.menlhk.go.id/). Meanwhile, the approval of village forest schemes is very high reaching 99 decrees

Village/Village Forest Approval and 8 Community Forest Approval Decrees. BRWA data until August 2024, the total determination of customary forests on the island of Papua is only 39,912 ha out of a potential area of 12,480,870 ha.⁵

Province	Customary Forests	Rural Forest	HKm	Forestry Partnership	HTR
Papua	1 SK	63 SK	2 SK	7 SK	4 SK
West Papua	1 SK	99 SK	8 SK
Southwest Papua	0	70 SK	5 SK
South Papua	0	76 SK	2 SK

Table 1: Social forestry achievement data for 2011-24

Institutionally, this situation can be read because there is no innovation or renewal of national legal policies that are tasked with changing this freezing condition. First, the available legal policies, Government Regulation No. 23/2021 on the Implementation of Forestry, Permendagri No.52/2014 on Guidelines for the Recognition and Protection of MHA and Minister of Environment and Forestry Regulation No.9/2021 on Social Forestry, are minimum government actions that have not led to the progressive realization of respect, protection and fulfillment of human rights. This is because the practice of conditional recognition is still more important than the goal of substantial justice. Second, the consequences of this practice require large budget support, which in fact cannot be fulfilled by the Ministry of Environment and Forestry, local governments and the community, even the accompanying institutions.

This case actually exceeds institutional constraints. Policymakers seem to have not provided any changes to the complexity of MHA recognition. Instead of striving for that, the Jokowi Government has actually established the Job Creation Law which acts as a regulation to attract investment in the natural resources dredging business sector. In Papua, customary territories are regulated using the customary laws of each tribe, clan/rubber area. But at the same time, customary territories are also included in forest areas – the Papua Special Autonomy Law is in a weak position. So that the ease of regulation automatically encourages the natural resource dredging business to enter customary territories for plantation, forestry, food-energy and mining purposes. The reason is inseparable from the amendment of the Forestry Law by the CK Law which opens up new komodi_kasi space in forest areas through many changes, one of which is Article 19 of the Forestry Law which makes it easier to change the designation and function of forest areas no longer requires approval from the House of Representatives. These changes have consequences for the politics of forestry law under laws such as the Government Regulation and the Ministerial Regulation which are technically tasked with providing the need to accelerate the acquisition of land in forest areas for the natural resource dredging industry. An example of a logical consequence of this is agricultural corporations through food estates that are given operating space in the Forest Area for Food Security (KHKP).

That’s why, the Job Creation Law and the Forestry Law to facilitate forestry investment add to the complexity of the problem and potentially hinder the recognition of MHA in Papua. The regulation on the development of the Job Creation Law will form a climate for MHA recognition which is contested with the interests of the natural resource dredging business. Although it is undeniable that the CK Law also provides policy opportunities that can be used for recognition.

The fact of the contestation occurs. The use of PSN legal instruments in the Job Creation Law for Food Estate Food and Energy projects takes precedence over its use to accelerate social forestry, even though normatively the regulatory design allows it to be used to accelerate social forestry (MHA recognition). For example, Presidential Decree No.56/2018 concerning the PSN list once contained social forestry, but after that it no longer existed. Another example is Article 16 (4) of Government Regulation No. 23 of 2021 concerning the Implementation of Forestry related to the acceleration of the inauguration of forest areas that can be carried out by ministers for the purposes of customary forests and Agrarian Reform.

By reading the legal policy that distributes interests and dominates the legal approach that adopts market rationality, the regime’s policy choice that leads to the natural resources dredge business is justified. In Papua, the granting of natural resources dredging permits such as oil palm plantations, forestry industries and food estates in the past 10 years is much easier than taking care of MHA recognition. The number of customary forest determinations is 39,912 ha, even less than one HGU of oil palm plantations in Sorong Regency. In Merauke, more tragically, 4 million ha of land, 2 million for food and energy PSN, while there is no recognition of Malind customary forests.⁶ In fact, normatively the government can use legal instruments

PSN to accelerate the recognition of MHA and the determination of customary forests by including them in the list of national strategic programs. But with the pattern of development and the law that supports it, it is impossible to do so, because it is not profitable for the economic growth mission supported by the natural resources dredging business.

The fact that the Job Creation Law does not revise Article 67 paragraph (2) of the Forestry Law and is strengthened by Government Regulation No.23/2021, further strengthens this neglected recognition practice. The existence of Article 67 of the Forestry Law is a ‘legal shield’ for sectoral institutions to take refuge behind formal law, namely maintaining state forest areas, even though the inauguration of forest areas is still problematic. Meanwhile, for the community, it is like a wall that hinders their rights. The survival of the MHA recognition model can be interpreted as a victory for the state to maintain control over Papua’s natural resources. However, it is a defeat for the indigenous people of Papua in the 10 years of the “good people” regime.

References

• Arizona Yance, Rethinking Adat Strategies; The Politics of State Recognition of Customary Land Rights in Indonesia, 2022.
• Agung Wardana, Development as a Process of Exclusion: A Legal and Economic-Political Study of National Strategic Projects, Journal of Law and Development, Vol.54, 2024.
• Balakrishnan Rajagopal, Limits of law in counter-hegemonic globalization: the Indian Supreme Court and the Narmada Valley struggle; in Boaventura de
• Sousa Santos (ed.), Law and Globalization from Below; Towards a Cosmopolitan Legality, Cambridge University Press, 2005.
• Eve Warburton, Jokowi and the New Developmentalism, (2016) Bulletin of Indonesian Economic Studies, 52(3), 297–320, https://doi.org/10.1080/00074918.2016.1249262.
• Honor Brabazon, Neoliberal Legality: Understanding The Rule of Law In Neoliberal Project, Routledge, 2017.
• Helena Alviar Garcia, Legal Experiments for Development In Latin America; Modernization, Revolution and Social Justice, Routledge, 2021.
• Soetandyo Wignjosoebroto, Paradigm Shift in Social and Legal Studies, Malang, Setara Press, 2013. Customary Territories Registration Agency (BRWA), 2025.
• Constitutional Court Decision No.35/PUU-X/2012 Judicial Review of Law 41/1999 on Forestry.
• Law No.41 of 1999 concerning Forestry
• Job Creation Law
• Government Regulation No.23 of 2021 concerning Forestry Implementation
• https://www.mongabay.co.id/2024/03/21/masyarakat-adat-minim-perlindungan-penetapan-hutan-adat-pun-lamban/
• https://databoks.katadata.co.id/tags/tutupan-hutan
• https://www.antaranews.com/berita/4479849/kemenhut-perhutanan-sosial-capai-lebih-dari-8-juta-ha-hingga-oktober
• https://www.tempo.co/kolom/kedaulatan-masyarakat-adat-atas-tanah-air-dan-ruang-hidupnya-di-hutan-adat-834482
• https://www.bbc.com/indonesia/articles/cx2ymye345do

Footnote

1. Dikontestasikan bermakna hukum dalam bentuk peraturan perundang-undangan dalam norma-normanya menyajikan pilihan-pilihan berbeda yang dapat diakses oleh banyak kalangan. Ini juga terhubung dengan banyak kebijakan hukum yang saling mempengaruhi, seperti aturan kehutanan terhubung dengan Perkebunan, agraria dan tata ruang. Untuk mengaksesnya tidak mudah karena seolah-olah harus berkompetisi dengan pihak lain melalui sebuah perlombaan atau pertandingan. Faktor utama untuk memenangkan kompetisi ini adalah power, knowledge dan ekonomi. ↩︎
2. Mengenai ini lihat misalnya analisis dalam Critical Legal Studies. Lihat juga dalam uraian Soetandyo Wignjosoebroto, Pergeseran Paradigma dalam Kajian-kajian Sosial dan Hukum, Malang, Setara Press, 2013. ↩︎
3. Mengenai pengaruh cost and bene_t analysis dalam pembentukan hukum dapat dibaca dalam artikel jurnal Agung Wardana, Pembangunan sebagai Proses Ekslusi: Kajian Hukum dan Ekonomi-Politik atas Proyek Strategis Nasional, Jurnal Hukum dan Pembangunan, Vol.54, 2024. https://scholarhub.ui.ac.id/cgi/viewcontent.cgi?article=1580&context=jhp ↩︎
4. Hutan negara dalam terminolog Hukum kehutanan atau sebutan lain sebagai Hutan Politik merupakan praktik dari teritorialisasi yang berujuan untuk mempengaruhi atau mengontrol relasi social melalui pembatasan atas suatu wilayah geogra_s (umumnya tanah dan atau hutan). Kontrol atas wilayah hutan ini diatur melalui rezim hukum kehutanan dan kelembagaan hukum yang bertugas menegakkan pembagian kawasan hutan dengan fungsi-fungsinya yang telah dibagi-bagi. Kerap kali pengaturan ini pula mengontrol boleh tidaknya mengusir, melarang atau menghukum manusia yang melanggar teritorialisasi Kawasan hutan tersebut dan membuatnya semakin dehumanisasi. Sarjana-sarjana pengakaji fenomena ini misalnya Nancy Le Peluci, dan Vandegeest.  ↩︎
5. Laporan BRWA, Status Pengakuan Wilayah Adat di Indonesia, Edisi Maret 2025.  ↩︎
6. https://www.bbc.com/indonesia/articles/cpde5l58p16o ↩︎

Disclaimer: This article was written in Indonesia and has been translated by Google Translate. In case of dispute or discrepancy, the original language of the article should prevail.