Access to agrarian justice in Sumba, Eastern Indonesia.

• Author: Vel, Jacqueline A.C.
• Position: Access to Justice in Indonesia

Introduction

On 16 August 2007 a headline in the online-edition of the Indonesian journal Kompas asserted : 'Swedish grow Jatropha: Investment of 1 trillion Rupiah (1). Land will remain property of population'. The article continued by revealing that that 'Scan Oil Ltd, a company from Sweden, will invest 1 trillion in a jatropha plantation in Tanah Banas, Central Sumba, East Nusa Tenggara. Planting will start from December 2007 covering 10,000-20,000 ha'. (2) This is one example of many large commercial land acquisitions that have been planned in Indonesia since 2007. Although there is a long history of large scale commercial agriculture in Indonesia , especially concerning Sumatra and Java, (3) the expansion of agro-industrial exploitation to less fertile or even 'marginal' areas of the country has been largely a recent development. The area in Sumba mentioned in the newspaper quote above is such a 'marginal area'. It is sparsely populated, with large areas of land that are not cultivated but only used for herding livestock, and for hunting and gathering. In such a context, companies claim to convert 'marginal' or 'empty' land into land for cultivating crops for renewable energy production. To justify their land acquisitions, the companies underline that they do not claim property of the land. The usual practice is that they receive a permit from the government to use the land for their business for at least 30 years--a (productive) lifetime for a farmer.

The companies also claim that their plantations will create employment for the rural poor, thereby responding to the national government's aim to reduce poverty. Meanwhile in 2008, a report by the NGO GRAIN drew world-wide attention to the global trend in 'land grabbing', and warned against the adverse effects for local populations. (4) The international movement for poor peasants and small farmers Via Campesina even warned that "it is estimated that five millions farmers in Indonesia have been expelled from their land to create monocultures". (5) Our research intended to examine how the local population in Sumba uses legal means to protest against the adverse effects of opening up the 'unused lands' in Sumba for plantations. While customary practices and law governed land use and distribution on this island, the customary legal framework does not provide rules for dealing with the large scale commercial land transactions that have been occurring recently. Instead, the legal basis that allows agribusiness companies to enter the area and start operations is part of state law, consisting in practice of permits issued by the national and district governments. Meanwhile, local land owners base their land claims on customary law. What kind of conflicts does this situation of legal pluralism lead to? How can local people in Sumba access redress mechanisms that can solve disputes concerning land?

With the questions mentioned above in mind, we participated in the research programme 'access to justice for the poor' in Indonesia. (6) Our study was selected as a case-study for this programme because it focused on one of the poorest areas in Indonesia where customary law is still prevalent. Therefore, this study would provide insight into the process of seeking access to justice in situations of legal pluralism. By doing so it addresses an argument of the World Bank (2008) report Forging the Middle Ground: engaging non-state justice in Indonesia that invites discussion. The argument is that new redress mechanisms for solving disputes should be created that incorporate elements of customary institutions and rules so that these mechanisms would be more effective and accessible to the poor than the currently available state justice institutions. Studying disputes about access to land addresses the heart of that argument because customary rules and norms are usually particularly clear and socially accepted in the land law sector. (7) Additionally, access to justice in land disputes is very important for the poor in remote, rural areas of Indonesia because land is the main source of livelihood.

We conducted our field research in parts of Sumba where plantation companies had been exploring the area or had already begun operations. With our focus on an empirical study on how justice seekers try to obtain redress for their grievances, we asked local people about problems concerning land in general and more specifically in relation to the plantation companies' activities. We interviewed landowners, land less, women, men, relatively wealthy and the poor. Additionally, we conducted interviews with government officials, a judge, local leaders, NGO workers and company staff. Using the Rolax framework (Bedner and Vel, 2010) helped us to recognise our implicit assumptions and encouraged us to be open to a 'justice seeker's' point of view. Our field study focused particularly on four issues: the real life problems related to land that relatively poor and disadvantaged people experience, the characteristics of the' local legal repertoire', the choice of dispute regulation mechanism in land conflicts, and practical experiences with agri-business large scale land acquisitions.

This article is based on desk study and data we have gathered in Sumba during joint field work in February 2009 and is also informed by our previous research and working experience in Sumba. (8) Our expectation that the first cases of large scale land acquisitions would have already led to disputes between the local population and the plantation companies, did not correspond with our findings in the field. There were two main reasons. The first was that the 'local population' is very heterogeneous with respect to power over and access to land, which could explain why there was no protest by the local population in general. Social differentiation implies a variety of interests and reactions. Section II elaborates on poverty and inequality in Sumba. The second reason relates to the characteristics of the 'local legal repertoire,' a term referring to the form of legal pluralism that exists in practice in the area of our field study. Section III describes how people combine elements of customary law pertaining to land with instruments and opportunities state law provides. Since many state authorities regarding land management have been devolved from the national government to the districts, the district head figures prominently in land issues. If a district head is also a clan leader who can represent land owners, he is the most important negotiating party for agribusiness companies looking for land.

In section IV, we describe two cases in which agribusiness companies claimed large areas of land for commercial cultivation of Jatropha (in Central Sumba) and cotton and maize in East Sumba . These cases show a variety of stakeholder interests, and that for some of the 'poor and disadvantaged' involved, their main goal may not have been obtaining access to land but rather access to income-generating opportunities, and that the main barrier for obtaining access was their lack of decision making power within the process. Apart from addressing the issues in Central Sumba, our research results urged us to rethink 'access to justice' analytically.

1. Contextualising the Notion of Justice

   Analytically, this paper's subject is the interface between three disciplinary approaches in which 'justice' is a central concept. 'Access to justice' is a thematic field of socio-legal scholars, whereas 'agrarian justice' is an umbrella theme for social scientists studying politics of natural resource use. Apart from these two meanings, 'justice' can also be defined as the practical goal of the justice seeker. Anthropological research indicated that 'justice' as used in specific cultural settings is often described with a different word for the same aim, for example: harmony, peace and order (E.Moore 1993:524) or 'the situation of being secure, safe and without fear' (Safitri 2010:210). (9) The sense of 'harmony and peace' which might also include the basic needs of food and health as a prerequisite, was one of the findings of an extensive large UNDP survey conducted in five provinces of Indonesia in 2005. The report concluded that respondents classified in the study as 'disadvantaged' held an economically-oriented conception of justice, and that many of the key injustices they cited related to their social and economic welfare (UNDP 2007:42), including lack of access to land. The case of InaModi described below shows how peace, safety, food and health are combined within the type of 'justice' that poor and disadvantaged Sumbanese women are seeking.

   In this paper the three interpretations of 'justice' are interconnected: local rural population's perceptions of justice with regard to land issues, the processes that cause the injustice of losing access to land and the institutions that could provide redress for injustices. Taking the agrarian justice focus, the first issue for research concerns the ability of the poor and the disadvantaged in Sumba to use land for their livelihood. It is this that Ribot and Peluso (2003:153) have referred to as 'access', which they define as 'the ability to benefit from things-including material objects, persons, institutions and symbols'. Using access in this way rather than speaking of rights as in property theory brings the attention to a wider set of social relationships that can constrain or enable people to benefit from land. If farmers and their families do not have sufficient access to land to make a living, while they claim they should be able to use the land, they experience injustice. This form of injustice refers to the way access to land is distributed. 'Agrarian justice' is a term focusing on power and distribution issues. Activist scholars use the term as an umbrella concept that covers 'various pressing issues directly linked to the rural world, such as the impact of agro-fuels...