Indonesia introduces one map policy as a solution to overlapping land claims

Indonesia successfully held its third direct elections in 2014. Although there was only a slight difference in the number of votes and the presidency had to be decided by the Constitutional Court, this did not stop the country from seeking a change of course with its new leader, President Joko Widodo. The president has promised to boost the economy by targeting economic growth of more than 7% by 2019.

One of the solutions offered is the development of infrastructure, which has been touted as one of the main pillars supporting economic activity. The government is targeting spending of Rp6500trn ($537bn) over the next five years, or approximately Rp1300trn ($107bn) annually, to finance the construction of infrastructure, including airports, seaports, toll roads, railways and power plants.

Despite economists’ prediction that the new government will only be able to fund approximately 30% of the above budget for each year and that the government has since 2014 been making efforts to persuade new investors to enter the market in several international forums such as the Asia-Pacific Economic Cooperation Summit in China, the 25th ASEAN Summit Plenary session in Myanmar as well as the G20 Brisbane Summit, there is one factual issue that needs to be resolved by the government – and which investors have to deal with so far – when it comes to infrastructure development, i.e. the availability of land and space.

The space or land availability issue should not be read as mere physical availability. In general terms, this has to be interpreted in terms of land conflicts or agrarian conflicts, which unfortunately have been known to be perpetual conflicts in the country.

The report issued by the Consortium for Agrarian Reform demonstrates that in 2013 alone there were 369 agrarian conflicts involving lands with an area reaching around 1.28m ha. Divided into sectors these conflicts comprised:

• Plantation sector, 180 conflicts (48.78%);

• Infrastructure sector, 105 conflicts (28.46%);

• Mining sector, 38 conflicts (10.3%);

• Forestry sector, 31 conflicts (8.4%);

• Coastal sector/marine, nine conflicts (2.44%); and

• Other sectors, six conflicts (1.63%). On average, almost every day there is more than one agrarian conflict occurring in the country. And if we take a closer look at the data, most of the conflicts happened due to problems with land overlapping. The parties involved in the disputes vary and include those between corporations and the government, between corporations, between corporations and individuals, and those among individuals. It is rather unfortunate that this issue has been a problem for a long time, particularly for foreign investors.

According to the Geospatial Information Agency (BIG), the agency with the authority to design and regulate geospatial information policy, problems with overlapping land in Indonesia are mainly the result of a situation where there are many government agencies vested with the authority to design their own sectoral maps (peta sektoral/tematik), while there is no uniformity as to which base map (peta dasar) these agencies were using while producing their own sectoral maps.

This has further been exacerbated because even the sectoral maps overlap one another as they are not made pursuant to one uniform base map.

The following are the examples of the land overlapping problem in Indonesia.

(I) ANTAM VS DUTA INTI PERKASA MINERAL (DIPM) AND SRIWIJAYA IN NORTH KONAWE REGENCY: This problem began when North Konawe Regency in South-east Sulawesi decided to re-establish the mining concession (kuasa pertambangan) of DIPM through North Konawe Regent Decree No. 153 of 2011, which authorised a mining permit in the form of a mining concession that has expired and overlapped with ANTAM’s mining area, whereas such mining concession at the time had already expired. ANTAM – as state-owned enterprise – then filed a claim with the Kendari State Administrative Court. In the evidentiary proceedings, it was apparent that the mining areas designated on the map used as attachment for the mining business permit of ANTAM as well as for the mining concession of DIPM appeared as though they were not overlapping.

However, when the two maps were overlaid it became apparent that there were in fact places in the mining areas that were indeed overlapping.

This is very possible since the North Konawe Regent – as the official having the authority to issue mining business permits as well as mining concessions – used more than one sectoral map and/or base map as reference in the issuance of the mining permit/concession for ANTAM and DIPM. Due to the use of different sectoral and/or base maps, it is likely that there are areas in the ANTAM and DIPM mining areas that overlap with each other.

This overlapping of ANATM and DIPM mining areas is further exacerbated by the potential for financial losses for the state.

Approximately Rp42trn ($3.5bn) in state losses have been incurred as a result of this event, calculated from the amount of nickel reserves in four mining concession blocks in question.

(II) THE OVERLAPPING OF FORESTRY AREAS AND THE MINING AREA OF SORIKMAS MINING: One of the examples of the overlapping of mining areas and forestry areas is the case of Sorikmas Mining in Mandailing Natal, North Sumatra. Sorikmas Mining has been conducting exploration since 2008. However, the company’s activities were disrupted due to the overlapping of the mining area of Sorikmas Mining and the protected forest area of the Batang Gadis National Park.

Although the matter of the overlapping of Sorikmas Mining’s mining area remains unresolved, mining activities still continue to date. This matter has further triggered demonstrations by residents of Huta Godang Muda village in Mandailing Natal, North Sumatra, in their effort to stop the gold mining activities of Sorikmas Mining.

The overlapping of Sorikmas Mining’s area with the protected forest area of the Batang Gadis National Park was most likely due to the difference in the thematic maps used by the local government as the institution vested with the authority to issue mining permits for Sorikmas Mining and those of the Ministry of Forestry as the institution having the authority to determine forestry areas. Such overlapping may also have occurred because the thematic maps used by the local government and the Ministry of Forestry used different base maps as reference.

(III) THE OVERLAPPING MINING AREA OF NEWMONT HALMAHERA MINERALS WITH CUSTOMARY TRIBAL LANDS: An example of agrarian conflicts between local communities and companies is the conflict between Nusa Halmahera Minerals (NHM) and the local Kao-Malifut community in North Halmahera district. The root of the conflict is related to the customary rights of the Pagu Kao tribe in the contract of work area of NHM.

In the early stages of operations, the pattern of conflict was related to community lands that were inside the NHM mining areas.

NHM refused to give compensation to the community in its entirety, and the compensation that was given to the community related only to the crops inside the exploration areas of the company but did not include land rights compensation. The Pagu Kao tribal community regarded such land as being the legacy of their ancestors that they have lived on for hundreds of years.

This matter had arisen because the thematic maps (in this matter maps of mining areas) have not yet been integrated with those of customary/tribal areas. The overlapping of mining areas and those of tribal lands are often the primary cause of conflicts between mining companies and local communities.

Upon the integration of the thematic maps and those of customary or tribal lands in one geoportal, we should be able to resolve these matters.

(IV) THE OVERLAPPING OF CUSTOMARY/TRIBAL LANDS WITH LAND ACQUISITION PLANS FOR THE PUBLIC INTEREST OF SOUTH TAPANULI DISTRICT: One example of disputes between the community and the government is the dispute between the community and government of South Tapanuli District, Sipirok village in North Sumatra in 2013.

In this dispute, the district government damaged cropland and local community homes by taking cropland and housing areas belonging to the residents of Janji Mauli village, Sipirok, South Tapanuli in North Sumatra. The local community regarded the location of the cropland and residential land to be taken by the South Tapanuli District Administration to be the legacy of their ancestors, who have physically controlled the land since the Dutch colonial times. The South Tapanuli District Administration damaged the cropland and crops of the community without prior notification on grounds that they would build regency offices for the Kilang Papan village, Dano Situmba, Sipirok sub-district, under South Tapanuli District Grant No. 99-B/KPTS 2012, dated March 1, 2012.

According to expert analysis, this matter occurred due to the absence of any integration of maps containing information regarding customary/tribal lands into the spatial layout planning map.

Problems such as this could have been avoided by integrating the regional spatial layout planning map with those containing information on the dispersal of customary and tribal land in the area.

If this situation remains unchanged, it seems the economic growth target of more than 7% will be difficult, if not impossible, to achieve. New investors will face the same land issues while investing in Indonesia and there is an obvious risk that their investment will not be sustained.

Therefore, the new government has opted to implement a policy related to the re-arrangement of lands and maps, namely the one map policy (OMP).

The Beginnings of the OMP

The OMP is nothing new in Indonesia. Historically, the concept began when the Presidential Working Unit for Supervision and Management of Development showed former President Susilo Bambang Yudhoyono a set of forestry maps containing one that was issued by the Ministry of Forestry and the other by the Ministry of Environmental Affairs. These maps were indeed different, even though they covered the same subject matter, i.e. forestry.

The issue was discussed in a Cabinet meeting on December 23, 2010, and later on it was determined by President Yudhoyono that it was imperative for Indonesia to have one base map used as reference. Subsequent to that, the OMP was then introduced under Law No. 4 of 2011 regarding Geospatial Information (Law No. 4/2011).

The law does not provide any definition of the OMP. However, under its provisions the OMP can be interpreted as a concept where Indonesia shall only have one base map (peta dasar) to be used as reference by other government agencies in designing their own sectoral maps (Article 19 of Law No 4/2011).

The Implementation of the OMP

Law No. 4/2011 states that the Indonesian government shall be the only party that has the authority to design and create a national base map, the implementation of which will be managed by BIG.

The (national) base map here shall mean a map containing general information on the surface of Indonesian territory as opposed to sectoral maps which describe a particular object such as forestry area, mining area, conservation area, etc.

In addition, BIG is also given the mandate to integrate sectoral maps issued by a government agency, including local government agencies, to one unified and integrated sectoral map.

The Purpose of the OMP

There are four reasons for implementing the OMP, namely:

• To have one base map as reference, which means that all sectoral maps will be designed in reference to one unified base map. What seems to be the problem in Indonesia these days is that each government agency has been producing its own sectoral map by using its own base map, while there is no uniformity on the base maps that they have used. As an example, we may see two sectoral areas that do not overlap one another when the two maps are superimposed. However, that might not be the case. It is always possible that the two areas are indeed overlapping since the base maps that were used to produce both sectoral maps are different.

• To have one standard to be used by government agencies to design sectoral maps. Once there has been a unified base map, the next task is to design and produce sectoral maps using the same methods or standards established by BIG.

• To have one map database, means the information to be included in the sectoral maps should originate from the same source of data so there will be no duplication of data which may affect the map’s accuracy.

• To have one map geoportal. BIG defines one map geoportal as being a source of integrated information of sectoral maps by all government agencies which can be accessed through one internet portal, With regard to the practical needs of investors, this last purpose of having the OMP is probably the most pivotal one since it can give fast and accurate information on the specific land area to be used for a certain investment purpose. That being said, investors will be able to obtain information quickly – and also for free – on the availability of land area they intended to utilise.

The OMP as the Solution for Issues with Overlapping Land

As mentioned above, the main cause of land overlapping lies in the fact that there is no uniformity of (national) base map among government agencies that have the authority to make sectoral maps. The following are some of the government agencies granted with such authority:

• The Land Office (BPN): Pursuant to Article 15 of Government Regulation No. 24 of 1997 regarding land registration, BPN has the authority to produce a sectoral map for the purpose of land registration.

• The Ministry of Energy and Natural Resources (ESDM): According to Government Regulation No. 22 of 2010 regarding mining area (GR No. 22/2010), ESDM is given the mandate to design and produce a sectoral map related to planning and arrangement of mining areas (Article 14 Gr No. 22/2010). The mining map will be further used as the basis to issue mining permits for both mining companies and community mining.

• The Ministry of Forestry (which now has been merged with the Ministry of Environment). As for the forestry sector, Government Regulation No. 44 of 2004 regarding Forestry Planning gives the Ministry of Forestry the authority to design and produce forestry maps for the purpose of determining forestry areas.

• The Ministry of Environmental Affairs: The authority of the Ministry of Environmental affairs to issue environmental maps is given under Law No. 32 of 2009 regarding Environmental Protection and Management (Law No. 32/2009). Article 62 of Law No. 32/2009 specifies that the Ministry of Environmental Affairs is authorised to issue an environmental vulnerability map, which is a sectoral map containing information on the stages of environmental damage classification.

• The Ministry of Public Works: Under Article 3 of Ministry of Public Works Regulation No. 25 of 2014 regarding Arrangement of Data and Information of Geospatial Infrastructures, the Ministry of Public Works is authorised to create a sectoral map which has information on the position of infrastructure projects across the country.

• The Ministry of Agriculture: Ministry of Agriculture Regulation No. 69 of 2014 regarding Map of Standard Competence of Agriculture Human Resources provides the Ministry of Agriculture with the authority to design its own sectoral map which will be used as its reference in deciding where to allocate human resources in certain agriculture areas.

• The Ministry of Marine and Fisheries: Pursuant to Ministry of Marine and Fisheries No. 18 of 2014 regarding Fisheries Areas, the ministry is authorised to design and produce maps on fisheries areas. This map basically provides information on coordinates as well as description of each fisheries area.

• The Ministry of Transportation: Ministry of Transportation Regulation No. 60 of 2010 regarding Organisation and Working Structure of Transportation Ministry, in Article 172 sets forth that the min istry is authorised to formulate maps of shipping lanes in rivers and lakes. Further, under Article 476, it is specified that the ministry is also authorised to design and produce maps of aviation corridors. Even though the regulation does not explicitly state the ministry’s authority in preparing other maps, in practice it also has its own maps on various types of transportation infrastructure. In addition, there are some government agencies that already have their own sectoral maps – and some of them have been widely published, such as the map issued by the Indonesian police – even though the authority to do so cannot be found in the regulations. Hence, this adds even more complications to the problem.

Therefore, considering all of these circumstances and in light of the government’s recent efforts to promote large-scale investment, it will be imperative for Indonesia to fully implement the OMP. Once it has been implemented, there should be no confusion among investors regarding land utilisation in Indonesia.

The OMP will be able to serve as an ultimate solution, be it for the government or private businesses, to overcome the disarray and complexity of land overlapping problems in the country.

The Development of the OMP to date

To date, BIG has finished preparing the base map in a large scale (1:250,000,000), and in the near future the organisation will be issuing a base map with a smaller scale to enable the dissemination of information in a more detailed manner.

In line with that, now there are some government agencies such as (i) the Ministry of Forestry, (ii) the Ministry of Public Works, (iii) the Ministry of Agriculture, (iv) the Ministry of Defence, (v) the Land Office (BPN), (vi) the Ministry of Transportation, (vii) the Ministry of Marine and Fisheries, (viii) the Ministry of Energy and Natural Resources, the Ministry of Health, (ix) the Ministry of Communications and IT, (x) the Indonesian Police Force, (xi) the National Narcotics Agency, (xii) the Central Statistics Agency, (xiii) the National Election Commission and (xiv) 14 out of the 34 provinces that have been revising their sectoral maps by using the BIG base map. These revised maps have also been uploaded to the geoportal website managed by BIG,

Reportedly, additional revised maps will be uploaded to the website as it has been anticipated that the OMP will be fully implemented over the next two years.

The Challenge

Regardless of the positive progress that has been made in the development of the OMP, there are some points that the government should take into account so that this policy can be harnessed by stakeholders, namely:

• In terms of its implementation, it is important for the government to issue an implementing regulation of Law No. 4/2011, which imposes obligations on relevant government agencies and local governments to coordinate with BIG in their efforts to revise or update sectoral maps. It is noteworthy that the implementation of the OMP to date still depends on the willingness of each government agency or local government office, so it is not clear when the government will be able to say that the OMP is fully ready.

• With the absence of any implementing regulations for Law No. 40/2011, there has yet to be any clear reference to the procedures for revising and/or updating the sectoral maps before they can be published and made available to the public as part of the geoportal website managed by BIG.

• The government should add some additional funds to the state budget to make sure all costs needed to implement the OMP can be covered to minimise delays on revising and/or updating sectoral maps from any of the relevant government agencies.

• By looking into the task that is now being assigned to BIG, the government obviously should add more manpower to BIG, especially those who are dealing with the process of making the base map in various scales. It is worth noting that the OMP policy is only one of the solutions to the perpetual agrarian problems existing in Indonesia. In addition to the issues caused by the non-unified base map as a reference to create and produce sectoral maps, which will be overcome by the introduction of the OMP, agrarian conflicts in the country are also caused by the following reasons: 1. Absence of ownership rights to the land that caused other parties to enter the land illegally. 2. Society’s legal awareness regarding possession and ownership of land is still lacking due to the absence of information from the relevant Land Office regarding the procedures for land registration that will not harm others’ rights. 3. Ignorance of the applicant of land ownership rights that the land has already been issued with a certificate of ownership by the Land Office. 4. Errors caused by negligence or inaccuracies of land registration officers in examining and researching the physical data and juridical data of land, in terms of history of the land and the assessment of the ownership evidence or possession of land. Due to the many problems in agrarian matters, the implementation of the OMP by the Indonesian government should be appreciated. The government has made concrete efforts to solve the issue of overlapping lands in Indonesia, which constitutes one of the biggest problems in and causes of agrarian conflicts.

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The Report: Indonesia 2015

Legal Framework chapter from The Report: Indonesia 2015

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