Hans Nicholas Jong, Jakarta – An Indonesian court has upheld a landmark 2017 ruling that all plantation data and maps in the country must be made publicly available – a ruling that the government continues to defy.
The decision, which rejects the government's appeal against the earlier verdict, marks the latest development in a long-running fight by civil society groups trying to bring greater transparency to the country's palm oil industry, which has been plagued with irregularities and land conflicts due to lack of transparency.
Indonesia is the world's biggest producer of palm oil, but the industry has long been plagued by environmental violations and land conflicts, in part due to the opacity under which it operates. The government has repeatedly refused to make public plantation data and maps, known as HGUs, citing various reasons, from intellectual property rights to national security. This has cast doubt on its commitment to improving the sustainability and transparency of the palm oil industry.
The latest verdict, from the State Administrative Court, means the government has exhausted all its avenues of appeal in this legal saga that began in 2015. Essentially, there's no more reason for the government, in this case the land ministry, to continue withholding the HGU documents, says Agung Ady Setyawan, a campaigner with Forest Watch Indonesia (FWI), the NGO that first took the case to court six years ago.
"The HGU documents should have been made publicly available by now because from the early legal process, all the way to the final appeal, multiple courts have ruled on the matter with many considerations taken into account," Agung said.
Yet the land ministry is still holding out on sharing the HGU documents with FWI, Agung said. The State Administrative Court ruling was technically handed down in March 2020, but FWI was only formally notified a year later. Agung said FWI had sent a letter to the ministry asking for clarity on the matter and what the NGO needed to do to get access to the HGU documents following the ruling.
But the ministry hasn't responded to FWI's letter, he added.
Besides FWI, Greenpeace has also been trying to get HGU data from the ministry, specifically for the provinces of West Papua and Papua (known collectively as the Papua region), but to no avail. Like in FWI's case, the State Administrative Court also ruled in 2020 that the ministry should publish the HGU data for the Papua region.
Greenpeace Indonesia forest campaigner Asep Komarudin said that in the more than one year since the ruling, the ministry still hadn't handed over the HGU information. The ministry didn't give a reason for refusing to comply with the binding court order, he added.
"We have just sent a warning letter through the State Administrative Court [to force the ministry to share the data] because we see there's no good will from the ministry to obey the ruling," Asep told Mongabay.
The land ministry did not respond to Mongabay's inquiry on the matter.
Disobeying the Supreme Court
For FWI, the legal battle began in 2015, when the NGO reported the land ministry to the Central Information Commission (KIP), the government clearinghouse for freedom-of-information requests, for refusing to share the HGU documents. In 2016, the KIP ruled in favor of FWI.
The ministry then appealed that decision to the Supreme Court, only for the court to uphold the ruling in 2017 by declaring the HGU documents public information and ordering the ministry to share the data with FWI.
The ministry then filed an appeal to the State Administrative Court to review the case on technical grounds, known as a case review. The court rejected the case review in March last year. But while that hearing was pending, the land ministry used it as justification for refusing to share the HGU documents with FWI.
In addition to its court battle, FWI also appealed to the Office of the National Ombudsman in 2017.
In 2019, the ombudsman asked the land ministry to make the HGU data publicly available, pointing out that the Supreme Court ruling is legally binding and must be obeyed.
The ministry didn't obey it, and still hasn't.
Instead, it said in a letter to the ombudsman last year that it had discussed the matter with the office of the chief economics minister (who holds zero sway on judicial matters) and come to the conclusion that HGU data couldn't be shared with FWI, to protect national interests.
On May 6 this year, the ombudsman again called on the ministry to take the necessary steps to comply with the series of court rulings against it.
The cases of FWI and Greenpeace are examples of how notoriously elusive it can be to obtain HGU data, with civil society groups and even other government agencies finding it hard, if not impossible, to get the information from the land ministry and its various regional offices that issue plantation licenses.
Even the Ministry of Environment and Forestry has been stonewalled. Ruandha Agung Suhardiman, the ministry's head of planning, said his office had been trying to obtain HGU data from the land ministry through various channels, but to no avail.
"So we've sent letters [of request] repeatedly, both officially and through our technical team, but [we've] never been given the HGU documents," he said at a parliamentary hearing in March this year. "Actually, if we have the HGU data, it's going to be very easy for us to check the location of companies. But because we don't receive the official HGU maps from the land ministry, it's difficult for us to do so."
As a result, the environment ministry has to rely on satellite imagery to monitor any irregularities in plantation activity, Ruandha added.
"We don't have the HGU data. If we have it, we can trace [illegal activities]," he said.
The Geospatial Information Agency (BIG), the Indonesian government's mapping authority, has also had its requests for HGU data denied by the land ministry. The BIG, which is ostensibly the central repository for all mapping data generated by the government, had sought the HGU information as part of efforts to populate its "one-map" database of all land-use data nationwide.
When the BIG finally obtained the data it needed from the land ministry, it was through the intervention of the country's anti-corruption agency, the KPK. The KPK also helped the provincial agriculture department in West Papua to obtain HGU data needed to carry out an audit of the plantation industry there.
The department, unsurprisingly, had been rejected in its previous efforts to access the data.
"In the beginning, it's not easy to obtain the HGU data from the land agency," Benidiktus Hery Wijayanto, the agriculture department's plantations head, told Mongabay. "When we asked, we didn't get it."
Business interests over public interests
Yet even when local government departments are able to get the HGU data for their specific region, it can still be difficult for civil society groups and other nongovernmental parties to gain access to it.
In 2019, the Indonesian Forum for the Environment (Walhi), Indonesia's biggest green NGO, sought HGU data from the provincial government and agriculture department of Aceh province in Sumatra. It was denied by both offices, on the grounds that HGU data is not public information.
Walhi's Aceh chapter filed a complaint with the KIP, which ruled in March 2021 that the provincial agriculture department must share the data on plantations, consisting of maps in JPEG and shapefile formats, as well as other documents.
To date, however, the department still hasn't done so as it has appealed the ruling to the Aceh State Administrative Court.
"We lament the Aceh government's stance," Muhammad Nur, head of Walhi's Aceh office, told Mongabay. "The local government should have respected the Supreme Court ruling [of 2017] as a precedent. We regret the fact that the public isn't allowed to know about the HGU data."
Nur refuted the government's excuse that it was protecting national security, saying the only thing it's protecting is corporate interests.
"This is because the state needs companies [to grow the economy]," he said. "But the government should be autonomous because the government is accountable to the public, not to businesses. Even if the state needs businesses, the priority should still be the people's needs. But as time goes by, the government has treated businesspeople as gods."
He said the data secrecy is effectively hurting the people by continuing to facilitate land conflicts between companies and communities. Nearly every district in Aceh has conflicts that involve large-scale plantations, Nur said. In many cases, the companies stand accused of land grabbing – laying claim to community lands and clearing areas outside their licensed concessions without showing their concession maps to the communities.
The series of rulings in favor of greater transparency should therefore be welcomed as a step toward finally resolving land conflicts in the region and ensuring greater land access for communities.
Land Minister Sofyan Djalil, who has been dogged in his fight against efforts to bring transparency to the plantation industry, continues to insist that the HGU documents are the private property of the respective plantation companies, and that sometimes it's better for companies rather than communities to manage the land because of their higher productivity.
"Don't think distributing land to the people is always a good thing. That's not necessarily true. If [the lands] aren't productive in the hands of the people, then we will take away the lands," he said in 2019. "The fact is that the fastest machine to generate wealth is corporate."
Nur said this argument is flawed, at least in the case of Aceh.
"According to data from the central statistics agency, Aceh is a poor region even though it is home to many plantations and mines," he said. "If the claim is that companies create lots of job opportunities, then there shouldn't be joblessness in Aceh. But there are many people who can't find jobs after graduating, and somehow Aceh has become the poorest province in the island of Sumatra [since 2002]."
Afraid of criticism
Lawmakers have joined civil society groups and the ombudsman in calling on the land ministry to release the HGU documents. During a parliamentary hearing in March 2021 with Sofyan, lawmaker Muhammad Nasir Djamil said the data must be published to prevent abuses of land rights.
"There seems to be a reluctance in sharing the data, and [ignoring] the Supreme Court's ruling that says that HGUs are something that are mandatory to be shared [with the public]," Djamil said.
Fellow lawmaker Endro Yahman said it's important to know when plantation companies are operating outside their concessions – an illegal practice that he said was nevertheless widespread.
"We already know that there are many [companies] that are indicated to go beyond what's permitted," Endro said, adding that annual losses to the state from this illegal activity could amount to 380 trillion rupiah ($26.6 billion).
"The problems occur when [companies] cultivate outside their boundaries, or when there are abandoned concessions or expired plantation permits," FWI's Agung said. "We can't [properly] monitor things like that because we only receive tabulated data and thus can't check one by one."
The opacity of the system also gives rise to corruption. Lawmaker Darori Wonodipuro cited a graft case where two officials from regional land agencies, local offices of the land ministry, were arrested by the anti-graft agency, the KPK, for allegedly taking bribes in return for issuing permits.
Darori said there were other cases where land agency officials had issued permits to companies that didn't have the prerequisite licenses, such as those issued by the Ministry of Environment and Forestry to rezone forest areas for plantation activity. Darori called on the environment ministry to look into all such cases, for which it would need the HGU data.
"I ask for the HGU data," he said, "whatever it takes for all HGU data to be collected and checked with the data on forest releases to see if they are permitted or not."
Walhi's Nur said the government's insistence on keeping the HGU data secret indicates it's trying to cover up problems in the palm oil industry.
"This government is very afraid of being attacked [by criticism]. But that's not the case," he said. "As long as management [of the palm oil industry] is still bad, there will be criticism. But if it's good, then there will no longer be criticism because there's no reason to criticize."