Hans Nicholas Jong, Jakarta – As Indonesia struggles to contain one of the deadliest coronavirus outbreaks in Asia, the country's president has quietly issued a new regulation on eminent domain.
Signed in May, the regulation expands the types of land that can be unilaterally acquired by the state for purposes deemed to be in the public interest. Limited under a 2016 regulation to land held by state-owned companies, areas that may be subject to eminent domain under the new presidential regulation now include forests, villages, and land bequeathed for religious and charitable use.
The regulation is just one in a series of steps the government is taking to ramp up dozens of major infrastructure projects billed as key to jump-starting the economy out of the current pandemic-induced slowdown. But for conservationists, environmental activists and indigenous rights defenders, this push comes at the expense of the country's biodiversity, its climate commitments, and its most vulnerable communities.
On the government's docket are 89 projects, most of them newly proposed and the rest expansions of existing projects. They include roads and railways, ports and airports, dams and power plants, industrial estates and plantations. The common hurdle, says President Joko Widodo, is land acquisition.
In a May 29 conference call to announce the slate of projects, tagged at a combined $100 billion, Widodo called them a national priority and said they "have to continue."
Airlangga Hartarto, the coordinating minister for the economy, said it was in light of this urgency that the eminent domain regulation was issued: "To speed up projects, because usually the roadblock, based on experience, is land procurement."
But the real impact will be to make it easier for the state to take over community lands, including those of indigenous groups, and degazette forests to allow them to be cleared, according to Siti Rakhma Mary Herwati of the Indonesian Legal Aid Institute (YLBHI).
"This article makes it easier to shift villages' assets and indigenous peoples' customary lands for strategic projects or infrastructure projects," she said. "It also speeds up the changing of the function of forest areas for those projects."
The regulation is bolstered by another from 2017 that allows projects of national priority to override local governments' zoning plans. In practice, that means that projects can proceed in areas that would otherwise be off-limits, including forests and conservation areas.
Reynaldo Sembiring, executive director of the Indonesian Center for Environmental Law (ICEL) said zoning plans should only be revised if there's a change in the landscape, adding that the plans should conform to the environment, not the other way around.
"That theory is being thrown out of the window, because it all now depends on the national strategic projects," Reynaldo said.
"Regulations for the sake of national strategic projects have been revised since a few years ago," he added.
Among the 89 priority projects is a Chinese-backed high-speed railway line that will connect Jakarta to the West Java capital Bandung, part of China's Belt and Road Initiative. Although well behind schedule because of delays in acquiring land, the project is being considered for expansion all the way to the East Java capital, Surabaya.
Also in the works: nickel smelters in Weda Bay, North Maluku province; in Konawe, Southeast Sulawesi province; and in Indonesia's largest nickel industrial park, in Morowali, Central Sulawesi province. The latter two are backed by Chinese companies and funding, which should raise red flags about compliance with environmental and social safeguards, says Maryati Abdullah, the national coordinator of Publish What You Pay (PWYP) Indonesia, which advocates for greater transparency in the extractives industries.
"Many of the [new] national strategic projects are old commitments linked to projects supported by Chinese investors," she said. "And we know that in terms of safeguards, there's a lot to be questioned. So we need to be careful."
There are already concerns over the environmental impact of the planned nickel smelters in Konawe and Morowali, especially over how they will dispose of their waste, known as tailings. The companies behind the projects are seeking government permission to dump billions of tons of potentially toxic tailings into the sea.
One of them is PT Hua Pioneer Indonesia (HPI), which is set to manage the waste for four factories now under construction in Indonesia's largest nickel industrial park, in Morowali. HPI wants to dump 25 million tons per year, in a process known as deep-sea tailings disposal (DSTD). That would make it one of the biggest DSTD projects in the world.
Deforestation in Borneo
Other projects on the priority list threaten to speed up deforestation, particularly in Kalimantan, the Indonesian portion of the island of Borneo. One of the high-profile ones is a plan to establish 900,000 hectares (2.2 million acres) of rice fields in the Kalimantan peatlands – a move that experts say risks repeating a failed project from a quarter of a century ago.
There's also a spider web of road projects planned across Kalimantan, which a study published last year by Indonesian and Australian researchers says will lead to massive deforestation and fragmentation of wildlife habitats. The wildlife in the region, including critically endangered orangutans, would be able to access just 55% of the remaining forests if the road projects are completed as planned, from 89% today, the researchers write.
"Our research on the impacts of infrastructure were really alarming in Kalimantan's road development," Jatna Supriatna, a conservation biologist at the University of Indonesia and co-author of the study, said in a recent online discussion. "It will [clear] more forests. Even protected areas will be chopped down."
He also warned of environmental disaster if the government pushes ahead with the rice estate plan on peatlands as a part of the national strategic projects. "I think we really need to give [thought to] alternative solutions," he said. "We have to calculate the impact."
Jatna also said he's also worried that because of the mobility restrictions due to the COVID-19 pandemic, local communities are being shut out of the discussion on which development projects should be prioritized and how to carry them out while minimizing their social and environmental impact.
"Inclusiveness is very important," he said. "Because there's a pandemic, people try to get things [done] using digital technology like us, and forget that communities have to be brought to the table [to achieve] understanding."
If all meetings and discussions related to the national strategic projects are carried out online, it risks leaving some of the most marginalized and most affected members of the public without any involvement and information. This, in turn, could lead to conflicts, Jatna said.
"At the end of the day, there's going to be conflicts and it's going to take too long to solve these things," he said.
The government is banking on these projects to be eased through by a deregulation bill that's currently in parliament, and which it expects will pass in July.
The bill contains more than 1,000 proposed amendments to at least 79 existing laws that, among other points, prescribe lighter penalties for environmental violations; scrap a requirement for environmental impact assessments; vastly deregulate the mining industry; and make it easier to rezone coastal areas for development.
Under the deregulation bill, the government will no longer have to conduct strategic studies, draft land conversion plans, or provide replacement agricultural land if it wants to take over lands already zoned for sustainable agriculture. Recommendations from the central government will also no longer be needed to revise local zoning plans to accommodate national strategic projects. The government will be able to review zoning plans more than once in five years if there's a strategic national project in the area.
"In other words, zoning plans will serve merely as administrative documents," Reynaldo of ICEL said. "If the zoning plan doesn't match the national strategic project, then it can be revised. But if we look at the environmental protection law, a zoning plan serves as an instrument to prevent [environmental destruction]."
The bill also calls for the creation of a new government institution, the Land Management Agency, to acquire, manage and distribute land not claimed by citizens and that, by default, falls under state control. The bill says the agency will function as a "land bank" and must guarantee the availability of land for both social and development interests.
The vague wording means the agency could effectively become a front for hoarding land and selling it to the highest bidders, critics say.
"If the land bank is established, it will widen the gap [in land ownership between companies and local communities] and agrarian conflicts as well as facilitate land-grabbing for the sake of infrastructure development," said Dewi Kartika, secretary-general of the Consortium for Agrarian Reform (KPA).
San Afri Awang, a forestry lecturer at Gadjah Mada University and senior adviser to the environment minister, agreed that the planned land bank would exacerbate the land ownership imbalance, saying it would have a pro-business tendency.
He said the government was already "not very transparent" about plantation information – most land conflicts in Indonesia center on overlapping land claims between concession holders and communities – and the land bank would strengthen the position of plantation owners.
'No scientific justification'
Timer Manurung, the executive director of the environmental NGO Auriga Nusantara, said there appeared to be no scientific justification for pushing ahead with the national strategic projects.
"We didn't find a single scientific study behind the national strategic projects," he said. "And who will actually benefit? With our [economic] situation, we have little capital. So who's going to fund them? They must be foreign [investors]. And what's the filter? There's none."
Timer said the projects must be based on sound science rather than simply economic incentives, to avoid future health and environmental crises.
"The pandemic clearly shows us that if you destroy the environment, then you'll be more vulnerable," he said. "This habit of ignoring science is fatal for the president and the government."
Hariadi Kartodihardjo, a forestry researcher at the Bogor Institute of Agriculture (IPB), said a thorough study was crucial to determine what a region and its communities urgently needed the most. In many cases, that could be formal recognition of their land rights, and not infrastructure, he said, adding that development projects should not be seen as a one-size-fits-all answer.
"So the central and local governments have to immediately map out the problems [in their respective regions] and identify the gaps," Hariadi said. "Then they might find that it's not fair [to build infrastructure first in an area]. Instead, an agrarian reform or a social forestry program is needed first" to recognize or grant the land rights of local communities.
If the government ignores that process, infrastructure development might only benefit the wealthy, further widening the inequality gap, he added.
"Imagine if we slap a national priority project right in Papua [without a proper study]," Hariadi said, referring to Indonesia's easternmost and least-developed region. "Just imagine the impact."
A new study by the NGO Forest Watch Indonesia (FWI) says infrastructure development in West Papua province's Tambrauw district has primarily benefited large companies over local and indigenous communities. According to the study, road construction in the district, both ongoing and planned, connects companies' concessions, including nine mining sites, four logging estates and two plantations. These roads will deforest at least 7,953 hectares (19,652 acres) of natural forest in the district, the study shows.
"The roads in the northern coastal area of Tambrauw will give easier access to selective logging companies that have obtained permits since 2006 to transport logged timber," the report says. "As for the road project in central Tambrauw, it will pass plantation and mining concessions. The same goes for the airport and seaport – they're all located within a radius of less than 5 kilometers [3 miles] from concessions."
Observers have called on the government to involve the public in determining development projects and making sure they truly benefit local and indigenous communities. But the deregulation bill threatens to limit public participation in assessing the impact of a project. The current law guarantees public participation in environmental impact assessments, locally known as Amdal. The deregulation bill proposes limiting those who have a say to only those who will be directly impacted.
Firman Soebagyo, a lawmaker in parliament's legislative committee, said that while public involvement is important, criticism from those who aren't directly affected, such as NGOs, should be limited if they aren't in line with national interests.
"There are groups of people who prioritize the interests of foreign NGOs," he said. "This is dangerous. There are some NGOs that criticize [government programs] but they don't give solutions. We prioritize the state interest, but we can't do that for others' interests. This is a state [that] can't be dictated to by NGOs. There has to be sanction for public participation" that's not in line with state interests.
Hariadi of IPB called Firman's argument baseless. "His statement is one-sided as well," he said. "Aren't investors being driven by foreign interests? As if investments are surely for the greater good."