Indigenous Dayak ‘furious’ as RSPO dismisses land rights violation complaint

Indigenous Dayak ‘furious’ as RSPO dismisses land rights violation complaint

by Hans Nicholas Jong

 

JAKARTA — An Indigenous community in Indonesian Borneo that has waged a decades-long legal battle against a palm oil giant has slammed a decision to absolve the company of allegations of land rights violations.

 

The Dayak Hibun community in Sanggau district, West Kalimantan province, had brought a complaint in 2012 to the Roundtable on Sustainable Palm Oil (RSPO) against PT Mitra Austral Sejahtera (MAS), at the time owned by Malaysian palm oil company Sime Darby Plantation Bhd.

 

The company had first arrived in the area in 1996, wielding a permit to the location, despite never having obtained the free, prior and informed consent (FPIC) of the community. A subsequent permit, known as an HGU and issued in 2000, granted it an 8,741-hectare (21,600-acre) concession, which includes 1,400 hectares (3,460 acres) of ancestral Dayak Hibun land.

 

The RSPO finally ruled on the complaint in August this year, dismissing it due to “insufficient evidence” that MAS had obtained its HGU permit irregularly.

 

“A Company that has obtained a certificate of HGU means that the company has fulfilled all its obligations to the State,” the RSPO wrote in its decision.

 

At a recent press conference in Jakarta responding to the decision, representatives for the Dayak Hibun slammed the RSPO for essentially ignoring the rights and pleas of the community.

 

“We are very disappointed and furious with the RSPO,” said Redatus Musa, a community member.

 

Land sold or leased?
 

A central point of contention in the case is the documentation showing the compensation awarded by the company to each of the Dayak Hibun landowners, a payment known locally as Derasa. Neither the company nor the community could produce the Derasa receipt for the RSPO’s investigation; the document is believed to be held by the Indonesian government’s land agency, or BPN, which issued the HGU to the company.

 

In its decision, the RSPO said the fact that the permit was issued suggested Derasa had already been paid “as a basis for releasing [the community’s] rights” to the land.

 

Redatus, however, said Derasa is a customary mechanism whereby communities lease their lands to other parties; it doesn’t entail relinquishing their land rights, he said.

 

“Derasa is not the process of selling land. So the land is still owned by the community,” Redatus said.

 

He added the only people with the authority to interpret what Derasa means is the Indigenous council of the Dayak people.

 

“In its decision [to dismiss the complaint], we conclude that the RSPO has intentionally made its own interpretation [of Derasa],” Redatus said. “We consider that as a defamation of our customary law.”

 

Salfius Seko, an Indigenous law expert from Tanjungpura University in West Kalimantan, said interpreting Derasa as the process of selling land and relinquishing one’s land rights was wrong.

 

“If anyone interprets Derasa as compensation for taking over land ownership, then it’s violating the rights of Indigenous peoples,” he said.

 

The RSPO acknowledged that “Disputes arise because each party makes its own interpretation of Derasa, in accordance with their respective interests.”

 

The BPN has refused to release the Derasa document on the grounds that it’s now a confidential government document.

 

“As long as the Derasa … cannot be revealed clearly, it is difficult to say that the process of transferring community-owned land to the company has fulfilled the requirements of FPIC,” the RSPO noted.

 

No longer under the RSPO

The RSPO also pointed out that Sime Darby Plantation, an RSPO member, against which the complaint was filed, is no longer the owner of MAS, the company embroiled in the land dispute.

 

Sime Darby Plantation sold its shares in MAS to another company, PT Inti Nusa Sejahtera (INS), in 2019, despite strong objections and pleas from the community for Sime Darby Plantation to remain engaged in resolving the dispute.

 

In 2020, INS sold its majority stake in MAS to PT CAPITOL. Unlike Sime Darby Plantation, neither INS nor CAPITOL are members of the RSPO, and hence can’t be subjected to an investigation by the roundtable.

 

“[E]ven if parties do agree to return the land to the communities and have the HGU annulled, the status of the land will revert to a State land and the State must be consulted and willing to agree for the said land to be returned to the communities,” the RSPO wrote.

 

Abdul Haris, a campaigner at TuK Indonesia, an NGO representing the Dayak Hibun community in the complaint, criticized the RSPO for the slow pace of its investigation, noting that the complaint had been filed in 2012, years before the sale of MAS to INS.

 

Haris said the RSPO had clearly violated its own rule requiring its complaints panel to deliberate and deliver a decision within 60 working days after the conclusion of an investigation.

 

According to the RSPO’s version of the timeline, the complainants had asked that the matter be dealt with through a dispute settlement negotiation. Only after negotiations had failed, in 2017, did they request the matter be moved back into the complaints process, after which the RSPO appointed an independent expert in agrarian law to carry out a legal review of the case.

 

The expert submitted their report on Feb. 10, 2020.

 

Haris said the RSPO should therefore have delivered its decision within 60 days of that date, and not more than three years later. He said he suspected the RSPO had been stalling until Sime Darby Plantation could offload MAS.

 

One of the members of the RSPO’s complaints panel, Henry Barlow, was also appointed to Sime Darby Plantation’s board in 2019.

 

The RSPO denied there was any conflict of interest, saying Barlow had recused himself from hearing the complaint and was never involved in the decision pertaining to MAS.

 

“The RSPO Complaints System is a fair, transparent and impartial process, led by an independent complaint panel made up of eminent individuals from a diverse range of backgrounds (including civil society),” the RSPO told Mongabay in an email.

 

Next steps

Following the dismissal of their complaint, the Dayak Hibun filed an appeal on Oct. 5.

 

“The appeal will be processed in accordance with the Complaints and Appeals Procedures,” the RSPO said.

 

And while neither MAS nor its current parent company, CAPITOL, are members of the RSPO, the organization called for continued engagement.

 

“[T]he RSPO is hopeful that the parties will continue to engage and arrive at an amicable resolution that reflects the sustainable progress within the palm oil industry,” the RSPO said.