The Strengthening Legal Protection of Indigenous People in Facing Investment Climate in Era of Asean Economic Community in

Abstract

Indigenous people, along with their traditional rights including communal rights, are recognized and sheltered under article 18B section (2) and article 28I section (3) of 1945 Constitution, Forestry Act, and regional regulation. However, the arrangement still remains sectoral and inconsistent, which does not fully stand for the Indigenous people. This contradiction was revealed in the Decision of the Constitutional Court Number 35/PUU-X/2012 on customary forest position provisions in the Forestry Act that was confirmed contradictory to the 1945 Constitution. This juridical fact becomes a foundation for State to provide communal indigenous people’s land for investing in natural resources. The used paradigm fact is positioning indigenous people and communal rights, including local wisdom, as the object of development. Consequently, several problems occurred, including: environmental degradation, inequality of structural control, ownership, utilization of land, declining of indigenous people’s welfare, and the emergence of conflicts; thus, posing a threat for national stability, security, and integrity. The enforcement of ASEAN Economic Community (AEC) will make investment climate more open to increase development which correlates to the improvement of people’s welfare, including indigenous people. The recommendations are: 1) Ratification of indigenous people’s draft act which expressly and consistently acknowledges and respects the indigenous people and their traditional rights; 2) Obligating local governments to establish local regulations on the treatment of indigenous people and their traditional rights including customary land rights; 3) Identifying, mapping, and establishing customary land rights as indigenous people’s rights and issuing certificates of ownership; 4) Mediating partnership between indigenous people’s land owner and investor; and 5) Placing indigenous people as the subject of development by implementing free prior informed consent, regulating it in nomenclature constitution, while engaging and enhancing the role of government as mediator and facilitator between indigenous people and investor.