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LGD 2010 (1) - Vel & Makambombu

Access to Agrarian Justice in Sumba, Eastern Indonesia


Dr. ir. Jacqueline A.C. Vel,
Van Vollenhoven Institute for Law, Governance and Development
Faculty of Law, Leiden University, the Netherlands.
J.A.C.Vel@law.leidenuiv.nl

Stepanus Makambombu
Director of STIMULANT Institute Sumba in Waingapu (Sumba, Indonesia),
Leader action-research on access to public services in East Sumba
sm_pahada70@yahoo.com

 


Abstract

This article explores access to justice for the poor in relation to land disputes in one of the poorest areas of Indonesia, the island of Sumba. Since 2007, agribusiness companies have been setting up businesses in Sumba with a view to undertake large scale cultivation of biofuel crops. Inspired by global debate on adverse effects of such land grabbing there was expectation that this development would lead to land conflict. As researchers our main point of enquiry was how the poor and disadvantaged in Central and Eastern Sumba have access to redress mechanisms when the land they use for cultivation purposes is subject to other competing variables.. Evidence from field research suggests that negotiations with companies exist, but have been mainly about compensation rather than conflicts about land use, and involved land owners and local elites only. Inequality in access to land appears to be incorporated in the local legal repertoire pertaining to land. The poor and the disadvantaged have little decision making power as to the use and distribution of natural resources. Based on this finding, the article discusses the difference between access to justice research that focuses on access to legal institutions and an agrarian justice approach in which analysis of the injustices that the poor and the disadvantaged experience is a point of departure for investigating options for redress.


This is a refereed article published on: 6th February 2011

Citation: Vel, J.A.C. & Makambombu, S. (2010) ‘Access to Agrarian Justice in Sumba, Eastern Indonesia’, 2010(1) Law, Social Justice & Global Development Journal (LGD). http://www.go.warwick.ac.uk/elj/lgd/20010_1/vel_makambombu


Keywords

access to justice, agrarian justice, land rights, legal pluralism, class formation Indonesia.


1. Introduction

On 16 August 2007 a headline in the online-edition of the Indonesian journal Kompas asserted: 'Swedish grow Jatropha: Investment of 1 trillion Rupiah1. Land will remain property of population'. The article continued by revealing that that ‘Scan Oil Ltd, a company from Sweden, will invest 1 trillion in a jatropha plantation in Tanah Banas, Central Sumba, East Nusa Tenggara. Planting will start from December 2007 covering 10,000-20,000 ha’. 2 This is one example of many large commercial land acquisitions that have been planned in Indonesia since 2007. Although there is a long history of large scale commercial agriculture in Indonesia, especially concerning Sumatra and Java,3 the expansion of agro-industrial exploitation to less fertile or even ‘marginal’ areas of the country has been largely a recent development. The area in Sumba mentioned in the newspaper quote above is such a 'marginal area'. It is sparsely populated, with large areas of land that are not cultivated but only used for herding livestock, and for hunting and gathering. In such a context, companies claim to convert 'marginal' or 'empty' land into land for cultivating crops for renewable energy production. To justify their land acquisitions, the companies underline that they do not claim property of the land. The usual practice is that they receive a permit from the government to use the land for their business for at least 30 years - a (productive) lifetime for a farmer.

The companies also claim that their plantations will create employment for the rural poor, thereby responding to the national government's aim to reduce poverty. Meanwhile in 2008, a report by the NGO GRAIN drew world-wide attention to the global trend in 'land grabbing', and warned against the adverse effects for local populations.4 The international movement for poor peasants and small farmers Via Campesina even warned that "it is estimated that five millions farmers in Indonesia have been expelled from their land to create monocultures."5

Our research intended to examine how the local population in Sumba uses legal means to protest against the adverse effects of opening up the 'unused lands' in Sumba for plantations. While customary practices and law governed land use and distribution on this island, the customary legal framework does not provide rules for dealing with the large scale commercial land transactions that have been occurring recently. Instead, the legal basis that allows agribusiness companies to enter the area and start operations is part of state law, consisting in practice of permits issued by the national and district governments. Meanwhile, local land owners base their land claims on customary law. What kind of conflicts does this situation of legal pluralism lead to? How can local people in Sumba access redress mechanisms that can solve disputes concerning land?

With the questions mentioned above in mind, we participated in the research programme 'access to justice for the poor' in Indonesia.6 Our study was selected as a case-study for this programme because it focused on one of the poorest areas in Indonesia where customary law is still prevalent. Therefore, this study would provide insight into the process of seeking access to justice in situations of legal pluralism. By doing so it addresses an argument of the World Bank (2008) report Forging the Middle Ground : engaging non-state justice in Indonesia that invites discussion. The argument is that new redress mechanisms for solving disputes should be created that incorporate elements of customary institutions and rules so that these mechanisms would be more effective and accessible to the poor than the currently available state justice institutions. Studying disputes about access to land addresses the heart of that argument because customary rules and norms are usually particularly clear and socially accepted in the land law sector.7 Additionally, access to justice in land disputes is very important for the poor in remote, rural areas of Indonesia because land is the main source of livelihood.

We conducted our field research in parts of Sumba where plantation companies had been exploring the area or had already begun operations. With our focus on an empirical study on how justice seekers try to obtain redress for their grievances, we asked local people about problems concerning land in general and more specifically in relation to the plantation companies' activities. We interviewed landowners, land less, women, men, relatively wealthy and the poor. Additionally, we conducted interviews with government officials, a judge, local leaders, NGO workers and company staff. Using the Rolax framework (Bedner and Vel, 2010) helped us to recognise our implicit assumptions and encouraged us to be open to a 'justice seeker's' point of view. Our field study focused particularly on four issues: the real life problems related to land that relatively poor and disadvantaged people experience, the characteristics of the' local legal repertoire', the choice of dispute regulation mechanism in land conflicts, and practical experiences with agri-business large scale land acquisitions.

This article is based on desk study and data we have gathered in Sumba during joint field work in February 2009 and is also informed by our previous research and working experience in Sumba.8 Our expectation that the first cases of large scale land acquisitions would have already led to disputes between the local population and the plantation companies, did not correspond with our findings in the field. There were two main reasons. The first was that the 'local population' is very heterogeneous with respect to power over and access to land, which could explain why there was no protest by the local population in general. Social differentiation implies a variety of interests and reactions. Section II elaborates on poverty and inequality in Sumba. The second reason relates to the characteristics of the ‘local legal repertoire,’ a term referring to the form of legal pluralism that exists in practice in the area of our field study. Section III describes how people combine elements of customary law pertaining to land with instruments and opportunities state law provides. Since many state authorities regarding land management have been devolved from the national government to the districts, the district head figures prominently in land issues. If a district head is also a clan leader who can represent land owners, he is the most important negotiating party for agribusiness companies looking for land.

In section IV, we describe two cases in which agribusiness companies claimed large areas of land for commercial cultivation of Jatropha (in Central Sumba) and cotton and maize in East Sumba . These cases show a variety of stakeholder interests, and that for some of the ‘poor and disadvantaged’ involved, their main goal may not have been obtaining access to land but rather access to income-generating opportunities, and that the main barrier for obtaining access was their lack of decision making power within the process. Apart from addressing the issues in Central Sumba, our research results urged us to rethink ‘access to justice’ analytically.

2. Contextualising the Notion of Justice

Analytically, this paper's subject is the interface between three disciplinary approaches in which 'justice' is a central concept. 'Access to justice' is a thematic field of socio-legal scholars, whereas 'agrarian justice' is an umbrella theme for social scientists studying politics of natural resource use. Apart from these two meanings, 'justice' can also be defined as the practical goal of the justice seeker. Anthropological research indicated that 'justice' as used in specific cultural settings is often described with a different word for the same aim, for example: harmony, peace and order (E.Moore 1993:524) or 'the situation of being secure, safe and without fear' (Safitri 2010:210).9 The sense of 'harmony and peace' which might also include the basic needs of food and health as a prerequisite, was one of the findings of an extensive large UNDP survey conducted in five provinces of Indonesia in 2005. The reportconcluded that respondents classified in the study as 'disadvantaged' held an economically-oriented conception of justice, and that many of the key injustices they cited related to their social and economic welfare (UNDP 2007:42), including lack of access to land. The case of Ina Modi described below shows how peace, safety, food and health are combined within the type of 'justice' that poor and disadvantaged Sumbanese women are seeking.

In this paper the three interpretations of 'justice' are interconnected: local rural population's perceptions of justice with regard to land issues, the processes that cause the injustice of losing access to land and the institutions that could provide redress for injustices. Taking the agrarian justice focus, the first issue for research concerns the ability of the poor and the disadvantaged in Sumba to use land for their livelihood. It is this that Ribot and Peluso (2003:153) have referred to as 'access', which they define as 'the ability to benefit from things -including material objects, persons, institutions and symbols'. Using access in this way rather than speaking of rights as in property theory brings the attention to a wider set of social relationships that can constrain or enable people to benefit from land. If farmers and their families do not have sufficient access to land to make a living, while they claim they should be able to use the land, they experience injustice. This form of injustice refers to the way access to land is distributed. 'Agrarian justice' is a term focusing on power and distribution issues. Activist scholars use the term as an umbrella concept that covers 'various pressing issues directly linked to the rural world, such as the impact of agro-fuels, overseas aid and land policies, global land grabbing, food sovereignty, social movements and rural democratization.'10

A few questions are worth consideration. What are the social consequences of the commercialization of agriculture of which large scale commercial land transactions are part? Do these developments lead to dispossession of members of the local population? Do they lead to further differentiation (inequality) among the local population as happened before in other parts of Indonesia?11 If so, what can 'the disadvantaged' do to counter dispossession? In the concrete setting of the rural poor the 'agrarian justice' question is whether they have sufficient access to land to support their livelihoods in ways of their own choosing (see Boras and Franco (2010:31)). If they do not have access and perceive that situation as an injustice, the next question would be how to find redress for that injustice.

When the rural poor seek a solution for lacking access to land through the local legal repertoire their actions are part of the field of 'access to justice' as used by socio-legal scholars.12 In the research programme Access to Justice in Indonesia in which we participated,13 all researchers involved used a broad definition of access to justice, claiming that access to justice exists if:

people, notably poor and disadvantaged, who are suffering from injustices, have the ability to make their grievances be listened to and to obtain proper treatment of their grievances by state or non-state institutions, leading to redress of those injustices on the basis of rules or principles of state law, religious law or customary law, in accordance with the rule of law.

This broad definition reflects the process by which poor and disadvantaged people try to find a solution for the injustices they experience. Whether the poor have access to justice or not depends on the substance of the law that rules in their society and on the way legal procedures are implemented. Both substance and procedure can lead to barriers for certain categories of people, for example the rule in Sumbanese customary law that women cannot own land (substance), or the fact that filing a court case is costly (procedure). What people regard as 'justice' - the end goal they want to achieve - influences the type of redress they will seek. Notions of justice are closely linked to the dominant normative system that defines entitlements, social relations and what is seen as right and wrong. Moreover, in situations of legal pluralism there is the option to switch from one set of norms and remedies to the alternative that is available. However, such 'forum shopping' is only an option for those who have sufficient legal knowledge (of all alternatives available) and power to determine which path for dispute resolution will be taken (Von Benda-Beckmann 1984:37; Vel 2008:108; E. Moore, 1993: 532). As the next sections will show, in the area where this study was conducted, social inequality is pervasive and a consequence is that 'the poor and disadvantaged' cannot easily make 'their grievances heard,' let alone engage in forum shopping.

3. Poverty and Inequality in Sumba

Sumba is an island in the eastern part of Indonesia with a population of some 600,000 people. More than eighty percent of the population makes a living through subsistence agriculture, producing rice, maize and other food crops for their own consumption, with the surplus being sold in the market. Traditionally, a person’s wealth is linked to the possession of animals. Livestock is a prime status symbol, the major commodity in ceremonial exchange, and a necessary ingredient for all social events (since consensus is expressed through sharing a meal with meat) and also economic capital that can be sold in times of trouble (Onvlee, 1980). The poorest of the poor have no livestock at all, and do not even own a dog or a chicken. The two largest towns of the island, Waikabubak in the West and Waingapu in the East, are the residential areas of most of the (relatively) wealthiest people of Sumba. Those are the centres of government, schools and commerce.

Administratively, Sumba is situated in the province of Nusa Tenggara Timur (NTT), and since 2007 it consists of four districts. Compared to the other areas of Indonesia the province NTT is poor. Over ninety percent of the budgets of districts in this province are derived from the central government in Jakarta, and the state is the main provider of salaried employment. Moreover, the districts of Sumba were at the bottom of the 2002 UNDP Human Development Index Ranking for all districts in Indonesia.14 However, these island-wide statistics do not indicate relative wealth differences between members of the population in Sumba. Development programmes or commercial investments in NTT often claim to alleviate poverty by increasing production or creating rural employment. A pro-poor distribution of the benefits of these efforts usually remains an un-tested implicit assumption. To address this distribution issue we need to identify who is locally considered as 'disadvantaged' (Betke and Ritonga, 2004; Vel 1994:150-7).

Being disadvantaged is not just a matter of having little money, but also refers to a lack of other assets and capacities that can be regarded as 'forms of capital'(Bourdieu 1986:241-259). Cultural capital refers to knowledge and education; economic capital to money but also access to resources and labour; social capital indicates relations with other members of society, and membership of social networks. In Table 1, we applied Bourdieu’s concepts to the Sumbanese context. Each of Bourdieu’s three forms of capital has a traditional and modern manifestation in Sumba. We added a fourth form – ‘legal capital’, actually a sub-category of cultural capital –because of its importance for this study. This model can be used in other contexts, with adaptations as required. For example, knowledge of adat (customary law) might be replaced with knowledge of religious law if that is more important than adat, or knowledge of the history of migration in cases where rules of prior occupation apply.

Table 1. Specification of forms of capital in context of Sumba
 

Cultural capital

Legal capital

Economic capital

Social capital: networks

Traditional

* Position in adat hierarchy (incl. gender and ethnicity)

Knowledge of adat

Food

Land,

Livestock

Labour (number of people in the house, subordinates)

Kinship

Marriage alliance

Modern

Modern education

Office in bureaucracy or non state institution

Gender

Knowledge of state law

Knowledge and skill in legal and bureaucratic procedures

Knowledge of religious law

Money (salaries, profits, illegal income)

Assets (houses, cars, tv sets, children with higher education)

Church-Organizations

Political parties

Functional / bureaucratic

inside and outside Sumba

In general, the most powerful are those who have the optimal amount and combination of various forms of capital. For example, the district head of Central Sumba who was elected in 2008 is the son of a former ruler (raja), has an academic degree from a university in Java, has a wide network in the bureaucracy, had previous bureaucratic career, and is the head of his clan. His example shows how the amount of capital a person possesses is not static, but that it can be accumulated over time through schooling, labour or exchange. The ‘poorest’ or ‘most disadvantaged’ are those who lack all types of capital.

In Sumba, an individual person’s cultural capital is largely determined by his or her position in the traditional social hierarchy. Social differentiation of the population on Sumba is traditionally based on criteria of ethnicity, class, gender and generation. Before the Sumbanese customary law no one is equal, because rights and obligations depend on the individual's position within the traditional social system. Each clan is divided vertically in three classes: the nobility, the free men and the slaves. Horizontally, society is divided into patrilineal clans that are mutually dependent because of the strict rule of exogamous marriages. Relationships between clans, and subsequently between members of various clans are expressed in terms of being either bride-giving or bride-taking, and this definition of positions determines proper conduct, and the appropriate type of ceremonial exchange commodities. Every major life cycle event requires a ceremony in which fellow community members who are related through kinship, marriage affiliation or neighborhood ties attend. Such a ceremony reconfirms the members’ identities within the community, along with their rights and obligations.

Taken together, those rights, obligations and positions in the social hierarchy constitute a very strong normative system, with consequences for the distribution of access to natural resources and mutual support between members of society. Opportunities for those who occupy low positions in the traditional social hierarchy to move upwards are very small. Changing the system or its rules is difficult for those of lower status – unmarried men and women (‘youth’), women in general, slaves – because they have very little say in internal clan decision making. This customary normative system, usually called adat, thus provides resources and protection for those in lower positions (the disadvantaged in this sense) but also entrenches their limited decision-making power and their dependence upon clan leaders.

The second type of inequality is based on ethnic criteria which create ‘insider-outsider’ distinctions. Over 90 percent of the population is ethnic Sumbanese. There is greater ethnic heterogeneity in Sumba’s towns, and along the coastline of East Sumba there are many settlements of people originating from the nearby island Savu, whose prime occupation is fishing. Sumbanese also make internal distinctions, according to the geographic place of origin, the territory of related clans, of which there are sixteen in West Sumba and eight in East Sumba (Goh 1991:xii). In the early twentieth century, the colonial government elevated traditional domains into self-governing sub-districts and appointed one of the main clan leaders as king (raja) of each. This reinforced the power of the raja ’s clan and its claim to the land, and its domain became integrated in the colonial maps of the island. In turn, the raja s were incorporated into the colonial structure of governance, with the formerly autonomous domains becoming subordinate polities within the nation-state via a system of indirect rule. The heritage of this system is still apparent at present; the first democratically elected district head of Central Sumba and his deputy are both sons of rajas, and agribusiness companies looking for land for their plantations seek contact with these 'traditional kings.' 15

For many people living in the interior of Sumba, adat is still the dominant normative context. Yet, historical forces on Sumba have shaped a modern society that interacts with the traditional and most Sumbanese have and use a double identity. The first is based upon traditional kinship, whilst the second, takes the shape of a modern identity of an Indonesian citizen and adherent to a major world religion. Amongst these historical forces are the development of the modern state in an agricultural society, the economic importance of the state in towns, the role of the Christian religion, and the detachment of the aristocracy from their village setting. The result is a third type of inequality, an alternative social hierarchy in which the top layer, the political class, consists of people whose primary source of livelihood comes from the state (Vel 2008: 16-8). They are employed by the state as civil servants, or provide paid services to the state, such as businessmen who execute state-financed construction projects. The main criterion for membership of the political class is practical, namely real influence on decisions regarding the allocation of state resources such as money, jobs, permits and violence.

In modern political-economic terms, the lowest layer in society consists of farmers (tani). Tani is an emic term referring to people who work on the land and also for all other people without salaried employment or other clear means for generating income.16 Many members of the traditional class of nobility belong to the category of tani. They enjoy their high social rank, but have no other capital upon which to rely, no higher education, no paid employment, and no access to the right social networks. This increasing class formation has strong impact on land distribution through the mechanism of indebtedness (Li 2010: 387).

Lewa is an area in the middle of Sumba that is known as one of the island’s rice-producing areas. Recently, migrants from the more densely populated areas in West Sumba have migrated to Lewa, trying to find employment. They start as petty commodity traders and work as agricultural labourers. An NGO worker who has lived in this area for decades and cultivates rice fields (sawah) himself told us that many farmers who originate from this area have lost their land to these new migrants and to other traders. When the farmers suddenly face high expenditures (for example, hospital fees for treatment of severe illness, or funeral expenditures) a migrant or trader may lend them money, and in ‘borrow’ a patch of their land.17 The initial terms on which these agreements are negotiated may become less favourable for the landowner when additional expenditures force him to seek assistance again from the land borrower. In this way, a sequence of transactions takes place and can eventually force the owner to approve the issuing of a certificate of land ownership in the borrower’s name. Most land that is borrowed never returns to the owner. Although state law says that after 7 years, the harvest serves as repayment of the debt, this is not accepted on Sumba. Instead, adat rules for pledging provide that the land can only be returned to the original owner once the loan is actually repaid. This usually means perpetual indebtedness (or permanent loss of assets) for the poor.

Being a member of a disadvantaged group in Sumba – such as a low traditional class, women and migrants – has significant practical implications.People who belong to the middle or lowest traditional class can own livestock, but whenever clan members of higher social status need it – for example to meet their adat obligations in marriage negotiations – they can easily claim their subordinates’n possessions. People of lower status are also obliged to work on fellow clan members’ land, and provide other services as decided by the clan leaders. Although this traditional pattern is not as strong as it was in the past, it still exists. Women traditionally have an inferior position in relation to decision making within a clan. Marriage is regarded as exchange between patri-lineal clans; after the wedding the bride moves to the house (and clan) of her husband. There she enters into the internal hierarchy in a position that is initially determined by her traditional social rank. Her status can improve over time, for example, after she gives birth to her first child. Traditionally, women are not permitted to own land except for land that is given to them at their wedding, as part of the dowry. However, this traditional scenario applies to differing degrees across Sumba, with some women living a more individualized lifestyle in which they are less restricted by the traditional system.The next vignette summarizes the land problems of a poor and disadvantaged woman:18

Ina Modi had four young children when her husband died, 6 years ago. They were farmers, living in the village of Ina Modi’s husband, close to his relatives. Her husband had a paddy field and dry land gardens that were ‘individual adat land’: clan land that within the clan was considered to be individual property of her husband, and for which he paid tax. After her husband’s death, his cousins had an eye on the land. One of them also planned to take Ina Modi as his wife, which is a traditional way of caring for a brother’s widow, and which does not require any additional bride payments. Ina Modi did not like the prospect of becoming a second wife at all, and she refused. Moreover, she insisted on continuing to live in her own house with her children, and to work on her late husband’s land until her son was old enough to take over. However, the cousins did not want to give Ina Modi any assistance with labour. She asked the village head for help with settling the dispute, but his advice was that the dispute should be settled within the family (secara keluarga). Unfortunately, this method did not work in Ina Modi’s favour. When she scolded the cousins for not treating her well, and thus not honoring her late husband, they beat her up. Hurt and afraid, she ran off to the closest police station, about 12 kilometers from her village. The police did not do much for her either, and Ina Modi did not have money to persuade them to act. She then stayed at the office of a women’s NGO for a while and they helped her to get her eldest children into the nearby orphanage, where they received shelter and education. She returned to her house and with occasional help from other villagers and moral support from the NGO staff, she managed to survive. The land dispute with her husband’s cousins remained unresolved. She has often been ill over the last few years, and three years ago, when she could not cope with all her problems she ran off to the NGO's office, screaming and crying as if she had lost her mind. The people at the office gave her food and shelter and some money to buy medicines to relieve the crisis.

The story of Ina Modi shows that she could not find redress for her grievances in customary dispute settlement, but could only find some relief through her small social network. She does not have access to justice, because the traditional social hierarchy has put her in a powerless position. Additionally, the substance of customary law pertaining to land and inheritance is discriminating against women, and the only customary dispute resolution mechanism is dominated by more powerful men. The next section will elaborate on the local legal repertoire pertaining to land in which customary rules are mixed with state rules.

4. Local Legal Repertoire Pertaining to Land

4.1. Decreasing Dominance of Customary Land Law

Traditionally, Sumbanese land is clan property, tana kabihu. The Sumbanese think of their island in terms of domains and their personal identities are linked to these domains (Needham 1987:6-8). The early ancestors distributed land within their domain and the way in which they did so demonstrates the manner in which land distribution and use was linked to mutual cooperation and rituals. The legitimacy of adat is based upon a belief in the authority and power of the deified ancestors. Both the colonial government and the Indonesian government after independence acknowledged that whatever the official state law would be, in practice, access and control over land in Sumba would be ruled by the existing customary law (Ouwehand 1951:539). The continuation of this policy after independence was in no small part attributable to the fact that the island’s highest government officials were members of the indigenous nobility whose local authority was grounded in principles of customary law (Ouwehand 1951:542). The classic assumption is that the chiefs represent the community in dealing with outsiders and that internally, they have the authority and responsibility to regulate how community members use the community’s resources (Toha 2007:51-2).

In the interview we conducted with the Deputy District Head of Central Sumba – who is one of the traditional nobility in that district – he confirmed the assumption, adding that "there is no problem with access to land because clan leaders will always take care of their clan members and provide them with a part of the clan land(tanah kabihu)." However, only when land becomes scarce and market value increases, it becomes clear whether the chiefs really act on their responsibility for their clan members and use their power to redistribute land (or compensation money) in an equitable way.

To be able to understand the customary land law system in Sumba it is important to know how the Sumbanese distinguish between types of land. These are forest, uncultivated fields, cultivated dry land, gardens along the river, paddy fields in the valleys, and residential areas that consist of houses, home gardens and graveyards. Before the introduction of mining and plantation companies and establishment of national parks, forests and uncultivated fields were thought of as abundant and used only for gathering, hunting and grazing herds. These areas were included in the tana kabihu. Clan members were free to gather and hunt, whereas outsiders had to obtain permission from the clan leaders to get access too. As long as the activities in the fields only supported local livelihoods there was no need for more regulation. In the past, rules for how access to land was distributed among clan members was especially important for the types of land that yielded scarce products. Paddy fields and residential plots became 'índividual adat land', and following the government’s introduction of a land tax system, the 'customary owners' used the state tax payment documents as a way to 'register' their individual claims (against their clan members). The lowest traditional class, the 'slaves', never had such individual claims. They worked as labourers on their masters' fields (Twikromo 2008:54-5). Until the 1960s, the Sumbanese built their residential areas on hill tops (paraingu), cultivated rice in most suitable parts of the valleys and had their upland field scattered over the hills, using the system of shifting cultivation. When schools and roads had been constructed part of the population moved to the areas along the road. With increasing population, and since 1990, increasing implementation of modern agricultural technology, the land market has been developing. Customary rules do not always provide directions for solving disputes related to new types of land use.

Resolution of everyday disputes takes place 'within the family' (secara keluarga) and is ultimately a task of the head of paraingu (hamlet). In Sumba there is no official 'council of elders' as elsewhere in Indonesia,19 and no democratic election system for adat leaders. In disputes that concern interests of a whole clan, several older men of the clan gather and discuss solutions. Disputes are then converted into negotiations between these men as representatives of clans. They negotiate the meaning of the dispute, the rules to be applied and the shape and size of exchange required to solve the dispute. Important negotiations are turned into rituals for which performance specials skills - traditional legal capital - are required: ritual speech to phrase the matter under discussion and the skill to read the signs given by the deified ancestors. Obviously, there is a strong connection between the traditional Sumbanese religion (Marapu) and culture of which rules to solve disputes and govern land issues are a significant part (Keane 2007:103-7). Negotiations are settled with exchanges of livestock and food.

The missionary, Kruyt, observed in 1936 that adat was not an unchanging tradition "because whenever the relations, the conditions of life, the mentality of the members of the society change, adat itself alters....Adat is thus living; it alters itself whenever the men who observe it change" (Keane 2007:106; Kruyt 1936:42). This quote underlines the importance of power relations within local society if rules are not fixed and open for negotiation. Today, there are many forces eroding the traditional dispute regulation mechanism. In modern settlements along the road often not all neighbours are fellow-clan members so that there is no logical customary head of the paraingu to performsecara keluraga solutions. Moreover,disputes are between people who behave as individuals rather than as members of clans. Young people often have more formal education than their parents and this leads to problems of accepting the authority of the clan elders. Moreover, most people in Sumba do no longer adhere to the traditional beliefs. These forcesundermine customary law as a system of thought (Merry 1988: 889).

4.2. Developing Land Markets, State Law and State Justice

With increasing differentiation of economic activities and a growing political class with purchasing power, the land market in Sumba is developing rapidly. Land values are highest in and around centres of economic activity and decrease according to the distance from that centre (physical and ease of access). If it were indicated on a map of Sumba, some high value land would be found along the main roads connecting the capital towns, with larger areas around the business and administrative centres of these towns. These are areas in which land is titled and registered by individuals who want to obtain documents that increase their security of tenure over their residential plots and paddy fields as well as through government registration programme. Registering low value land is not necessary – since there is not much competition over such land – and is considered too costly in light of the low yields obtained from such land. However, land that was never cultivated and only occasionally used for herding livestock suddenly obtained increasing market value under the interest of plantation developers. With this development, areas of ‘sleeping land’ (lahan tidur) are (planned to be) turned into centres of economic activity. Because low value land is usually not registered and no one had claimed the land before there were plans for plantations, it is not clear who is entitled to negotiate about this land with companies that want to set up plantations.

Whether un-cultivated land can be considered state land is a very old debate in Indonesia. This distinction was formalised in law during the colonial era with the Agrarian Law of 1870, in particular its first article, the Domain Declaration, which declared all uncultivated lands the domain of the state (in directly ruled areas). Many indigenous communities contested this declaration, claiming their customary rights to the land, whether it was cultivated or not. After independence, the Basic Agrarian Law aimed to unify the land law system by transforming all land claims into rights as defined by this law. However, this was never fully realised, and in Sumba, adat rights regarding non–cultivated land co-exist with potential state claims. National laws on regional autonomy (law 22 and 25 of 1999, and 32 of 2004) had two elements that affected the land market in Sumba in particular. The fiscal formula for distributing national tax revenues over the country's districts led to a government budget increase of over 300 percent in the districts of Sumba. The consequent influx of money strengthened the livelihoods of the political class and increased market demand for land. The second element was the devolution of authority regarding land management to the district government. Article 2 of the Presidential Decree No. 34 of 2003 defines the authority of district or municipal governments to nine areas of regulation:

  1. the issuing of location permits;

  2. land clearance in the interests of development (pembangunan);

  3. settlement of disputes over farmed land (tanah garapan);

  4. settlement of disputes related to compensation and aid money regarding land clearance for development;

  5. determining what land is available, and who is eligible, for land redistribution;

  6. compensation for land exceeding the maximum plot size and neglected land (tanah absentee);

  7. settlement of problems related to communal land (tanah ulayat);20

  8. use of and settlement of problems related to empty land (tanah kosong), and granting permits to open/develop new land, and:

  9. spatial planning.

Missing from this list are the politically sensitive functions of land titling and registration, mapping and conflict resolution. The National Land Agency has retained those functions, leaving that part of land management integrated into the vertical, sectoral structure of administration, instead of being devolved to the district governments.

In Sumba, most of the land that is considered for large scale agribusiness activities is not registered as private property (there are no land certificates), and it is not cultivated. The district government’s most important function is issuing location permits for companies. If a district head wants to provide land to an agribusiness for plantations, he can either argue that the land is state land, or arrange negotiations with the local population in order to try to persuade them to hand over the land to the state (pembebasan tanah) so that the company can commence the procedure to obtain cultivation rights from the government (hak guna usaha). The process for issuing location permits should involve public participation, but as the cases in the next section will show, such public participation is very limited. Local lower status customary landowners in the northern coastal area of Memboro told us that they had very little information about the content of the negotiations concerning plantations in their areas, and that up until February 2009 these meetings only involved chiefs, many of whom reside in the capital town and have a position in the bureaucracy. On the one hand, these men claim to be customary leaders, on the other hand they are alienated from their clan-constituencies and their responsibility to distribute clan resources (land, but also compensation money) in an equitable way.

In Sumba there are state courts, just like in every Indonesian district. Of all land disputes that occur on the island, very few are handled by the General State Court. This court is the last option, generally used only after the village head or the sub-district head have failed to solve the dispute. The court always asks whether the parties have consulted those state officials, prior to instituting formal legal proceedings. The sub-district head is the forum for resolving land disputes in which the village head is a party, or is otherwise not impartial. The sub-district head’s office also handles cases of land conflict between inhabitants of two different villages (desa). Neither the village head nor the sub-district head belong to the judiciary, and in land dispute settlements they function as mediators rather than adjudicators. Their ‘decisions’ are in fact better regarded as advice to the contesting parties on how to settle their dispute. If accepted by the parties, the settlement can either be ceremonially accepted (slaughtering a pig and having a shared meal) or confirmed in a document signed by both parties. The chairman of the General Court told us that village or sub-district level dispute settlement written contracts should be sent to and filed by the General State Court, thus giving them stronger legal status. However, this is not yet common practice. Solving land cases is very difficult for the State Court, because written documents are usually not available and witnesses who might be able to testify how the ancestors distributed or divided the land are hard to find.21

All state dispute resolution institutions, including the state court, use adat law for settling land disputes. Two types of land disputes generally come before the court: disputes with (wealthy) businessmen as the plaintiff, and disputes that concern an ‘offence of social status.’ If anyone among the poor would like to file a court case, access will be very limited because of the costs involved. Costs of the procedures do not only include official fees and travelling expenditures for the complainant and the defendant. In Sumba, it is common practice to attend court hearings with a group of supporters, similar to attending an adat event, to which people prefer to arrive as part of a rombongan adat (adat group). This habit raises costs considerably, as all group members have to eat, and a truck or bus is required for transportation. Moreover, it is proper for every phase in the dispute resolution process to be finalized with a shared meal with meat – slaughtering a pig is a symbol of having reached an agreement. The costs involved in bringing a case to the State Court can therefore be very high especially for people who reside in remote or less accessible mountain areas.22

5. Negotiating Land for Plantations: Two Cases

Next we describe two cases in which agribusiness companies claimed large areas of land for commercial cultivation, Jatropha in Central Sumba and cotton and maize in east Sumba . Initially, we thought these cases would all lead to land conflicts. Yet, in the field we learned that there was a more elaborate pattern of stakeholder interests, and that for some of the ‘poor and disadvantaged’ involved, their main goal may not have been obtaining access to land but rather access to income-generating opportunities, and their main barrier their lack of decision making power within the process. The Swedish company mentioned in the introduction above never realised its initial promises and eventually left. In 2007, many other plantation companies entered the area to conduct feasibility studies, and usually they would disappear again, leaving the impression that their studies had a negative result.23

In 2007, representatives of the company PT Cecilisarah Abadi from Jakarta came to Central Sumba to start the process of establishing a jatropha plantation in this district.24 According to the interim district head of this new district, Umbu Saga Anakaka,25 he had provided the company a temporary permit, because it had already arranged permits from higher levels in the bureaucracy. The district government encouraged large investments in agriculture that would develop the district’s economy and yield government income. However, it expected companies to implement ‘corporate social responsibility’ by undertaking a number of (actual state) activities, like building roads and providing electricity. PT Cecilisarah liked both the flat northern plains in Memboro as well and the area south of Central Sumba’s capital town Waibakul, where they were told that a large acreage of uncultivated land was available. Part of this latter area was land in the village (desa) Tana Modu. This land was not as empty as it seemed, especially according to the local population, who already had some experience with cultivating jatropha.

The West Sumba government’s Agricultural Service had been promoting jatropha cultivation since 2005, following the national policy to stimulate production of energy crops. In Tana Modu, farmers were urged to plant jatrophaon an area that in 1992 had been turned into a cashew plantation.26 Before 1992, the land was not used for agriculture, but it was part of the grazing land used by the local population for their livestock. At the start of the cashew project, the land was registered with the National Land Agency and participating farmers had received land certificates. In 2005, the Agricultural Service sent large tractors to prepare the land for jatropha cultivation and to clear all remaining cashew trees. Afterwards the farmers were expected to plant and care for the jatropha themselves, and every three or four months they received herbicides to clear weeds. When we interviewed members of this group in November 2007, they told us they did not have information about the herbicide or how to apply it safely. They did not have information about current prices of jatropha seeds, nor about who would be willing to buy their crop. One farmer brought a bag with jatropha seeds to town, where he received only 500 Rupiah (0.06 US $) per kilogram. This did not even cover the costs of his transport to town and back. The farmers in Tana Modu were thus not motivated to continue this cultivation, which explains the poor condition of their jatropha fields in November 2007.

The farmers in Tana Modu were organized in a farmers’ association, in cooperation with a local NGO. In November 2007, the chairman of their association told us they had recently received a visit from PT Cecilisarah Abadi, accompanied by their American investor, and a local supporter who intended to run as candidate in the September 2008 district head elections. The investor set his hopes on the present jatropha fields, and offered the farmers a price of 110 US $ (1 million Rupiah) per hectare for a whole period of 30 years. The farmers felt strong with their land certificates and rejected this offer. According to the interim district head, all decisions regarding jatropha plantations should be included in a memorandum of understanding (MoU) between three parties: the government, the local producers/landowners and the company. However, a sound procedure that would ensure these MoUs provided protection for the interests of the local producers was not yet available.

In April 2008, a ‘coordinating meeting’ was held as part of the procedure for granting a location permit to PT Cecilisarah. The director of the company, with one staff member, eleven state officials from Waibakul and two officials of the National Land Agency in West Sumba were present, as well as fourteen local leaders (tokoh masyarakat) and the village heads of the four villages (desa) on which the plantation was planned. The minutes of the meeting do not report any discussion except that the document mentions ‘other interests’ in the land, that the local population uses it as grazing land for livestock, and that part of the land had already been registered for local people, some with certified ownership. Nevertheless, the permit (izin lokasi) was issued on 2 May 2007 through a letter containing formal decision No 46 of 2008 of the district head of Central Sumba. The permit implied that the company could make preparations for starting a plantation: make a plant nursery, obtain land from the local population, negotiate an agreement with them and conduct an environmental assessment.

When we visited Tana Modu again in February 2009, there had been some progress. There were two nurseries and a field of about two hectares had just been planted with jatropha. The members of the farmers’ group argued that they did not want to lease their land. They thought the amount of money offered was just a symbolic gift to underline good relations(uang sirih pinang), as would have been appropriate according to customary rules for lending land to 'strangers' (for cultivation) who then would accept a subordinate position in the traditional social hierarchy and accept adat rules pertaining to land. The farmers’ group thought this amount was by no means fair compensation for offering such a large acreage of land. The company representative, on the other hand, argued that they would provide employment opportunities for the local population. However, the landowners said they did not intend to work as plantation labourers. They wanted to get rewarded as landowners, preferably in a profit (and risk) sharing arrangement with the company.

Local people who would be willing to work as plantation labourers seemed absent in all of these negotiations. They could be indirectly affected by these developments, since the uncultivated lands are traditionally accessible to low status community members when their superiors within the clan allow them to open up a field to grow their own food. When part of those fields would be occupied by a plantation, land could become scarcer. Further, if negotiations between landowners (not the poorest people) and the company were to fail and the company withdrew, it could mean the loss of employment opportunities for the landless.

This case of the jatropha plantation in Tana Modu was still in the planning or exploration phase.

In East Sumba we examined the experiences involvinga plantation with a longer history, about which there was more information on the way land was acquired. PT Ade Agro Industry (AAI) is a cotton and maize plantation, an affiliate of textile company PT Adetex in Bandung, which started operations in East Sumba in 2006. The company cooperates with investors and breeding research institutions in Australia.27 AAI has three plantations in East Sumba, located on the flat plains along the east coast: the first is with around 6000 hectares the largest, and already operational, whereas the other two are smaller and just opened. In February 2009, AAI had not yet completed the whole legal procedure for starting a plantation. It had not yet been granted cultivation rights or building rights for the necessary offices. All it had was a location permit (izin lokasi) issued by the district head. Furthermore, the obligatory environmental assessment had not yet been conducted. Despite not having secured all the legal authorisations, the company already started operations.

The largest location used to be ‘empty’ land for herding livestock. Most people who live close to this plantation site originate from the nearby island of Savu.When in 2005 the company’s first plans became public, there was protest among the local population, directed at the district government. They claimed customary rights to the land, but had no strong evidence to support their arguments: no clear history of clan ownership, no land certificates, just the common practice of herding their animals.28 Nevertheless, the district government and the company organised a meeting aimed at preventing further escalation of the conflict. They chose the local church as the venue and addressed all invitees as brothers and sisters within the Christian family. The owner of PT Adetex in Bandung was Christian himself. Because a church is a house of worship, where people are not supposed to argue with each other, the organisers thought it was an excellent place for conflict prevention. The government and company representatives addressed the audience, saying that the plantation would bring economic prosperity to the region. They argued that higher incomes would also benefit the church and the quality of the congregation. In a second meeting, also in the church, the company gave the congregation cloth to make new cloths for the reverend, and promised providing free bus transportation for schoolchildren. The protest faded out.

In the second location, the situation was different.Around 75 land certificates, each covering one to two hectares, had already been issued in respect of the land in question before the arrival of AAI. These certificates were issued in the 1980s, when another company had planned to start a cashew plantation. Obtaining land certificates was one of the preconditions for the company getting a bank loan. The company went on to plant cashew trees, but the plantation failed. When, 20 years later, AAI entered the area with plans to establish their plantation on the same location, the locals who felt they owned the land feared their land would be occupied by the company, and discussed protest among themselves. AAI’s local director – a retired high government official in East Sumba, who also acted as mediator between the local population and the company in the church meeting mentioned above – heard about the protest and took the initiative to bring the protestors to East Sumba’s district head to discuss the issue. The district head, who was a descendant of one of East Sumba’s main raja, addressed the protesters as members of the ethnic group (Savunese) that, during the era of warfare in Sumba, cooperated with his own forefathers to prevent external enemies from invading Sumba. In this way, he made the protestors feel that they had a special connection to the district head, and afterwards they easily accepted his offer to give them another parcel of land as compensation. He proposed that the protestors themselves would indicate which parcel they would like.

According to the mediator who gave us this information, all were satisfied with the result of this meeting. Furthermore, it seemed like the protestors did not actually care particularly about the land. Rather, their protest was inspired by the hope that they could get financial compensation from the company (or wealthy investors who they associated with the plantation company). However, the company only offered opportunities for (casual) labour at the minimum wage for agricultural labourers in the region. Initially, some people took this opportunity. But in 2009, many labourers decided they no longer wanted to work at the plantation, because wages were not paid regularly, people were only employed seasonally as casual labourers, and they felt they could earn more in other places in Indonesia. For the justice seekers in this case the process of getting access to justice did not seem to progress further than the phase of voicing claims based on grievances. The certificate holders, who protested against the cotton plantation company using their land, seemed satisfied with the resolution offered by the district head, being the granting of (symbolic) compensation by way of alternative parcels of land. This solution could be regarded as successful redress of their grievance. However, it can also be interpreted as a withdrawal of a legitimate claim by a disadvantaged group under pressure from the powerful local elite.

6. Conclusions: Agrarian Justice and Access to Justice for the Poor

In conclusion, we would like to return to the difference between access to justice research that focuses on access to legal institutions and an agrarian justice approach in which analysis of the injustices that the poor and the disadvantaged experience is the point of departure for investigating options for redress. Our approach to access to justice in land disputes sets off with an analysis of the problems of the poor and disadvantaged in a specific context. The most relevant characteristics of the context we studied - rural area of Central and East Sumba - are traditional inequality, modern class formation, legal pluralism, and poverty, and for the subject of new agribusiness development: availability of uncultivated land. The traditional social differentiation created a social hierarchy in which young (and unmarried) people, women, and 'slaves' depend on their superiors for access to land. The substance of customary land law reflects that hierarchy, and customary mechanisms of redress - solving matters within the family (secara keluarga) - are dominated by the powerful members of the clan, men who are champions in terms of forms of capital. The idea that new redress mechanisms for solving disputes should be created that incorporate elements of customary institutions and rules so that these mechanisms would be more effective and accessible to the poor than the currently available state justice institutions (World Bank 2008), is not supported by this study concerning Sumba, because Sumbanese custom has created "disadvantaged" people and the substance of its rules discriminates against this category.

Moreover, modern economic class formation enlarged the gap between powerful local leaders and the tani whose livelihoods depend primarily on land. Modern class formation is linked with capitalist development and (in Sumba) additionally with the influx of money from the national budget after a new way of distributing national tax revenues resulted in tripling the government budget in the districts of Sumba. That development strengthened the highest class in the district, the political class whose livelihood depends on resources of the state. Wealth of the political class stimulated a developing land market for land with high use value, in particular for paddy fields and residential plots along the main roads of the island. Poorer people lose these high value lands through the mechanism of indebtedness. Such 'piecemeal dispossession' (Li 2010) pushes them uphill to inhabit and cultivate less valuable land. This injustice is a characteristic outcome of capitalistic development. With the analysis of the problem that justice seekers face, the focus of access to justice research turns to the fundamental barriers for obtaining justice in the wide meaning of the concept. If the legal system should provide protection of the poor against losing access to (their high value) land, changing the substance of the local legal repertoire rather than improving the functioning of the justice institutions seems to be the key for improvement of 'access to justice' for the poor.

In the cases discussed in this article, the poor and the disadvantaged have very little ability to benefit from the new developments in large scale commercial agriculture. They will not be able to benefit from compensation payments by the companies because land owners will be the recipients. The poorest might benefit from the employment opportunities that accompany the development of an agribusiness project. Their stake in negotiations with the plantation company concerns labour conditions and wages. By contrast, landowners usually do not want to become labourers on their own land, and therefore tend to resist the establishment of plantation projects. Their main interests are to ensure that their land rights are recognised, and that they receive a sufficient return on their land. The hierarchical structure of Sumbanese society, in combination with the power of the political class, creates the context in which large land transactions become matters dealt with by companies, district governments and local adat chiefs, to the exclusion of less powerful groups. The companies and district governments, whose interests are usually aligned, often co-opt the chiefs by offering them salaried positions or treating them as the local population’s representatives who are entitled to receive compensation payments for their whole clan. The real cultivators, who are excluded from these negotiations for big projects, do not have access to any redress mechanism that might hear their grievances and deal appropriately with them. Further, there are not yet any NGOs working in Sumba to assist the landless in protecting their rights as labourers.

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1 1000,000,000,000 Rupiah or 109 million US$

2“Swedia Tanam Jarak: Investasi Rp 1 Triliun, Lahan Tetap Milik Warga”< /span> http://www.kompas.com/kompas-cetak/0708/16/daerah/3765820.htm(last visited 17 August 2007).

3 See White (1999) about rubber and coconut plantation systems in West Java, Colchester e.a. (2006) and Afiff (2004) on oil palm, Hartveld (1995) on sugar in East Java, and Boomgaard (1999) on the history of maize and tobacco in upland Indonesia.

4 GRAIN (2008) Seized: The 2008 land grab for food and financial security. Barcelona: GRAIN.

5 FAO (2008) Annex.

6 This is a research program of the Van Vollenhoven Institute (Leiden University) in collaboration with UNDP Indonesia and the Social Development unit of the World Bank in Jakarta.

7 See Ubink (2008) for a review of literature on this issue.

8 Stepanus Makambombu is Sumbanese, graduate of Development Studies and Director of NGO Stimulant in Waingapu. He has long-standing experience in action research among in both urban and rural areas in Sumba concerning access to social services and legal awareness. Jacqueline Vel lived in Central Sumba for 6 years (1984-90) engaging in grass root development work with the local poor in the rural area, and conducted research about the local farmers economic practices and customs (Vel 1994, 2010), and since 1998, she made frequent return visits for further research on the Sumbanese version of the national democratization process (Vel, 2008). Since 2007 her research concentrates on land law issues in Indonesia and biofuel developments in Eastern Indonesia in particular.

9 Myrna Safitri (2010:210) used the word tenure security to grasps the notion of justice in relation to land access, and found that forest users in Lampung described that notion with the words aman (safe, secure) and tenang (quiet, free from fear).

10 See the website of the 'Agrarian Justice' cluster of the Transnational Institute, http://www.tni.org/work-area/agrarian-justice(last visited 22 September 2010.

11 Hüsken (1989) concluded that commercialization of agriculture in Central Java between 1850 and 1980 resulted in increasing social inequality and consolidation of the power of the local elite.

12 The various interpretations of the concept and according definitions in socio-legal literature are discussed in Bedner and Vel's contribution in this issue.

14 The HDI combines indicators on life expectancy, education and income. BPS et.al, 2004:208.

15. For example, the company Equitech signed a Memorandum of Understanding in 2008 with what their website calls the "head of Village Kings", see http://www.equitech.biz/equitech_Corporate.asp?status=SubGroupData&SubGroupID=98&TypeTable=6&SubMainID=51, (last visited September 12 2010).

16 Emic means: defined by the actors themselves in a way that is meaningful in their socio-economic and cultural context.

17 Individually cultivated part of translation (tanah kabihu)

18 Since 1986 Jacqueline Vel has known Ina Modi, who has told Jacqueline about her life on every return visit she made to Sumba.

19 See Laurens Bakker (2009: 211-222) on adat institutions in Krayan; Sandra Moniaga (2007) on Kasepuhan Citorek in Lebak; Franz and Keebet Von Benda Beckmann (2004) on Minangkabau.

20 The concept tanah ulayat is translated as communal land, and derived from the Minangkabau land ownership system. It refers to the land that is claimed by adat communities, hence the translation as ‘communal’. See Bakker 2008:1.

21 Interview with chairman of the General State Court in Waikabubak, February 12, 2009.

22 One informant told us her experience that a land case in court had cost around Rp. 50 million (about 5000 US $), including all formal and informal expenditures.

23 One elaborate feasibility study was done for Indonesia – including Sumba - by GFA Consulting group for the German KfW Entwicklungsbank with the title ‘Development of Jatropha Curcas Oil for Bio-Energy in Rural Areas’.

24 This is a plantation and oil palm processing company active in Banten, West Java. See http://biofuel.indonet work.or.id/profile/pt-cecilisarah-abadi.htm (last accessed March 27, 2009), with ‘Jatropha Plantation now operating in Eastern Indonesia, seeking investors to expand to 300, 000 hectares’. See http://www.alibaba .com/member/gbatchelor/aboutus.html (last accessed on March 27, 2009).

25 Interview Jacqueline Vel with Umbu Saga Anakaka, November 2007.

26 Field visit to Tana Modu and interviews with chairman and some members of the Tana Modu farmers’ group were conducted in November 2007 and February 2009.

28 Interview with Umbu Tamu, local advisor to the director of PT Ade Agro, Waingapu February 6, 2009.