Clearing land, obscuring rights:

seeking benefits and claiming property in a process of oil

palm plantation expansion in West-Kalimantan, Indonesia

Petra Rietberg

Clearing land, obscuring rights:

seeking benefits and claiming property in a process of oil

palm plantation expansion in West-Kalimantan, Indonesia

MSc thesis report, ENP 80436

Law and governance group

Environmental policy group

Wageningen University

Supervisor and examiner: Dr. Otto Hospes

Second examiner: Dr. Peter Oosterveer

Petra Rietberg

Wageningen, May 2011

Abstract

Since the 1990s, oil palm production has grown tremendously in Indonesia, especially in Kalimantan. Oil palm

plantation expansion is expected to continue in the coming years. Expansion of oil palm plantations has been

associated with conflicts between communities and companies. Notably, these conflicts relate to rights and

control over land. This thesis aims to contribute to a better understanding of oil palm plantation expansion

processes and the role of communities in such processes. Notably, it aims to answer the question how claims

over land are made by an oil palm company in the plantation expansion process, and how villagers have

mobilized their rights to land in response to the incoming of the company. This question was investigated by

means of a qualitative case study, conducted in a hamlet in Sanggau district in West-Kalimantan province. In

2005, ten years after having first visited the village, oil palm company PT MAS started establishing an oil palm

plantation in this area. At the time of research, part of the oil palm plantation was planted, though not yet

ready for harvest. Through a description of the different phases in the process of expansion, the changing

property rights on the lands in the hamlet will be described. It will become clear that the outcome of the

expansion process is not fixed yet at the onset of the process - both in terms of what rights villagers will have

related to the plantation, as well as what possibilities to benefit from the plantation they have. Through a

discussion of two different schemes that will possibly be concluded between the villagers and the company, the

outlines of the rights and benefits that are to be expected are sketched. Furthermore, attention will be paid to

the negotiation process between the villagers and the company over the conditions for cooperation, and the

position both parties take within these negotiations. Using a theory of access, insight will be given in the

villager's motives to engage with the oil palm company. Initially, they take a positive stance towards the

incoming of the company because of expected roads, facilities and economic improvement. However, their

enthusiasm vanishes when those expectations are not met. Ultimately, this leads to a protest action against the

company in the form of road fencing. Furthermore, special attention is given to the role of local authority in the

expansion process. The way in which the oil palm company is making of use of local authority in gaining access

to land and in obtaining recognition for their claims to land is discussed. Whereas the local authorities played a

key role in the land acquisition process, they also took the lead in the protest action conducted. The

interactions between the state institutions and customary institutions in the land conversion process are

investigated by drawing on the concepts of legal pluralism and interlegality. It will be argued that the notion of

interlegality appears apt to describe the mingling of institutions that is taking place in this process, but

nevertheless shows some shortcomings, that will be discussed. The conversion of swidden land under

customary management to oil palm plantation takes place via a complicated process that involves pioneering,

measuring and clearing of the land, as well as formalizing the customary rights to land in an administration

process. By means of an extensive discussion of this land conversion process, it will be shown that customary

property rights seem to be taken as a point of departure, but nevertheless become obscured in the course of

the oil palm plantation expansion process. Finally, some of the RSPO criteria for expansion of oil palm

plantations will be reflected upon.

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Content

List of illustrations........................................................................................................................................... 4

List of abbreviations ....................................................................................................................................... 6

1 Introduction ................................................................................................................................................... 8

1.1 Problem statement ........................................................................................................................ 8

1.2 Research objectives ..................................................................................................................... 10

1.4 Research methodology ................................................................................................................ 11

1.5 Scope and limitations of the study .............................................................................................. 13

1.6 Structure of the report ................................................................................................................ 15

2 Conceptual framework ............................................................................................................................ 16

2.1 Legal pluralism & interlegality ..................................................................................................... 16

2.2 Property ....................................................................................................................................... 17

2.3 Access .......................................................................................................................................... 19

2.4 Access and property .................................................................................................................... 20

3 RSPO and sustainability .......................................................................................................................... 22

3.1 Sustainability: a pluralistic concept ............................................................................................. 22

3.2 RSPO as a new institution ............................................................................................................ 22

3.3 Sustainability as understood by the RSPO .................................................................................. 22

4 National political and policy context .................................................................................................. 24

4.1 Political context of post-Suharto Indonesia ................................................................................ 24

4.2 State policies and legislation ....................................................................................................... 26

4.3 Adat law regarding land tenure ................................................................................................... 28

5 Study area ..................................................................................................................................................... 30

5.1 West- Kalimantan province ......................................................................................................... 30

5.2 Sanggau district ........................................................................................................................... 30

5.3 Hamlet Mua ................................................................................................................................. 33

6 Oil palm estate PT MAS III in hamlet Mua: perspectives of villagers ...................................... 36

6.1 Main phases in the process of expansion of PT MAS in Mua ...................................................... 36

6.2 Reasons to engage with the oil palm company ........................................................................... 38

6.3 Shifting perspectives ................................................................................................................... 40

6.4 Conclusion ................................................................................................................................... 41

7 Expansion on family lands and individual lands: recognition of customary property? .. 42

7.1 Customary property regime ........................................................................................................ 42

7.2 Claim-making in the field ............................................................................................................. 43

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7.3 Claim-making in the administration process ............................................................................... 47

7.4 Conclusion ................................................................................................................................... 52

8 Shifting property regimes: contract ................................................................................................... 56

8.1 Plasma-inti-scheme ..................................................................................................................... 56

8.2 Oil palm plantation partnership pattern ..................................................................................... 57

8.3 Negotiating the contract ............................................................................................................. 59

8.4 Conclusion ................................................................................................................................... 60

9 Lack of access to authority? ................................................................................................................... 62

9.1 Claim-making in the open: a fencing act ..................................................................................... 62

9.2 Close connection between the company and authorities .......................................................... 64

9.3 Conclusion ................................................................................................................................... 64

10 Communal lands ...................................................................................................................................... 66

10.1 Participatory assessment .......................................................................................................... 66

10.2 Pedagi and cemetery area ......................................................................................................... 67

10.3 Rimpu-area ................................................................................................................................ 68

10.4 Conclusion ................................................................................................................................. 71

11 Conclusion ................................................................................................................................................. 72

11.1 Legitimization strategies employed by the company ............................................................... 72

11.2 Villagers mobilizing rights? ........................................................................................................ 73

11.3 Searching for recognition .......................................................................................................... 73

11.4 RSPO-influence .......................................................................................................................... 74

12 Discussion .................................................................................................................................................. 76

12.1 The position of villagers in the expansion process .................................................................... 76

12.2 Dynamics between access and property in a context of legal pluralism .................................. 77

12.3 RSPO criteria for sustainable expansion of oil palm plantations .............................................. 78

Acknowledgements ...................................................................................................................................... 80

References ....................................................................................................................................................... 82

Appendix I List of interviewees ............................................................................................................... 86

Appendix II List of documents .................................................................................................................. 88

Appendix III RSPO principles and criteria for expansion of plantations .................................. 90

IIIa RSPO principles and criteria: principle 7 ..................................................................................... 90

IIIb Indonesian interpretation of HCV-assessment ........................................................................... 90

IIIc Guidelines for new plantings established after 1st January 2010 ................................................ 91

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List of illustrations

Box 1. Principles of sustainable palm oil defined by RSPO 23

Box 2. Oil palm company PT MAS III 36

Box 3. RSPO: yet unknown by villagers. 47

Box 4. Booklet hold by the koperasi 50

Box 5. Fear for repression 64

Box 6. Trapped by the police? 65

Box 7. Access to information: attempting to interview an employee of PT MAS III 67

Figure 1. Geographical map of Indonesia. 30

Figure 2. Map of West-Kalimantan showing the administrative division in districts (Kabupaten). 31

Figure 3.Obtaining a plantation business permit and a business utilization right: overview 33

Photo 1. Oil palm trees in West-Kalimantan 8

Photo 2. A row of bamboo trees marks the border between two neighbouring fields 44

Photo 3 and 4. The road from Mua to Pinsam 62

Photo 5. A grave at the communal cemetery of Mua 66

Photo 6. Remnants of the hut of mythical forefather Bay Bokap in the Rimpu area 68

Table 1. Excerpt of a notebook of a Satlak-member from Mua, left page 49

Table 2. Excerpt of a notebook of a Satlak-member from Mua, right page 49

Table 3. List of interviewees, and dates and location of interviews 86

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List of abbreviations

AMDAL Analisis Mengenai Dampak Lingkunan (Environmental Impact Assessment)

BAL Basic Agrarian Law

LBBT Lembaga Bela Banua Talino (Institute for Legal Resources Empowerment)

HCV High Conservation Value

HGU Hak Guna Usaha (Plantation Permit to use State Land)

FL Forestry Law

FPIC Free, Prior and Informed Consent

KKPA Koperasi Kepemilikan Perkebunan untuk Anggota (Primary Cooperative Credit for

Members)

Musdat Musyawrah Adat (an adat convention)

NES Nucleus estate smallholder

NGO Non Governmental Organisation

OPPPP Oil Palm Plantation Partnership Pattern

Perda Peraturan daerah (district regulation)

PIR Perkebunan Inti Rakyat (Nucleus Estate Smallholder)

PT MAS Perusahan Terbatas (Propriety Limited) Mitra Austral Sejahtera

RSPO Round Table on Sustainable Palm Oil

Satlak Satuan Pelaksana (executing team, village level)

Satgas Satuan Tugas (task force at the sub-district level)

SEIA Social and Environmental Impact Assessment

SPKS Serikat Petani Kelapa Sawit (union of oil palm farmers/peasants)

TP3K Tim Pengawasan dan Pembinaan Perkebunan Kabupaten (task force for land

acquisition, district level)

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1 Introduction

1.1 Problem statement

In Indonesia, oil palm agriculture entails an area of 5 000 000 ha (FAO, 2008; FAO, 2009). Palm oil is extensively

used in food and non food products such as soap and detergents. Furthermore, palm oil can be used as a

biofuel. Palm oil agriculture is expanding fast (Koh, Wilcove, 2008) and production is expected to increase in

the coming years. Since the 1990s, oil palm production (Photo 1) has grown tremendously in Indonesia (Potter

and Badock, 2004), especially in Kalimantan (USDA, 2009). In West-Kalimantan, an Indonesian province on the

island Borneo, the area under oil palm has grown annually by 13% on average in the first decade of the

twentieth century (USDA, 2009). The largest area of oil palm in West-Kalimantan is located in Sanggau district

(BPS 2006, cited by Rist et al., 2010).

Photo 1. Oil palm trees in West-Kalimantan

1.1.1 Smallholders' involvement in oil palm production

Oil palm production has been widely adopted among smallholders (Rist et al., 2010). In 2003, 33% of oil palm

production in Indonesia was grown by smallholders 37% of the area under palm oil was managed by

smallholders in that year (Government of Indonesia, cited by Vermeulen and Goal, 2006). Smallholders are

engaged in palm oil production as independent smallholders and as shareholders in various schemes. Under

those schemes, they provide land in exchange of financial compensation and/or support to cultivate palm oil

on their land. In addition, Vermeulen and Goal (2006) distinguish collective landowner schemes, via which local

communities can be involved in palm oil production. In such schemes landowners provide oil palm companies

with land in exchange for rent or a share of the profit.

The involvement of local communities and smallholders in oil palm production is not without drawbacks.

Marti (2008) reports 94 conflicts over palm oil production in West-Kalimantan in 2008. Potter (2008) notes over

25 conflicts between oil palm estates and local people between 1998 and 2001 in West Kalimantan, as

accounted by the Kalimantan Review. Sources of conflict and contestation have been described by national and

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international NGOs (e.g Marti, 2008; Sirait, 2009) as well as scientists (Potter, 2009a; Feintrenie et al., 2010;

Rist et al., 2010).

NGO’s generally are very critical on livelihood and other social impacts of palm oil production (cf. Marti,

2008, Sirait, 2009). The schemes offered by companies have been criticized for disempowering local

communities and contributing to conflict and social disruption, especially when agreements made between the

company and the communities are not met (Sirait, 2009). In addition, Sirait (2009) describes conflicts between

plantation companies and local communities - both with those who engage in palm oil production or resist to it

- and increased tensions and inequalities between and within communities after the arrival of palm oil

companies.

Scientists take a more modest stand, and point to the large number of smallholders that embrace palm oil

production (Potter, 2009a; Rist et al., 2010). Rist et al. (2010) perceive the economic benefits that can be

derived from oil palm production as the main reason for its embracement by local communities. They indicate

that most communities are eager for economic development and see palm oil production as the best way to

achieve it. Oil palm gives higher return to labour (at high oil palm prices) than clonal rubber, rubber agroforest

or inundated rice (Feintrenie et al., 2010; Rist et al., 2010). Rist et al. (2010) and Feintrenie et al. (2010) are

optimistic about the potentials of palm oil production for smallholders. Their conclusions contrast the findings

of Sirait (2009). He states that only few indigenous communities, and mostly only their elites, benefit from oil

palm production.

Potter (2008) argues that Dayak communities have opposed the hegemony of oil palm companies in West-

Kalimantan in both overt and covert ways. Previously, Potter and Badock (2004) have described the

engagement of villages and hamlets with oil palm companies in the Sanggau district. Their analysis shows

diverse responses of local inhabitants to production of oil palm and oil palm companies. Whereas oil palm

became a prominent crop in most villages, some rejected the offers made by oil palm companies because they

did not agree with them.

There is an apparent gap between the large number of farmers that seems to be eager to get involved in

palm oil production schemes, and the conflicts between communities and companies reported. Taking a

farmers' perspective could provide more insight in this seeming contradiction. Why do they get involved in oil

palm plantations? And how can their position in the oil palm plantation expansion process be understood?

Furthermore, enhanced insight in conflicts that accompany oil palm plantation expansion is necessary to solve

and to prevent such conflicts.

1.1.2 Overlapping claims to land

Land tenure is one of the main issues around which conflict arises (Vermeulen and Goad, 2006; Potter, 2009a;

Sirait, 2009; Feintrenie et al., 2010; Rist et al., 2010). The conflicts that arose upon arrival of oil palm companies

described by Sirait (2009) all relate to property of land. Disagreement on land allocation may exist, with local

inhabitants opposing allocation of land to oil palm companies without their consent. Smallholders have

accused palm oil companies of land grabbing or stealing their land. According to Rist et al. (Rist et al., 2010),

such claims may lack adequate justification. The conditions under which land is sold or leased to a company are

contested, too. Specifically, complaints over the debt farmers’ face after engagement with oil palm companies

are widespread. Feintrenie et al. (2010) and Rist et al. (2010) argue that the time span over which these debts

are being repaid greatly differ between farmers.

Oil palm plantation development takes place on state lands on which land lease permits are given to oil palm

companies. Such companies are either state-owned, a national private company or a foreign investment

company. Colchester et al. (2006) point to the absence of adequate procedures for land titling, despite formal

recognition of customary land rights. Moreover, if such procedures are in place, authorities do not always act

accordingly. Contestations over land tenure are closely related to recognition, or lack thereof, of customary

rights on land. Where the state considers land as “non productive lands” or “bare lands” they qualify as

potential area for oil palm plantations, despite smallholder agricultural activity (Sirait, 2009).

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Debates over land tenure are complex, even more so since they take place in a context of legal pluralism. In

such a context, there is no single legal (state) order, but multiple normative orders exist simultaneously.

Besides theories on legal pluralism (such as developed by for example Von Benda-Beckmann, 2002; De Sousa

Santos, 1987), the concepts of property and access may help shed light to this complexity. In the concept of

property, emphasis is put on the rights that actors may hold to natural resources, and the relations between

those actors (Lund, 2002; Von Benda-Beckmann et al., 2009). The importance of the ability to benefit from a

certain resource, rather than the right to do so, is highlighted by the concept of access (Ribot and Peluso, 2003).

According to Sikur and Lund (2009, p.1), "the central dynamic is created by people’s attempt to secure rights to

natural resources by having their access claims recognized as legitimate property by a politico-legal institution.”

Investigating how this dynamics is taking place in processes of oil palm plantation expansion can shed light on

the struggle over natural resources that is taking place, and help to understand the position of different actors

in this process.

1.1.3 Sustainable oil palm and the RSPO

In addition to social problems, oil palm expansion has been related to severe ecological problems. Koh and

Wilcove (2008) reported that at least 56% of palm oil expansion in Indonesia took place at the expense of

forest areas. This, in turn, severely decreased tropical biodiversity. Palm oil plantation expansion may also

contribute to climatic change by direct or indirect conversion of forests and peatlands. Greenhouse gas

emissions after drainage of peatlands are at the centre of attention of environmentalists.

Awareness on the downsides of oil palm production has spurred the demand of Western consumers for oil

palm that is produced in a 'sustainable' way. The Round Table on Sustainable Palm Oil is a consortium of

different stakeholders involved in the oil palm chain, like oil palm producing companies, industry, banks, NGO's.

The RSPO aims to address the negative impacts of palm oil production like deforestation (Hospes et al., 2009).

More specifically, the RSPO aims to develop sustainable palm oil production chains through the formulation of

principles and criteria to which the different actors in the production chain should adhere, and the

implementation of those principles and criteria. In addition, the RSPO aims at facilitating communication

between stakeholders involved in oil palm production (RSPO, 2009a), thus seeking to avoid and solve conflicts

that have accompanied palm oil production.

Within the RSPO, principles and criteria for the expansion of oil palm plantations have been developed.

A better understanding on the process of the shift in property regime can help to assess the potential of those

principles and criteria.

1.2 Research objectives This thesis aims to contribute to a better understanding of processes of expansion of palm oil plantation and

the role of local communities in such expansions. The following three objectives are formulated:

1. To enhance a better understanding of the consequences of expansion of palm oil plantations for local

communities by assessing how access to and control over land have changed in practice in the process of

expansion of oil palm plantation.

2. To contribute to theory on the interplay between access and property by assessing how legitimization of

claims on land and negotiation of rights took place in the process of expansion of palm oil plantations in a

context of legal pluralism in West-Kalimantan.

3. To contribute to the assessment of the local situation with respect to land use planning and the possibilities

for participatory land use planning of the project global sustainable biomass fund by BothEnds1, by assessing

1 The project 'Land use planning to promote sustainable biofuel production in West Kalimantan, Indonesia' aims at 'enhancing participatory land use planning (spatial zoning) as a means to achieve sustainable palm oil production as a source of sustainable biofuel in two districts in West Kalimantan'. To reach that goal a multi-stakeholder process will be facilitated, involving district and provincial governments, local communities, oil palm companies and NGO's. The project is run by a consortium of Dutch and Indonesian NGO's and universities, including BothENDS (Environment and development NGO, Amsterdam), Cordiad (Catholic Organisation for Relief & Development Aid, Amsterdam), VU (Free University, Amsterdam), University of Amsterdam, ICRAF (World Agroforestry Institute, Bogor), LBBT (legal empowerment NGO), Pontianak) and PPSDAK (community mapping NGO, Pontianak), and runs from August 2010 until 2013. The project starts with an assessment phase, to which this thesis makes a modest contribution.

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perceptions of villagers on benefits of palm oil plantations and by reflecting on the concept of and criteria for

sustainable expansion of oil palm plantations as developed by the RSPO.

1.3 Research questions

The main research question is twofold: how was oil palm company PT MAS III organized claims over land in its

plantation expansion process and how have villagers mobilized their rights facing claims over land in Mua?

This question will be investigated by means of the following sub-questions:

1a. Which phases can be distinguished in the oil palm plantation expansion process at village level?

1b. How have villagers perceived the benefits of engaging with the oil palm company?

2a. Which claims were made over land in the expansion process?

2b. How were these claims legitimized?

3a. Which claims were made in the contract between the koperasi and the company?

3b. How were these claims legitimized?

4. How have RSPO criteria for sustainable expansion of oil palm plantations been used in the land

acquisition process in Mua?

1.4 Research methodology This research consists of a case study that was conducted using qualitative methods. Background information

about case studies and qualitative methods can be found, for example, in Mason (2002) and in Bernard (1994).

This section describes how the study was conducted. Possible methodological shortcomings are discussed in

section 1.5.

1.4.1 Time frame

After a preparatory phase, consisting of a short literature review and the writing of a proposal, field work was

conducted in West-Kalimantan, Indonesia from September to December 2010. This period took off with a

project week that was part of the project Land use planning for sustainable biofuel production in West-

Kalimantan1. This project week took place in Pontianak, the capital of West-Kalimantan, and Sanggau district

and provided the opportunity to hear different accounts of the oil palm expansion process and problems

associated with it specific for the region. Furthermore, several field visits were made and local people were met

as well as NGO-personnel and civil servants. The project week was followed by a stay in Pontianak of two and a

half weeks. In this period, practical arrangements were made for a stay in the field. Being hosted by LBBT, a

legal empowerment NGO based in Pontianak, provided the possibility to gain more specific information about

suitable locations for research and for further preparation. Then, field work was conducted in Sanggau district,

notably in sub district Bonti from October 25th until December 10th 2010 (interrupted for a two-week stay in

Pontianak for practical reasons). Of this period, two weeks were spend in Empodis village, hamlet Koca2. The

remains of the period was spend in neighbouring hamlet Mua. From these hamlets, on occasions trips were

undertaken to hamlet Pinsam (part of village Kampuh), sub-district-capital Bonti, Bodok and Sanggau-city to

conduct interviews there.

The village of Empodis was selected for several reasons. First, it is located at the oil palm plantation

expansion frontier, where the agrarian transformation that is topic of the study could be observed. Oil palm

plantation expansion recently took place in this region, so that the way the expansion took place in the field

and the effect of the incoming of the company to the village probably would be well remembered by the

people. Second, colleagues from LBBT had contacts in this region which would greatly facilitate the possibility

of doing research. Third, the operating oil palm company is part of Sime Darby, an important player in the

2 Officially, the hamlet is named Empodis, but in former times it was called Koca. To distinguish between the village Empodis (consisting of

four hamlets: Mua, Tapa, Entanjan and Empodis) and the hamlet Empodis, the name Koca will be used to refer to the hamlet Empodis.

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global oil palm field and member of the RSPO. Fourth, in contrast to other villages in the region of Sanggau ,

this village had not been topic of prior investigations related to agrarian transformation (see for example

(Potter and Badock, 2004; Colchester et al., 2006; Sirait, 2009). Within the village Empodis, hamlet Mua was

selected. In the region of hamlet Mua, oil palm plantation expansion had already taken off and part of the

plantation was already established, whereas in hamlet Koca the plantation development had yet to start.

1.4.2 Informal and formal interviewing

Informal interviews (Bernard, 1988; Bernard, 1994) were conducted mainly at the initial phase of the study,

during the project week and the stay at LBBT. These talks provided an opportunity to gain information on the

and the way different actors speak about the issue. In the villages, informal interviewing was used, but to a

more limited extent, mainly because of the language barrier. Formal, semi-structured interviews (Bernard,

1988) were conducted using a topic list.

The topic list was refined and adapted during the research process, based on findings in previous interviews.

The topics for the interviews with farmers included: the customary system of property rights prior to the

incoming of the company, the way of practicing agriculture before the incoming of the company, reasons to

engage with the oil palm company, the oil palm plantation expansion process, the land conversion process, the

registration system, derasa. Other topics that were discussed in some but not in all interviews because of the

position of the interviewee and/or time restrictions include the communal lands and the Rimpu-area, the

fencing act, sustainability, HCV-areas, participatory assessment and the RSPO.

Interviews mainly took place mainly with farmers in the villages, some of them being part of the

management of the koperasi or belonging to the elders of the village. Furthermore, informants like religious

leaders, adat council members or NGO-employees were interviewed. In total, 37 people were interviewed one

to four times. In Appendix I an overview of respondents and interviews is given.

Initially, interviewees were selected via the snowball-method, by asking interviewees who else would be

knowledgeable about the topics at stake. To avoid to have only respondents from the same social group within

a village, some households were selected randomly in a later stage. Initially, mainly farmers who had given

large areas of land for oil palm were interviewed. Therefore, farmers who had given a small area of land (less

than 5 ha) were actively sought for later on3.

The interviews and other talks were conducted with help of an interpreter who was a native speaker of the

Indonesian language and held a bachelor degree in law. Most interviews were conducted in Indonesian an

translated to English, one interview was conducted in English. Extensive notes were taken during the interviews

and transcripts were written immediately after each interview.

1.4.3 (Participatory) observation and document analysis

A meeting between villagers, company representatives and government officials about the oil palm plantation

development in Mua and Pinsam was observed in the village house of Empodis on October 5th 2010.

In order to gain trust of the villagers and a better understanding of their position, I participated in several

social and working activities. Groups of villagers going into the field were joined a few times, for example

during planting and grassing activities, at the festivities at the end of the planting period, and at the annual

honouring day at the cemetery. Furthermore, visits to the pedagi and the Rimpu-area were organized whereby

villagers provided information about those locations.

An overview of the documents that were used as a primary source of information can be found in Appendix

II.

3 This was done after a document listing the farmers that had registered their land at the koperasi was obtained. From this document it became clear that the villagers who were registered with relatively large amounts of land were overrepresented in the study. Then, the document was used to select farmers who were registered with smaller amounts of land.

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1.4.4 Remarks related to this report

For a more lively description of the findings, the present tense is used in the chapters in which the empirical

findings are presented (chapter 6-10). Quotes of respondents however are not adapted - so the past tense is

used in those quotes whenever used by the respondents.

To ensure the anonymity of the interviewees, their names are not mentioned. Where respondents are

quoted while mentioning other people's names, the names are changed.

For recalculating monetary values, the following conversion rates are used: 10,000 rupiah = 0.78 € and 1

United States $ = 0.68 €.

Doing social-scientific research in a different culture, abroad, is not without methodological challenges. These

difficulties, as well as the scope of the study, will be discussed in the next section.

1.5 Scope and limitations of the study This study focuses on the process of oil palm expansion in a village. The experiences and knowledge of the

inhabitants of that village are a main source of information and of interest. This study limits itself to one village.

In a qualitative study like this one, time is needed to obtain an understanding of the processes and issues at

stake in a particular locality. In this way, a more in-depth understanding of the agrarian transformation in a

particular place can be obtained. However, such an approach limits the extent to which the results can be

generalized to other villages or regions.

Smallholders can be involved in oil palm production in two main ways: as independent smallholders or via a

liaison with an oil palm company (Vermeulen and Goad, 2006). These are two distinct modes of production,

each with their own dynamics and in each case, smallholders face different issues (McCarthy, 2010). This study

focuses the position of smallholders involved in a corporate plantation expansion, and thus on farmers involved

in the oil palm commodity chain via contract farming.

At the time of the research, the oil palm trees were not ready for harvest yet. As will be described more

extensively in later chapters, the negotiations over the rights and duties of the farmers and the company

related to the oil palm plantation had not yet finished, and a contract between the farmers and the company

had not been signed. This complicates assessing the shift in property that is taking place, and the precise

consequences of the land acquisition process . It also complicates assessing the possibilities for villagers to

state their claims vis-à-vis the company - for what will be the effect of their efforts is yet unknown. Obviously,

it would be of interest to assess, for example, the ways in which farmers will be able to benefit from the oil

palm plantation in the future, whether and how their perception of the plantation shifts in later stages of the

oil palm plantation and how the relation between the villagers and the oil palm company further develops.

Simultaneously, the process of change might be ongoing, and the struggle over natural resources is probably

never "finished".

The study started with a prime focus on the RSPO, and expansion of RSPO-certified plantations. However, no

RSPO-certified oil palm companies seemed to operate in the study area4 - let alone companies that were

certified and expanding their plantations. Likewise, RSPO-members that were expanding their plantations after

January 1st 2010 could not be found in the study area. The plantation company on which this study focuses is a

member of the RSPO. However, the possibility to assess the effects of RSPO-membership 'on the ground' was

severely hampered by a lack of willingness or ability of oil palm company PT MAS, holding Sime Darby and the

RSPO secretariat to provide information, as well as by the lack of knowledge of villagers about the RSPO.

4 No specific overview of the location of RSPO-certified oil palm plantations is available. The RSPO however provides a list of certified

growers at its website. From these 13 growers, (at least) two produce palm oil in West Kalimantan: Sime Darby and Wilmar International

Limited. However, no certified plantations seem to exist in West Kalimantan – the reports on past audits, audits in progress and

forthcoming audits are not about plantations in this area.

14

Consequently the RSPO has moved from the centre of the attention somewhat to the side, and it's role in the

expansion of PT MAS III might be underexposed.

During the course of the field work, the my attention was drawn to the Rimpu-area, one of the communal

lands of Mua. This swamp forest is located in the middle of the plantation estate of oil palm company PT MAS.

People from several villages and ethnic background laid claim to this area. The investigation of the claims over

this area was challenged by the limited availability of people knowledgeable about the area, the contrasting

accounts of interviewees, the limited availability of written documents referring to this area, and limited time

to travel to other villages to find interviewees that would possibly be willing and able to participate in the

investigation. Due to the complexity of the topic and the limited availability of data, the description of the

process should be considered as no more than an exploration of the matter. Nevertheless, it is included for its

relevance in relation to the main topic of this study - shifts in land use and property rights provoked by oil palm

plantation expansion in a context of legal pluralism.

My limited knowledge of the Indonesian language required that interviews were conducted with an

interpreter, which caused inevitable loss of information and, sometimes, misunderstandings. In order to limit

misunderstandings and the loss of relevant information, all interviews were discussed before and after the

interview. All interviews were conducted in Indonesian, as an interpreter who was fluent in both the local

language and English was not available. In a few interviews, limited knowledge of Indonesian language of the

respondents might have lessened the quality of the interview.

It proved to be difficult to interview women - whenever a man would be present, woman would usually keep

silent. Furthermore, they often questioned whether they were knowledgeable enough to be interviewed or

said that the interview should be conducted with their husband. Six interviews were conducted solely or mainly

with women, in other cases women sometimes added to the answer of their husband. Although various

attempts to avoid it were made (for example by stressing the importance of including the voice of women, by

approaching women when their husbands would be in the field), female respondents are underrepresented,

which may have caused a gender bias in the study.

When being interviewed, people may adapt their answers to what they think the interviewer likes to hear,

they may keep things to themselves or they may give information contrary to information found in other

sources - the man who said he had never visited a particular meeting and was not involved in decision-making,

while his name was on a list of persons present. This issue was dealt with by probing during the interview and

by searching for information in multiple sources.

Some respondents were unable or unwilling to participate in the research. The head of village Empodis

asserted me that he did not have time, that interviewing him was useless since no definite decision over the

plantation was taken yet and that I should better talk to the village secretary instead, who had been working as

a civil servant much longer than he had. (The secretary, in his turn, referred to the head of the village at times).

For medical reasons, the head of hamlet Mua was not staying in the hamlet during the largest part of the field

work. He was only interviewed shortly in the initial phase of the research. As a consequence, the role of the

village and hamlet head -the main local government officials- remains somewhat underexposed. Furthermore,

the role of the national, provincial and district governments in oil palm plantation expansion processes was not

directly investigated in this research - no interviews were conducted with civil servants other than at village

level. In order to obtain an overview of relevant legislation and policies, and implementation of those policies,

secondary sources were used.

Furthermore, oil palm company PT MAS did not want to participate in the investigation (as explained in

more detail in Box 7). The head of adat in Mua was , after cooperating in a first interview, unwilling to be

interviewed again. The lack of willingness to participate in the research of some actors indicate that the

expansion activities of the oil palm company are a sensitive topic.

Not all documents that would be of interest for the study could be obtained. The minutes of the fencing act

were not finished yet at the time of the field work. The minutes of the meeting in Mobui about the Rimpu-area

15

were held in the sub district office on half a day travel away - and probably would not be made freely available

for the study. Several interviewees indicated the head of hamlet Mua possessed documents such as a list of

farmers involved in the oil palm plantation, but as written, he was mostly out of the hamlet due to his physical

condition and the documents thus could not be obtained.

1.6 Structure of the report In chapter two, the conceptual framework used in this study will be elaborated on. Chapter three, four and five

provide background information. The concept of sustainability, the RSPO and the RSPO's understanding of

'sustainable expansion of oil palm plantations' are shortly discussed in chapter three. Chapter four focuses on

the Indonesian context. The political situation in post-Suharto Indonesia will be briefly examined, with special

reference to the role of adat (4.1). Thereafter, relevant laws and policies regarding oil palm plantation

development and land tenure will be discussed (4.2), as well as adat laws regarding land tenure (4.3). More

information about the context in which the research takes place is given in chapter five. The specific situation

in the study area is described: first, at the provincial level (West-Kalimantan, 5.2), then, at the district level

(Sanggau, 5.3). Besides some general characteristics of the area, attention is paid to the importance of oil palm

production in the region and policies and (again) legislation regarding land tenure and oil palm plantations.

Finally, hamlet Mua and the way villagers are practising agriculture there is the topic of chapter 5.35.

Empirical findings are presented in chapters six to ten. Each chapter is provided with a conclusion, in order

to give the reader some guidance in following the common thread and to indicate the relation between the

chapters. First, a general overview of the process of expansion at village level is given (6.1). Thereafter the

initial reasons of the villagers to engage with the oil palm company are explored (6.2). The way the perspective

of the villagers is shifting in the expansion process is topic of section 6.3.

Chapter seven describes the actual oil palm plantation expansion process as it took place in Mua. After a

description of the customary property regime (7.1), the land acquisition and land conversion process are

described. Special attention is given to the role of customary law and authority in the land acquisition process.

A distinction is made between the process in the field (7.2) and the way this process is administrated and

property rights are formalized (7.3).

This formalization of property rights is closely related to the scheme that will be applied. In Mua, a contract

between the villagers and the oil palm company is not agreed upon yet. In chapter eight the outlines of two

different schemes that are on the table will be discussed, as well as the negotiations between the villagers and

the company about these schemes.

The negotiations over land are not limited to the land conversion process and the discussion over the

contract only. Access to government authorities seem to affect the process, and are the topic of chapter nine.

By discussing a protest action of the villagers, light is shed to their discontent over the current course of affairs,

as well as their possible lack of access to government authorities.

The chapters so far mainly considered shifting property regimes of lands considered individual lands or

family lands by villagers. In contrast, chapter ten focuses on possible shift in property regime of the communal

lands of Mua. The majority of the chapter is dedicated to a discussion of the multiple claims made over the

Rimpu-area, a swamp forest located in the concession of the oil palm company. The main research question in

answered in the conclusion (chapter 11). In the discussion, an attempt is made to realizing the goals of this

thesis by comparing the research findings with findings of others, identifying gaps and discussing some

implications of the findings (chapter 12).

5 Although empirical findings are presented in this sub-chapter, it was decided to include it in chapter five since it provides background information about the study area and contributes to an understanding of the context in which the research takes place.

16

2 Conceptual framework

2.1 Legal pluralism & interlegality In many post-colonial countries such as Indonesia, policy making takes place in a context of legal pluralism. In

the words of Meinzen-Dick and Pradhan (2002), this is “the co-existence and interaction of multiple legal

orders within a social setting or domain of social life”. This means that there are different legal frameworks in

place to which people can adhere “to rationalize and legitimize their decisions or their behaviour”. For example:

state laws, adat laws, religious laws, organizational laws (Meinzen-Dick and Pradhan, 2002).

In the article ‘Who’s afraid of legal pluralism’ Franz von Benda-Beckmann (2002) elaborates on his

understanding of legal pluralism as an analytical concept. Specifically, he focuses on law and plurality as

analytical tools to be used for intercultural and historical comparison. He argues these concepts can be useful

devices to make sense of the multitude of normative and cognitive conceptions that may exist within a society.

The theoretical outlines of what law and plurality look like, do not specify anything about their substantive

content, or even their existence, in a particular society.

What, then, is exactly meant by law and by plurality? “Law is the summary indication of those objectified

cognitive and normative conceptions for which validity for a certain category of people or territory is asserted”

is Von Benda-Beckmann’s rather abstract definition. Those conceptions have a disciplining effect, as they limit

people’s ability to act and to create their own conceptions. Furthermore, those conceptions shape how people

categorize, evaluate and give relevance to the world around them.

In this view, not only those rules and regulations produced and sanctioned by state institutions are called

law. Rather, law is understood as a broad term that can refer to a variety of empirical phenomena. It has

several dimensions that can be described:

“the extent to which general legal cognitive and normative conceptions have been institutionalized

and systematized” (p. 49)

“the extent of professionalization, theoretization and scientification” (p. 49)

the ground on which it is based

“the extent to which legal rules are defined as mandatory” (p. 50)

the geographical area it applies to

the social scope it applies to

its’ substantive content

Von Benda-Beckmann (2002) furthermore argues that functional characteristics should not be incorporated in

the concept of law. The functions of law differ from case to case, as does the degree to which law is effective.

Also ethical consideration should be left out of the concept. Rather, those should be subject to empirical

investigation. According to Von Benda-Beckmann, law does not necessarily have to refer to state law, but can

relate to other normative legal orders, too.

Von Benda-Beckmann suggests to study manifestations of law. He mentions four areas where law could be

“found”. First and most obviously, law is embodied in written and spoken texts. Knowledge of people is a

second area in which law exists. Third, law manifests itself as legal status – of people (who can be a citizen in a

country), of organizations (for example a propriety limited) or of social relationships (for example, when people

are married). Fourth, law is “present” in social processes and social interactions.

Plurality refers to “the duplicatory or parallel character of legal forms or mechanisms”. Those legal forms or

mechanisms should refer to the same issues. Defining which issues are ‘the same’, however, is an intricate task

since different normative orders may conceptualize social phenomena differently. For example, the death of a

person may be perceived as killing by witchcraft in one normative order, whereas another normative order

would frame such death as “accidental”. Therefore, it is necessary to define analytically the field of study one is

interested in.

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In the scholarly literature no consensus exist on the scope of the concept of plurality. Von Benda-Beckmann

suggests to distinguish between intra-system plurality and between-system plurality. The first term would refer

to different legal mechanisms within the same legal order, whereas the second term points to differences

between legal orders. Furthermore, plurality may also refer to different interpretations of the same law.

By comparing laws with maps, De Sousa Santos (1987) refers to different ways in which laws and legal orders

can work, and what consequences this has for their functioning and the way they interact. Specifically, laws

may operate on different scales, make use of different types of projection (egocentric - applying to a certain

group of legal persons - and geocentric - applying to a geographic area - law are distinguished) and work with

different forms of symbolisation.

Different legalities often refer to the same social objects but do so in different ways. According to De Sousa

Santos (1987), different legal orders do not operate in isolation from each other, but rather interact, clash and

mingle. He proposes that a theories on legal pluralism need to be complemented by the concept of interlegality

to refer to this "conception of different legal spaces superimposed, interpenetrated, and mixed in our minds as

much as in our actions" (De Sousa Santos, 1987, p.298).

What matter here is that multiple legal orders play a role in society. In this thesis, legal pluralism will be

understood as the kaleidoscopic normative context in which rural development is taking place. This is a point of

departure from where questions about the importance of one legality over the other and the interactions of

legalities can be posed.

2.2 Property

2.2.1 Property: about things and people

Property involves social relations between people concerning objects of value. The rights to those objects of

value, and the way they are defined and organized, are central to the study of property, rather than the objects

themselves (Lund, 2002). Three elements are central to the concept of property rights (Von Benda-Beckmann

et al., 2009): first, the holders of the property rights – individuals or groups of people. Second, the

“construction of valuables as property objects” (p.15). Third, the kind of rights and duties that property rights

holders may have with respect to objects of value. Property is thus a term that connects social and

(bio)physical spheres, and material and immaterial worlds. Since property is about social relations, it is not

fixed and static, but contested.

In their conceptualization of property as an analytical concept, Franz and Keebet von Benda-Beckmann and

Wilber (Von Benda-Beckmann et al., 2009) distinguish two types of social practices affecting property: concrete

and categorical. Concrete practices regarding property rights refer to “’concretised’ relations that find

expression [...] in relationships between actual property-holders with respect to concrete valuables.”

Categorical practices, on the other hand, relate to property at a more abstract level. In those practices, “the

nature of property law is explained, discussed or disputed in interaction settings such as courts parliaments,

universities, the mass media or local forums”. Obviously, categorical and concrete practices interrelate with

each other. Furthermore, those practices take place in a context and are part of a wider set of social practices.

This embeddedness affects both categorical and concrete practices.

Furthermore, they propose to study three different layers of social organization and their interrelations. The

ideological layer concerns philosophies, ideologies and ideas. These affect how property rights are perceived,

both in a cognitive and a normative sense. Such ideologies often contain some internal contradictions - they

are seldom completely coherent. The layer of legal-political organizations refers to the institutions through

which property rights are formalized. Rights discussed at this layer are categorical. At this layer, large

differences between societies and culture exist, for example with respect to the degree of institutionalization

and differentiation of property rights. Moreover, as explained in the previous section, a number of normative

legal orders may co-exist within a society. At the layer of social relations, property rights find their concrete

expression. Therefore, Von Benda-Beckmann et al. consider property rights at this level “concrete”.

18

In this thesis, property will be understood as a "bundle of rights" as described in the following section.

Furthermore, property is seen as closely connected to claim-making and authority, as described by Lund (2002)

and discussed in section 2.2.3 and 2.2.4.

2.2.2 Property as a bundle of rights

Property is an aggregate term that can consist, among other things, of the right to have, to exploit, to inherit or

to dispose of – it is thus not synonymous with possession (Ribot and Peluso, 2003). As Lund (2002) states:

“property is a heuristic rubric for a focus on how access to, use of, and control over “things” or resources are

organized in society”. The metaphor that property is “a bundle of rights” is often used in this respect. This

metaphor can refer to the total number of rights identified in a certain society. It is also used to refer to a

specific form of property, that itself consists of multiple rights (Von Benda-Beckmann et al., 2009).

In discussing common property, Schlager and Ostrom (1992) discern the following strains of a “bundle of

rights”:

Right of access: physical possibility to enter an area

Right of withdrawal: the rights to usufruct and harvest from a certain area

Right of management: the right to decide on the internal management of

Right of exclusion: the right to allow or prohibit others to access an area

Right of alienation: the right to decide on internal and external access to an area

The concept of property is layered also in another sense: it relates to the land, to the trees and crops planted

on this land, the water available from and needed for this land, and the seeds used to plant on this land.

Different rights of access , withdrawal et cetera can apply to different layers (Hospes, 2010).

Different categories of property rights can be discerned. An often made distinction is between regulatory

rights (“rights to regulate, supervise, represent in outside relations, or allocate property”, p. 17) and

exploitation rights (Von Benda-Beckmann et al., 2009). An example of the first would be to sell a piece of land

to someone. A right to exploitation on the other hand points to the possibilities to make use of a certain

valuable and utilize it economically – for example, plant and harvest a crop at a field. According to these

definitions, the rights of exclusion and right of alienation defined by Schlager and Ostrom (1992) could be

considered regulatory rights, whereas the right of access, withdrawal and management should be seen as

exploitation rights.

Furthermore, different master-categories of rights can be defined in a certain society, to which a set of rights

and duties are attached. Examples given by Von Benda-Beckmann et al. include private ownership and state

domain.

2.2.3 Property and claims

Property is defined by Macpherson (1978) as “...a right in the sense of an enforceable claim to some use or

benefit of something”. Such claims can be made by individuals, communities or the state. They can find their

basis in legislation, but also in custom or convention.

Although the term claim is regularly used in discussions about property rights, its meaning is hardly ever

defined. In Oxford Dictionary (2011), two definitions of claim as a noun are given. First, a claim is a statement

of a fact. Second, a claim is 'a demand considered one’s due'. Examples of the latter meaning include a right or

title to something, and “a piece of land allotted to or taken by someone in order to be mined”. Both meanings

are of interest in analysing and understanding the dynamics wherein actors attempt to securing rights to

natural resources. In addition, two meanings of the verb ‘to claim’ are relevant: 1. 'state or assert that

something is the case', and 2. 'formally request or demand'.

In this thesis both claims about land (claim as a statement of a fact) and claims to land (claim as a demand

considered one’s due) will be considered. Claims as statements of facts about the land may include statements

on the size of the land, its vegetation and its location. Such claims may be used in order to secure access to

land. Claims to land include means to demarcate borders, the act of cultivating or otherwise changing the use

19

of the land. Both categories can overlap with each other, for example when statements about the legal status

of a certain piece of land are made.

2.2.4 Property and authority

The tight relation between property and authority is emphasized by several authors (e.g. Fay 2005, Lund 2002).

As Fay (2005) remarks, two meanings of authority are often used interchangeably in discussions about

authority and property. Authority as a countable noun refers to political-institutions or persons representing

such institutions. Authority as a mass noun may refer to ‘the power or right to give orders , make decisions, and

enforce obedience’ and to ‘the power to influence others , especially because of one‘s commanding manner or

one’s recognized knowledge about something’ (Oxford Dictionary, 2011).

Fay (2005) states that those two meanings often but not necessarily overlap. He illustrates his argument by

referring to land tenure relations in South Africa. There, the actors that hold power in the allocation of land are

senior family members rather than the subheadman and the headman that are considered “the authorities” in

a customary land tenure system. He argues it is important to distinguish between those two meanings, since

conflating them involves the risk of overlooking the holders of authority in a certain society and focusing on the

institutions instead. Fay thus does not deny the importance of recognition by others in securing claims to land,

but he puts less emphasis on the importance of political-legal-institutions.

Power is central to the concept of authority. An extensive literature on this concept exist and an elaborate

discussion of power is beyond the scope of this thesis. Ribot and Peluso's understanding of power will be used.

They base themselves on Weber, Lukes and Foucault and state they see power as "the capacity of some actors

to affect the practices and ideas of others" and as "emergent from, though not always attached to, people"

(2003, p. 155-156).

Property is only property as it is recognized by others. For this recognition, a legitimizing institution is

indispensible. At the same time, an institution that recognizes certain claims as property establishes its

authority (Lund, 2002). The process of recognition is central to the establishment and maintenance of property

regimes: recognition of property claims and, at the same time, recognition of authority-granting institutions.

Lund (2002) therefore argues that, in order to understand how property relations work in a society, one should

focus on those processes of recognition. The practices of the legal-political institutions that grant authority to

claims should be studied as well as the practices of the claimants turning to specific political-legal institutions.

Lund thus not distinguishes the layers of ideology and social relations as important arena’s to study, as the Von

Benda-Beckmanns and Wiber (2009)do.

In context of legal pluralism, political-legal institutions tend to compete for authority (Sikor and Lund, 2009).

By adhering to a certain political-legal institution for authorization of property claims, authorization is also

granted to this institution. Political-legal institutions that search for claims to authorize are referred to as

“shopping forums”. Searching for authorization of property claims by different political-legal institutions is

called “forum shopping” (Meinzen-Dick and Pradhan, 2002; Sikor and Lund, 2009). Bakker and Moniaga

(2010)present cases of such forum shopping in the Indonesian context. They describe how different

communities turned to different levels of government in order to legitimize their claims on natural resources.

2.3 Access Following the above mentioned definition of property by MacPherson, Ribot and Peluso (2003) define access as

“the ability to benefit from things” – the ‘things’ in this context being natural resources. Access encompasses

both legal and illicit mechanisms by which actors can benefit from natural resources. Legal mechanisms are

closely connected to property rights as discussed above. Illicit mechanisms can consist of violence, corruption

or theft.

Ribot and Peluso (2003)distinguish three dimensions of access: who has access control can determine who

can benefit from a natural resource. Maintenance of access entails keeping the door to a particular resource

open. Establishing the first entry to natural resources is captured in the term gaining access.

20

The ability to benefit from things is closely connected to power – by analogy with a bundle of rights, which is

commonly associated with the notion of property, Ribot and Peluso (2003) perceive access as a bundle of

powers. The strains of these bundles, then, are the means, processes and relations by which people are able to

derive benefits from a particular resource. In addition to the right-based mechanisms mentioned above (legal

and illicit), they describe structural mechanisms: access to markets, access to capital, access to labour, access

to knowledge, access to authority, social identity and social relations.

All these mechanisms are forms of social relationships. Ribot and Peluso (2003) perceive those relations as

access mechanisms and as ‘strains in the bundle of powers’, as forms of power. Understanding these

relationships and how they affect access to natural resources is key to access analysis. Such analysis can

contribute to understand, in a particular case, who benefits in what way from a natural resource, and why.

Ribot and Peluso (2003) propose three steps that should be included in access analysis:

1. identifying the flow of the benefit to be analysed

2. investigating the mechanisms of the distribution of benefits

3. exploring the power relations that form and are formed by these mechanisms.

2.4 Access and property Social relations between actors with respect to valuable objects or ‘benefits’ are central to both analysis of

access and of property rights. In agricultural transformation processes benefits are not static, fixed things but

rather changing and developing. This complicates the discussion on property and access, for what is it that the

struggle about the right or the ability to benefit is about?

Benefits cannot be understood solely in economic terms, for such an understanding does not adequately

capture changes in for example culture, feelings, identity, independence or beauty of the scenery. What is

considered a benefit will depend on the perspective of the actors involved and cannot be identified

'objectively'. Therefore, investigations on access and property should not take benefits for granted but rather

take the perspective of the involved actors into account. Only in this way, it can be assessed whether the

distribution of benefits can be considered 'fair'.

According to Sikor and Lund (2009), access and property partially overlap. Access is a broader term than

property: actors can derive benefits from resources by other means than property relations alone. At the same

time, people can have property rights to natural resources without being able to gain benefits from those

resources. Access theory is thus broadening the scope of analysis in order to describe which actors are able to

benefit from a certain resource and to understand why they are able to do so, rather than merely focusing on

who has the right to benefit from that resource.

Sikor and Lund (2009) describe relations between access and property and power and authority. According

to them (p.1) “the central dynamic is created by people’s attempt to secure rights to natural resources by

having their access claims recognized as legitimate property by a politico-legal institution.” They stress the

importance of investigating processes and practices of legitimization of claims on natural resources in order to

grasp the struggles over natural resources and the outcome of such struggles. This is complementing the call of

Meinzen-Dick and Pradhan (2002) to pay attention to negotiation processes in situations of legal pluralism.

Sikor and Lund (2009) consider legitimization by a political-legal authority the distinguishing factor between

property and access. Whereas property refers to claims over natural resources that are considered legitimate,

such legitimization is not a precondition for access. This is in line with earlier thoughts on this issue by Lund

(2002). This reasoning sheds another light on the case presented by Fay that is described above. Since the local

authorities do not play a role in recognizing claims made to land, it could be argued that this case is more about

access to land than about property.

In general, a context of legal pluralism complicates marking a sharp distinction between access and

property – especially when competing legal-political institutions do not recognize each other’s authority. For

example, villagers may have certain rights to land that are being recognized and sanctioned by a customary

21

institution, such as an adat council. However this does not necessarily mean that this property is recognized by

national state institutions – from this perspective villagers may have access to land rather than rights.

In this thesis, customary rights to land are considered property, too. First, because customary land use is about

relations between people with respect to objects of value, and second, because these relations are sanctioned

by customary institutions.

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3 RSPO and sustainability

3.1 Sustainability: a pluralistic concept The debate over sustainable development is characterised by normative crowdedness: many different

conceptions over what the word means or ought to mean exist (Redclift, 1992; Langhelle, 1999; Meadowcroft,

2000; Carruthers, 2001). The concept has been embraced by many precisely because of its vagueness, allowing

for different interpretations and meanings. Simultaneously, the notion has been disguised as being hollow and

ambiguous, and, therefore, meaningless (Langhelle, 1999; Meadowcroft, 2000).

The concept of sustainability entered debates over environment and development in the seventies of the

nineteenth century, as part of a discourse that pointed to limits that the earth's natural resources would put to

human activities (Carruthers, 2001). Since the appearance of the World Commission on Environment and

Development's report "Our common future" (WCED 1987), the concept of sustainable development has found

its way to political agendas. Probably the most well-known part of the report is the often-cited definition of

sustainable development as "development which meets the needs of the present without compromising the

ability of future generations to meet their needs". Less often referred to, is the addition that priority ought to

be given to the needs of the poor, whereby the environments ability to meet those needs is limited (WCED

1987, p. 43). Questions about the meaning of sustainability relate to questions about scale: what are the

temporal and spatial scales that should be considered?

According to this definition, one can run with the hare and hunt with the hounds: economic development

and environmental concerns are not mutually exclusive. Moreover, sustainability is constructed as an open

concept, leaving ample room for interpretation and for context-specific operationalization (Meadowcroft,

2000).

3.2 RSPO as a new institution Policy making is no longer the domain of the state only. Hajer (2003) argues that policy making now often takes

place in an "institutional void" where "there are no generally accepted rules and norms according to which

policy making and politics is to be conducted." This leads to new forms of governance, whereby other actors

than the state alone actively are involved in determining policy outcomes and actions. The RSPO is such a new

form of governance. The notion of an "institutional void" seems to be in contrast with notions of legal pluralism,

for in theories on legal pluralism, the existence of a multitude of normative orders and institutions that govern

people's conduct is emphasised- an institutional crowdedness rather than a void. An extensive comparison of

the theories of new forms of governance and legal pluralism is beyond the scope of this thesis. Here, it suffices

to note that the RSPO is emerging as a new institution, that stands in a certain relation to other institutional

arrangements already in place such as state and customary institutions.

The RSPO consists of stakeholders in the oil palm production chain (growers, processors, manufacturers and

retailers), as well as bankers and investors, social and development NGOs and nature conservation and

environmental NGOs. It presents itself as a round-table, wherein the voice of each members is weighed equally

and decisions are taken by consensus (RSPO, 2009c).

3.3 Sustainability as understood by the RSPO Although the RSPO's mission is "to advance the production, procurement and use of sustainable oil palm

products", the RSPO does not give a clear definition of its perception of sustainable palm oil. In its question-

and-answer-section, sustainable palm oil is defined indirectly as a negation: "Sustainable palm oil is produced

without these negative social and environmental side effects." Displacements of communities, violation of

workers' rights and replacement of high value conservation areas are mentioned as examples of those negative

'side effects' (RSPO, 2009b).

23

Given the different backgrounds of the parties involved in the RSPO provide for a continuous negotiation

over what contains sustainable palm oil. Defining what sustainable palm oil is, seems to be one of the tasks the

RSPO has set itself: one of the core activities of the RSPO is developing and implementing a certification system

for “sustainable palm oil”. The basic tenets of sustainable palm oil as agreed by the RSPO members are

captured in eight principles (Box 1) These principles are operationalized in criteria and indicators. In order to

produce certified oil palm, plantations should adhere to these principles and criteria. The RSPO-rules for the

production of “sustainable palm oil” are additional to state legislation.

The perceived unsustainability of the oil palm sector has all to do with replacement of ecologically or socially

valuable areas by oil palm plantations. The following section focuses on RSPO-rules aiming at regulating

expansion of oil palm plantations.

Box 1. Principles of sustainable palm oil defined by RSPO

3.3.1 High Conservation Value-areas

The concept of high conservation value areas (HCV-areas) is central to RSPO certification. As the name implies,

these are areas, often but not necessarily forests, that are considered to be worth protected because of their

importance. The RSPO recognizes six categories of high conservation value, and defines those as follows (RSPO,

2007):

“HCV1. Forest areas containing globally, regionally or nationally significant concentrations of

biodiversity values (e.g. endemism, endangered species).

HCV2. Forest areas containing globally, regionally or nationally significant large landscape level forests,

contained within, or containing the management unit, where viable populations of most if not all

naturally occurring species exist in natural patterns of distribution and abundance.

HCV3. Forest areas that are in or contain rare, threatened or endangered ecosystems.

HCV4. Forest areas that provide basic services of nature in critical situations (e.g. watershed

protection, erosion control).

HCV5. Forest areas fundamental to meeting basic needs of local communities (e.g. subsistence, health).

HCV6. Forest areas critical to local communities’ traditional cultural identity (areas of cultural,

ecological, economic or religious significance identified in cooperation with such local communities).”

HCV five and six are referred to as ‘social HCVs’, because of their importance for local communities. The rules

and regulations regarding expansion of existing oil palm plantations or establishment of new oil palm

plantations that will be described now frequently refer to HCV-areas.

Expansion of oil palm plantations taking place after November 2005 can no longer take place on HCV-areas.

Prior to expansion, a participatory assessment of HCV-areas is required for RSPO members. Detailed

information about the criteria for expansion of oil palm plantations for RSPO members and the Indonesian

interpretation of those criteria can be found in Appendix III.

1. Commitment to transparency

2. Compliance with applicable laws and regulations

3. Commitment to long-term economic and financial viability

4. Use of appropriate best practices by growers and millers

5. Environmental responsibility and conservation of natural resources

and biodiversity

6. Responsible consideration of employees and of individuals and

communities affected by growers and mills

7. Responsible development of new plantings

8. Commitment to continuous improvement in key areas of activity

24

4 National political and policy context

4.1 Political context of post-Suharto Indonesia From 1966 until 1998, Indonesia was governed by a strictly authoritarian and centralized regime, the so-called

New Order. After the fell of then-president Suharto, a process of ‘Reformasi’ begun in which the political

situation in Indonesia changed radically. Most importantly, it entailed a process of decentralisation of

government authority to the district level and an increase in civil liberties (Peluso et al., 2008).

4.1.1 Decentralisation

This decentralization process was set in motion mainly during the Habibie presidency between May 1998 and

October 1999. It was regulated mostly by two laws: 22 and 25. Law 22 regulated a shift of authority to the

district level. Among others, it included the establishment of elected, instead of appointed, leaders at regional

and district level and the relocation of 2.1 million state employees to the regions, and regional autonomy on

many issues such as education and culture, health care, agriculture, labour and land (Ray and Goodpaster 2003

in Schult Nordholt, 2003). Simultaneously, Law 25 prescribed that the central government remains in charge

when it comes to revenues and income. Decentralisation thus entails a shift of administrative authority to the

district level, whereas financial power remains with the central state (Schulte Nordholt, 2003).

Schulte Nordholt (2003) argues that this decentralization process is not, as is often though, synonymous

with increased democratization and a strengthening of civil society. As he formulates it (p.572):

“we witness a decentralization of corruption, collusion, and political violence that once belonged

to the centralized regime of the new order but is now moulded in existing patrimonial patterns at

the regional level.”

This is caused by so-called changing continuities that constitute Indonesian society and find their origin in pre-

colonial times. Schulte Nordholt (2003) elaborates on three of those. First, patrimonial patterns deeply affect

the functioning of Indonesian bureaucracy and the military. Second, boundaries between government, state

and society are blurred. Third, regional elites have played important roles in the colonial period and the

regimes thereafter.

4.1.2 Revival of Adat

After the fall of the New Order regime, adat has become increasingly important in Indonesia (Henley and

Davidson, 2007). Although the concept is omnipresent in the literature about Indonesia, what is precisely

meant by adat often remains vague. Henley and Davidson (2007) distinguish three connotations that adat can

have. First, adat refers to “particular time-honoured practices and institutions, inherited by communities rather

than imposed by the state” (p.817). Second, adat is “a complex of rights and obligations that ties together *...+

history, land and an law in a way specific to Indonesia” (p. 818). Third adat can be a normative concept,

referring to the organization of the ideal society.

The seeds for a revitalization of adat in the post-Suharto period were sown during earlier periods. During the

period of colonization by the Dutch, legal scholars were concerned with the customary property rights systems

of indigenous people (Henley and Davidson, 2007). The Leiden school of adat-studies, lead by professor Van

Vollenhoven, attempted to write down those systems. Thereby, they draw customary rights into the sphere of

law. By doing so, they were able to protect part of the rights of indigenous people to land against alienation by

the state and private companies (McCarthy, 2006) p.12. At the same time, this process entailed a

transformation of adat, as the informal, flexible system of customary law was forced into the language of

legislative books and fixed, written-down law.

During the New Order, indigenous people were suppressed in various ways. Among others, a discourse of

harmony and solidarity was used to suppress groups or people that were different or critical towards the

system. Under the guise of civilization, swidden farmers were forced to relocate and abandon their land. In

addition, ancestral lands were alienated for logging and mining purposes.

25

The increased political freedoms of the Reformasi period provided room for calls for restoration of the rights

of indigenous people. The number of NGOs promoting adat and defending rights of indigenous people

increased rapidly after 1998. In this period the alliance of indigenous people, AMA, was erected in Pontianak,

aiming to secure land rights and defend land management methods of Dayak communities. One year later this

club turned into the national organization for the rights of indigenous people, AMAN. Doing so, it broadened its

focus to the rights of indigenous people in general (Potter, 2008).

At least formally, the state increasingly recognized the importance of adat law at the local level. The

abovementioned regional autonomy laws 22 and 25 provide the formal basis for that. Among other things, they

stress the importance of customary institutions at local level (Henley and Davidson, 2007). Laws and policies

on natural resources and land tenure should be in respecting and protecting adat law communities, according

to a decree announced by the Indonesian Supreme Parliament in 2001 (McCarthy, 2005).

Henley and Davidson (2007) argue that there were other than only idealistic motives for the promotion of

adat during the Reformasi. As elaborated on above, Reformasi did not immediately eliminate the problems the

Indonesian state was facing in the previous period. The Indonesian state did not manage to provide stable

conditions for a safe life for its citizens. The legal system was weak and well-established democratic institutions

were absent. Those conditions of uncertainty and injustice motivated people to turn to tradition. Furthermore,

the promotion of adat was related to struggles of power. Adat law provided opportunities for farmers to

safeguard or regain access to land. Furthermore, elites of adat communities could use adat law to gain power

at a local level.

The paradoxes and dynamics of the Reformasi-period thus nurtured the revival of adat in Indonesia. At the

same time, the revival of adat was fostered by an emerging international discourse on the recognition of rights

of indigenous people. Western NGOs and public beliefs were increasingly pointing their attention to the

position of “common people” in developing countries. NGOs promoting rights of indigenous people in

Indonesia were able to connect to NGOs in other parts of the world with similar beliefs. The conceptualization

and promotion of adat has been influenced by those collaborations.

4.1.3 Legal pluralism and forum shopping in Indonesia

Legal pluralism in Indonesia has its roots in Dutch colonial law. During the colonial period, different ethnic and

religious groups were subject to different law systems. First, Dutch law did not apply to the Indonesians, but

only to the Dutch and the so-called “Foreign Orientals”. The indigenous population was assumed to be

governed according to their own systems and rules, who differed between ethnic groups. In addition, the

Dutch supported Islamic institutions in regions were the Islam was the dominant religion (Henley and Davidson,

2007).

Von Benda Beckmann (2002) notes that in Indonesia, invoking a certain legal order in order to legitimize

claims might take the character of making a political statement. By referring to a certain law, one refers to the

whole subsystem that law is part of – for example, adat law. As there is more than a single legal order,

reference to a certain normative system is not self-evident. An explicit argumentation explaining the choice for

the invocation of a certain legal order may be required.

The concept of legal pluralism itself may be used for political purposes, too. It could be used to refer to legal

systems not or insufficiently recognized by the state, such as adat law. At the other hand, it could be used

symbolically. Referring to legal pluralism then serves to silent more radical demands by certain underprivileged

groups in society.

In Indonesia, access to land is regulated by different laws (Bakker and Moniaga, 2010). In addition,

differences in interpretation and implementation of these laws exist. This provides room for claim making

processes by different actors in different areas. Bakker and Moniaga (2010) describe how legitimization of land

claims was sought by individuals and communities after decentralization. They identify three key areas were

legitimization is sought: national state institutions, regional autonomy and extra-legal arrangements.

26

4.2 State policies and legislation

4.2.1 State policies and legislation regarding land tenure

In Indonesia, access to land is primarily regulated by the Basic Agrarian Law (BAL) and the Forestry Law (FL)

(Bakker and Moniaga, 2010). Both laws stem for the sixties of the previous century and proved to favour state

or private rights to land over customary or community rights (Peluso et al., 2008). Although the BAL seems to

recognize adat law and customary rights, the terms and conditions under which it does so are very strict

(Bedner and Huis, 2008). Under the BAL, land rights are alienable if they are conflicting with “national

interests”.

The FL states that all rights of forests belong to the state (Henley and Davidson, 2007). The BAL and the FL

thus provide little legal basis for recognition of adat or customary rights to land. However, those rights are

acknowledged in several other laws. For example, the adat land registration policy instructs governments to

respect adat rights to own and use natural resource that they have been using since a long time (Sirait, 2009).

In addition, two amendments of the 1945 constitutional law respect and protect adat law communities

(Bakker and Moniaga, 2010).

Recognition of adat communities by the district government is necessary for adat communities for their

rights to be recognized under other laws, such as the Plantation Estate Law. Otherwise, if no district regulation

of the adat community exist, indigenous people can be accused of damaging the plantation (Sirait, 2009).

4.2.2 State policies and legislation regarding oil palm

Palm oil production is promoted by the Indonesian government. The government stresses the potentials of

palm oil in bringing about rural socio-economic development (Rist et al., 2010). This is reflected in the

ambitions of the government to expand production of palm oil. According to FAO-statistics, the Indonesian

government aims to quintuple Indonesia's oil-palm-based biodiesel production to 3 billion litres by 2017 (FAO,

2008).

Since the 1970s, the Indonesian government has developed and implemented several policies and laws

aiming at increasing smallholder involvement in the oil palm sector6. Particularly, the promotion of nucleus

estate smallholder schemes7 deserves attention. Under such schemes, a palm oil plantation is developed that

consists of an estate core around which smallholders have oil palm-plots called plasma. The area for the oil

palm plantation is cleared and planted with oil palm by an oil palm company, which also provides inputs such

as fertilizers, technical assistance, and processing facilities. Smallholders thus receive loans in the form of

investments made on the plasma-lands, that are to be paid to the oil palm company via a repayment scheme.

Nucleus estate schemes are a form of contract farming. Three periods can be distinguished in the

development of these schemes: the New Order, a transitional period and a laissez-faire-period (McCarthy,

2010).

During the New Order, notably from 1978 onwards, the government strongly promoted oil palm

development via heavily subsidized Perkebunan Inti Rakyat (PIR: Nuclues Estate Smallholder) schemes (Potter

and Lee, 1998; Zen et al., 2005). Five PIR-schemes were developed, each slightly differing in the exact outlook

of the scheme, the financiers and the parties involved (Zen et al., 2005).

Initially the estate comprised 20% of the area of the plantation, and the plasma-lands 80% (Zen et al., 2005).

Later, this ratio shifted to 40% for the estate and 60% for the smallholders (Zen et al., 2005; McCarthy and

Cramb, 2009).

6 As indicated in chapter 1.6, this thesis does not consider independent smallholders growing oil palm, hence policies and legislation considering independent smallholders are left out of consideration here as well. 7 In the scholarly literature, the phrase nucleus estate smallholder scheme is used slightly differently by different authors. For some authors, nucleus estate smallholder scheme is synonymous with the various PIR-schemes developed during the New Order period. Others seem to use it as a general phrase that also covers the KKPA and partnership-schemes developed from the nineteen nineties onwards. In this thesis, the term plasma-inti scheme will be used to refer to a specific scheme discussed in the village of study, order to be able to distinguish between different schemes, as will become clear in chapter 8.

27

First, only state-owned companies where involved in such schemes, later private investment companies

joined as well (Zen et al., 2005). Beside direct investment in state-owned companies, the Indonesian

government provided a financial impetus by providing technical extension services and by developing

infrastructure (McCarthy, 2010). Further financial support came from the World Bank and the Asian

Development Bank (Zen et al., 2005).

The initial PIR-schemes only involved people living in the direct surroundings of the oil palm company. Yet

later schemes such as the PIR-Trans-scheme, were coupled to large transmigration programs, whereby

inhabitants from densely populated Java where send to 'outer Islands' with a lower population density, such as

Kalimantan.

The development of PIR-schemes was facilitated by "mutually advantageous mutual hostage"-relationships"

between businesses and government" (McCarthy 2010, p. 829). The government provided companies with

access to village lands and forests, infrastructure and credits. In exchange for that, the companies developed oil

palm plantations and included smallholders (Zen et al., 2005; McCarthy, 2010).

During the nineteen nineties, a new category of schemes entered the scene: the Koperasi Kredit Primer

untuk Anggota (KKPA: primary cooperative credit for its members). Under this scheme, too, a plantation core

around which plasma-plots are located is developed by an oil palm estate, and some of the basic tenets

underlying the PIR-scheme are remained (Feintrenie et al., 2010). Individual smallholders are involved via

farmer cooperatives, that are developed with credit from the Bank of Indonesia (Sirait, 2009). At a minimum,

60% of the area is allocated to smallholders8. The government was less directly involved in the execution of

these schemes: the responsibility for the development of the plantation as well as the provision of

infrastructure and other facilities was shifted to the oil palm company. The oil palm company held a direct

relation with the farmer's cooperative. The government took up a more facilitating role by providing the apt

institutional surroundings for oil palm development. In addition, the government provided financial back-up in

the form of advantageous credit arrangements (McCarthy, 2010).

At the end of the New Order, an increase in conflicts over land could be witnessed (Zen et al., 2005;

McCarthy and Cramb, 2009). During the New Order, lands had been expropriated from local users. This was

related to increased political freedom of landowners whose land had been appropriated (McCarthy and Cramb,

2009), as well as to growing land scarcity after the end of the new order (Zen et al., 2005).

Since the Reformasi period, the central government acts as a facilitator of oil palm plantation development

rather than as a direct investor. It facilitates the establishment of so-called partnership models (pola

kemitraan). Under these models, smallholders engage with capital intensive companies in the development of

oil palm plantations. The requirements for these partnerships seem to be less stringent than for previous

partnerships. The obligations for the area of land that should be allocated to smallholders is 20%, whereas a

maximum of 80% can be assigned to the oil palm estate (Zen et al., 2008). In addition, oil palm companies are

no longer required to conform to a particular landholder model (Zen et al., 2008). According to McCarthy and

Cramb (2009), many companies continue to involve smallholders via nucleus-estate-schemes developed in

earlier periods. Sirait (2009) however points to a new generation of oil palm plantations whereby lands planted

with oil palm are managed and controlled by an oil palm company and farmers receive passive income from

those. McCarthy and Cramb (2009), too, observe the establishment of partnerships in which smallholders

receive a share in the cooperation or payment of dividend based on the amount of land they provided to the

estate. At the onset of the shift to the partnership-models, Potter and Lee (1998, p.32) state that "the

government has emphasised that all estates must establish a partnership relationship with locals but this is a

8 Different numbers go round about the exact requirements for land allocation to farmers under the KKPA (and earlier PIR)-schemes: McCarthy and Cramb (2009) mention that approximately one-third of the land is allocated to farmers; Zen et al. (2005) note that the estates initially are developed on 20% of the area, but that this later increases to 40%.. McCarthy states that, according to the regulations, a minimum of 80% of the area should be allocated to smallholders (McCarhy, 2010). Finally Zen et al. (2008) report that according to legislations, smallholders should be assigned 70% of the area, and estates 30%. This is in accordance with Feintrenie et al. (2009), who note that a ratio of 70/30 is commonly applied in KKPA-schemes.

28

broad unenforceable concept which does not specify standards that must be followed by companies." More

recently McCarthy and Cramb (2009) emphasised that the term 'partnership' is very broad.

The national regulations thus provide ample room for local initiatives and regulations. The extent to which

smallholders are able to benefit from this schemes is depended on local contexts (Zen et al., 2008).

4.3 Adat law regarding land tenure The notion of “right of avail” (called hak ulayat in Sumatra and elsewhere, or beschikkingsrecht by the Dutch) is

key to adat law related to land tenure. This right refers to the rights of a community to an area of land.

Individuals within the community own and can use the land, but they cannot sell or lease it to third parties

(Bakker, 2008). The importance of adat law in issues related to land tenure has been advocated by scientists

and NGOs alike (Potter and Badock, 2004; Colchester et al., 2006; Henley and Davidson, 2007; Sirait, 2009).

This is not to say that adoption of adat law is unproblematic (Schulte Nordholt, 2003; Henley and Davidson,

2007). Henley and Davidson (2007) point to “customary inequality” that may be promoted by adat laws. They

argue adat law promotes economic inequalities within communities, considers women after men, and favours

adat elites, often senior men. This is reflected by the cases described by Sirait (2009). He argues that it is mainly

adat elites that reap the harvests of palm oil production. The case of palm oil expansion in Barito quoted by Rist

et al. (2010) points in the same direction. Here, only those village members who had close connections to local

authorities were able to benefit from land sales to oil palm companies.

29

30

5 Study area

5.1 West- Kalimantan province West-Kalimantan is one of the four provinces of the Indonesian part of the island Borneo (Figure 1). It’s area

mounts up to 14 million ha (Sirait, 2009). West-Kalimantan is inhabited by 4 million people (Sirait, 2009), the

majority living in the countryside. In 2000, it was estimated that 74% of the population lived in rural areas and

26% in urban areas (Potter, 2008). In the rural areas, average population density is 20 persons/km2 (Sirait,

2009).

A variety of ethnic groups populates West Kalimantan. Almost 34% of the population is considered Dayak,

who can be subdivided in 223 different sub-ethnic groups. Another 34% is considered Melayu, again to be

subdivided in different groups. Melayu are related to the Dayak but practicing Islamism. Furthermore, Chinese,

Madurese and Bugis inhabit the area, as well as groups with ethnic backgrounds that remain unspecified (Sirait,

2009).

Rubber and palm oil are the most important export commodities (Potter, 2010). Currently, over 0.35 million

ha is planted with oil palm (Potter and Badock, 2004; Colchester et al., 2006). In addition, a large area is cleared

for oil palm production but not yet planted. West-Kalimantan’s contribution to Indonesia’s palm oil production

is estimated at 6% (USDA, 2009).

Figure 1. Geographical map of Indonesia. The red circle indicates the province of West-Kalimantan at the island Borneo (source: http://mapoftheunitedstates.files.worldpress.com/2008/03/indoensia_.jpg, viewed 20 July 2010)

5.2 Sanggau district The Sanggau district is located in the centre of West Kalimantan (Figure 2) and borders Malaysia in the North.

The district is intersected by the river Kapuas, along which a high way connects Sanggau to Sintang in the east

and Kapuas Hulu in the west. Another highway provides the connection with West Kalimantan’s capital

Pontianak and the Malaysian province Sarawak (Potter and Badock, 2004).

31

Sanggau makes up 8.8% of West Kalimantan and has an area of 1.3 million ha (Gaiser, 2009). It is divided in 15

administrative sub-districts (kecamatan) and consists of 159 villages (desa) and 586 hamlets (dusun) (Gaiser,

2009).

Over half a million people live in Sanggau, of which 30 000 in the district capital of the same name (BAPPEDA,

2001 in: Potter, 2004). During the nineties, population densities have increased considerably due to

immigration (Rist et al., 2010). Currently, Dayak ethnic groups form the majority of the population (64%).

Malays form 23% of the population whereas the remaining 13% is categorized as “ other” (Colchester et al.,

2006).

Traditionally, Sanggau has been an important oil palm district. At the end of the seventies, the government

set up the first palm oil estates in the area (Potter, 2008). Parts of these government plantations are still

important today (Potter and Badock, 2004). In 2005, over 130 000 ha was estimated to be under oil palm

production (Colchester and Jiwan, 2006).

Figure 2. Map of West-Kalimantan showing the administrative division in districts (Kabupaten). The red area is Sanggau district (source:http://dayakblogs.blogspot.com/search/label/Borneo%20Map, viewed 20 February 2011).

5.2.1 Policies and legislations regarding oil palm

As the national government, district and local governments are often in favour of developing palm oil

production in their locality. District governments are known to support palm oil production in different areas of

Indonesia, like on Sumatra (Feintrenie et al., 2010) and in Sanggau (Colchester et al., 2006; Zen et al., 2008;

Sirait, 2009).

In the Sanggau district, palm oil made up 17% of the annual “regional domestic income” in 2002 (Colchester

et al., 2006). In 1998, a so-called “integrated economic development region” was set up aiming at stimulating

32

palm oil production in the region (Colchester et al., 2006). Pro-plantation policies were implemented in order

to attract (foreign) investors and increase the income of the region (Zen et al., 2008).

The Sanggau region was also one of the areas in which the megalomaniac oil palm corridor project was to take

place. Between the Indonesian-Malaysian border the world’s largest oil palm plantation, measuring 1.8 million

ha, should be established. However, due to opposition by NGOs, villagers and academics, these plans were

never turned into reality (Colchester et al., 2006; Potter, 2009b).

In the Sanggau district, the institutions of indigenous people are recognized at the village level (district

regulation no 4/2002). Every village (kampung) can be ruled according to its own rules and institutions. At the

same time, the village has the responsibility to support district and provincial tasks (Sirait, 2009).

Two district regulations relate to the establishment and expansion of oil palm plantations: district regulation

no 3/2004 regarding oil palm estate schemes and district regulation no 207/2004 regarding the

implementation of guidelines for oil palm estate schemes. In these district regulations, different forms of

collaboration between oil palm companies and local communities are described. Notably, according to district

regulation no 3/2004, oil palm companies should conduct a so-called socialization process, wherein they

convince the villagers to opt-in the oil palm plantation (Zen et al., 2008). In addition, the creation of task forces

to support the land acquisition process preceding plantation establishment is regulated by these decrees (Sirait,

2009).

These task forces support the land acquisition process by oil palm companies in the Sanggau district and

other districts in West Kalimantan. They are established by the local government and operate at three levels: at

district level (TP3K: Tim Pengawasan dan Pembinaan Perkebunan Kabupaten, land acquisition team), at county

level (Satgas: Satuan Tugas, task force) and at village level (Satlak: Satuan Pelaksana, executing team).

Typically, they consist of government representatives, military and police officers, representatives of

indigenous people’s institutions, village (kampung) chiefs and sub-village (dusun) chiefs. The task forces are

financed by the oil palm company. Their primary aim is to identify lands suitable for oil palm plantation

expansion and to smoothen the relation between local communities and oil companies (Sirait, 2009).

These land acquisition and negotiation processes are part of a wider trajectory that an oil palm company has

to go through in order to obtain the necessary permits to start an oil palm plantation (Figure 3). In practice

however, this trajectory often is gone through as a matter of form only (Sirait, 2009; McCarthy and Zen, 2010)

5.2.2 Implementation of laws regulating expansion of oil palm plantations

Decentralization has brought with it specific challenges for the (environmental) regulation of oil palm

production. In particular, the capacity of local governments to deal with such regulation should be increased.

Furthermore, responsibility and accountability for implementation of laws and policies would need to be

enhanced (McCarthy and Zen, 2010). Currently, incentives for large companies to take environmental

management seriously are lacking (McCarthy and Zen, 2010). Schulte Nordholt (2003) fears that the

environment will pay a high price for decentralization.

As described above responsibility for environmental and land issues has shifted to district and municipal

governments (Schulte Nordholt, 2003). However, these governments often lack the capacity to do so

adequately (McCarthy and Zen, 2010). The authority of different agencies is ambiguous. Furthermore,

environmental issues are often assigned to government officials with a low status and/or to inappropriate

agencies, with limited political and organizational clout. In addition, funding for these agencies is often limited

(McCarthy and Zen, 2010).

. After decentralization, the responsibility of districts to raise income from local sources has grown. This

encourages them to attract private investments like oil palm companies (Potter, 2008). Districts thus are

depended on taxes and investments from industries (McCarthy and Zen, 2010). In addition, these industries

create jobs. Employees of palm oil industries depend on these industries for their livelihood. The company

could mobilize these people in order to protest against measures government agencies are to take against the

33

company (McCarthy and Zen, 2010). These factors contribute to a political bias of government agencies

towards oil palm companies.

Corruption has continued to be an important obstacle towards regulation of palm oil production. As money is

“disappearing” in the hallways of government agencies, the need for governments to raise extra income is

increased. This exemplifies the need to attract investment and taxes from industries (Schulte Nordholt, 2003).

Companies, in their turn, may bribe government officials to avoid the need to comply with regulations

(McCarthy and Zen, 2010). Corruption exists because of, and at the same time contributes to, the dependency

relation between local level government officials and factories. Notably in Sanggau, it seems that "large scale

producers and powerful local investors -often including plantation shareholders and key public officials - often

worked in a collusive fashion to mobilise support for particular outcomes." (Zen, et al., 2008, p.3).

Enforcement of law regulating palm oil plantations is challenging in contemporary Indonesian society

(McCarthy and Zen, 2010). Political and organizational problems lie at the basis of those challenges. Stricter

legislation or clarification of law will not solve those problems. Therefore, the potential of improved

legislation –e.g. clearer or stricter legislation - is limited. This holds as well for “legal solutions” regarding issues

in which adat plays a role (Schulte Nordholt, 2003). However, others advocate the need for improved

legislation, especially related to land tenure, in order to solve problems surrounding oil palm plantation

expansion (e.g. Rist et al., 2010).

Figure 3. Schematic overview of the procedure an applicant has to go through in order to obtain a plantation business permit and the business utilization right. Both permits are required to start an oil palm plantation (Sirait, 2009).

5.3 Hamlet Mua Mua is located in the middle of Sanggau district in West-Kalimantan, and part of the village of Empodis. A mud

road of approximately two kilometre leads to neighbouring hamlet Koca. The hamlets of Pinsam and Mobui can

be reached via another dirt road. River Mua divides the village into two parts, which are connected by a

suspension bridge.

34

Four hundred twenty eight people live in Mua, divided over 107 households, according to numbers available

at the Empodis village office. The village is ethnically homogenous, with a vast majority of the population being

Dayak-Muduk. Protestantism (42%) and Catholicism (58%) are the main religions. Sanitation facilities are very

basic: only few houses are equipped with a toilet and bath room and most people use the river as such.

The level of education of most of the inhabitants is low. Many interviewees have not finished primary school

and the number of inhabitants that has finished high school seems to be below ten. There is no school in Mua,

and most children go to school in Koca.

5.3.1 Agriculture in Mua

Rubber tapping is the main source of income for the inhabitants of Mua. Furthermore, most people produce

rice, pulut (a grain similar to rice that is the main ingredient of tuak, a traditional alcoholic beverage) and/or

vegetables. This produce is mainly for auto consumption, although some villagers sell vegetables on the market.

Agriculture is conducted in an extensive fashion, whereby people move their planting field from one spot to the

other over the years. This system of shifting cultivation has several phases. First, an area of land of

approximately 0.5 to 2 ha is cleared. This is either done by slashing the vegetation of the land and burning the

remnants thereafter, or, on fields with only grasses, by spraying herbicide to kill the vegetation. Thereafter,

people plant rice or vegetables, conduct maintenance activities (mainly berumput, literally: grassing, removing

grasses and other weeds) and harvest the crop. Then, a new cycle can start. When the soil quality is good, for

example because there had been a forest in that location previously, the field may be planted for two

subsequent years. Usually, a field is worked on for one year only. People return to the same field after a

number of years, when “the soil has become old” or “the trees are big enough”. Opinions about the

appropriate time span differ from ‘3-5 years’ to ‘12 years’.

Rubber plantations and continuous rice cultivation (that takes place under wet conditions in fields called

sawah) are not included in this system of shifting cultivation. Several interviewees indicate they have some

swamp lands, that are either used to plant padi in a system of wet rice cultivation, or are inhabited by forest.

All agricultural labour is done manually: farmers do not have cattle or machinery for ploughing, seeding,

weeding or harvesting. Usually, people work together on their fields, in order to finish the labour in the

appropriate time. This holds especially for sewing (nugal) and harvesting. Such mutual labour may be organized

more or less formally through an arisan-group: a regular social gathering whereby its members often

contribute to the group financially, for example to buy food for the annual Gawai-festivities. It can also be

arranged informally, whereby a family announces to some relatives it wants to work on its fields on a particular

day. In any case, food and drinks are provided by the host during the working day and the subsequent evening.

The landless mostly make a living as agricultural labourer. They work on other people’s fields, or as an

employee of oil palm company PT Mitra Austral Sejahtera (PT MAS).

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36

6 Oil palm estate PT MAS III in hamlet Mua: perspectives of villagers

In this chapter, the engagement of hamlet Mua with oil palm company PT MAS will be sketched. First, the

phases in the expansion process of will be described (section 6.1). The subsequent section (6.2) provides an

account of the reasons why the villagers opted for involvement with the oil palm company and transferred

their land to be included in an oil palm plantation. It will become clear that the perceived benefits of engaging

with the company as well as the limits to their current livelihoods experienced by the villagers are key to

understanding this engagement. In section 6.3, attention will be given to the dissatisfaction about the oil palm

company that has grown in Mua.

6.1 Main phases in the process of expansion of PT MAS in Mua

6.1.1 First socialization phase

Meeting at sub district level (around 1995)

Around 1995, local leaders like the head of adat are invited to a so-called 'socialization' in sub district Bonti,

organized by a palm oil company that later would become PT MAS (Box 2) and the regional government. This is

the first time villagers of Mua hear about the possibility of an oil palm plantation in their region. People of

other villages attend the meeting, too.

Representatives of the company sketch the advantages of engaging with PT MAS: it will bring economic

advancement to the people of Mua, and the plantation will create employment. Furthermore, the company will

develop facilities: roads, houses, sports facilities and buildings like churches, schools and hospitals. In this way,

the company will contribute to the development of Mua.

A palm oil plantation would be developed according to a so-called plasma-inti scheme. Under this scheme,

the villagers would give 7.5 ha of their land to the company. The company develops a palm oil plantation on 7

ha. When the trees bear fruits, 2 ha of the land will be returned to the farmers, whereas 5 ha remain under the

management of the company. Roads and facilities will be developed on the remaining 0.5 ha. The villagers of

Mua do not make notes during this meeting, nor do they obtain any minutes.

Box 2. Oil palm company PT MAS III

Meeting in hamlet Mua (1996)

The meeting in Bonti is followed by a meeting in hamlet Mua in 1996. The head of the hamlet hits the gong and

people leave their houses and gather in the open space. The meeting can count on a massive attendance, as, in

the words of an interviewee, "anyone who can walk, was present". The head of the sub district (camat), the

head of the police (kopelsek) and the head of the military (dan ramil) attend the meeting, too. Representatives

of the company repeat the message conveyed at the previous meeting: the entrance of the company means

development of Mua and economic advancement for its people. This vision is welcomed by the attendants.

People massively raise their hands to indicate they consent with the company entering Mua.

PT MAS came into existence in 2002, after a merge of several other oil palm companies.

(Colchester et al, 2002). Oil palm estates PT MAS I, II and III are part of Sime Darby. In Malaysia and

Indonesia, Sime Darby runs another 62 'operating units'. The total plantation area of those

operating units was 208 049 ha in Indonesia in 2010. Sime Darby is one of the largest oil palm

producers worldwide (Sime Darby, 2010)."Making a sustainable future real for everyone" is its

mission (Sime Darby, 2010). Sime Darby is a member of the RSPO, and aspires to have all its

operating units RSPO-certified by the end of 2011 (Sime Darby, 2009).

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6.1.2 Between the first socialization and the second socialization (1996-2005)

After this meeting nothing seems to happen. The activity of the company in Mua is pending, apparently. In this

period, oil palm estates PT MAS I and II are being developed. Food retailer Indofood is interested in using the

land of Mua for its businesses. According to some, this has revived the activity of PT MAS in the area. The

company declares to start its activities in the region in a second socialization phase in 2005.

6.1.3 Second socialization and formation of the Satlak and koperasi Sekayam Jaya

In 2005 renewed activity of PT MAS takes place in Mua: the company states they will start developing an oil

palm plantation in Mua. A so-called Satlak (an abbreviation of Satuan Pelaksana: executing team at village level

(Sirait, 2009)) is formed. This is a committee formed by the elders of the village: the head of the village, the

head of the hamlet, the head of adat, the heads of RW and a few other 'local public figures'. In Mua, the Satlak

consists of eleven people, in Koca of six. Some interviewees perceive the Satlak as the extension of the

government, whereas for others the committee is closely related to the company. The task of the Satlak is to

act as a bridge between the people and the company, and to mediate conflicts that may arise between people

related to the expansion of the oil palm plantation. The Satlak executes the land acquisition process at village

level, and facilitates the land conversion process. Via the Satlak, families convey information about the lands

that they want to give to the company, to the company. The company instructs the Satlak where, when and

how to conduct the land conversion process.

In 2007, the plantation koperasi 'Sekayam Jaya' is established and registered at district Sanggau. This

koperasi consists of the management, an observatory body and four counsellors. The koperasi should

communicate with the company on behalf of the farmers. At the same time, its task is to convey information

from the company to the villagers. At the time of writing, the main task of the koperasi as perceived by the

management is to make an agreement with PT MAS III about the plantation and the role of the company, the

koperasi and the villagers. In this agreement, the plights and duties of the koperasi as well as the company are

laid down. Koperasi 'Sekayam Jaya' relates to the area of PT MAS III.

6.1.4 Land conversion process

In 2007 the land conversion process starts. Details of this process are given in chapter 7.2. Here, a general

description will be given. In each location, this process consists of several phases: pioneering, measuring and

clearing the land. In the pioneering phase, the owners of the land and the Satlak explore the land to be given to

the company. In a certain location, the borders of the land with neighbouring lands are examined, as are so-

called 'enclaved areas': areas that people do not want to give to the company.

The area of land pioneered is measured by a release team from the company. This process is observed by

the owners of the land as well as by the Satlak. A distinction is made between 'global measurement', 'individual

measurement' and 'big family individual measurement'. In global measurement, the land belonging to a group

of people, for example a village, is measured as a whole. This method offers little possibilities to indicate that

certain parts should not be converted to oil palm. In Mua, most land is measured either individually or 'big

family individually', meaning that areas being used by different people or different families are measured

separately. Within the plantation area lands can become 'enclave': they are not given to the company and the

villagers keep the rights to them.

After the measuring, the land is cleared by employees from the company. In some instances, pioneering and

measuring are conducted on the same day. In that case the two may be overlapping, as becomes clear in the

following statement by a Satlak-member from Mua: "We did this pioneering phase with the owner of the land,

and the owners of the land that have borders with this particular land. The measuring team with their tools will

follow behind the owner of the land, while he can show the limits of his land." In other cases, measuring is

conducted several months after pioneering.

The villagers as well as the Satlak receive an incentive for their presence during the pioneering, the

measuring and the clearing, of about 30,000 rupiah (€2.35). In addition, the members of the Satlak receive a

38

monthly payment of 100,000 rupiah (€7.85). Presence of the villagers is required during the pioneering phase,

but not in the measuring and clearing phase. In some cases, only the 'head of the family' is present, but in other

cases the whole family is brought along to observe the process.

6.1.5 The area of the plantation in Mua

Different numbers exist about the actual size of the plantation in Mua planned and realized. In a a so-called

socialization booklet, a number of stapled sheets consisting of information and promotion from PT MAS III of

November 2008, the 'data of land transfer' in Mua are estimated. 'Preliminary estimation: 1700 ha, realized:

1172.89 ha.' it reads. Another booklet produced by this company, probably of a later date, states that 868.79

ha of land have been given in Mua. This number is based on the amount of land registered under the names of

the would-be-member-farmers of the koperasi. In November 2010, the land conversion process is not yet

finished, as these numbers show.

Representatives of the koperasi and the Satlak indicate the conversion process has not yet finished, because

of the swampy nature of part of the land. Swamp lands are included in the areas that cannot be planted by the

company, but should be preserved as a conservation area, they say. Other reasons mentioned for the

perceived impasse in the conversion process include lack of funds available and lack of suitable seedlings.

6.2 Reasons to engage with the oil palm company

6.2.1 The prospect of development

In the first socialization phase, the villagers decide to let the oil palm company enter the area of Mua. The

villagers are eager to experience development that they believe will be brought by the company. Especially the

promise of a road and other facilities triggers their enthusiasm. Several interviewees clearly express they were

willing to hand over their land to the company only because of those promises. One of them is the head of adat

of Mua, who says: "So the people said: if we need the facilities [housing, schools, and health care], then let the

plantation in, but if we don’t need the facilities then let the forest stay adat land."

Beside facilities, economic advancement seems to be glimmering at the horizon for the inhabitants of Mua

during the socialization phase. When they are asked for the reasons to accept the incoming of the plantation,

the villagers talk about the possibility of a higher income for the families living in Mua and the hamlet as a

whole. One interviewee expresses it as follows: "We cannot stay in this state, within this condition forever. And

observing from the experience from the neighbouring village, we can see that now they have a better condition

economically. To depend ourselves on the result of the cultivation of rubber is not enough. That's why we

decided to join the plantation."

6.2.2 Following others

The decision to engage with the oil palm company is taken in 1996. Anno 2010, part of the people who were

involved in this decision has passed away or is not active in public life anymore. In addition, part of the

inhabitants of Mua who are now adults were still in their childhood in 1996, or not yet living in Mua. The

people who took the decision are thus not necessarily the same as the ones who are experiencing the

consequences.

The same holds for the decision at household level to give or give not particular plots of land to the oil palm

company. Several interviewees express that their father or their parents in law decided to dedicate land to oil

palm, and which lands. Similarly, elder interviewees state they opted for oil palm to provide a future income for

their children. This is related to the customary property regime discussed in chapter 7.1.

Whereas some villagers deliberately provide an area of land to be planted with oil palm, other inhabitants

just seem to follow others. They say they "just followed the other people", they "also want to have their share"

or they "don't want to be left out". Some interviewees experience social pressure to join as well: "People said

to us: if you don't plant palm oil, you will have nothing to eat."

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Some interviewees tell that they gave their land, because it is located in the middle of the plantation.

According to them, oil palm attracts certain bugs, as well as rats and birds. Those pests would severely hamper

the cultivation of rice or vegetables. Therefore, the land cannot be planted with anything but oil palm.

6.2.3 Comparing oil palm and rubber

Several interviewees compare oil palm with rubber, like the respondent who explains: “Actually, if we rely for

the overall income on rubber, the result is quite big, if we work on it every day. But here in Kalimantan, the

situation of the climate is quite unpredictable. Within the rainy season, it is quite hard to rely on rubber. The

yield from the palm oil is quite steady. That’s why we want to plant palm oil.“ Generally, people expect that oil

palm will provide them with a more steady income than rubber tapping, as oil palm trees will be harvested and

sold twice a month. Rubber trees can only be tapped when it isn’t raining. However a woman from Mua

notices that the income from rubber is quicker since the ripe trees can be tapped anytime and the result sold

immediately.

6.2.4 Limits to shifting cultivation

The availability of labour and capital are limiting the area of land that can be worked on in one year: the size of

a planting field mainly depends on the workforce available to work on that field. "Usually [the size of a planting

field is] half a hectare, and generally people work on half a hectare and if it is wider than that, they won’t have

enough manpower to do the work, like the grassing." says a woman from Mua. Obviously, the availability of

labour is related to capital, as money can be used to pay others to work on a field, and is needed to provide

food and drinks for the traditional nugal and other activities whereby people work on each other's fields. In

addition, people may lack the fund to buy herbicides to kill grasses and weeds, and to buy seeds and fertilizer.

This limited ability to benefit from their land can be a reason why people opt for oil palm, as is illustrated by

the following statement of an interviewee from Mua: "Previously, there were trees on that area, but after that

we used it for planting field continuously, and after that the only thing left on that soil are grasses. If the soil is

eaten by the fire, there are only grasses. Because we could not provide herbicide at that time, we decided to

give the land to the company and work on the other land." The distance of the fields plays a role, too, as

several interviewees indicate to reserve locations far away from their house for oil palm rather than locations

close to their house.

6.2.5 Why don't the villagers plant their own oil palm?

Money is the single most important reason for the villagers not to plant oil palm independently from the

company. Almost all interviewees mention that lack of capital is the main reason why they cannot plant their

own oil palm field. This capital would be necessary to buy seedlings, fertilization and herbicide. Especially the

costs for fertilization and maintenance are perceived to be high. To the question why he doesn't plant oil palm

independently, a young man from Mua answers: "Because we didn’t have the capacity to provide the capital to

buy fertilizer, pesticide, herbicide, the cost for slashing, the cost to buy seedlings. That’s why the company is in

charge to manage the land now. We just wait for the result." In addition, some interviewees say the company

has better capability to open the land and to provide infrastructure into the land.

One interviewee argues he needs the company in order to cultivate and sell oil palm in a legally correct way:

"[...] the company is the only one that has the right to release the fertilization and the spraying. And if we have

that fertilization and spraying, somebody might suspect us from stealing. [...]We can’t buy it from the ordinary

stores, but there are some places we can get it from, but they are also related to the company and the KUD. So

we can obtain it only from the KUD with the necessary papers. If we buy it from other places, they will examine

the process, they will ask where we bought it and how we got the fertilization. [...] That’s why we have to give

part of our land to the company, rather than simply planting palm oil independently. By following the scheme

of the company, we will have the papers and permits related to the land. And with it, we can gain fertilization,

herbicides and we can sell the fruits to the company.” A similar point is made by a young man who planted his

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own oil palm: “Our father was also listed as would-be-member-farmer at the company. We, the children that

planted privately, can sell the fruits through the kapling of our father. So we can sell our fruits to the KUD

through our father.” According to the secretary of koperasi Sekayam Jaya, it is possible for ‘outsiders’ to sell

their produce to the koperasi, too. However, the price of the fresh fruit bunches will be cut with a ‘tax’ of 10%.

Several interviewees express their intention to plant their own oil palm field in the future. Some hope that

the future yield from their plasma-field will provide them with the necessary capital to build an oil palm field

that is not related to the oil palm estate.

6.2.6 Categorization of land by the people as 'empty'

"If the people have empty lands, on which only grasses can be found, they would usually give it", or "the

majority of the land given in Mua was grassy field" In accordance with those general statements made by

village elites, many interviewees mention that the land that they dedicate to oil palm was empty or grassy field.

On a closer look, all those grassy or 'empty' fields are used previously as planting field, in a system of swidden

agriculture. Furthermore, almost all interviewees admit that some part of the area they gave for oil palm was

planted with vegetables, rice or rubber. A member of the Satlak generalizes: "There are a lot of people who

have given their productive land." Tembawang however, are not given.

Several interviewees mention the disappearance of forest after the incoming of the company. This seems to

be at odds with the notion that people mainly gave their grassy or 'empty' land. But what exactly is meant by

'empty' land? This is explained by a farmer from Mua: "It depends on what you consider an empty field. Here,

people consider a field ‘empty’ when it is not productive. Even though there might be a lot of trees on the field.

Also, when it is planted with small trees or with rubber that is not yet productive, people consider it an empty

field. This is how the elders speak about it, and we do not speak up to them because that it considered impolite,

we respect their point of view."

6.3 Shifting perspectives

6.3.1 Growing dissatisfaction

Anno 2010, dissatisfaction about the conduct of the company has taken root among the villagers. There are

several topics of discontent. A first cluster of critiques relate to the employment opportunities at the company.

Workers for the company would get paid less than they were promised, or they would not get paid at all. In

addition, they do not have a fixed contract but are employed on a day-to-day-basis. Furthermore, there is a

lack of Dayaknese in managerial positions. At the same time, there are rumours about bad managers who are

not able to fulfil their task.

Second, complaints relate to the lack of communication from the company to the Satlak and the villagers,

also referred to as ‘socialization’. Apparently, this is related to the shifts in management of the company and its

name-changes. Some people feel they do not know exactly with whom they have to do anymore. A farmer in

Mua tells about speaking names: “The company has had three names: in the first phase, it was called PT MAS –

sejahtera means prosperous, and it lived up to its name. In the second phase, it was Golden Hog – and it did

quite well, too. At meetings, it would reimburse the costs for fuel people had made and it would pay for

consumptions. Now in the third phase, its Minamas, and it is quite terrible. It is not paying its employees…”

Third, respondents criticise the apparent impasse in the development of the plantation. The clearing and

planting of the land has not been finished, and this makes part of the villagers suspicious. “Because we have

already trusted the land to the company, but it has not been cleared completely, this made we have doubts.”

says a respondent in Mua.

Fourth, several respondents, mainly members of the Satlak, express their dissatisfaction about the

realization of facilities promised during the initial socialization. Churches, schools and buildings have not been

build and the road is in a poor condition, they say.

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In Mua, two Satlak representatives express the intention of the Satlak to withdraw from their function. They

feel the payment they receive bears no relation to the responsibility assigned to them. Furthermore, one of

them expresses concern about the value of the plantation for the villagers – he fears oil palm will not benefit

those who gave a small area of land. The growing sense of dissatisfaction among the Satlak and a wider

audience lies at the base of a so-called fencing act, that will be described in 9.1.

6.4 Conclusion A theory of access can help understanding the engagement of local people in Mua with oil palm company PT

MAS. The villagers perceive the lands they gave for the oil palm plantation to be of little benefit. They claim

that the land that they gave was 'empty'. The ability of the villagers to benefit from their land is limited. The

size of a field worked on in one year is mainly restricted by the availability of labour and capital. Villagers

expect that oil palm will bring them more income than the current mode of farming. However, they lack the

mechanisms of access to obtain the benefits of an oil palm field by themselves. Capital is the most important

one. However, it is too short-sighted to say that it is solely the economic benefits of oil palm that seduced the

villagers to opt for oil palm and engage with the company. Initially, people are tempted by the prospect of

development: roads and facilities like housing and public buildings such as schools or churches that the

company is offering. Villagers thus were willing to give up the right to benefit from land in order to obtain the

ability to benefit from oil palm, and from the infrastructure and facilities that came along with it. This attitude

marks the onset of the shift in property regime that is taking place in the oil palm plantation expansion process.

As the benefits of the oil palm plantation and the incoming of the company are not experienced by the people

as they expected, their initial enthusiasm is tempered and replaced by discontent.

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7 Expansion on family lands and individual lands: recognition of

customary property?

This chapter starts with a description of the way in which the villagers of Mua perceive rights to land on family

lands and individual lands, and how they practice this system of rights. This system of customary rights is taken

as a point of departure in the oil palm plantation expansion process in the field. To what extent are customary

rights and claims recognized in the oil palm plantation expansion process? An answer to this question will be

sought by looking into the process of claim-making. Section 7.2 and 7.3 will look into the mechanisms by which

claims on land were made in the oil palm expansion process, and into the effects of this claim-making. Section

7.2 deals with claims that are made in the field in the actual land conversion process. This process consists of a

pioneering phase, a measuring phase and a clearing phase. Special attention will be given to conflicts brought

about in the land conversion process, and how they are solved. Thereafter (section 7.3), the focus will shift to

the claims made in the administration process – for example by producing maps and lists of land holders and

their land. In the conclusion, attention will be paid to the consequences of this recognition or lack thereof of

customary property rights for the eventual ability to benefit from the oil palm plantation for the villagers.

7.1 Customary property regime “My father had the right to sell the land, because it was owned by the father of my father. My father has seven

siblings. When the father of my father passed away, the children can sell the land because each of them

already has his or her share of land. Now, because my father has already passed away, if it is a land where

there are no crops, we [me and my siblings] should talk to each other before anyone of us can sell part of the

land, and also to decide the price of it. But if for example I plant rubber trees on one part of the land, then

automatically I have the right to sell that land with the rubber trees because I am the one that’s working on it.”

This quote by a man from Mua encompasses several important aspects of the customary property regime in

Mua: the importance of an ancestral relationship in obtaining rights to land, inheritance of land, the custom of

obtaining rights to land by cultivating it, and family relations (between parents and children and between

siblings). These issues will be discussed subsequently.

Most of the lands in Mua are considered ‘ancestral lands’- land that are obtained via an ancestor. Once,

predecessors of the current inhabitants cleared patches of forest for cultivation. Those lands where inherited

by their children, and by their children, and so on. This is illustrated by a man from Mua, who says: “According

to the tradition, to adat, the people whose ancestor previously cut the forest to be planted, the offspring of the

individual that cut the forest, have the right to plant on the land. Our family has the right to plant on that land.”

Such ancestral lands can be divided between the children of a parent who inherited rights to that land. In

those cases each child is assigned a patch of land. He or she can cultivate it and share the harvest with his or

her own family – partner and children. Parents decide how the land is divided between their children. Such

division does not necessarily only take place after the parents have passed away: it can take place when the

children are grown up and start living with their own family. Part of the land still remains under the

management of the parents, if they are still alive and able to manage the land. After they pass away, the will of

the parents will determine what will happen with the land under their management.

Beside lands that are assigned to individuals, there are also lands to which more people can lay claim. In

such cases, anyone within a family can cultivate a certain patch. A man from Mua expresses it as follows: “We

have this custom here, that if we have an unproductive land, if someone from the children is cultivating the

land, if he or she can plant rubber or anything on it, then he has the right to use the land as much as he or she

can work on.”

By cultivating a piece of land, one obtains right to the land. For example, if someone plants rubber on a

piece of land and manages the field for some years, it becomes his field. Cultivating a patch of land

simultaneously means making a claim on that patch of land and gaining rights to it. This also means that

43

someone obtains rights to sell the rubber trees and the land, as the quote at the beginning of the chapter

illustrates.

However, the elder still has a say in the fate of the land. The son of the head of RW in Mua talks about the

decision to give part of the land, where he planted rubber, to the company: “My father asked me whether I

want to sell the land or not, because I planted the rubber trees. Because part of the rubber on that soil was

eaten by fire, so I decided to give it. When I agreed, my father gave the land to the company.”

Usually, permission to farm the land has to be asked to the parent. Or, as a young mother from Mua says:

“Actually, the permission will be given anyway, but it is more proper if we ask the permission.” Also in other

decisions over the land, the elders play a pivotal role: “the key is the parent” as a young man from Mua

formulates. Besides their age, the knowledge and experience of the elders gives weight to their opinions.

Obviously, parental approval cannot be given anymore when the parents have passed away. Then,

coordination and agreement between the siblings gains in importance. If a group of siblings manages a piece of

land and there is no discord among them, they will consult each other when planting something on the land.

Decisions on selling or giving away the land will be taken after agreement has been reached among them.

However it is not common for the Dayaknese in Mua to sell their land. Several respondents assure the

interviewer they would only do so when there is an emergency situation and they are in dire need of money.

It depends on the preferences of a family and the amount of land they have whether people from another

family can cultivate the land. Some respondents clearly state that no-one from outside the family can use the

land. Others tell that it is possible for ‘outsiders’ to work on a certain part, if the host gives permission to do so.

Usually, the outsider will need to provide retribution to the host of the land, such as a part of the harvest. In

any case, the land has to be returned after it is being used.

Use right may interfere with inheritance rights on land, as shows the following case. A woman from Mua

was given a piece of land by her parents. However, her brother planted it with rubber trees – contrary to the

wishes of his sister. The son of the woman explains why this is problematic: “My mother can’t sell it, because

even when she asked for a piece to build a house, she was not given the right. It is a family field – nobody can

sell the land right now, because the mother owns it, and the brother owns it, too.” The overlapping claims

made on the border land between Mua and Koca, discussed in chapter 7.2 provide another example of such

colliding rights.

A few respondents have bought some land, and with it, the right to plant it or sell it.

As may become clear from what is written above, there is no single way in which the rights to land are

organized: different families may have different ideas and practices. This becomes clear from differences in

responses by interviewees from separate families, and from remarks about those differences. Several

interviewees state that they don’t know how for example inheritance of land is arranged in other families, and

that those families should be asked themselves. Notwithstanding, the basic tenets of the social norms and

practices of which rights to land consist seem to be similar for the inhabitants of Mua.

None of the interviewees has dedicated all his or her land for oil palm, and according to the head of the

hamlet, no-one has done so in Mua. On these lands, the customary right system applies. The transformation of

the lands that are being given to the company is the central object of interest of the remaining part of this

chapter.

7.2 Claim-making in the field

7.2.1 Recognizing borders

The villagers recognize the borders of their fields in different ways. Commonly, the limits of a planting field are

marked by vegetation, such as a row of bamboo trees (Photo 2) three rubber trees planted closely together or

a large ironwood tree. Positioning cut-down trees along the limits of a planting field is another way to sign the

boundaries of an area. Several interviewees mention that the owner of the field knows about its borders,

44

without specifying how those borders are visible in the field. Some villagers may thus not mark the borders in

the abovementioned ways. In addition, on fields that have not been used for cultivation since many years,

vegetation once planted as a marker may no longer be recognizable. Boundaries between fields may therefore

be difficult to discern. Knowledge about the locations of the land that belongs to the family and the borders of

those lands is transferred orally from parents to their offspring.

Photo 2. A row of bamboo trees marks the border between two neighbouring fields.

7.2.2 Pioneering

In the field, the process of converting the land to oil palm plantation starts with a pioneering phase. In this

phase the boundaries of an area that will be converted to oil palm are marked. The aim of pioneering is twofold:

first, to specify which area will be measured, and second, to indicate which part will be converted to oil palm.

The pioneering is conducted by the Satlak, the owners of the field and the owners of the neighbouring fields.

Together, they walk around the field. The borders of the land are marked by slashing a small path, and/or by

planting wooden poles that are painted green. Areas that should not be converted to oil palm are called

'enclave' by the villagers. Those are marked as well, if their location is close to or within the location that will be

converted. For those areas, poles with red paint are used. The company instructs the Satlak to use red and

green paint for demarcation. In practice however, paint is not always used.

During and after the pioneering and measuring process, (small) conflicts arise between the villagers and the

company, between the owners of neighbouring fields and between neighbouring communities. Demarcation

may play a decisive role in such disputes, as shows the case of one of the villagers of Mua. He did not want to

give part of his land that was located in the oil palm plantation area. This enclave area was being pioneered by

himself and members of the Satlak. According to him, employees of the company had replaced the poles that

indicate the border of an enclave area inwards. This was done after the pioneering process, when the

interviewee and the Satlak had left the field, but the employees of the company stayed there. Upon return, the

interviewee put the poles back in their original position, using his own borders as a reference: "In the

pioneering process [the people of the company] will say: 'Your land, we have already known the borders of

your land.' And then the owner of the other land and I will go home. But when I came back, the poles have

45

been placed further in than they should be. The good thing is, I also used some wood as the border of my land.

So I can use that as the base. So when I said to the people of the company that they have already made

mistakes, I used these woods to support my claims." His comments were accepted by the company, and the

interviewee was satisfied with the solution of the dispute.

Furthermore, pioneering may bring about conflicts between people of neighbouring lands. It is the task of

the Satlak to solve such conflicts. This is done in the field, by discussing the location of the border with the

owners of the neighbouring fields. As a farmer explains, disagreements with his neighbour about the boundary

of the land were discussed both at home and in the field. The quarrel was successfully mediated by the Satlak.

“That’s why the Satlak does not consist of people that are randomly picked," explains a member of the

Satlak in Koca. "The members of Satlak can come to the hearts and minds of people, they already have

extensive experience with people. So when small incidents would occur, we can go to the field and settle this,

and everybody would accept the result. If the council of the Satlak cannot be accepted by the people, naturally

we will have our people fighting each other. This is the important role of the Satlak."

Conflict in the field may grow violent, as a member of the Satlak in Mua expresses: "Satlak enjoys the worst

working conditions; we are the point of spears. We have already come face to face with swords and all kinds of

weapons, but the company doesn’t seem to notice this." When being asked where incidents took place in Mua,

several interviewees mention that “in Mua, it was relatively calm”.

7.2.3 Measuring

After the pioneering is finished, the area of the land is measured. By and large, people do not know the size of

their fields before this measuring. Measuring of the fields is conducted by the so-called release team of the oil

palm company. In some instances a compass and a measuring band are used to determine the size of a field.

This method is perceived as less reliable as the method whereby GPS-tools are used. In Mua, most measuring is

conducted by using GPS. This technique does not seem to be well understood by the members of the Satlak

and the villagers, as illustrated by the following quote of a Satlak member from Mua: "This tool, a computer.

There were four people doing the measuring, we only followed them. They brought this tool around the area,

but we don’t know how it was used. "

This lack of understanding is perceived as problematic by some individuals, like the Satlak-member from

Koca who states: "The general problem is that there is no transparency in the act of measuring, because the

people don’t really understand the process of measuring. They can only accept the result." A similar point is

raised by a PT MAS-employee from Pinsam: "When [the people] gave the land to the company, they also gave

the authority of the correctness of the result of the measurement to the company. The company did the

measurement. [...] There is nothing wrong with the tools. They can depend on the accuracy of the tools. As for

the GPS tools, 100 cm. should mean 1 m. But it’s the people conducting the measuring that can be the source

of the problem. One meter could mean 80 cm. [...] there is always the possibility that a certain individual would

cheat."

7.2.4 Border area between Mua and Koca

Several interviewees mention that conflicts arise notably between neighbouring communities. The

disagreement between villagers from Mua and adjacent hamlet Koca is an example of such a struggle. The

border area between Mua and Koca is a disputed region. In this area, several families intend to give part of

their land to the oil palm company at the end of 2008. However, the claims on the land overlap each other. In

this case, border signs do not offer a way out: "Since it is so long ago [that the land was used by my ancestor],

we cannot decide which sign we can use as borders, because the borders by the older generation area already

lost. The borders have not been recognizable since a long time".

This leads to passionate discussions: "At that time, it was quite heated, because some people claimed that

the border set by their grandfather was this or this. Luckily, there was no usage of weapons, there was only oral

conflict." The conflict arises especially between people from Koca and people from Mua. A member of the

46

Satlak in Mua expresses his opinion: "Only because they cultivate the land more often they had the feeling

they own the land, the people from Koca. But it's just the same, we came from one ancestor, the rights of the

grandfather and the grandchildren are the same." Apparently, use rights on land and rights obtained via an

ancestral relationship collide.

The Satlak makes several attempts to settle the conflicts in the field, without success. Either the Satlak or

the company proposes to have the area measured globally. In any case, a solution should be found, since "the

company did not want to accept the land before the conflicts had been solved." as an interviewee explains.

Then, a meeting is conducted with the Satlaks of Mua and Koca, the head of the hamlet of Mua and around 30

families involved. Even though many families insist on individual measurement of the land, eventually the

decision to measure the land globally is made.

On the maps produced by the company, an area of almost 55 ha is indicated as belonging to the "people of

Mua and Koca". According to a member of the Satlak in Mua, the land measured globally in the border region

will be distributed between those who made a claim on the land. Each of them will "receive" 3.5 ha - the

amount will be added to complete 7.5 ha, which is the area of land required by the company in order to receive

a kapling. A similar conflict takes place on the border land between Mua and Pinsam, although on a much

smaller scale. In the list that the koperasi holds, ha is registered under the name of “the people of Pinsam and

Mua”.

7.2.5 High Conservation Value areas: claim-making in the clearing phase

After the measuring, bulldozers come to clear the land. This process is conducted by employees of the

company. Both the field supervisor and the ex-manager of PT MA, the sole interviewees that are familiar with

the term RSPO (Box 3) relate the RSPO to conservation areas. “Yes, I’ve heard of this RSPO, in the categories

that I recognize when I was working in PT MAS, land with high altitudes, and also mountains cannot be used. To

big rivers, we have a planting limitation of 50 meters from the border. Deep precipices cannot be used, even

though the people transfer it. Sacred land, cemeteries cannot be used, including the tembawang, especially on

the precipice land. These were the categories that I recognize, I don’t know whether it has been carried out or

not.” says the former manager. The field manager has a similar understanding: “PT MAS is quite strict upon the

implementation of analysis of environmental effects [AMDAL]. PT MAS will not work on conservation land,

historical places, swampy areas, were the swampy areas also relate to the analysis of environmental effect. But

swampy areas with very small width are not included within the criteria. *…+ Until this moment, the land that is

cultivated for palm oil plantation, is the land that is suitable for this kind of plantation, it has solid soil. High,

hilly places are not planted with palm oil.” The representatives of the koperasi, a Satlak member from Mua and

a field supervisor in PT MAS say that swamp lands are included in the conservation areas. Therefore, the

Rimpu-area cannot be cleared.

According to the ex-manager and the head of the hamlet in Mua, those locations are identified in the field.

The head of Mua says: “They, the company, would observe it in the location. The people from the company

conducted this observation, because they are the ones that understand about it, and they are the ones to

decide that *these lands that need to be protected+ shall be planted with fruits and big trees.”

47

Box 3. RSPO: yet unknown by villagers.

7.3 Claim-making in the administration process

7.3.1 Transfer of information about the size of the land to the farmer

One of the tasks of the Satlak in the field during the pioneering and measuring process is to make notes.

Among other things, they should write down the name of the location that is being measured, the name of the

owner of the location and vegetation type, choosing between four categories of land use distinguished by the

company. Information about the size of the land is processed by employees from the company after the

measurement: GPS data are entered into a computer and a map of the area measured is produced. “The data

of the width *of the land+ are given instantly to the people, along with the map.” says an ex-employee of PT

MAS. This seems to be an idealized impression: in Mua, the information about the size of the land as measured

by the company is given to the Satlak first. The Satlak should convey this information to the family concerned.

“The company would usually publish a letter, a notification to the Satlak, and via the Satlak the owners of the

land are informed”, says a member of the Satlak in Koca. Mostly, the information is transferred orally, as in the

case of this farmer from Mua: “The Satlak and the head of the hamlet came into our house to notify about our

land and the amount of ha, and they showed the map to us. Within the map there was the position of the land

and the amount of ha. But we forgot to ask the map. *…+: I only know the approximation of the size of the land,

no details. I regret that I didn’t ask the map from the head of the hamlet.” Two interviewees mention that his

son or daughter received a written notification of the size of the land, whereas another family claims not to be

informed at all about the size of the land up to the time of interviewing. In other cases, the time between the

measurement and the transfer of information takes up to one month.

7.3.2 “Each farmer gives 7.5 ha”: administrative issues

The land that people intent to dedicate to oil palm is often scattered over various locations. When the land is

measured by ‘big family individual measurement’, the assumption is used that the land is still united as a family

land. Several interviewees state that the family land has not been divided yet, or was re-united for the purpose

of transferring the land to the company. After the measurement, the land is supposedly divided between the

siblings (again) – on paper.

Farmers usually do not know the size of their land prior to measurement. The land they intent to give to the

oil palm company may therefore be smaller or larger than 7.5 ha in size. The same holds for family lands that

are to be given: the area of land a family intents to have planted with oil palm may be smaller or larger than

the number of family members that aspires to be a member farmer multiplied by 7.5 ha. How is this issue dealt

with? Two different understandings are going round.

According to one group of farmers, in cases where the land is not reaching the amount of 7.5 ha, a

percentage system will be used. The farmer receives an area of plasma, based on the percentage of the land

that he has given. This is explained by the head of adat in Mua as follows: “Usually, the way we count is that

people who get 7 ha would get 2 ha back, and the people that gave less than 2 ha would get a portion of the

In Koca, the head of adat, the head of the hamlet and the secretary of the village say they have

never heard of the RSPO. In Mua, the head of the hamlet and a religious state the same. None

of the interviewees in the villages mention the RSPO by themselves. A field supervisor of PT

MAS from Pinsam, that initially is interviewed about the meaning of RSPO in his job, asks the

interviewer: “Could you tell us what the RSPO really is about? Because we recognize the title of

it, but we cannot really understand these kind of things. What about the position of farmers

within RSPO?” Later, the head of RT of Pinsam adds: “We are not really familiar with it. *…+ We

still have little experience with the RSPO.” In Mua, one interviewee is familiar with the RSPO.

He is a former employee of PT MAS, and explains that a Dutch person has told him about it –

later, it appears to be the deputy director of a Dutch NGO involved in the RSPO.

48

land given back in the form of the amount of the trees. *…+ Generally, 1 ha = 280 trees of oil palm. So the

people that gave 7.5 ha would get 2 ha back as 1 kapling = 2 * 280 trees. If the land that has been transferred is

3.75 ha, perhaps we can get back 1 ha, and if the land that we transfer is only 2 ha, we can only get our portion

back by the amount of trees of the palm, about 100 trees.”

Others explain that the land that is more than 7.5 ha, should be combined with the land of somebody else,

who have less than 7.5 ha, in order to make portions of 7.5 ha. In a similar vein, people whose land seizes less

than 7.5 ha should find others to combine their land with, in order to reach 7.5 ha. This ‘somebody else’ or

other usually would be a relative, as explained by a religious leader in Mua: “The rest of the land that is given to

the other families – the families should be related to my parents in law, it is not just given to anyone.”

This second interpretation is in line with what is written in the agreement between the company and the

koperasi used in PT MAS II, and shared by the management of the koperasi. With regard to these two

different interpretations of the scheme proposed by the company, the director of the koperasi clarifies: “It is

one of the tricks of the company. It is a rule of the company that the farmer should provide 7.5 ha of land. If

the farmer has less than 7.5 ha, then his land should be combined with the land of someone else. And the

company says the division of the land should be solved at an individual level. They proposed a percentage

scheme of 26.6% to do so. So the farmers should solve it between them.”

The system of administration of land is explained by a Satlak member from Mua (Table 1 and 2). On paper,

family members unite their land in order to distribute it again over different family members, who will be

registered as the would-be-member-farmer. The lands that are selected to be given for the plantation are

measured. When the size of the locations is known, the family members gather to decide how the land will be

divided between the possible would-be-member-farmers, so they will be registered with 7.5 ha each.

7.3.3 Consequences of the complexity: administrative chaos

This approach however does not seem to be followed by all Satlak-members. The manager of the koperasi, and

the Satlak representative who shows the notebook described above claim that the Satlak lacks the capability to

fulfil its task properly. In an informal interview, the manager of the koperasi says: “The problem is, the people

in the Satlak are chosen from the elder people of the village. And their educational background is not quite

high. They are not really capable of what they have to do – they could not even write and read.”

The koperasi holds a booklet (Box 4) in which 112 would-be-member-farmers are listed in Mua, including

‘the people of Mua’, and ‘the people of Mua and Pinsam’. Of those 112 registrations, only 12.5% is

administrated with an area of land between 6.75 and 8.25 ha. Almost 50% is registered with 5 ha or less.

The data in the booklet hold by the koperasi differ from the data in the notebook hold by a Satlak member

(of which an excerpt is shown in Table X) for three from the seven would-be-member-farmers. For two of these

farmers, the difference in land size is more than 10%.

Comparing the data in the booklet with the accounts of the farmers interviewed gives more indications that

the data in the booklet are lacking. Some interviewees are not listed at all – meaning that their lands are not

(yet) administrated or that the lands of their family are registered under a relatives name. Other interviewees

are listed, but the size of their land differs remarkably from the size of the land mentioned in the interview. In

addition, as said, vegetation type is ‘ex-planting field’ in the booklet, whereas interviewees mention all kind of

land use.

The same ambiguity holds for the maps that are hold by the koperasi and members of the Satlak. A member

of the Satlak in Koca shows a map with lines in three colours: black lines marking the border of different fields,

red lines showing areas where land claims overlap each other, and blue lines demarcating locations where land

claims overlap three times. He says farmers can ask the Satlak for the map, if they want to support their claims

on land, but that so far no-one has done so. In those cases where land claims overlap, farmers would be

notified to take part in settlement (as described in chapter 7.2)

49

Table 1. Excerpt of a notebook of a Satlak-member from Mua, left page. Five locations to be included in the oil palm plantation (column: name location) are measured (column: area). Those areas are divided in three portions of approximately 7.5 ha (column: area). The fields belong to a certain family or individual (column: name and remarks) and are assigned to three would-be-member-farmers (column: name accepted would-be-member-farmer).

Number Name Name

location

Area Name accepted

would-be-member

farmer

Area Remarks

2.1 (Sotem)

Wesu

Nyahoh 4.6 Wesu 7.66 Nyaho/Landong portion from big family Sotem

.2 (Sotem)

Wesu

Landong 1.9

.3 (Ango) Wesu Sungi Mua 13.99 Pangut 7.5 Sungi Mua portion from big family Ango

.4 Wesu Rimpo 1.17

.5 Minja Mak Mua 1.0 Minja 7.5

Size 22.66

Table 2. Excerpt of a notebook of a Satlak-member from Mua, right page (the columns gender, date and place of birth and address are left out). Name of the location, area of land (columns: land use and size) and land use (columns: land use) assigned to three would-be-member-farmers (column: name). According to this table, the area Sungi Mua, measuring 13.99 ha, is assigned to three people. Previous to clearing of this land, 1.89+2=3.89 ha was planted with rubber that is not yet productive, whereas the remaining 5.6+4.5=10.1 ha was bawas.

Name Name of the location Land use Size

Bawas Ex-planting

field

Non-prod.

rubber

Prod. rubber

tembawang

Wesu Nyamih 4.6

Sungi Mua 1.89

Rimpo 1.17 7.66

Pangut Sungi Mua 5.6

Landong 1.9 7.5

Minja Sungi Mua 4.5 2

Tak Mua 1.0 7.5

There seems to be a mismatch between the 7.5-scheme and the practical situation in the field with respect to

land rights. The administration system should function as a bridge, but because of the complexity of the

administration process and the misunderstanding of the rule of the company this does not seem to work

properly. This leads to an administrative chaos, in the sense that not all members are registered as they should

according to the rule of the company, and that the data in different sources about the same objects differ.

50

Box 4. Booklet hold by the koperasi

7.3.4 Dealing with the chaos: administration of the koperasi

The management of the koperasi does not want to be held responsible for creating the list with data about the

people who gave their land, and about the locations they gave. The manager of the koperasi says: “The

koperasi should not create the data, it should only collect the data. Because when the measurement process

started, the koperasi did not exist yet. The Satlak is responsible to make the data. *…+ The land topic is quite

sensitive, therefore the koperasi is reluctant to collect the data of the size of the land. We can collect the data

about the names of the would-be-farmers.”

In the first interview with the manager of the koperasi, he shows the registration system of land hold by him:

a number of stapled copied and handwritten sheets in a folder, with the data of land transfer by the farmers. In

an informal interview, he questions the validity of the data in this system. “There are many errors in the data

on the lists – we don’t know which are the valid data to use.” In addition, he claims to be uncertain about the

data the company hold: “And we don’t know whether the data on the list that I gave to the secretary of the

koperasi are the same as the data used by the company. *…+The koperasi has requested the data at the

company but they are unwilling to give it to us. So we don’t know which data the company is using.”

In a later interview, however, the existence of this list seems to be denied by the manager and the secretary

of the koperasi. Instead, they point to a booklet entitled ‘Recapitulation derasa, result measurement and map’,

given to them by employees from the company. Initially, in the interview, the secretary states that: “This list is

given to us by the company, so that we would have the same information within the list. So there won’t be any

differences between the koperasi and the data the company has.” But later, the manager says: “*The koperasi

does+ not *have its own administration+ yet, because the koperasi has to follow the data in this book. *We don’t

have a list of would-be-farmers+ yet, because we don’t have any data yet. If we have any data, the people

would be suspicious toward the differences between the data we collect ourselves and the data from the

company.” In any case, the koperasi intends to use the booklet received from the company as a starting point

in their administrative system.

7.3.5 Consequences of the organization of the administration

According to the chair of the koperasi, the fact that many people have given less than 7.5 ha of land, and the

administrative chaos, are among the main reasons for the company to propose a new scheme (described in

chapter 8.2)

Furthermore, several interviewees express fear for fraud by employees of the company. Among them is the

manager of the koperasi, who says: “There are probable indications that the company manipulates the data.

For example, if the land of a farmer is measured as 5.5 ha, they would put 5 ha in the computer.” Later he gives

another example: “There is the probability of the indication that some people from the company would

suddenly own a kapling or two in this area. Because we want to avoid that the people from the company get

here and suddenly have a kapling, we need to see whether there really is a purchasing agreement with the

head of the RT, and whether witnesses were present when this purchasing agreement was made.”

The koperasi holds a booklet, titled ‘Recapitulation derasa, result measurement and map’. It

includes a list of hamlets included in PT MAS 3, and the area of land dedicated to oil palm

plantation, and a calculation about the amount of derasa that should be paid. For each hamlet,

two lists are included, that contain names of would-be-farmers, along with the area of land

(‘area delivered’ and ‘area paid’) and the previous land use (bawas, ex-planting field, non-

productive rubber or productive rubber). Furthermore, the booklet contains a ‘map of the land

to be given by the group of big family and individual’ of each hamlet, that is unreadable for the

largest part. For Mua, 112 would-be-farmers are listed, of which two are ‘people’ and ‘people of

Pinsam’ (see chapter 7.2.4).In all cases, vegetation is filled out as ‘ex-planting field’.

51

7.3.6 Derasa

Both the contract between PT MAS and koperasi Mayting Hija and the drafts of the agreement between PT

MAS and koperasi Sekayam Jaya mention the payment of derasa.

The amount of derasa paid by the company supposedly depends on the size of the land given, and the type

of land use previous to the establishment of the plantation. Four categories are recognized by the company:

bawas, field with only grasses; ex-planting field; non-productive rubber; productive rubber and tembawang.

Derasa is 50,000 rupiah (€3.95) per hectare for bawas up to 200,00 rupiah (€15.80) per hectare for

tembawang. Some lands do not fit well within the categories - for example a grassy field in which some rubber

trees are planted. In addition, at first sight, 'forest' does not seem to fit well in the vegetation categories

defined by the company. On a second look, forest could fit in the category 'bawas' - this seems to be fallow

land that was last used for planting more than one year ago. One of the interviewees explains: "Bawas is land

where you can find dense vegetation. [...] There are grassy bawas, and also bawas that are filled with trees. [...]

Bawas can be inhabited by forest, it is not really old, not really young, and if we want to plant on it, we would

have to slash and cut the trees."

In Mua, none of the interviewees has received such payment. Different accounts about the meaning of

derasa and the reasons for this lack of payment are given. A villager of Mua and ex-manager of PT MAS

explains that derasa in adat scope is a payment to compensate for the use of someone else's land. Traditionally,

he argues, derasa is a payment to lease the land. However, the company uses derasa to buy the land, because

the price of derasa is much lower than the price buying land: "They use derasa, because they can’t pay the

costs that are mentioned in official regulation, derasa is cheap." An informant involved in growing oil palm and

active in oil palm farmer-union SPKS, talks about different perceptions of the nature of derasa between

indigenous people and the company as well. "The people have the assumption that derasa is not actually

selling their land, but the company assumes that people do actually sell their land," he says. These differences

in opinion were reasons for demonstrations in other areas of Sanggau district previously.

The villagers in Mua however, seem to understand derasa as a purchasing-payment for the land. In their

perspective, the fact that they have not received any derasa yet, implies that the land has not been sold to the

company. A woman from Mua expresses it in this way: "Derasa is the payment for the land, the price of the

land, the purchasing of the land by the company. Related to the land that already has been cleared and planted.

The company hasn’t paid this derasa. That means that the lands are still owned by the people."

The following statement of a farmer in Mua clearly expresses this sense of ownership of the land: "If the

conduct of the company cannot match with the intentions of the people, we will do something. If, after the

harvest, the company still cannot pay the derasa, we will take back our land. It is true that the company has

planted the palm oil, but it is still our land. It is up to the company to pull the palm oil and take it back, the land

still belongs to us."

Why is derasa not paid yet?

Two interviewees from Mua, of which one is a religious leader, say that people intentionally refuse derasa, so

that they can claim the land is still theirs. However, this opinion does not resonate in the answers of the

villagers. None of the interviewees expresses any intention to refuse derasa if it would be offered to them.

Several interviewees mention that derasa will be paid when the fruits can be harvested, and the farmers will

receive kapling, a part of (plasma-) land that will be theirs. Others do not know why they had not received any

derasa yet.

According to representatives of the koperasi and the Satlak, the delayed payment of derasa is related to the

administration of would-be-member-farmers and the locations that are given for the oil palm plantation. An

interviewee from the Satlak argues that derasa has not been paid yet, because the list with the names of the

people who gave their land, and the area of land they gave, on which the payment should be based, is not

complete yet. “This list should have been finished two months ago. They would usually point to Satlak, related

52

to this issue. *…+ After the list has been finished, derasa will be paid. The people are unwilling to finish the list.

The measurement have already been done, the information is just not on the list.”

The payment of derasa is put on the agenda in a meeting between the koperasi and the company in October

2010. The koperasi asks the company to pay the derasa. “The company says the data are not valid and they

can’t be used” says the manager of the koperasi. “There should be data on the size of the land and also on

what is or was on the land, whether the lands were productive or not, whether there were rubber trees or

grassy fields. Because the land with rubber would have different derasa then unproductive land. The company

says that they will pay the derasa as soon as they receive the valid data.”

In a later interview, the abovementioned booklet ‘Recapitulation derasa’ is shown. In this booklet, all land

has been categorized as “ex-planting field” – even though not all land dedicated for oil palm is ex-planting field.

According to the head of the koperasi, this is done to accelerate the formation of the list. For the payment of

derasa, he says, previous reports will be used.

Administrative chaos seems to be one of the reasons why derasa is not yet paid, since derasa demarks the

transfer of rights to the company, the administrative chaos also is the reason for an impasse in the shift in the

property rights regime.

According to a member of the Satlak, apparent misunderstanding about the scheme is at the root of the

delayed payment of derasa, and one of the reasons why the company proposes a partnership pattern. He says:

“The people want to register as a would-be-member-farmer individually, not as a family, because they assume

then they will get 2 ha of land. But they are combined, because they didn’t give enough land, so they are

registered as one would-be-member-farmer. This seems to be a reason for the company to change the

scheme”.

7.4 Conclusion

7.4.1 Customary rights to land

Prior to the incoming of the company, customary rights are the most prominent (legal order) in everyday

(agricultural and land use) practice in the village of Mua. This customary rights system is based on ancestral

relationships and on use rights and relates to a system of swidden agriculture and small scale rubber

plantations. Within families, the authority of the parents, notably the father, is of great importance. In case of

conflict, customary property is sanctioned by the local authorities - either the adat leaders or state officials

such as the head of RT or the head of RW. However as in the vast majority of Indonesia's rural areas, customary

property is not recognized by the state. This lack of legal recognition may weaken the bargaining position of

farmers in relation to the company.

Customary rights to land and customary authority are taken as a point of departure in the land acquisition

process and the land administration process. The decision to dedicate land to oil palm is left to the villagers

currently having rights to that particular land. In the measurement of the lands, the border claims made by the

villagers in the form of tree rows are recognized as legitimate means to distinguish between plots. The

presence of the owner of the field is required during the transformation process, and conflicts are solved by

the elders of the village. Recognition of customary claims to land further takes place in the first phase of the

land administration process, the name of the lands measured to be included in the oil palm plantation are

noted down accurately, along with the ones having rights to those lands - though in practice the extent to

which this is done may depend on the capacity of the person executing this task.

7.4.2 Transformation of customary rights and concepts

Simultaneously, customary rights to land and customary authority are transformed and changed in this land

acquisition and administration process. In the measurement and administration process, the company

recognizes either individual lands and big family lands - measurement is either 'individual measurement' or 'big

family individual measurement'. Although the villagers distinguish between individual lands and family lands

53

themselves, for the sake of fitting the scheme of the company they say to 're-unite' lands - for example when

the land of siblings who are assigned a plot is registered under the name of the family - or to 'divide' lands - for

example when the . According to the guidelines of the company, the land measured and administrated is

'redistributed' on paper, so that 7.5 ha of land are registered under the name of one person.

This is closely linked to a second point - the shift from a dynamic system of use rights to a more static system

of "ownership" of an area. In the system of shifting cultivation, the area of land cultivated shifts each year, and

along with it, the rights of different members within the family. Who labours a certain area this year may work

on a different area next year, and that area may be smaller or bigger in size. This dynamism is lost when the

size of a field is written down under someone's name in the oil palm administration system. For the

transformation of rubber fields into oil palm fields this argument does not hold since the use of a rubber field,

and thus the use rights associated with it, do not shift swiftly.

Another example is the role of the concept of derasa in the land acquisition process. In Dayak culture,

derasa originally stood for a payment to a land-owner as a compensation for the use of the land by an outsider.

In the plantation expansion process, the company intended to use derasa as a payment for purchasing of land.

Currently, it seems to be understood by the villagers as being that. During the plantation expansion process,

the meaning of the concept thus transformed. By using derasa in this way, the company draws on a concept

familiar to the villagers while at the same time being able to purchase the land at low costs.

The formation and functioning of the Satlak is an example of mixing of customary authority and "rule of the

company", too. For it is the elders of the village that are the members of the Satlak, and their authority that is

being recognized by appointing them as Satlak members - but the Satlak an sich is a new institution,

established by the government and the company at the onset of the plantation expansion process, that would

not have been there if the expansion would not have taken place.

7.4.3 Consequences

What then, will eventually be the effect of this recognition and transformation of the customary system of

rights to land? Regarding the claims made in the field, the detailed pioneering of the land offers villagers the

possibility to exclude areas from the oil palm plantation and to keep them as 'enclave'. In a system of global

measurement used in other areas, such isolation of fields seems to be impossible. For the lands dedicated to be

planted with oil palm the effect is less obvious. Fields that previously belonged to different families or

individuals, and borders between fields or other markers can no longer be distinguished. As islands in an oil

palm sea , small plots that are 'enclaved' are the only physical remnants of the system of customary land rights.

As the land is cleared, the rights to those lands are obscured.

Aiming to fit the customary system of use rights into the 7.5-pattern proposed by the company seems to be

an intricate task for the members of the Satlak. In addition, there are different understandings of the way in

which this could be done. The complexity of this system caused it to be poorly applied in practice. This may be

a reason for the company to deviate from the nucleus-estate-scheme. Furthermore, overlapping claims exist.

Even though the Satlak and the koperasi have their own administration systems, the administration held by the

company seems to be used as the basis for the distribution of benefits.

As far as the administration system goes, the main thing that seems to matter is what area of land is noted

down with whose name. This is what the distribution of benefits (be it in the form of kapling or in the form of a

percentage of income of the partnership field) will be based on.

The scheme agreed upon will only apply to the one registered as member farmer at the koperasi. Registering

names of family members or farmers who will not be a member of the koperasi does not seem to have any

practical implications for the company or the koperasi. The administration system might thus contribute to a

shift in the distribution of benefits from the land among the villagers, whereby the ones registered obtain

relatively more benefits than they do under the current system. However, the benefits of the oil palm

plantation for the villagers will most likely be shared among family members. Registering the names of family

members who are not a member farmer may have implications, though, for the way in which family members

54

share (or do not share) the benefits of the oil palm plantation between them. This would be an interesting area

for investigation in a few years time.

The exact consequences of the administration system depend, among other things, on the contract that will

be signed between the company and the koperasi. The content of the contracts currently on the table will be

described in the next chapter, as well as the negotiation process between the koperasi and the company in

which they are discussed.

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8 Shifting property regimes: contract

In the contract between the koperasi, supposedly representing the villagers, and the company, the basic

outlines of those benefits are laid down. Furthermore, this contract provides a legal basis that can be used by

the koperasi and the company. The exact realization of the contract between the villagers and the oil palm

plantation will look like remains yet to be seen. At the time of writing, the negotiations between the koperasi

and the oil palm company have not yet ended.

During the research, a contract between koperasi Sekajam Jaya and PTMAS III has not been signed yet. In

the first socialization phase, the company proposes a so-called nucleus-estate (plasma-inti)-scheme to the

villagers. Such a scheme is said to be applied in PT MAS I and II. Many villagers believe the plantation will be

developed according to this plasma-inti-scheme. Among them is the head of hamlet Mua. According to him,

everyone in Mua who gave land for oil palm adheres to the contract signed in February 2006 between koperasi

Mayting Hija, related to the area of PT MAS II, and PT MAS II. The contents of this contract will be shortly

discussed in 7.2.1.

However, in 2010 the koperasi and the company are discussing a so-called partnership pattern. In 7.2.2, the

basic tenets of this pattern will be discussed as described in draft versions of an agreement between the

company and the koperasi of March and November 2010, discussed in a meeting between the management of

the koperasi and the company in October 2010 and understood by several interviewees.

8.1 Plasma-inti-scheme The details of the scheme are written down in a contract between koperasi Mayting Hija, related to the area of

PT MAS II. This contract contains twelve articles and is dated February 2006. The contract states that per family,

7.5 ha of land should be given for the development of oil palm plantation. After 4 years, each family will receive

back 2 ha of land planted with palm oil through the koperasi. For this land, credit has to be paid to the

company. The articles on this credit payment are rather vague. The company decides yearly on the investment

to be made for the development of the oil palm plantation on the plasma land. Those costs apparently will be

paid to the company from the moment the fresh fruit bunches can be harvested and sold. The koperasi pays

30% of the result of the selling of the fruits to the company, most likely until all costs are repaid.

People who give their land to the oil palm company will become would-be-member-farmers of the koperasi.

At the moment the land is being measured and returned to them, they are obliged to become member-farmer

of the koperasi.

Families that give their land will receive compensation for the loss of productive land. Four categories are

recognized: bawas, land with only grasses; ex-planting field; non-productive rubber field and productive rubber

field or tembawang. The compensation varies from 50,000 rupiah (€3.95) per hectare for bawas until 200,000

rupiah (€15.80) per hectare for productive rubber field or tembawang.

Furthermore certain criteria are posed to the location and status of the land to be given for the

development of the oil palm plantation - for example, it should be free of conflict and located in the inti-area.

In addition, farmers are not allowed to sell or buy plasma-land as long as it is still in the process of credit-

payment. The company decides on the location of plasma-land.

No explicit reference to specific laws or policies are made in the contract. However, the scheme is written to

be developed as a 'large plantation company-partnership scheme' (pola PBS kemitraan). Furthermore,

reference is made to TP3K, an institutions whose set-up is prescribed by district regulations. In the final article

reference is made to positive law in Indonesia: in case of conflict both parties resort to this legal system.

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8.2 Oil palm plantation partnership pattern

8.2.1 OPPPP: management of the oil palm plantation

The new draft is called partnership pattern. According to this agreement, a palm oil plantation is developed by

the oil palm company on land provided by local communities through the koperasi. This plantation will be

separated into an area for the oil palm company and a so-called partnership field. Three phases are

distinguished within this pattern: a plantation building phase of four years, followed by a credit payment phase

of 9 years and a final phase after the credit is paid. The koperasi as well as the company have specific rights and

duties in each phase.

The agreement under discussion is also called 'full management scheme'. A manager of PT MAS III explains

this as follows: "As to why the term ‘full management system’ is being used: because the farmer won’t have to

think about fertilization, maintenance, roads, transportation. This everything shall be managed by the

company." As becomes clear from the articles in a draft of the agreement of November 2010 (for example:

article 2r, 3.3, 4, 5.2), this includes among other things planning and designing the plantation, measuring the

land designed for the plantation and determining the location of the partnership field. The company would be

in charge of the development and management of the plantation until the credit payment phase is finished.

Thereafter, the koperasi is allowed to manage the partnership field as well.

In a meeting between the management of the koperasi and representatives of the company and the

government, managers of the company stress the possibility for farmers to work on the plantation as an

employee of the company. In the draft of November 2010, clause 8.1a III states that "If the second party [the

company] needs work force, the first party [the koperasi] has the right to provide work force, as long as it

complies with the rules of the second party."

8.2.2 OPPPP: Amount of land

In a meeting with the management of the koperasi held in October 2010 in Koca, one of the representatives of

the company states that: "The new scheme is similar to the old scheme if the land is counted per kapling, if

seen as the percentage of land given back to the farmer. The difference is that there is no scheme anymore.

Instead the land is counted as a unity." The old scheme, in this case, refers to the plasma-inti-scheme applied in

PT MAS II. His statement thus implies that the percentage of land to be given to the farmers as palm oil

plantation is 2/7.5 * 100%, which is 26.6%.

During the meeting, a sub district-representative asks whether these 26.6% includes the space for roads and

other facilities, and the highest manager present answers: "These 26.6 % supposedly is the total of the field.

Let’s discuss this issue the 5th

of October." This is also how the manager of the koperasi understands the

scheme, as he explains in an interview: "Here is the situation, it is just an example. If the total is 750 ha, 200 ha

shall be given to the farmers, and the rest shall be given to the company."

However, the statements by the company representatives and the management of the koperasi are not in

accordance with the draft agreements between the koperasi and the company. In the draft agreement of

March 2010, article 4 called partnership pattern states:

4.1 The 2nd

party has the obligation to build a partnership field, a partnership palm oil plantation, at 26.6%

maximum from the width of this new land, outside the land owned by the partner, with the following

detail: a. the partnership field set aside is 20% from the total plantation that will be worked on by the

second party exclusively b. the second party, based on the agreement of both parties, will allocate land

for facilities and other necessities as much as 6.60% from the total width of the plantation.

In the draft of November 2010 these articles are replaced by the following:

5.1 and within the percentage is included the division of land for all the facilities of the plantation, like

roads, ditches etcetera.

5.8 The second party [the company] has the obligation to build a plantation with the maximum size of

26.6% of the planted size and included within it, all the facilities of the plantation such as roads, small

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canals, et cetera from the land and/or plantation that will be under the authorization of the first party

[the koperasi].

Both drafts thus clearly state that this 26.6% of the total area transferred by the farmers will be used for

plantation field as well as roads and other facilities – making the plantation area to be returned to the farmer

less than under the plasma-inti-scheme (where it is 2/7.5*100%=26.7%).

8.2.3 OPPPP: Credit payment scheme

The financial relation between the koperasi and the company is captured in a credit payment scheme. Under

this scheme, the koperasi has the obligation to sell the results of the fruits of the partnership field to the

company. The result of the sales will be cut by the company. The division of gross result has to be divided as

follows:

30% credit payment (during the second phase)9

30% fertilization and maintenance (during the second and third phase)

5% replanting fee (from the second phase onwards)

5% management fee (for the period of the agreement)

30% to be divided among the members of the koperasi.

The manager of the koperasi understands the credit payment scheme in a different fashion. During an

interview, he explains the scheme by giving two examples that are not compatible with each other. First, he

says that the farmers obtain 26.6% from the overall result of the sales of the fruits. From this 26.6%, 30%

should be dedicated to fertilization and maintenance costs. (Thus farmers would obtain: 26.6*(100-

30)/100=18.6% of the overall sales of the fruits). In a second example he assumes that the overall result is

divided as follows: 30% to the farmers, 30% to the company, 30% credit payment, 5% management fee and 5%

replanting fee. From the 30% for the farmers, another 30% would be for fertilizer and other maintenance

materials. (Thus farmers would obtain 30*(100-30)/100 = 21% of the overall sales of the fruits. In the scheme

described in the draft agreement, farmers would obtain 26.6*30/100=8.0% of the overall sales of the fruits

during the phase of credit payment. Thereafter it would be 26.6*60/100=15.96%).

8.2.4 OPPPP: Land 'ownership'

The transfer of land from the farmers to the company is one of the pillars on which the partnership stone is

based. In the drafts of the agreement and during discussions with the koperasi, the company proposes that a

HGU (business use permit) will be issued for all land under the partnership scheme. Two HGU-permits will be

obtained: one for the land of the company, and one for the partnership field.

According to the contract, HGU is: “the right to work on the land which is directly under the control of the

state within a certain period of time”, and the HGU certificate is “a proof of ownership of land and/or inti-palm

oil plantation (second party) and partnership or plasma (first party)”. Under Indonesian law, the HGU is a lease

right given to a company for a period of 30 years, that can be prolonged up to a maximum of 60 years. After

expiration, the land that was managed under a HGU 'returns' to the state.

The koperasi does not obtain the actual HGU until the end of the second phase, when all credits have been

paid. Until that time, the HGU is kept by the company or the bank, as leverage (article 7.5, 7.7 and 7.8 of the

draft November 2010).

"The koperasi and the company will join together within the scheme of partnership. The koperasi will act as

the holder of the certificate, and the 692 ha of land, these plasma-lands, will be put under a HGU, whereby the

koperasi acts as the holder. So there will be no certificate for each family," explains a manager of PT MAS III in a

meeting with the management of the koperasi. The manager of the koperasi realizes this, too. While explaining

the proposal of the company to some other farmers, he states: "The difference between the old and the new

9 From what is written in the contract, it is not completely clear whether the koperasi has to pay 30% from the results of the sales of the fruits during nine years, irrespective of the investment done by the company, or whether the koperasi has to repay the exact investment plus interest that was made for the partnership scheme.

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pattern is, that under the old pattern, the land is given back to the farmers but under the new pattern, only the

result of the fruits are given to the farmer."

While talking about the partnership scheme with representatives of the government and the company,

several farmers state they do not want the partnership field to be under a HGU. One of the farmers expresses

his dissatisfaction with both the partnership scheme and the permit in this way: "The bad side of the full

management scheme is that there is no individual certificate to the farmer. So the people would lose their

sense of ownership of the land." A company representative acknowledges this point as he says: "A problem

might arise if a kid asks his or her dad ‘where is our land?’ In that case the father won’t know where to point."

According to the contract, the koperasi should 'keep farmers from transferring their land to other parties'

(article 7.1b IV). In the meeting between the management of the koperasi and company and governmental

officials, both governmental officials and company representatives stress that the land cannot be sold under

any circumstance. In addition, the contract states (article 4.2) that farmers cannot take part in another

partnership similar to the one discussed.

8.2.5 OPPPP: Legal context

Finally, the draft for a new agreement refers to regional governmental officials and to Indonesian local or

national law in several of its articles (for example 6.2, 8.1, 9.2). Other clear examples can be found in the

closing articles. Article 1b is simply stating that 'the applicable law is the law of the Republic of Indonesia’

whereas 1g reads: 'If the conflicts cannot be solved by discussion or arbitration, the parties go to state court in

the region of district Sanggau state court'. Customary law systems and related authorities such as adat councils

are not mentioned in the draft agreement, and do not seem to be recognized.

8.3 Negotiating the contract Which contract will be signed eventually? According to the chair of the koperasi, several parties have to agree

on the scheme: the government, the company, the koperasi and the people. Those parties however differ in

their capacity to steer the negotiation process over the contract and affect the outcome. Several aspects will be

discussed subsequently.

The company decides where and when meetings will be conducted, and what will be on the agenda. They

thus seem to be in charge to set the boundaries within which negotiations over the contract take place. The

draft contracts are written by company employees - they propose how the benefits of the oil palm plantation

will be divided between the farmers and the company, and which additional rights and duties those parties

have regarding the oil palm plantation. The discussion over the outlook of those rights and duties thus is

strongly steered in a specific direction. What is being discussed is determined by the contract or draft contract

proposed by the company. There seem to be no possibilities for the koperasi or the villagers to propose a

completely different scheme. The long and rather complicated legal documents are not easily understood by

villagers who have a limited educational background. Therefore, the villagers depend on the company to

explain the details of the contract.

In a meeting between the koperasi and the company, company representatives assure the members of the

koperasi that the draft is just a proposal, and that the people should reject it if it is such a bothering scheme.

The scheme should not yet be socialized to the farmers. The oil palm plantation partnership pattern however is

not a new scheme. According to an ex-employee from PT MAS, the management was already thinking about

ways to socialize this scheme a few years ago.

According to a respondent, the chair of the koperasi refuses to sign the contract in a meeting between the

company and the chair of the koperasi aiming at signing the draft contract. The chair of the koperasi does not

want to sign the contract before discussing it with the people in the affected villages more extensively. He

furthermore contents to hold on to the nuclues-estate scheme in case people reject the partnership pattern.

However, he says that "either way, the people have a weak position because the company is large and has a

large lobby. Possibly, the people need to go to their last resort, like fencing, and anarchy could come up."

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In PT MAS II, de facto a scheme similar to the OPPPP seems to be applied, although de jure under a plasma-

inti scheme (Sirait 2009). Under this arrangement, re-allocation of land did not take place. The plantation was

managed by the company and farmers received a monthly fee. This is another indication that it is unlikely that

the plasma-inti-scheme will be applied as described in the contract between Mayting Hija and PT MAS.

8.4 Conclusion Whatever final scheme will be applied, villagers will lose a great deal of their customary rights to land. Most

obviously, this holds for the lands that are managed and harvested by the company - at least 74.4% of the

area10

. Villagers will have no more regulatory or exploitation rights to that land whatsoever. On the remaining

lands included in the scheme with the company, villagers loose most of their regulatory rights, especially

under the OPPPP. Under neither of the schemes, they are allowed to sell their land, and under both schemes

they need to pay investments made by the company, interest, and other fees. Furthermore they are obliged to

sell the fruits to the company through the koperasi. Under the OPPPP, farmers are not assigned a piece of land

individually, but as a group. Individual farmers are no longer allowed to decide on the management of the land.

Instead, the company and/or the koperasi are responsible for this. The OPPPP contract further restricts the

rights of the villagers by listing additional duties and obligations.

The status of the land of the villagers will depend on the outcomes of the negotiations between the villagers

and the company. If both parties decide on a plasma-inti-scheme, farmers will obtain permits for the plasma-

land, and the state will acknowledged those lands as being privately owned. However, if the oil palm plantation

partnership scheme will be signed, the koperasi will receive a HGU for the land assigned to the farmers. This

implies that the land will be returned to the state after the HGU is expired. This holds as well for the land that

will be either inti-land (under the plasma-inti-scheme) or company plantation (under the oil palm partnership) -

the company obtains an HGU-permit for this land and it will become state property after expiry.

Both in the contract applied in PT MAS II (a plasma-inti scheme) and in the draft contract about the oil palm

plantation partnership, reference is made to the legal order of the Indonesian state. The laws on which the

plantation scheme is said to be based are all Indonesian state laws - be it at a national, district or sub-district

level. The political-legal institutions that can sanction the new property are part of the administration of the

Indonesian state. No reference is made to customary institutions or the RSPO, neither as basis for the contract

nor as possible sanctioning institution.

In the negotiation process over the contract between the koperasi, supposedly representing the villagers,

and the oil palm company, the company employs several mechanisms of access that the villagers lack. Access

to education and legal knowledge are among the factors directly affecting the negotiation process.

Representatives of the company explain the contract proposed to the villagers. They may do so in a way that

causes the understanding by the koperasi to differ from what is written down. The example of the 26.6%

including or excluding the roads illustrate that such misrepresentation may be disadvantageous to the villagers

- the villagers supposedly agree with, in this case, a scheme whereby they will have access to oil palm on 26.6%

of the land dedicated to the plantation, whereas to the letter of the contract, this 26.6% includes roads and

other facilities. The contract, once signed, may serve as a base for the company to justify that the partnership

field is developed on an area less than 26.6% of the total oil palm plantation area.

10 Under the plasma-inti scheme, 26.6% will be plantation land for farmers. Under the oil palm plantation partnership scheme, infrastructure may be included in this 26.6%

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9 Lack of access to authority?

The negotiations about the ability to benefit from the oil palm plantation are not limited to the office rooms of

PT MAS only. As mentioned in chapter 6.3, villagers are dissatisfied about the conduct of the company when

their expectations are not met. What options do people perceive to state their claims vis-à-vis the company?

They do not turn themselves to governmental authorities, but instead challenge property (or rather: access) in

the open by conducting a fencing act. The reasons for this act will be described in 9.1, as well as the act itself

and the response of the company to this act. Possibly, this form of claim-making is related to lack of trust in

political-legal institutions, as well as apparent oppressiveness of those institutions. Indications therefore are

described in 9.2. Finally, indications for the apparent relations between the company, governmental agencies

and the police are described in chapter 9.3.

9.1 Claim-making in the open: a fencing act In July 2010, villagers from Mua, Koca, Pinsam and Mobui place fences to close the roads between Mobui and

Mua, between Mobui and Pinsam and between Mobui and Koca. Around forty people are involved in this so-

called fencing act, among whom the members of the Satlak of Mua and Koca.

The main reason for this fencing act is dissatisfaction about the conduct of oil palm company PT MAS.

According to the villagers, promises made by this company in the socialization phase have failed to materialize.

The main points of discontent include: the poor condition of the roads (Photo 3 and 4), lack of employment

opportunities notably for local people, lack of payment of employees of the company. Interviewees emphasize

different points in the explanation of the motives for the fencing act. Some stress that they want the company

to work on the land that has already been measured, but not yet cleared, immediately. For others the lack of

buildings such as churches and schools seem to be more important. Furthermore, villagers expressed

frustration about the frequent changes in name and management of the company.

Photo 3 and 4. The road from Mua to Pinsam. Discontent about the road seems to be widespread among the villagers and a cause for conducting road fencing.

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The conflict is related to the struggle for land, as clearly expressed by one of the interviewees: 'We were willing

to give our land because of the promises of life improvements. But presently, we haven't got anything."

Conducting a fencing act is considered an ultimate possibility for many respondents. Some explicitly use the

term anarchy in this respect, as does a representative of koperasi Sekayam Jaya: “The people have a weak

position because the company is big and has a large lobby. Possibly they need to go to their last resort, like

demonstrations and fencing, and anarchy could come up.”

In a letter directed to the head of hamlet Koca, Mua and Pinsam, the company responds to the fencing act.

They state they have never received any demands from the villagers prior to the fencing act, and thus do not

know the demands of the villagers. They ask the villagers to open the fence and to discuss their demands with

the company.

The fencing act is followed by a settlement meeting in sub-district capital Bonti. This meeting is facilitated by

the adat council and the sub-district government. Presentations by the head of the sub-district and a local

military chief are followed by a talk of representatives of the company. The local government, local public

figures and other people from the villages attend the meeting as well. Three representatives per hamlet are

given the opportunity to express their opinion.

The head of the sub-district and the adat council urge the company to fulfil its promises. Representatives of

the company acknowledge that they have made promises that await implementation. They explain they have

postponed their activities among others because of changes in management. They promise to fulfil their

promises gradually: they intent to work on the road, job opportunities and facilities.

After the protest action, the company repairs the road between Mua and Mobui. Some villagers consider

the road was made half-heartedly: it has not been layered with rocks as promised earlier. After the settlement

meeting, the fences are opened. At this occasion, villagers and managers of the company eat and drink

together. Chicken and pigs are slaughtered for a shared feast. The opening involves a kibau ceremony: a

chicken is slaughtered ritually and its blood is spread around the fence. Such a ritual is conducted to repel any

bad omen that may relate to the opening of the fence.

Little mechanisms of enforcement of the agreement made at the settlement meeting exist. No sanctions are

agreed upon that would be exacted in case the company does not keep its word. If the response of the

company is considered inadequate, the villagers may conduct new fencing acts, physically withdraw their land

from the plantation or demand that the company will lose its permits.

However, it is questionable to what extent the claims of the people would be sanctioned by governmental

authorities. Nevertheless, there are indications that the company is closely connected to governmental

authorities and to the police, and that these connections might be of a corrupt nature. This will become clear

from the following section.

9.2 Close connection between the company and authorities Fear may hamper the willingness of people to further stand up against the oil palm company [because of the

close connection with the police and subdistrict officers]. The Reverent in Mua argues people may not protest,

because they fear imprisonment. Without specifically searching for it, I come across cases of intimidation of

individuals by the police or government officials. A representative of the Satlak narrates he is being threatened

by the vice-head of the district, because of a contact with a journalist (Box 5). When attempting to attend a

meeting between the company and the koperasi, I am denied access, directed to the police station and

subsequently intimidated by a policeman (Box 6).

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Box 5. Fear for repression

There are some other indicators for close connections between subdistrict government, company managers,

military officers and the police. During virtually all meetings between company managers and representatives

of the koperasi, subdistrict government officials, military chiefs and police officers are present. In addition,

these authorities receive copies of all communication between the company and the koperasi and are included

in the decision making about the nature of the contract between the koperasi and the company. According to a

representative of the koperasi, the relations between government officials and company representatives may

be of a corrupt nature: “We know that the government of Indonesia has this custom were money is a decisive

factor. The situation is like this. If this is the area of West Kalimantan (he points at a package of cigarettes),

there are many investors who want to invest in this area. So the government, who gives the permit, has to

decide to who they should give the permit. And usually, they would give the permit to the highest bidder. It

depends on the people, on each individual.” A representative from a legal empowerment-NGO from Pontianak

says that it is not uncommon for companies to hire policemen to work for them, for example to prevent people

from looking over their shoulder. A similar argument is made by a representative of a Pontianak-based NGO

specialized in participatory mapping. He presents the use of political and military forces by companies, as a

backing-up for investors, as one of the trends in oil palm plantation development for the coming three to five

years.

9.3 Conclusion The fencing act shows that the people see little arena's where they can make their claims and have their voices

heard. The settlement meeting that followed the fencing act, and the labour conducted to improve the

condition of the road temporarily improved the relation between the villagers and the company. However, it

remains to be seen whether there will be any consequences for the company, and what form these

consequences will have, if the company fails to fulfil the promises made at the settlement meeting. A properly

functioning sanctioning institution, that would enforce sanctions in case the company would not comply with

the agreements made at the settlement meeting, does not seem to be in place.

The negotiations between the company and the people over the ability to benefit take place in a setting that

seems to be characterized by a close connection between the company, governmental authorities and the

police. This setting may influence the negotiations in three ways. First, fear for oppression may limit the

During an interview, a member of Satlak narrates about verbal intimidation: "I have this

information, that a certain journalist wanted to meet me. But I don’t know the origin of this

journalist yet. But I already received a message saying that I should be careful talking to

journalists, because I might go to prison. The purpose of the journalist, perhaps they want to

see the present condition. If we don’t put this in the new, the company can monopolize and

manipulate as they like. It seems there is the connection between the company and the

government. [...] [This message came] actually, from Kecamatan. From the vice-camat, who

said he wanted to meet me. And when we met, I he said that I should be careful talking to

journalists, because if I say something wrong I might go to jail. But I think a journalist has a

good purpose to come here. We accidentally met in a shop. This journalist wanted to know

about the development in our region, but the people from Kecamatan heard this and

stopped me. I said this is for a good purpose, what’s wrong with this. We, in the kampung,

also want to reach to the outside. Also to convey about our future. And if we, as the citizens,

feel too much restriction, how can we tell about our feeling of being fooled about the

promises that haven’t been kept? But if we, the people from the kampung, weak as we are,

want to take a step, there is always somebody that says we shouldn’t."

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willingness of people to state their claims. Second, the villagers perceive no other options than to conduct

fencing, because of lack of trust in governmental officials. More acts of resistance of the villagers might follow

in case the relation between the villagers and the company further deteriorates. Third, the consequences of

fencing-acts for the company may remain limited if they are not sanctioned. Moreover, oppressiveness of

governmental political-legal institutions, whether perceived or 'real', might be a threat to villager's property

rights over land rather than a way to safeguard them.

Box 6. Trapped by the police?

In order to attend a meeting between the koperasi, the management of the company and district

authorities, my interpreter and me head for the office of PT MAS II in Seribot. Red mud roads lead

to the office, that is located in the middle of the plantation. After passing a barrier and filling out

a guest book, we enter the site.

Participants of the meeting gather in front of the building. Their location is illustrative: company

managers, uniformed sub-district officials and equally shining police officers chat at the entrance

of the office, whereas the farmers - in their best suits - gather in the bicycle shed. I hand over

copies of my letters of recommendation and travel permit to the company officers at their

request. My interpreter can enter the meeting room while I have to wait outside - but not for

long. We are denied access to the meeting, since it is a private meeting, permission of Jakarta

should be obtained, and in addition "foreigners may have bad intentions".

Thereafter a tall, broad-shouldered police officer takes care of us. The company office is located

at a private area, and thus, by coming to the place without prior permission, we are already

conducting a (minor) offence. In addition, since I am conducting research in the area, I should

have informed the police about my activities. Therefore, we need to come to the police office

immediately. There, the police officer gives another reprimand for not having come to the police

earlier. In addition, he asserts that I should report my activities in person at the police office

every day, "for my own safety". Alternatively, he will visit us every other day.

While I fill out a form with another police officer in an obscure cabin in the office, the police

officer talks to my interpreter in another room. He boasts about his status as danger of the town,

and he says: "I would like to trap her, wait until she makes a mistake so that it will be very

difficult to leave this place." Then the police officer pictures me with his cell phone and we can

leave the venue after paying 100,000 rupiah (€7.90) "administration fee".

Later, a local village authority asserts the reputation of the particular police man. "The people

are waiting for a cause to get him. [...] He will be dead before he has time to get his gun."

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10 Communal lands

In addition to lands governed by individuals or family groups discussed in chapter 7 and 8, there are communal

lands. These lands include the cemetery and the area for the pedagi, and the primeval jungle called Rimpu,

Ripo or Rempeae. This chapter is about the shift in property regime in the communal lands of Mua. Related to

the expansion of the oil palm plantation, a participatory assessment of these areas is conducted, that will be

described in 10.1. In section 10.2 the customary management of the cemetery and the pedagi will shortly be

described. In the major part of the chapter (section 10.3) the Rimpu-area is elaborated on. Since this primeval

forest is included in a HGU-concession, its status as conserved adat forest is under pressure. The negotiation

processes that are leading to an uncertain outcome are explored.

10.1 Participatory assessment Between March and August 2009, a participatory assessment is taking place related to the activities of oil palm

estate PT MAS III. In Koca, the head of adat, the head of the hamlet and a religious leader are involved in this.

In Mua, the head of the hamlet, the son-in-law of the head of adat and another elder are involved. This

assessment encompasses several villages, and is conducted in cooperation with company managers. The

villagers show the investigators the pedagi, the cemetery, the Rimpu-area and the places used for bathing,

sanitation and washing. During the audit, the researchers seem to convey to the villagers those areas should

not be given for the oil palm plantation.

The head of RW in Pinsam claims the research is conducted, because the people complained about the

conduct of the company: “There was this environmental research in 2009. This team, did auditing related to

the environmental problems and the conservation area. This was the follow-up from the letter that we send,

about the company breaking the rules of AMDA, the analysis of environmental impact. This news reached the

RSPO, and they warned the company. After that, the auditing team came to investigate the location.” No

documents or statements confirming or weakening this claim could be found. No other research takes place in

which the villagers are actively involved.

Whether this participatory assessment is conducted to fulfil the obligations of the RSPO remains unclear.

Despite a "commitment to transparency", the management of PT MAS is unwilling to answer questions about a

HCV-assessment or any other topic (Box 7). The RSPO secretariat in Kuala Lumpur does not provide any further

information either, despite promises to look for the information at PT MAS.

Photo 5. A grave at the communal cemetery of Mua.

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Box 7. Access to information: attempting to interview an employee of PT MAS III

10.2 Pedagi and cemetery area The pedagi is a wooden sculpture of approximately 60 cm. in height, located in a small open shed close to the

village of Mua. The area around it is considered sacred and should not be burnt. During the annual Gawai-

festivities in June, the elders of the village conduct ceremonies on this spot. Furthermore, individuals in need of

spiritual assistance may go to the pedagi for guidance and strength. The cemetery is located on a hill close to

the forest. Once a year, large maintenance activities are conducted. A large group of villagers then sets out for

the cemetery, to cut the lush vegetation covering the graves of their relatives and ancestors (Photo 6). This

place, too, is considered sacred, and no other use than as burial place is allowed.

Saturday 2 October 2010, in Empodis, Bonti, I pose the first request for an interview orally

to Mr. Amon, a manager of PT MAS III. He answers that he should ask the management for

approval first. On October 5th, I deliver my letters of reference to the office of PT MAS II in

Seribot. Company representatives state that approval from Jakarta and possibly from Sime

Darby is needed before an interview could be conducted, and that I should pose my

request there.

Several emails are send to the contact person of Sime Darby, both in English and in

Indonesian. A response is never received. Via other connections, email contact with the

sustainability manager of Sime Darby is established. However, emails with a request for an

interview are repeatedly left unanswered.

When my interpreter phones to the office in Jakarta however we are redirected to an

office of Minamas in Pontianak. There, the receptionist informs us that we should contact

Mr. Teddy. From October 15 to October 29, numerous phone calls to the office of

Minamas are made, in order to contact Mr. Teddy. In those conversations, the receptionist

states that Mr. Teddy is out of the office, that she does not have his mobile phone number

and that we should try again after three to four days. On October 29, the receptionist gives

us the mobile number of Mr. Teddy and we attempt to contact him.

On November 8th, my interpreter is able to contact Mr. Teddy. He then conveys the

message that I should hand in a written request for an interview, along with my letters of

reference and a topic list, at the office of PT MAS I. Tuesday November 16th me and my

interpreter are received in the office of PT MAS I and the letter, the topic list and my

letters of reference are faxed to Mr. Teddy. I stress that if there is a particular topic that

they do not want to talk about, it should be no problem and it could be skipped from the

list. We are kindly informed that PT MAS is part of RSPO, and therefore commits itself to

transparency. Therefore, my request most likely will not yield any problem. Furthermore

we are told that my interpreter will receive an answer to the request later.

We do not receive any response, and my interpreter calls Mr. Teddy again on December

3rd. He then conveys the following message: "I have already conveyed the response of the

management to Mr. Isa Rodin and to the top management. I don't have the responsibility

to take the decision. The higher management says that they cannot fulfil Petra's request,

because it is a hot issue right now, and our position within the media is quite compromised

presently. The top management, our investor that came from Malaysia, is worried that

Petra is related to some kind of NGO, even though I have already explained that that is not

the case, that she is requesting the information for educational purposes. But the top

management stays with their decision. Furthermore, the top management reasons,

because Petra comes from The Netherlands - perhaps is the request had been done by an

Indonesian citizen, it would be different."

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The pedagi and the cemetery will not be given to the company. There are no indications that the

establishment of the oil palm plantation and the incoming of the company provoke any changes in the property

regime related to the pedagi and the cemetery. This does not hold for the third communal area: Rimpu

10.3 Rimpu-area Rimpu is a primary swamp forest located in between the hamlets Mua (part of the village Empodis), Pinsam

(part of the village Kampuh), Kampuh and Mobui. Currently, the area of the forest is around 15 ha, whereas a

larger area still bears the name Rimpu. With the incoming of the company, the status of this area as an adat

forest that cannot be touched comes under pressure. A process of negotiation starts between the villagers of

different hamlets and the company. Among other things, this process is influenced by the history of the area,

the position of different ethnic groups, the company and the local government, the relation between village

elites and other villagers and different laws.

10.3.1 History of the place and customary property regime

Originally, the area of Rimpu belonged to the people of Darok, who build a tembawang in the middle of the

area. It was first claimed by the mythical forefather Bay Bokap (Photo 6), whose legend is told in several

variations. The descendants of the people of Darok lived in Mua.

Photo 6. Remnants of the hut of mythical forefather Bay Bokap in the Rimpu area. “These woods here are the remnant of a hut, from the legend of Bay Bokap. There was a blind old man, he was a Darok. He builds this hut, not because he wanted to live here, but this is the place where he would feed his pigs and chickens. He came here to do so and prepared a meal. After that, he went to the river Sekayam in the Sekayam area. He put traps for the fishes. When he came back, the pigs and chicken had not finished eating and the cooking that he conducted earlier had not been done yet. This makes the people wonder about the speed he took going back and forth.”

In the past, the area of Rimpu forest decreased considerably, due to farming activities, as explained by a man

from Mua: “Actually, the land was very vast, but because of the wrongdoing of the farmers, some of them

changed the usage of the land, some stole the land. The vast area became narrow”. Adat sanctions that should

have been given were not implemented properly, according to the same interviewee. As a consequence, the

area of communal land decreased: “Huge areas have been used by the people. When the people used the area

for planting, in the end it became their personal right.”

In the nineteen eighties, an agreement is made between the people of Kampuh and Mua, to prevent further

reduction of the forest. The people agree that the forest cannot be touched anymore, that the area should not

be disturbed. According to an interviewee, the adat status of the forest has been acknowledged by the Musdat,

the Musyawrah Adat, an adat convention, in the nineteen nineties.

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Since it is a public forest, the inhabitants of the four hamlets (Mua, Pinsam, Kampuh and Mobui) related to it

have the right to enter the forest. They can also harvest the fruits or use other products from the forest.

Whether the status of the forest implies trees can be planted or not is open for discussion. Whereas some state

that no-one has the right to do so, another respondent says: “For planting trees, everybody in Mua can do that

because it has already been considered the adat forest of Mua. But if they want to cultivate it for personal gain,

like lading or rubber field, they cannot do that because it has already been considered public forest, the reserve

for each kampung.” Similar discussion exists over the possibility to take trees from the forest to use the lumber,

for example to build houses. Possibly, no rigid and detailed rules over the use of the forest exist. As one

respondent notices: “The most important thing is there should be no drastic changes happening to the forest if

the people want to cultivate the land.” Currently, the forest does not seem to be used by anyone.

Rimpu is an adat forest, and therefore under the authority of the head of adat (according to some

interviewees), the head of the hamlet (according to others), or both (according to yet others). They are the

ones to decide on any changes in the usage or management of the land. In doing so, they should represent the

opinion of the people. The head of RT from Mua expresses it as follows: “Because it is an adat forest, it is

owned by the public, and if it should be sold, then all of the people of Mua should be involved in making the

decision. Mr. Najoh [the head of hamlet Mua] cannot make the decision by himself. Because it is an adat forest,

the decision should be made by the public, and if it should be used for palm oil, it should also be for the benefit

of the people, for instance for the cash reserve of the hamlet.” Several other respondents expressed the need

for representation and mutual agreement among the people. However in the actual process of deciding the

fate of the area, all decisions seem to be taken by the village elites. At two key meetings on which decisions

over the area are taken, only the local government officials, the adat leaders and a few ‘local public figures’ are

present. For other villagers, there is little possibility to express their opinion about the area and to be involved

in the decision making process. On meetings at the hamlet level to ask for the opinion of the people about the

area, if conducted at all, only the elders of the village are present.

10.3.2 Plantation for the cash reserve of the hamlet: forest under pressure

Oil palm company PT MAS III offers to develop a “plantation for village or hamlet or RT cash reserve”, “to

follow-up perda no 3/2004”. The outlines of such a plantation are sketched in a ‘socialization booklet’ handed

out by the company. Such a plantation can only be developed on a “public land”: “the land reserve for this

purpose does not belong to an individual but is a public land.” In contrast to the division of land in the plasma-

inti-scheme or the partnership scheme, all land will be returned to the village, hamlet or RT that provided the

land – with a maximum of 5 ha. The land will come under the management of the village, hamlet or RT after

the palm reached the age of 36 months, or when the fruit bunches can be harvested. Then, the costs for

investment made by the company will be paid back: “When the cash reserve plantation has been fully managed

by the village, hamlet or RT and the result has been obtained, then the 30% cut for credit from the result of the

harvest will begin, after the costs of transportation and plantation koperasi service have been deducted.”

Different accounts are going round about the role of the company in the process of obtaining authority over

the Rimpu-area. According to two interviewees from Pinsam, the company took the initiative to obtain

authority over the Rimpu forest. One of them says: “There seems to be an intimidation about that. They said it

like this: “If you have this land, which isn’t productive, and you can’t manage it, why don’t you just give it to the

company”. A man from Mua, however, states the proposal to hand over the land to the company was purely

the initiative of the people.

In December 2007, the local elites of the villages of Mua, Kampuh and Mobui, that is, the villages included in

the concession of PT MAS III, conduct a meeting in Pinsam to discuss the fate of the Rimpu-area. The decision is

taken to give the Rimpu-area, as is stated in the minutes of this meeting: “the forest Rempeae is given to the

company of PT MAS III to be developed, to be managed to become a palm oil plantation. In the issue of

transferring the land of the forest Rempeae, the people from the three hamlets plead to the company of PT

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MAS III to participate in the procurement of the land for the cash reserve of the hamlet, one hamlet two

kapling, for the income of the hamlet.”

Two reasons appear to lie at the base of the outcome of this meeting. First, people see transferring the land

to the company as a way to prevent conflict over the land. Reference is made to cases whereby people lay

claim on the land by building planting field or whereby people sell land, disrespecting the rights of others to the

same piece of land. An interviewee from Mua asserts that: “It can add to the share of the land given to the

company, because it is better than that the land stayed as it was, with lots of stealing and people building

planting field, whereby the land gradually became smaller and might finally disappear entirely. They thought it

was better to give it to the company, so that everyone can have their share. It’s better than that the land

gradually became smaller and lost its history.” Second, the prospect of advancement and income for the

development of the village, hamlet or RT is appealing. As an interviewee from Mua visualizes: “the result of the

fruits will be used to fix the road, for communal work, for sick families, to build churches or other buildings, and

lots of other things that are the necessity of the people of the kampung.”

However, the decisions over Rimpu are not taken without striking a blow. “In Pinsam itself, the people in this

kampong were about to fight each other related to this issue” says a man from Pinsam. Opponents of the plan

to transfer the land to the company refer to the history of the land, and the value of the land for future

generations. Furthermore, fear exists that the plantation for the cash reserve of the village, hamlet or RT will

not benefit the whole community but only certain individuals. The head of RW from Pinsam states: “The people

are already aware of the possibility of income, and about how the official in the village will take advantage of it,

and the people do not know where the result of this income shall be allocated. Because the people are

influenced by these officials, there is nothing they can say about it.”

Eventually, the meeting in Pinsam does not lead to an agreement with PT MAS. Two factors seem to have

come into play that change the direction of the course of events: the claims of the people of Darok and the

notion of the Rimpu-land as a "conservation area”.

Initially, the people of Darok are not involved in the discussions over the Rimpu area. After the meeting in

Pinsam however, they lay claim to the area as well by making reference to the historical relation they have with

the area. The Darok people ask for their rights as the descendants of Bay Bokap. According to the head of adat

in Mua and the head of RW in Pinsam, who is a descendant of Darok himself, the Darok people oppose the idea

of selling the land of Rimpu. Another respondent from Mua however states that they do want to sell the land,

but merely look for their share of the benefits.

Several interviewees, including the chair and secretary of the koperasi Sekayam Jaya, convey that the

Rimpu-area cannot be touched by the company. Instead, it will be used as a conservation area. The

socialization booklet previously mentioned writes: “There shall be an agreement between the company and

the plantation koperasi to mutually keep the conservation area everlasting, whether it is located in the inti or

plasma area.”

Why the company would be interested in managing the swamp forest as a conservation area remains vague.

According to an interviewee from Mua, the area cannot be transformed into a plantation because of its

swampy nature. In addition, the government instigated the area should be conserved, “because there are

animals in the area that should be protected”. Governmental influence is mentioned by the head of RW from

Pinsam, too, who mentions that “the government wants to know about the existence of adat land” as a reason

why the company would be interested in having this land.

A new agreement is made in Mobui in December 2009. This time, not only the local leaders of Mua, Kampuh

and Mobui are involved, but people of Darok, too. The meeting decides that the Rimpu-area should be given to

the company. They ask the company to develop a plantation in return, as written down in the socialization

booklet. The 15 ha of this plantation for the cash of the village, hamlet or RT should be divided into four: for

Mua, Kampuh, Mobui and Darok. A letter with the result of the meeting in Mobui is send to the management

of PT MAS III. Unfortunately, the minutes of this meeting are not available.

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10.3.3 Current situation

The exact consequences of the acceptation of the proposal by the company remain vague. According to a head

of RT in Mua it is still the right of the people of the villages to harvest the fruits and use the timber, “because it

is an adat forest”. In contrast to that, two other respondents say only the people from the company have the

right to enter the forest and use the lumbers, whereas a third one contents that the trees cannot be cut at all.

Currently, no agreement between the company and the villages has been reached. After the decision of the

meeting in 2009 is proposed to the company, the company responds that the project will be discussed later,

and possibly will be included in PT MAS IV. According to the head of adat of Mua, this impasse is related to the

change in management of the company.

The Rimpu-forest is included in the plantation area of PT MAS III, for which a HGU-concession has been given.

It will thus be considered inti-land, and becomes state property when the period of HGU-permit has ended.

10.4 Conclusion The property rights over the cemetery and the pedagi are not shifting in the oil palm plantation expansion

process, neither are there indications that their use is changing. This does not hold for the Rimpu-area.

A variety of actors is involved in the negotiations over the Rimpu-area, making claims based on different

normative orders. Initially, a perceived possibility to benefit from engaging with the company is a reason for

the village elites governing the area to give up the land. This prompts the Darok-people to state their claims to

the Rimpu-area. Their claims, based on history, are recognized by the people from other villages involved.

The oil palm plantation expansion process thus induced a shift in customary authority over the area.

Legislation, be it national state legislation or identification as a HCV-area as described by the RSPO seems to

serve as a base for conservation of the area. Identification of Rimpu as an HCV-area, however, does not seem

to prevent a shift in property rights. Although the vegetation on the area cannot be touched, handing over the

land to the company seems to entail a shift away from its status as adat forest. Eventually, since the Rimpu-

area is under HGU-certificate, the legal base for its status as adat forest will deteriorate. According to the logic

of the state, the area will become state land after expiration of the permit.

In discussing possible authority over the area, the company bases itself on district law (perda 3/2004) - but it

remains unclear why they would be interested in managing the area. Possibly, this lack of benefits contribute

to the current impasse in the negotiations over the Rimpu-area.

This description probably has only touched upon the shifting property regime of the Rempeae-forest.

Therefore, some suggestions for further investigations are given here. For example, the different legal orders

that play a role in the discussions over the area deserve more in-depth investigation. Where does the notion of

keeping the land as a conservation area originate from – from a district environmental law, from the status of

the Rimpu-area as adat forest acknowledged by the Musdat, or perhaps from the categories of high value

conservation area as developed by the RSPO? How are different legal orders used in the negotiation process,

and with what effect?

What consequences will the shift in land tenure have for the Rimpu-forest ? How will this shift guarantee the

conservation of the as a primary swamp forest? Will such a shift in authority over the forest alter the meaning

it has for the people of Darok, Mua, Pinsam and Mobui, and in what way? The future should teach what

agreement about the area and the cash reserve of the hamlet will be reached, and who will be able to benefit

from this agreement, and in what way.

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11 Conclusion

The expansion of the oil palm plantation in Mua is a dynamic process, that is not pre-defined but rather is

shaped along the way. Negotiations over benefits are central to the oil palm plantation expansion process, and

the outcome of these negotiations is unknown at the onset of the process. Currently, property rights over the

plantation are contested. This follows for example from the suspended payment of derasa, the lack of

agreement between the company and the villagers over the scheme to be applied and the lack of agreement

over the Rimpu-area. The openness of the process provides room for actors to search for ways to increase their

benefits and to legitimize their claims.

11.1 Legitimization strategies employed by the company In the oil palm expansion process, the company employs several legitimization strategies, wherein it aims to

secure rights to land by gaining recognition from authorities. These strategies entail an apparent recognition of

customary rights, as well as a gradual but continuous shift away from those rights.

In the oil palm plantation expansion process, the oil palm company made use of local authority in several

ways. In the first socialization process, the company directed its attention to the involvement of local leaders:

the head of adat, the head of the village and other elder men who enjoy respectability in the hamlet. A positive

stance towards the incoming of the company of these people is likely to have affected the decision of the

villagers to welcome the company in their village.

The Satlak, who consisted of the elders of the village eager to contribute to the development of the oil palm

plantation in the region, played a central role in the land acquisition process. By assigning the responsibility for

the land acquisition process to people whose voice is respected and valued, the company could increase the

willingness of the villagers to join the plantation scheme and the acceptance of the activities of the company.

The Satlak is assigned responsibility for solving conflicts that may occur in the land conversion process. The

benefits of this division of task is twofold for the company: first, the land included in the oil palm plantation will

be free of conflicts, and second, the company apparently does not have to do anything with (small) conflicts

that are provoked by the land conversion process.

On a smaller scale, the authority of the head of the family in taking decisions over land was recognized, too.

The decision which land should be dedicated to oil palm was taken by the head of the family - whether or not

in consultation with other family members - holder of the regulatory rights as described above. Nobody was

forced actively to offer his customary rights to land to the company. In addition, the presence of the head of

the family was obliged in every step of the land conversion process of this person's land.

In the contract between the company and the koperasi however, no reference is made to customary rights

or customary institutions at all. Rather, legitimization is sought by referring to state, provincial and district

governmental laws and by having the agreement signed by local governmental and military officials. In order to

secure claims to land, the company thus searches authorization of official institutions as well as informal

recognition of customary institutions. In the course of the expansion process, customary rights are becoming

obscure.

The company thus seemed to recognize customary lands in the plantation expansion process in the field. In

the registration system, there is a connection between a supposed owner of a piece of land and an actual area

of land(although the registration system may not be an accurate representation of the system of rights to land).

This connection, however, eventually is lost. If the plasma-inti-scheme will be applied, the farmers will receive

a kapling in the plasma-area - that is most likely not on the same location as their previous land. If the OPPPP

scheme will be implemented, individual farmers are not assigned a piece of land at all.

Eventually, what matters for the farmers is the size of the land with which they are registered - the

measurement of their plots and especially the result of the measurement are thus crucial in the ultimate

benefit for individual farmer. It is exactly this area that seems to be characterized by a lack of transparency. The

company creates the result of the measurement, basing itself on the accuracy of technology and GPS-

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techniques, and in addition prescribes the koperasi which list of would-be-farmers to use. Most of the farmers

do not seem to receive written information about the size of their land. Therefore, it is more difficult for them

to support claims about the size of the land. Moreover, they would not know whether the information they

receive is correct.

In the initial phases of the project, the company uses the authority of local public figures to expand its

activities locally. Later, it aimed to strengthen its position by searching for authorization and formal recognition

of its claims by the bupati and district government. Possibly, recognition will be gained in the form of RSPO-

certification. The struggle over securing claims to land and gaining recognition of those claims thus seems to be

take place in multiple arena's simultaneously. The company does not seem to choose one particular political-

legal-institutions to authorize its claims - the company seems to go shopping at multiple forums.

11.2 Villagers mobilizing rights? The notion of access is useful to understand the perspective of the villagers on the incoming of the plantation

and the company. A perceived ability to benefit lies at the base of their initial engagement with, and their later

resistance to the company. Rather than aiming to turn access into property by searching for legitimization, the

villagers thus "turn property into access" - they give up their customary rights to benefit from the land for a

perceived ability to benefit from the land and the incoming of the plantation. The villagers aim for realization of

those benefits, rather than for securing their rights. Following this line of thought it comes as no surprise that

the villagers thus protest and call for, among other things, fast development of the plantation and for

realization of infrastructure, when those benefits fail to materialize.

The case of Mua shows that access to local authority is used by the company to secure access to land.

However, the elders of the village cannot only be considered puppets in the puppet theatre of oil palm

plantation expansion in which PT MAS is the great puppeteer: they are actors, too. This is illustrated by the

fencing act and by the indications that the Satlak as a whole intents to resign from its assignment. In Mua,

increased dissatisfaction about the performance of PT MAS has lead to acts of resistance that were mainly lead

by the Satlak. Here, engagement with and resistance to the oil palm company did not exclude each other but

occurred simultaneously.

At village level, the process of recognition of villagers rights is coinciding with a process of formalization of

rights by registration of landholders. In Mua, such formalization of rights provokes conflict between village

inhabitants, and entails a transformation of rights from a dynamic to a more static system, as well as a possible

reduction of multiple legitimate claimants to a single 'owner'. These issues are some of the pitfalls that

commonly occur in formalization processes, that generally create "more exclusive form of rights over the

resource", whereby elites capture more rights (Meinzen-Dick and Mwangi, 2009).

11.3 Searching for recognition Sikor and Lund (2009) argue that people strive to turn access to natural resources into property by gaining

recognition from a politico-legal institution. This case shows that the struggle over recognition of rights is

taking place at multiple layers or areas simultaneously. In Mua, these struggles take place among others in the

land conversion process, in the land registration process and in the negotiations over the contract. In the land

conversion process, the individual villagers strive for recognition of their claims in the pioneering, measuring

and clearing of the land by the Satlak. This search for recognition comprises the fields that are being measured

and cleared, as well as the fields that are becoming enclave. Simultaneously, the presence of the Satlak and the

"owner of the field" during the land conversion process, and their (tacit) approval of the companies' actions is

granting legitimacy to the activities of the company. Concurrently, recognition by the Satlak was important for

villagers who strived to have their claims to land formalized in the registration system. In the land conversion

process as well as in the land acquisition process, villagers thus aim for recognition of their claims vis-à-vis the

claims of other villagers. In addition, the company is searching for recognition of its rights by political-legal

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state institutions - for example, by referring to state laws in the contract between the company and the

koperasi and by aiming to have that contract approved by the sub district and district governmental officials.

11.4 RSPO-influence The villagers do not seem to be familiar with the RSPO and the criteria for the expansion of the plantation. As

far as some interviewees that have worked for the company have heard of the RSPO, they associate it with

"rules of the company" about which sites can and which cannot be converted to oil palm; and not with a tool

that can be used to strengthen their own position vis-à-vis the company. In the process of plantation expansion,

HCV-areas seem to be recognized by the company. In the field, certain categories of lands that cannot be used

for oil palm were known. With regard to the social HCV's, of interest for this study, a participatory assessment

has taken place in order to identify those. Participation was limited to a few local public figures, all man. The

participatory assessment to identify social HCV's took place after the onset of the land conversion process - so

not prior to the expansion of the plantation. Furthermore, the assessment was not conducted as extensive as

prescribed by the Indonesian national interpretation of HCV-assessments. An overview of the dependence of

the community towards the forest, for example, was not made. The case of the Rimpu-forest shows that

possible identification as a HCV-area is only one among different categorizations of an area.

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12 Discussion

12.1 The position of villagers in the expansion process Rist et al. (2010) mention the apparent gap between the massive enthusiasm of farmers for oil palm and the

critiques of international NGO's on oil palm expansion. Indeed, this case support his findings that villagers are

willing to get involved in the oil palm plantation and are eager to enjoy the economic benefits they expect.

Nevertheless, this is not the complete story.

In understanding the engagement of farmers with the oil palm company, focusing only on economic benefits

is too short sighted. This case shows that "identification of the flow of the benefit to be analyzed" as

mentioned by Ribot and Peluso (2003) as a first step in an analysis of access is not as straightforward as it

seems. The identification of the benefits proves to be an area for contestation. In Mua, the prospective of new

roads and facilities was as much a reason for the villagers to engage with the company and give up their

(customary) rights to land as the possible economic improvement derived from the oil palm crop. Moreover,

these first benefits failed to materialize to a great extent whereas the rights to land where given up already.

Expectations about the benefits the incoming of an oil palm plantation company are thus not necessarily met.

This may hold for the expectations of economic improvement, too. Unfulfilled or broken promises by the

company may cause anger and deception among smallholders (Potter, 2008; Rist et al., 2010).

Furthermore, the economic outcomes of smallholder involvement in oil palm plantations are highly variable

(Feintrenie et al., 2010; McCarthy, 2010). McCarthy (2010) points to the possibility of adverse incorporation -

inclusion of farmers in the oil palm commodity chain on unfavourable conditions: "the impoverished are those

who lose their land and their former economic base without being incorporated into the new economy on

advantageous terms" (McCarthy, 2010, p.827). The extent to which the villagers will be able to benefit from the

oil palm plantation, depend on the conditions for cooperation between the company and the farmers

(McCarthy, 2010).

These conditions are affected by the political-legal context in which oil palm plantation expansion takes

place. Especially in Sanggau, governmental policies are conducive to oil palm plantation development and the

district government actively searches for oil palm investors (Colchester et al., 2006; Zen et al., 2008).

Both the plasma-inti scheme and the OPPPP scheme seem to fall under the loose kemitraan-framework guiding

Indonesia's oil palm plantation development, as well as under Sanggau district regulations. The plasma-inti

scheme resembles nucleus estate schemes traditionally widespread in its structure and outline, though not in

the division of land. The OPPPP scheme indicates a move further away from those nucleus estate schemes. The

OPPPP is very similar to the saham-scheme described by Sirait (2009) as the new generation of oil palm

plantation schemes. In this study it is found that such schemes seem less beneficial for farmers in terms of land

ownership, in accordance with findings by Zen et al. (2008). Likewise, the economic advantages of these

schemes as they are implemented in Sanggau are questioned (Zen et al., 2008; Sirait, 2009)11

.

Nevertheless, in Mua the conditions for cooperation are not fixed at the onset of the oil palm plantation

expansion process yet. This provides room for manoeuvre, wherein actors aim to bend the course of events in

the preferred direction. The villagers and the oil palm company seem to differ in the extent to which they are

able to steer the process. Some differences in their ability to do so will be discussed now.

The villagers depend on the company for the development of the plantation. This heterehonomous relation

relates to the commodity specific nature of oil palm (McCarthy, 2010). Oil palm requires relatively large

financial investments whereas the crop can only be harvested after four years, and reaches optimal production

11 11 As mentioned previously, the trees in the oil palm plantation in Mua are not ready for harvest yet, and the economic returns to the villagers are yet unknown. Nevertheless, experiences in plantations comparable to PT MAS III give some indications of the income that can be expected. Farmers in PT MAS II received an income between$ 22 and $ 33 (€15 and €22) per month (Sirait 2009). These numbers are reasonably in line with Zen et al. (2008) who mention an average income of $ 35 (€23) for farmers involved in a kemitraan-scheme in Sanggau. Rubber tapping would yield approximately $ 6 (€4) per day (Sirait 2009). Certainly these numbers stand in sharp contrast with the average income of $651 (€436) per month for a 2 ha area in the period after debt repayment reported in Bungo, Sumatra (Feintrenie et al. 2010).

77

only after around seven years. Moreover, a quick processing in high-tech facilities is needed. Most importantly,

villagers lack the capital to develop their own oil palm fields, since, as McCarthy (2010) puts it: “Oil palm is a

rich farmers crop”.

In the negotiations over the contract with the company, villagers lack access to legal knowledge and

education. A poor understanding of law is common among rural populations (Bakker and Moniaga, 2010).

Negotiations are affected by this poor understanding, as well as by a number of other extra-legal factors, listed

by Zen et al. (2008), including "lack of negotiating capacity, skills, and a lack of effective forms of villager

representation". As a consequence, farmers often engage in contracts with palm oil companies that they don’t

fully understand (Vermeulen and Goad, 2006). The contracts themselves and the information provided by the

oil palm company can be unclear (Rist et al., 2010). Furthermore, lack of state recognition of the villagers

customary rights to land impairs the villagers' bartering position (Zen et al., 2008).

In Mua the company seems to have access to governmental authorities that the villagers lack. McCarthy

points to the existence of "corrupt webs of exchange and accommodation that exist beyond the law."

(McCarthy 2006, p.210). Local government officials and adat leaders may be included in such webs. According

to McCarthy, these webs profoundly affect access to and use of natural resources. Whether and how such

extra-legal institutional arrangements would affect struggles over land at village level in Sanggau is an

intriguing area for further investigations.

Villagers have means of resistance at their disposal, as shown by the road fencing and the possible withdraw

of the Satlak in Mua. It is yet unknown to what extent these forms of resistance affect the outcome of the

negotiations over the benefits of the oil palm plantation. It is in the interest of the oil palm company to

maintain a good relation with the villagers - deterioration of the conflict may eventually provoke villagers to

cause damage to the plantation or to offices, such as reported elsewhere (for example Sirait, 2009). On the

other hand, the fencing does not seem to be related to the negotiation about the scheme proposed by the

company - and it is this scheme and the implementation of it that will determine the farmers ability to benefit

from the oil palm plantation to a large extent.

12.2 Dynamics between access and property in a context of legal pluralism This research shows that access and property are intimately linked. Mechanisms of access can be used to turn

access into property and making claims to land more secure. As 'strains in a bundle of power', these

mechanisms thus not only serve to gain access to resources directly, but also to gain formal and informal

recognition for claims on land. Access to authority is central in this process.

This case shows that the Sikor and Lund's theory on the interplay between access and property is useful to

describe some of the dynamics that is taking place in the struggles over resources in oil palm plantation

expansion processes, as explained in the conclusion. However, a search for recognition by political-legal

institutions does not seem to be the only dynamics that is taking place. When it comes to the relation between

the villagers and the company and to setting the conditions for cooperation, the proposition of Sikor and Lund

poorly captures the behaviour of the villagers in Mua. The villagers do not seem to strive for recognition of

their claims to land by political-legal state institutions. As Ribot and Peluso (2003) argued, people may gain

access to resources and obtain benefits from those resources via a variety of social relationships - not only

relationships that focus on rights. The villagers aim to increase their ability to benefit from their land through

the incoming of the company rather than their rights to land. In aiming to secure these benefits they focus on

their relation with the company, who has the (perceived) ability to provide them access. Gaining recognition

from a politico-legal institution is thus not the only way in which people attempt to gain and secure benefits

from natural resources.

The notion of interlegality is apt to describe the land conversion process, wherein a mingling of state law

and customary law takes place, as well as the formalization process accompanying this land conversion process.

The paint of the borders in the field and the administration system can be perceived as the materialized

interlegality, for they cannot be understood from the perspective of the customary law or the 'state law' only:

78

they are the product of "an intersection of different legal orders" (De Sousa Santos, 1987, p.298). This case

shows that this notion is still relevant over twenty years after it was first introduced.

The intimate bound between property and authority is extensively described in the scholarly literature (e.g.

Lund, 2002, Sikor and Lund, 2009). This connection between rights that are being granted and a sanctioning

institution would imply that a mingling of law, occurring in a context of interlegality, would invoke a

transformation of authority, too. In the land acquisition process in Mua, such hybridization of authority took

place indeed, in the form of the Satlak - this is an institutions established according to state rules and

regulations, and formed by elders that hold authority in the village, both local state officials and adat leaders.

In Mua, the onset of a shift of authority over the lands involved in the plantation from the Satlak to the

koperasi can be witnessed, that is likely to continue - for the koperasi is charged with holding the

administration system and distributing the benefits among the villagers - whether they come in the form of

lands or money.

This case shows that negotiations of rights over resources are dynamic and that "the key word is process"

(Sikor and Lund 2009, p.3). Although De Sousa Santos (1987) states that "interlegality is a highly dynamic

process", he does not specify the nature of this process, its possible driving forces or consequences. By

imagining laws as maps, sight is lost somewhat on the temporal dimension of processes in which laws and

legalities are used, transformed and reified. This relates to a second point of critique: the concept of

interlegality seems to ignore the fact that people might actively aim to prevent that laws and authorities mingle

and interact. The importance of customary rights and authorities seems to diminish during the land conversion

process, and to be taken over by the contract between the company and the koperasi, that is exclusively based

on state law. Such changing relations between customary and state institutions are described as well by

McCarthy who states that: "Over time, adat regimes and the state order have opposed one another, co-existed,

overlapped, and worked together." (2006, p. 207).

The lines between access and property are thin and fuzzy, for what is considered a legitimate claim might be

contested, and who holds authority may be ambiguous. Moreover, from a legally pluralistic perspective,

people's behaviour is guided by different normative orders, and legitimate authority is not located in political-

legal institutions only - it may be present in labour institutions, knowledge institutions or cultural institutions.

Such institutions may equally grant recognition and sanction claims. Following this line of reasoning further

blurs the borders between access and property.

Leaving definitional hubble-bubble aside, the concepts of access and property seem to be useful tools in

empirical investigations aiming at enhancing understanding of who gets to benefit from a certain resource and

why. The case of oil palm plantation expansion in Mua shows that a theory of access is useful in order to

understand the agrarian transformation process taking place. The process of change cannot be understood

solely in terms of rights to land and how they alter.

12.3 RSPO criteria for sustainable expansion of oil palm plantations The direct cause to conduct a participatory HCV-assessment remains unclear. Despite a 'commitment to

transparency' that is supposedly at the core of the RSPO principles, neither PT MAS nor Sime Darby nor the

RSPO secretariat were willing or able to provide any information about this HCV-assessment or about other

topics related to the expansion of PT MAS III in Mua. These considerations are in line with the argument by Zen

and McCarthy that implementation of RSPO principles and criteria is a major challenge.

Potentially, RSPO principles and criteria might serve as a tool for farmers to strengthen their position, as a

base for legitimization of claims. Given the limited awareness of the villagers of the RSPO, it's principles and

criteria, the villagers will not be able to use those principles and criteria. As long as farmers do not have

knowledge about the RSPO principles and criteria and their rights within those, nor access to a sanctioning

body, it will not be possible for them to use the principles and criteria in this way.

Within the RSPO criteria for sustainable expansion of oil palm plantations, emphasis is placed on conducting

social and environmental impact assessment, and on free, prior and informed consent. The case of PT MAS III in

79

Mua shows that oil palm plantation expansion is not necessarily a predefined process that is conducted

according to a straight outline that is known at the onset of the process. Therefore, it is questionable to what

extent social and environmental impacts can be assessed in advance, and to what extent villagers can be

'informed' about those.

Moreover, even when people consent with activities of an oil palm company initially, developments in a

later stage may lead to conflicts and dissatisfaction. In the case of Mua, active forcing of villagers to be involved

in the oil palm plantation did not take place. During the first socialization, people seemed to be rather positive

about the incoming of the oil palm plantation. Their perception changed during the course of the process. The

perspective of the villagers changed, among other things, because the company did not keep its word - for

example the facilities were not realized as promised. Such behaviour is often occurring throughout Indonesia

(Feintrenie et al., 2010).

This is not to say that a SEIA should not be conducted, or that the principle of FPIC is best placed in the trash

can - to the contrary. The absence of free, prior and informed consent may be a cause of tension between

companies and communities (Rist et al., 2010). But neither SEIA nor FPIC should not be perceived as the golden

bullets that will make oil palm plantation expansion sustainable.

Moreover, the concept of HCV-areas is central to the RSPO criteria on sustainable expansion of oil palm

plantations. The primary concern in sustainable expansion is thus land use rather than land tenure - in property

terms: the criteria focus on 'valuables' are rather than the way people relate to those valuables. The role of

local people is acknowledged in defining which areas should be considered social HCV's (HCV five and six), but

still the focus is on areas with a certain land use that cannot be used for expansion, rather than on anything

else. It need not be said that identification of such areas is important. Nevertheless, in the case of Mua (as in

other cases) topics of discontent where mainly related to property rights to land and the ability to benefit from

the oil palm plantation, rather than to land use per se.

For an oil palm plantation to be certified, it should adhere to all RSPO Principles and Criteria, among which

principle six, responsible consideration of local communities. Property rights, notably the outgrower scheme,

and access to land are given more attention in this principle. It will be interesting to see how the developments

in Mua will be evaluated against this principle.

80

Acknowledgements

First and foremost, I would like to thank all the respondents who dedicated their time and attention to

contribute to my thesis work. Without them, this investigation would not have been possible. A special thanks

also to all families who were hosting me during my stay in Indonesia. Erny and Paulus, Mr. Andy and his wife,

Mr. Dil and Ms. Elbina: it was a special experience to enjoy your hospitality for so long. I thank my interpreter

Selamat Tumpal for translating my questions that may have been silly, for supporting me in the field and for

being my partner in crime in struggling over the muddy roads of Sanggau. Thanks to Karen Witsenburg for

providing me the opportunity to join in a BothEnds-project and to travel to Kalimantan. Martua Sirait is

thanked for his helpful and friendly comments and for providing useful contacts in Indonesia. I am grateful for

Iwi Sartika, Laurensius Gawing, Abdias Yas, Erny Trifona, Marten Luther and other LBBT-staff for hosting me in

their office, assisting me in arranging practical things and keeping in touch in the field. I would like to thank my

supervisor Otto Hospes for providing guidance and interesting discussions during the course of this thesis work.

Thanks to Peter Oosterveer for providing comments to my research proposal and for examining the final thesis.

And, last but not least, thanks to my family and friends for supporting me in this undertaking in many possible

ways.

81

82

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Vermeulen, S. and Goad, N. (2006) Towards better practice in smallholder palm oil production, Natural

Resource Issues Series No. 5.; International Institute for Environment and Development, London, viewed 10

July 2010, <http://www.fao.org/uploads/media/06_IIED_-

_Towards_better_practice_in_smallholder_palm_oil_production_01.pdf>.

Von Benda-Beckmann, F. (2002) 'Who's afraid of legal pluralism?', Journal of Legal Pluralism & Unofficial Law,

47: 37-83.

Von Benda-Beckmann, F., von Benda-Beckmann, K., and Wiber, M. (2009) 'The properties of property', in F. von

Benda-Beckmann, K. von Benda-Beckmann, and M. Wiber (eds.), Changing properties of property Berghahn

Books, pp. 1-39.

Zen, Z., Barlow, C., and Gondowarsito, R. (2005) 'Oil Palm in Indonesian Socio-Economic Improvement. A

Review of Options', Working papers in Trade and Development Research School, Australian National

University, Canberra, viewed 24 February 2011,

<https://digitalcollections.anu.edu.au/bitstream/1885/43005/2/wp-econ-2005-11.pdf>

Zen, Z., McCarthy, J.F., and Gillespie, P. (2008) 'Linking pro-poor policy and oil palm cultivation', Policy Brief No.

5, Crawford School of Economics and Government, Australian National University, Canberra, viewed 24

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Appendix I List of interviewees

Table 3. List of interviewees, and dates and location of interviews. Female respondents are indicated with (f). The interviews were conducted in the place of residence of the respondents. Unless indicated otherwise, respondents practise their function (e.g. Satlak member) in their place of residence. Characters after the date of interview indicate that two persons were interviewed. Equal characters refer to the same interview.

Interviewee Place of interview(s) Date(s) of interview(s)

Head of Institute of Dayakology Pontianak 09-09-2010

SPKS-representative, farmer Bodok 16-09-2010

Chair of adat council Bonti Bonti 18-09-2010

Catholic priest Bonti 21-09-2010

Village secretary of Empodis Koca 23-09-2010; 11-02-2010

Satlak member, farmer Koca 24-09-2010

Satlak member, religious leader, farmer Koca 25-09-2010

Head of hamlet, Satlak member Mua 27-09-2010

Satlak member, farmer Mua 28-09-2010; 14-10-2010;

21-10-2010; 08-12-2010

Satlak member, head of RT, former adat

council member

Koca 29-09-2010

Head of adat, Satlak member Koca 11-02-2010

Priest in Mua Mua 06-10-2010

Head of koperasi Sekayam Jaya Mua 06-10-2010; 26-10-2010;

04-12-2010a

Former manager in PT MAS Mua 07-10-2010

Head of adat, Satlak member Mua 08-10-2010

Religious leader, teacher Mua 16-10-2010

Farmer (f) Mua 18-10-2010

Farmer (f) Mua 20-10-2010; 14-10-2010

Satlak member, farmer, Mua 22-10-2010

Farmer (f) Mua 23-10-2010

Field supervisor in PT MAS III Pinsam 23-10-2010

Head of RW, Satlak member Mua 30-10-2010b

Farmer Mua 30-10-2010b; 11-11-2010

Farmer Mua 27-10-2010c

Farmer Mua 27-10-2010 c; 5-11-2010

Farmer Mua 31-10-2010

Farmer, head of RW Pinsam 03-11-2010; 04-11-2010

Farmer Mua 08-11-2010

Shop keeper (f) Mua 12-11-2010

Farmer (f) Mua 12-11-2010

Head of RT, Satlak member Mua 13-11-2010

Farmer Mua 14-11-2010

Secretary of koperasi Sekayam Jaya Mua 04-12-2010a

Farmer Mua 05-12-2010

Employee of PT MAS III Mua 06-12-2010d

Farmer Mua 06-12-2010d

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Appendix II List of documents

Contract between oil palm company PT MAS II and koperasi Maijting Hija, February 2006

Draft of the contract between oil palm company PT MAS III and koperasi Sekayam Jaya, March 2010

Draft of the contract between oil palm company PT MAS III and koperasi Sekayam Jaya, November 2010

Edi, F., letter in response to the road fencing, 9 July 2010

Excerpts of the registration system of land of a Satlak member, undated

Minutes of the result of the meeting about the Rimpea-forest, Pinsam, 9 December 2007

PT MAS, Recapitulation derasa, September 2010

PT MAS, maps of the village and the lands surrounding it, undated

Proanto, E., Invitation of PT MAS to a meeting in Seribot, 15 August 2008

Yuwono, T., letter about socialization of the location of plasma, 18 November 2008

Sime Darby, Process of plasma formation, Mas 3 Estate, 21 November 2008

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Appendix III RSPO principles and criteria for expansion of plantations

IIIa RSPO principles and criteria: principle 7 A principle on “Responsible development of new plantings” is included in the principles for sustainable palm oil

(RSPO, 2007). Among others, this principle prohibits establishing palm oil plantations on areas that replace

primary forest or high conservation value areas. Furthermore, criterion 7.5 states that:

“No new plantings are established on local peoples’ land without their free, prior and informed

consent, dealt with through a documented system that enables indigenous peoples, local communities and

other stakeholders to express their views through their own representative institutions.” (RSPO, 2007 p.35)

In case local communities agree with expansion of palm oil production, they should be compensated.

The principles and criteria however only apply to plantations that are certified. This has raised concern that

growers that are not certified, expand their activities into one or more HCV-areas, and later may become

certified. In this way, palm oil could be certified as ‘sustainable’ whereas it was produced on plantations for

which for example pristine rainforest had to give ground. To prevent such cases from happening, criterion 7.3

applies to all oil palm estates that have expanded after November 1st

, 2005. It runs as follows:

“7.3 New plantings since November 2005 have not replaced primary forest or any area containing one or more

High Conservation Values.” (RSPO, 2007).

The Indonesian national interpretation of this criterion distinguishes between new plantings established

between November 2005 and November 2007 (the initial pilot implementation period for the RSPO principles

and criteria), and new plantings established after November 2007: “New plantings within Nov 05 and Nov 07

must be in compliance with existing regulatory requirements that relate to social and environmental impacts

management, and with the legalized land spatial planning.” (RSPO INA-NIWG, 2008, p. 28)

Furthermore, the guidance accompanying this criterion mentions that assessment of HCVs, in particular

social HCVs, should include consultation with local stakeholders. In addition, explicit reference is made to the

need to search for ‘previously cleared and/or degraded land’. “Plantation development should not put indirect

pressure on forests through the use of all available agricultural land in an area.” If a national interpretation of

HCVs is available, the assessment should be conducted accordingly.

IIIb Indonesian interpretation of HCV-assessment In June 2008, an RSPO working group issued a bulky document describing the Indonesian interpretation of

HCV-assessment. In this document, detailed descriptions on the nature of the six HCV-areas are given, as well

as meticulous instructions on how they should be assessed. Here, the national interpretation of HCV five and

six will be described, as they relate to the livelihoods of local people.

HCV five comprises regions that local communities need to fulfil their basic needs. The following basic needs

are listed by the working group: food, water, clothing, materials and equipment for the home, firewood, drugs

and animal feed (Konsorsium Revisi HCV Toolkit Indonesia, 2008, p. 106). There are two criteria that have to be

met in order for an area to be considered HCV five. First, the region should be essential to one or more

members of the community. In such cases, substitution by goods is not possible or not affordable for at least

50% of the amount of the basic need. Special reference is made to the extent of isolation of a community:

isolated communities with limited means of communication and market access will have less possibilities to

decrease their dependence of the forest than communities better connected to the outside world.

Second, the area should not replace another HCV – the forest may not be damaged or excessively used by

the practices of local people. In some cases, ecology experts should consider the interaction, the document

says.

Four phases in determining HCV five are distinguished, for which guidelines are given. First, the existence of

social communities living near the river that came from the processing unit and the forest need to be

investigated. In this phase, a profile of those groups should be made. Thereafter, the level of dependency of

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those groups need to be assessed. The next phase consists of identifying possible alternatives for the groups

depending on the river or forest. The sustainability of the use of the forest and the possible interference with

other HCVs is researched in the fourth phase.

HCV six consists of areas that have an important role for the cultural identity of local communities. It entails

for example zones managed according to certain cultural rules, cemeteries and other areas considered sacred,

zones for ritual activities and zones ‘as a source of bio-resources to fulfil cultural needs’. The document stresses

the need for in-depth consultation with local communities in order to identify the existence of areas with value

for cultural identity. In addition, research documents and local experts can contribute to the assessment of HCV

six.

IIIc Guidelines for new plantings established after 1st January 2010 In addition, a “New Plantings Working Group” was established to develop guidelines for new plantings. These

guidelines were accepted by the executive board12

and apply from January 1st

2010.

The procedure consists of five main steps, as worded by the RSPO:

1. Impact assessment. Among others, the assessments should include “the identification of local peoples’

land”.

2. Implementation plan. The guidelines refer to the importance of free prior and informed consent at

this stage.

3. Verification. This step includes approval of the previous steps of an RSPO certification body.

4. Public notification. According to the guidelines, the plans for new plantings should be notified 30 days

before land is prepared for plantations.

5. Grievance and Dispute Resolution

The guidelines refer to the rules for certified oil palm plantations at several stages. However, they apply to

expansion of all plantations of RSPO-members – so not only to plantations that already have been certified or

are in the process of certification. If growers do not adhere to the criteria, they might not be certifiable later on

(Verburg, personal communication).

The process of expansion of oil palm companies is not being monitored. This complicates assessing the

implementation of the guidelines for new plantings. To date, it is unknown whether the procedures are used by

oil palm growers.

12 The general assembly of the RSPO had called for the establishment of mentioned working group, and had mandated the executive board to accept the guidelines (Verburg, personal communication).