PART II: In the previous part, the authors contextualized the neglect of Indonesian indigenous women in development projects and illuminated the multi-layered impact of natural resource conflicts on such indigenous women. In this section, the authors analyze the overlapping regulations that hinder the protection of indigenous women in Indonesia and discuss the potential of the indigenous people bill in this regard.

Overlapping Regulations Hinder Indigenous Women’s Protection

Indonesia has co-signed UNDRIP, according to which indigenous peoples, including women, must be involved in decision-making concerning issues that would affect them. It has also ratified CEDAW through Law No. 7 of 1984, which applies appropriate standards to eliminate discrimination against women, such as ensuring women have equal rights to participate in decision-making processes. However, this is considered insufficient to address the various problems of indigenous peoples, especially women, in ensuring their rights to participate in development processes including through decision-making.

Apart from the absence of specific regulations that protect indigenous women, which makes them still vulnerable to various threats, violence, and criminalization, the overlapping regulations at the national level in various sectors actually create more spaces for the violation of the rights of indigenous women. Article 67 paragraph (1) of the Forestry Law, tends to limit the rights of indigenous women to utilise natural resources in their indigenous territories. As happened to indigenous women in East Barito, Central Kalimantal Province, who are susceptible to being criminalized, as they are prohibited from burning land for farming.

This is contrary to the national legal framework, such as Article 1 (3), Article 18B (2), Article 28D (1), Article 28I (3), and Article 33 (3) of the 1945 Constitution which provide for the rights to utilise the results of natural wealth in indigenous areas and the recognition of indigenous communities. Similarly, the Ministry of Environment and Forestry Regulation No. 26 of 2018, states that it is necessary to involve women in the process of analysing environmental impacts and environmental permits in development projects. In addition, Article 9 of Law No. 39 of 1999 on Human Rights in Indonesia mandates that everyone has the right to: “defend life and improve their standard of living.” Ironically, The Job Creation Law and the Government Regulation in Lieu of Law No. 2 of 2022 on Job Creation has the potential to perpetuate violations against indigenous women who defend their lives. For instance, there is a risk of criminalizing indigenous women and environmental defenders under Article 162 for those who reject extractive industries’ activities.

The priority of protecting indigenous peoples including women, frequently conflicts with development priorities, so this lack of synchronization in regulations will undoubtedly further legitimize the seizure of customary territories. Specifically, investors or corporations will use the law as a justification to obtain permission to use the land or territory of indigenous peoples for exploitation and extraction without consent, which further diminishes indigenous women’s voices and often results in the loss of indigenous women’s access to land or natural resources, whereas in fact, indigenous women’s access to and control over pertinent areas is the main prerequisite for ensuring that indigenous women can still carry out their functions and roles, and retain their self-identity, and even their political identity.

The Indigenous People Bill in Limbo is a Step Backwards for Indigenous Women

There is a need for legal regulations at the national level that can contribute to the fulfillment of the rights of indigenous peoples and specifically regulate the collective rights of Indigenous women, as provided in Article 18B paragraph (2) of the 1945 Constitution. The Indigenous Peoples (MHA) Bill is intended to serve as a legislative framework that will guarantee the acknowledgment and protection of all indigenous people’s rights, including women, as mandated in Articles 21, 22, 24, 31 and 33 of the UNDRIP, which emphasize in greater detail the rights of indigenous peoples, especially women, in the fields of education, employment and social security and in Article 2 of the UDHR, which prohibits any kind of distinction in human rights fulfillment.

However, after a long process of more than a decade, the MHA Bill remains simply a bill in Parliament. By the end of 2022, the MHA Bill had again failed to be adopted into law, as in previous years. Moreover, the bill that is currently being discussed still contains several shortcomings, including the absence of an article relating to the existence of indigenous women and the importance of gender equality for indigenous women. This bill needs to be improved, by including measures such as clarifying authority in the management of natural resources and providing more guarantees for indigenous women to participate in the decision-making process, both as individuals and collectively. It is only in this way that the MHA bill can be essential in upholding indigenous women’s rights.

Desi Yunitasari is a human rights and social justice enthusiast, especially in women’s and children’s rights fields. She recently completed her bachelor’s degree in law at Ganesha University of Education in Bali. 

Devi Yusvitasari is a graduate from a bachelor’s of law with a background in human rights and social justice fields, especially in women’s and children’s rights. 

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