Cursed, Impact of Unmet FPIC.

Last Monday (21/9), HuMa submitted an amicus curiae brief to the Jakarta State Administrative Court (PTUN) regarding case number 97/G/2020/PTUN.JKT. In this lawsuit, several civil society representatives argued that the drafting of the Omnibus Law on Job Creation was closed, non-participatory, and discriminatory because it only granted access to KADIN and business associations. In response to the lawsuit, HuMa added legal opinions in the amicus curiae brief specifically concerning indigenous communities. By not involving indigenous communities in the drafting of the Omnibus Law on Job Creation, the government has violated the free, prior, informed consent (FPIC) principle regulated in international standards related to indigenous rights. In short, FPIC requires the government to involve and seek consent from indigenous communities before making a decision that impacts them. FPIC is not limited to the drafting of laws but extends to all decisions and policies, including granting concessions, development projects, and corporate activities.

This article will not extensively discuss the constitutional and legal justifications of FPIC. It doesn’t take a legal expert to say that this principle is necessary, and its justification is reasonable. Look at laws that have been enacted without adhering to the FPIC principle in their formulation, such as the Minerals and Coal Mining Law. Rules in laws drafted without FPIC undoubtedly do not represent the interests of indigenous communities at all. Instead, each new rule adds burdens to indigenous communities without solving any substantial issues.

It is reasonable that without directly hearing from indigenous communities, how can we expect members of parliament who live and work in South Jakarta and roam around in Land Cruisers to magically understand the realities faced by indigenous communities in forest areas, let alone formulate norms that accommodate their interests. It’s impossible; reality determines human awareness. The solution lies in fulfilling FPIC in lawmaking: involving indigenous communities themselves from planning to enactment. Moving forward, there are many upcoming legislative agendas that require the fulfillment of FPIC: the Criminal Code Bill, Indigenous Peoples Bill, and of course, the Omnibus Law on Job Creation. Let’s not repeat the trauma caused by the Minerals and Coal Mining Law.

However, How to Truly Fulfill FPIC?

After agreeing that FPIC is necessary in drafting laws, the question arises: how to seek approval from indigenous communities in lawmaking? Indigenous communities in Indonesia consist of thousands of communities, each with its legal system, institutions, social systems, and different needs. Inviting a representative from one indigenous community cannot be seen as representing the interests of thousands of indigenous communities in Indonesia.

Emil Ola Kleden once wrote a paper for the Indigenous Peoples Symposium in 2012 questioning the issues encountered in FPIC fulfillment in the field.¹ In the field, concerning FPIC fulfillment by companies, companies often seek approval from a few individual representatives of the community or request consent from a representative of a social unit within the indigenous community. However, other community groups may feel that the individuals asked for approval are not representative or that the social unit requested for approval lacks the authority to give consent. In this regard, Emil Kleden raised 2 (two) unanswered questions to determine if FPIC has been met. First, what social unit is considered representative to give consent. Second, what is the threshold or proportion of individuals considered representative to give consent.

From the above issues, we can conclude that even at the community level, the indicators