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Conservation initiatives, whatever they are, will inevitably be related to the role or position of the local government. The very complex and complicated factual situation concerning conservation is an urgent reason to provide a measurable portion for local governments. It is not merely a theory, but in daily administration, the role of field authority (local government) is needed as a bridge to build dialogues on ideas at the normative level with daily factual realities. The idea of conservation, then, should be distributed in a certain form of authority at all levels of jurisdiction.
Conservation, which remains a central affair, on a certain scale still firmly places the position and role of the local government. It is very difficult to imagine an area so vast and burdened by various land use issues that ignore the role of field authorities. Especially if the conservation idea is to be directed at areas outside the forest area, which are the authority of the district/city government. Therefore, cultural, political reasons, as well as considerations for administrative efficiency and conservation sustainability in the long term have often been put forward as bases for rethinking the portion of the “grasp” of the region in conservation matters. Of course, it is not merely by changing the composition of authority, it can be started by suitably laying out conservation initiatives based on the available authorities.
In such context, this paper intends to examine further the idea of KEE in the context of the local government authority. This term is a relatively new nomenclature in the conservation law regime. Its scope targets area protection for areas outside conventional conservation areas that are already protected (nature reserve areas and nature conservation areas). Thus, KEE is loaded with spatial dimensions and sectoral authority involving roles across themes/sectors and local governments.
Also related to the respective authority, the spatial planning regime has recognized the term Environmental Strategic Area (KSLH), which almost has the same scope as KEE. The two initiatives have different “outlooks” but the same content is worth exploring considering that their basic ideas are more or less similar, namely promoting comprehensive environmental protection at the landscape scale.
This paper is expected to be an input for related parties to take appropriate considerations in proposing ideas and formulating future conservation policies.
Essential Ecosystem Areas
The Directorate of Essential Ecosystem Management (BPEE) proposed a number of regional criteria that could be proposed as KEE, which includes four categories in the form of wetland ecosystems, wildlife/animal corridors, High Conservation Value Areas (ABKT), and biodiversity parks. As shown in table 1 below, each of these categories has a description of its respective scope.
Under laws and regulations, the terms and arrangements for KEE can be found in conservation arrangements and local government legal regimes. Meanwhile, under the Law on Conservation, the proposed revision already includes the KEE concept in a comprehensive manner. However, for more than a decade, this proposal has not been stipulated in the revision of Law 5/1990.
The scope of KEE in table 1 explicitly involves many dimensions of spatial allocation, not merely conventional conservation areas, protected forests, or even forest areas. However, it also involvestge protection for Areas for Other Purposes (APL) or cultivation areas that are outside all conventional locations. This is evident in a number of KEE proposals where the government itself, especially the Directorate General of KSDAE, that is eager to drive this scheme with an intention that goes beyond Nature Reserve Areas (KSA) and Nature Conservation Area (KPA) such as National Parks, Nature Reserves, and even forest areas (see sample map. proposed KEE for the District of Nunukan).
Example of the proposed KEE map for the District of Nunukan
As indicated in the proposed KEE map in the District of Nunukan, the highlighted areas for the KEE proposal include National Parks, Protected Forests, Limited Production Forests, Production Forests, Convertible Production Forests and APL. The North Kalimantan Provincial Forestry Office, assisted by P4W IPB, intends to include APL as KEE. This cannot be separated from the invitation of the central government to local governments to identify these areas. Therefore, it can be stated that KEE is a conservation proposal that intersects all area categories.
The enthusiasm of the central government to map the KEE indications has been seen in the indicative map issued in 2018. In this map, BPEE has issued KEE indicative data for all of Indonesia, which reaches 104,942 hectares. Most of it is contributed by the three main regions, namely Kalimantan, Papua and Sumatra. In the 2015-2017 period, BPEE has planned 37 KEEs in 7 regions with a total area of 723,788.14 hectares which is divided into 5 area categories, namely 23 biodiversity parks, 6 animal corridors, 5 mangroves, and 2 karst.
KEE in the conservation law regime
In terms of nomenclature, the term KEE can only be explicitly found after more than 20 years of the enactment of the 1990 Conservation Law, namely in the revision of Government Regulation No 68/1998 on Nature Reserve Areas and Nature Conservation Areas by Government Regulation (PP) 28/2011 which was further amended under Government Regulation (PP) 108/2015.
The provisions that specifically regulate KEE in this PP are stipulated in one article and the elucidation, namely article 24. This PP has been amended by PP 108/2015 but does not amend Article 24, therefore this provision prevails.
Paragraph (1) Protection of KSA and KPA as referred to in Article 13 letter b includes protection of essential ecosystem areas.
Furthermore, paragraph (2) states that the scope of protection is implemented through:
In the elucidation of article 24 paragraph (1), the concept of KEE is further clarified by elaborating definitions that clearly direct the scope referred by KEE, which includes karst ecosystems, wetlands (lakes, rivers, swamps, brackish, and tidal areas that are not more than 6 (six) meters), mangroves, and peatland that are outside KSA and KPA.
It is also stated in the elucidation of paragraph (2) that protection is carried out with the objective of:
This article also mandates that the implementation of KEE protection is carried out in accordance with the provisions of laws and regulations. The elucidation of article 24 also states that the “laws and regulations” protecting KEE are government regulations on forest protection. However, the Government Regulation (PP) on Forest Protection, namely PP 45/2004 as amended by PP 60/2009, does not mention, let alone regulate the concept of KEE. Hence, the confusion in understanding the cross reference stipulated in the elucidation of article 24 paragraph (3). However, placing KEE as part of the concept of forest protection as regulated in PP 45/2004 and PP 60/2009 implicitly directs that KEE is an effort to protect other forest areas outside conservation areas, such as National Parks.
Thus, apart from still requiring clarification, KEE in article 24 PP 28/2011 in conjunction with PP 108/2015 is really generic. However, there are at least two important aspects that are underlined in this article and its elucidation.
First, KEE is part of the conservation framework, which in paragraph 1 is stated as part of the protection of KPA and KSA. This norm indicates the spatial relationship between KPA and KSA and KEE. This implies that the KEE regulatory regime cannot be separated from the character of the conservation legal regime. KEE is not something completely different from the conservation regimes that are conventionally recognized today. More than that, the KEE reference in the Government Regulation (PP) on Forest Protection shows that KEE even though it is outside the KPA and KSA is still under the concept of a forest area. Thus, KEE does not link up with APL.
Second, the definition and scope of KEE includes karst ecosystems, wetlands (lakes, rivers, swamps, brackish, and tidal areas of not more than 6 (six) meters). In reality, this definition is related to several other laws and regulations with distributed authorities. The authority does not only exist in the agencies fronting for conservation, but it is spread to other sectors, as shown in table 2 below.
KEE in the local government regime
The Law on Local Government (UU 23/2014) authorizes local governments to establish KEE. It is said that the Province has the authority to implement the management of important ecosystem areas or what is called KEE and buffer areas for nature reserves and conservation areas. Meanwhile, districts/cities only have the authority over Grand Forest Parks (Annex BB Division of Government Affairs in the Forestry Sector).
Thus, it is clear that the provincial authorities only carry out the management of KEE. Beyond that, it is the central government’s authority, in this case including the authority to appoint and determine the KEE. This is inseparable from the regulation of conservation authority under Law 23/2014. It is clearly stated there that the conservation area is the central government’s authority (article 360). It is stated that in order to carry out certain government functions that are strategic for the national interest, the central government may designate special areas in provincial and/or district/city areas, such as protected forest areas, conservation forest areas, and nature reserves.
Thus, even though the designation of special areas include the respective areas, the Province has no authority to determine a conservation area, even though the area is within the territory of the respective province. The same fact also applies to the district/city government. Provinces may submit proposals if areas are in forest areas as referred to the elucidation of PP 28/2011. However, the decision is entirely under the authority of the central government.
In fact, at the regional level the idea of KEE is already working. In West Kalimantan, the Governor of West Kalimantan enacted Governor Decree No. 718/2017 on the establishment of KEE in Districts of Ketapang and North Kayong for the orangutan corridors (Tropenbos Indonesia, May 2019). In East Kalimantan, the provincial government initiated orangutan corridors in the Wehea-Kelay Landscape (TNC 2016).
Environmental Strategic Areas
A search of a number of laws and regulations found a conservation concept that is available in the spatial legal regime, which is called the Environmental Strategic Areas (KSLH). Pursuant to Law 26/2007 on Spatial Planning (UUTR), KSLH is one of the categories in the strategic areas definition.
Included in strategic areas from the point of view of the function and supportive capacity of the environment, among others, are areas for environmental protection and conservation, including areas recognized as world heritage such as Lorentz National Park, Ujung Kulon National Park, and Komodo National Park (elucidation of article 5 paragraph 5 Law on Spatial Planning (UUTR))
Criteria for strategic areas from the point of view of the function and supportive capacity of the environment are outlined in the Government Regulation on National Spatial Planning Plan (PP 26/2008), the Government Regulation on Spatial Planning (PP 15/2010) and the Guidelines for Provincial, District, and City Spatial Planning (Regulation of the Minister of Agrarian Affairs and Spatial Planning No 1/2018).
In PP 15/2010, the criteria for the KSLH include (Article 51): (1) biodiversity protection areas, (2) protected areas designated for the protection of ecosystems, flora and/or fauna that are endangered or predicted to be extinct which must be protected and/or conserved, (3) areas that provide protection for the balance of water use that each year have the probability to cause losses, (4) areas that provide protection against macro-climate balance, (5) areas that require high priority to improve the quality of the environment, (6) areas prone to natural disasters; or (7) areas that truly determine the change of natural settings and have broad impacts on the continuity of life.
Thus, the spatial planning regime has provided a “home” for the possibility of proposing KSLH based on jurisdictional considerations, whether national, provincial or district/city level. In the spatial planning provisions, it is stated that the District/City Government may determine strategic areas, one of which is based on environmental considerations. If the area involves two or more districts, then the Province will make the decision. In the case of more than one province, the central government is in charge.
Currently, the central government has determined the National KSLH, with the second largest quantity with total of 25 National Strategic Areas (KSNs), only 2 points difference from the Economic KSN, which is recorded at 27 KSNs. Some of them are the Environmental Critical Area of Balingara, Central Sulawesi, the Heart of Borneo, and the Raja Ampat Biodiversity Conservation Area. This development is certainly a positive basis for efforts to integrate the proposed KEE into future spatial planning.
In juridical-normative terms, especially referring to PP 28/2011 in conjunction with PP 108/2015, the scope of the KSLH is not different, even the same as the KEE proposal. The comparison can be seen in table 3. The main difference lies in the proposed location. The lack of legal basis leads to the only relatively complete definition of KEE in the elucidation of Article 24 PP 28/2011. It is stated, KEE is a continuation of KSA/KPA outside the conservation area and is part of a forest area whose regulation is related to forest protection. Meanwhile, the abovementioned KSLH, may be in the forest area or outside the forest area.
This difference also shows that the KSLH approach has a more solid legal framework and a strong institutional structure under spatial coordination with a standardized way of working. This legal framework is better in answering the challenge of area protection that meets the characteristics of the KEE and KSLH, but their location is outside forest areas such as APL and cultivation areas.
Unfortunately, discussions regarding the relationship between KEE and the spatial law regime have not been explicitly expressed in the latest proposed KEE regulations. Instead the discussion is encouraged by a centralized conservationist perspective. In reality, top-down ideas may be challenging in dealing with the factual situation in the regions. There the sectoral fragmentation approach has deep roots where the actors are not only local governments but also directed by central agencies.
Even though various studies have not linked KEE with KSLH, it is clear that the KSLH is the authority of the provincial and district/city governments. Meanwhile, KEE, as far as the fact that can be drawn from the prevailing regulations, is the authority of the central government. In addition, KSLH is a spatial planning arena where discussions do not require to design a separate forum, let alone a completely new concept. The initiators can follow the normative building that are very clear, detailed, and have a very strong legal framework in spatial planning.
It is also worth considering that there have been many confusing conservation initiatives in many forums nevertheless, they often failed to become systemic actions because they do not have legal acceptance, are incompatible or burdensome to the bureaucracy, furthermore the distribution of authority is complex, and so on. On the other hand, quite a number of initiatives that are in line with the laws and regulations, that maximize existing institutions, and renew and develop function of authority but are not seen by some conservationists, either because they are not sophisticated or the initiative is not yet recognized in its relevance to support and drive conservation issues as far as the site level.
However, KEE has begun to be identified and stipulated in a number of local government decrees based on local dynamics. The KEE idea, despite its constraints, has the goal of protecting sustainable ecosystems. Therefore, it is necessary to find appropriate institutions and adequate laws and regulations.
In this regard, this brief study offers an integration of the KEE idea into the KSLH concept, which is clearly a regional initiative and defined in spatial planning. Incorporating KEE into spatial planning, apart from breaking through institutional egos, also has the advantage: the spatial planning legal regime is standardized and provides a clear mandate for each institution. In addition, the planning process is certainly accompanied by a budget so that the identification of the above criteria can be carried out. Even institutionally, the proposals in the spatial planning are not the monopolies of districts/cities or provinces. It is also part of the national interest.
*Bernadinus Steni (email@example.com)
This article has been published on Mongabay and can be seen at the following link: https://www.mongabay.co.id/2021/06/03/pentingnya-integrasi-kee-dalam-rezim-aturan-tata-ruang/
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