Wednesday, September 23, 2015

Who Owns Indonesia's Protected Species?

People own things, like cars, houses, mobile phones. But some things cannot be owned. Does anyone own the air we breath or the waters of the sea? Or can anyone own a species? Does the orangutan, for example, belong to Indonesia or its government?

This is not an irrelevant question. Ownership entitles one to management rights. Because I paid for my car, I legally own it, I can drive it, sell it, fix it when it's broken, or pretty much do anything I like.

So if someone would own a species it would give that person or entity the right to do pretty much anything it, he or she would like, including sending the poor species on a fast track to extinction, or making sure it doesn't go extinct instead.

Now, I am by no means a legal expert, so what follows here might be largely nonsensical. But I would like to give it a shot, and try to understand what is at play regarding legal ownership of species.

I will start with the Indonesian Constitution, which states that “the land, the waters and natural resources within shall be under the powers of the State.” To me “under the powers” doesn't necessarily translate into ownership. It is more akin to having management authority. So, as far as I can see, no legal ownership there. The Indonesian state does not own the orangutan.

Could orangutans be patented? There is so much potential money in bio-prospecting, where a particular species could have important health benefits or other potential. But as far as I am aware, products of nature cannot be patented. You can patent a genetically engineered mouse that was created in your lab, but you cannot patent the mouse running wild in that same laboratory. So, orangutans cannot be patented.

Orangutans can be traded though, with money presumably going into government coffers. Like China, which rents out its pandas to international zoos at a rate of $1 million per panda year, the Indonesian government could rent out orangutans. Still as far as I know, China owns each and every single captive panda, but not the ones who are living in their natural habitat.

Finally, if I lease a timber or mining concession from the government, I become the legal owner of the timber or mineral resource, right? By analogy then, if I lease a forest area or if I am the private owner and it has orangutans in it, wouldn't I then own the orangutans as well? I am pretty sure the latter is not the case, but why can someone own, harvest and sell trees or coal, but not the wildlife?

I guess the key issue is that species like orangutans are legally protected. The basic conservation law (No. 5 of 1990) says that no person is allowed to possess a protected species. So you could have the right to use a forest, take out and sell the trees, but not the protected wildlife in your forest.

Unless I am missing something, the conclusion seems to be that no one legally owns the orangutan, or other protected species – not Indonesia, not the Indonesian government, not the Indonesian people.

There are a few reasons why I think this question of legal species ownership is important.

Firstly, the public sentiment indicates that there is a sense of national ownership of certain species. For example, there has been strong public demand to return orangutans housed in overseas zoos to Indonesia, because they “belong” to this country: These are “our” orangutans and “we want them back."

That seems strange to me. Once they were sold overseas, I would have guessed they became Thai or Korean orangutans. But the public and also government seems to think or feel differently.

And, in a way, orangutans are indeed “owned” by Indonesia, and of course Malaysia, the only other country where the species occurs in the wild. If, for example, the Indonesian government would decide that they had enough of international demands to provide better protection for those red apes, and no longer consider them legally protected, there is little the international community could do about it.

We could all jump up and down in anger and threaten the Indonesian government with all sorts of action, but the government could happily ignore us. Of course, there are international treaties such as the Convention on Biological Diversity, which is legally binding, and to which Indonesia is a signatory. But the reality is that the international community has few means to make Indonesia change its species protection policies and management.

The above example is not entirely hypothetical. Indonesia has not delisted orangutans and they are still legally protected, but in reality that doesn't mean much. Our studies show that every year, a few thousand orangutans are killed, but the laws against those illegal actions are not enforced. And every year, some 3,000 square kilometers of orangutan habitat is converted to state-condoned non-forest use, in effect killing the “protected” orangutans that live there.

To put it this way, if I was the legal owner of orangutans, I would certainly release the government authorities of their responsibility for managing the species, and find a more competent managing authority. But I can't because I don't own the orangutan, and have no legal means to make the government more accountable for its failures.

The point of all this is that a common good like a species is not owned by anyone, and we depend entirely on the good will of the legal guardian, generally the government, to look after these common goods. And there is nothing we can do if that guardian is ineffective.

All this doesn't seem right. Orangutans did not choose to come and live in Indonesia. In fact, their ancestors were here some 2.5 million years before the first modern humans arrived.

Logically, orangutans should be a public good over which the whole world has some say. More importantly, orangutans should be managed competently and caringly. As the orangutan's legal guardian, the Indonesian government should step up its species management. And if it is not up to it, it should reassign protected species management to more competent parties.

Erik Meijaard coordinates the Borneo Futures network

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