CUSTOMARY LAND CONFLICTS BETWEEN DAYAK INDIGENOUS LAW AND STATE LAW IN INDONESIA

The proposal to create a Northern Corridor that would allow for cross-country, multi-modal infrastructure development is an ambitious vision (Sulzenko and Fellows 2016; Standing Senate Committee 2017). This proposed infrastructure corridor would incorporate multiple uses, from pipelines to railways, roads, telecommunications, electricity infrastructure and more. Its geographic scale stretches continuously from coastal B.C. across Canada to the Atlantic coast, with spurs running northward to the Arctic Ocean through the Northwest Territories, Nunavut and via Manitoba to Hudson’s Bay. A critical foundation for its successful development will be the ability to appreciate and incorporate the rights of Indigenous peoples affected by the project (Wright 2020; Newman 2022). The goal of this research paper is to outline the law of Indigenous peoples’ land ownership rights, including proven and asserted title, Crown-Indigenous treaty relations and obligations and Indigenous land claims agreements, and to consider the implications for a large-scale infrastructure project like the Northern Corridor.1 The focus is on the legaland regulatory aspects of Indigenous peoples’ land rights within the non-Indigenous Canadian legal system.2 The research paper uses standard legal methods to assess the land ownership rights of Indigenous peoples, drawing on relevant constitutional and statutory provisions, leading cases and secondary literature. The paper proceeds with a brief overview of these distinct types of Indigenous land rights, then provides a more detailed account of the legal content of s. 35 constitutional Aboriginal title, historic and modern treaty rights. This includes discussion of government’s legal duty of consultation and accommodation, and the requirements for constitutionally justified limitation of these rights. Indigenous land ownership rights in reserve lands are also discussed. A series of case studies more fully illustrates the implications of these varied Indigenous land rights for a project like the Northern Corridor. Finally, the paper turns to the dynamic nature of Indigenous rights and the potential influence of the UNDRIP. The implications of Indigenous peoples’ land rights for the proposed Northern Corridor are extensive. While many of the legal obligations fall on the Crown, as represented by provincial, territorial and federal governments, industry proponents must also play a role. Project proponents engage directly with Indigenous land-rights holders and are crucial to the exchange of information, mitigation of project impacts and creation of benefits for Indigenous communities. Successful development of the Northern Corridor infrastructure project requires a partnered approach with affected Indigenous rights- holding communities. Portions of the proposed corridor traverse the traditional territories of Indigenous peoples over which Aboriginal title is claimed. Where Indigenous claimants demonstrate sufficient, exclusive use and occupation of the land prior to Crown claims of sovereignty, title will be established. The legal test for recognizing title is one that reflects both the common law and Aboriginal perspectives, and is sensitive to context. The geographic scope for successful Aboriginal title claims that overlap with the Northern Corridor is significant. Where Indigenous peoples hold title to the land, they are collectively entitled to exclusively enjoy the benefits of that land, and to decide on its uses. Governments or third parties seeking access to the land require consent from the title holders. In the period before title is established, governments authorizing projects like the Northern Corridor, that could negatively impact Aboriginal title, must consult with Indigenous peoples and, when appropriate, accommodate their interests. This is required to maintain the Honour of the Crown. While the legal duty falls on government, project proponents working directly with Indigenous peoples are an important part of the consultation and accommodation process. Governments do retain a legal ability to justifiably limit Aboriginal title. They can pursue projects in the public interest that are consistent with s. 35’s reconciliation purpose, if they meet the requirements of their unique obligations to and relationship with Aboriginal people (the fiduciary duty and Honour of the Crown). This means satisfying the procedural duty to consult and accommodate Aboriginal title holders, pursuing only limits on title that do not damage their long-term relationship with the land, as well as meeting a recently outlined requirement for proportionality. Proportionality means that limits on Aboriginal title must be necessary to achieve the public purpose and must be as minimal as possible, and that the overall public benefit must not be outweighed by negative impacts on title holders. Projects that go forward with participation and consent of Indigenous title holders will meet these requirements. There is also potential for the Northern Corridor to cross reserve lands. Where these remain subject to the Indian Act, one of the relevant statutory mechanisms for access must be used. These require consent from the band and federal government. For bands that have transitioned to management of their reserves under the First National Land Management Act (FNLMA), only consent of the band as set out in its Land Code is required. The Northern Corridor also crosses lands over which Indigenous people hold land rights under the historic “Numbered Treaties.” While the treaties appear to include formal surrenders of Aboriginal title (an interpretation that is contested), continued rights of use over traditional territories are critical elements of these constitutionally binding agreements. Although governments can “take up” surrendered lands for development, this right is subject to a duty to consult Indigenous parties and accommodate impacts on their treaty rights. Governments can justifiably infringe historic treaty rights. This can be done when a permissible objective is pursued in a way that meets government’s fiduciary duty and upholds the Honour of the Crown. The specific requirements can vary, but generally the test is more restrictive when non-commercial treaty rights are at stake and requires some form of priority to be given to these Aboriginal rights. The requirement for justification is triggered when treaty rights are infringed — when a group is deprived of a meaningful ability to exercise its treaty rights within its traditional territory. Recent developments suggest this threshold should be assessed looking to cumulative impacts and that a process for monitoring and addressing these is part of justified limits on these historic treaty rights. Finally, the Northern Corridor also intersects with lands covered by modern treaties. These agreements provide detailed guidance about the specific rights Indigenous parties enjoy, processes for consultation and co-management of the treaty lands as well as interactions between jurisdictional decisions under the treaty and by other levels of government. Courts have outlined a distinctive approach to the modern treaties that recognize their sophistication and the efforts to negotiate these modern governance frameworks to advance reconciliation. Courts would pay close attention to the relevant treaty terms and processes in any dispute over development of the Northern Corridor. Relatively minimal supervision of the modern treaty relationships should be expected from the courts, although the Honour of the Crown and the obligations it places on governments still apply. It is unclear whether justified infringements of modern treaty rights are possible, and whether a stricter constitutional standard would be required. Case studies of recent infrastructure and resource development projects show that while much of the law is clear, outstanding issues remain, and the practical application of the law can be challenging. The sufficiency of consultation can be in doubt on complex projects involving multiple Indigenous communities. Basic issues such as who to consult can emerge when there is overlap between traditional and Indian Act governance structures and both reserves and other land rights are involved. The applicability of Indigenous laws to traditional territories under claims of Aboriginal title and interactions between Indigenous law and jurisdiction and non-Indigenous law and government authority can also be unclear. Many modern projects proceed with the consent and participation of Indigenous peoples, for example, through benefit agreements. These agreements, because of their link to the underlying Aboriginal rights, can engage the Honour of the Crown and the duty to consult if subsequent developments negatively affect benefits under the agreements. In practice, meeting the legal obligations triggered by Indigenous land rights requires direct, good faith engagement with affected Indigenous communities. The best-case scenario is partnered development that proceeds with the consent of Indigenous rights holders. Current case law suggests that projects like the Northern Corridor might go ahead without full consensus, since there is no “veto” implicit in s. 35(1) Aboriginal rights. However, legal requirements for justified infringements, if possible, still require adequate consultation and accommodation of the rights of Indigenous peoples, and support only necessary, minimal limits on their rights. Overall benefits must outweigh negative impacts on Indigenous communities, and their ability to benefit directly from projects or be compensated for harms is generally part of justifying limits on their rights. On the ground, project proponents will be deeply involved in the relationship-building and engagement that is needed to support consensual development, or will meet the high bar for constitutional justification. Determining whether governments’ legal obligations ultimately have been met is done at a detailed, fact-specific level — not in the abstract. There are no leading cases that support constitutional justification of hypothetical, indeterminate public uses such as the proposed Northern Corridor. The law of Indigenous rights is constantly evolving. Over the lifespan of a project like the Northern Corridor, change would be certain. Canadian approval of the UNDRIP and recent federal and provincial legislation committing to bring Canadian law into compliance are important signals of future development. The UNDRIP embraces a model of Indigenous rights grounded in self-determination and its standard of “free, prior, informed consent” appears to reflect the ability of Indigenous peoples to make their own decisions about projects that impact their rights. The legal implications of the UNDRIP for s. 35 and Indigenous land rights in Canada remain to be seen. As with modern treaties and the FNLMA, it represents a resurgence in Indigenous peoples’ rights to play a direct role in governing their traditional lands and bringing their own laws to bear on developments that impact their lands and rights. Co-management and shared governance frameworks that integrate Indigenous rights holders will likely be key to successful future project development. For a proposal like the Northern Corridor, further study is required to fully appreciate the implications of these nascent developments and consider how they should be reflected in the project proposal.

This article examines the use of literary genre in Supreme Court of Canada (SCC) decisions on Indigenous land rights (Aboriginal title) and in Métis playwright Marie Clements’ 2003 play Burning Vision. I argue that legal decisions on Indigenous rights in Canada take on the features of specific literary genres, and that the genre of these decisions changes over time in response to broader sociopolitical shifts. In response to Section 35(1) of the 1982 Constitution Act, Aboriginal title decisions took on the structural features of comedy, a genre in which reconciliation is facilitated by the disclosure of previously hidden family relationships. This can be seen in Delgamuukw v. British Columbia (1997), a decision wherein the SCC reconciles the uneasy coexistence of two legal systems (Indigenous and common law) within the same national space by making these systems members of the same legal family. Clements’ play critiques this form of genealogical reconciliation by demonstrating how Indigenous law is forced to join the “family” of settler-colonial common law, and by exposing the violence that is elided through such processes of genealogical reconciliation. This article contributes to critical conversations about the relationship between law and genre and about the legal recognition of Indigenous rights.

This analysis explores the circulation of legal arguments, instruments, and decisions across national, regional, and global scales to reveal the mutual interdependence of these scales and their associated bodies of law in the production of indigenous land rights. Anthropologists studying the production of international human rights law have focused primarily on the drafting and implementation of rights instruments within the UN system, but this article engages a different site for the production of rights: the judicial arena. Highlighting the role played by judicial decisions and the arguments of legal scholars in the production of indigenous land rights, this article traces the trajectory of a petition for recognition of indigenous rights to land by Mopan and Q'eqchi’ Maya of Belize, as it moved from Belize to the Inter‐American Commission on Human Rights. The resulting decision circulated through subsequent indigenous rights cases within the Inter‐American system to solidify regional jurisprudence on indigenous rights. The IACHR decision also returned to Belize, where the Supreme Court engaged it to reach its own decision on Maya land rights. In turn, the Belize Supreme Court ruling was launched into global circulation, shaping arguments concerning the content and status of international indigenous rights law.

General Background: The development of the new capital city, Ibu Kota Nusantara (IKN), as a National Strategic Project requires large-scale land acquisition, including areas traditionally occupied by Indigenous communities. Specific Background: Although legal frameworks such as the Basic Agrarian Law, the IKN Law, and Presidential Regulation No. 65/2022 formally acknowledge Indigenous land rights, their implementation remains inconsistent. Knowledge Gap: There is still no clear mechanism for verifying customary (ulayat) rights, determining culturally appropriate compensation, or ensuring meaningful participation of Indigenous communities in land acquisition processes. Aims: This study aims to examine the effectiveness of the existing legal framework governing land acquisition for IKN and assess the extent of protection afforded to Indigenous peoples. Results: The findings show that despite normative recognition of Indigenous rights, practical implementation faces barriers, including unclear procedures, limited community involvement, and compensation that fails to reflect the social, cultural, and spiritual value of customary land. Novelty: This research highlights the urgent need for specific legal instruments regulating the recognition and protection of ulayat rights within national strategic projects—an aspect largely absent in current regulations. Implications: Strengthening regulations, establishing holistic compensation standards, and ensuring inclusive participation and dispute-resolution mechanisms are essential to achieving a fair and sustainable land acquisition process for Indigenous communities affected by the IKN project. Highlights: The legal framework recognizes Indigenous land rights, but implementation remains inconsistent. Customary land holds cultural and spiritual value that is not reflected in current compensation models. Strengthened regulations and inclusive participation are essential for fair land acquisition in IKN. Keywords: Land Acquisition, Indigenous Peoples, Customary Rights, Ibu Kota Nusantara, Legal Protection

Customary law plays a crucial role in resolving land disputes among indigenous communities in Indonesia. As a traditional legal system deeply rooted in local values and communal consensus, customary law provides a culturally relevant and accessible dispute resolution mechanism. However, despite its effectiveness in maintaining social harmony, customary law often lacks formal recognition within Indonesia’s national legal framework, leading to legal uncertainty and conflicts between indigenous communities, corporations, and government entities. This study employs a qualitative research methodology using literature review and library research to analyze the role of customary law in land dispute resolution, its challenges, and potential policy recommendations. The findings indicate that customary law is widely practiced but struggles against legal pluralism, weak institutional support, and conflicting land regulations. Moreover, the absence of formal land registration systems for customary land increases the vulnerability of indigenous communities to land dispossession. To address these issues, policy reforms should focus on legal recognition of customary land rights, integration of customary institutions into formal legal frameworks, and the development of hybrid dispute resolution mechanisms. Strengthening customary land governance through legal education, land documentation, and community-driven land management initiatives is essential to ensure indigenous land security and social justice. This study contributes to the ongoing discourse on legal pluralism, indigenous rights, and land governance in Indonesia, providing insights for policymakers, legal practitioners, and scholars seeking to harmonize customary and national land law frameworks.

How to assess the issue of indigenous land rights in the face of man-m⁠a⁠d⁠e climate change and Amazon fires? How to classify the EU free trade agreement „Mercosur“ and relevant climate, environmental and indigenous rights? What are legal opportunities for indigenous people(s) on the international, inter-American and EU level, to prevent the loss of land and forests, and to protect themselves from climate change? On the basis of indigenous land and environmental rights in Brazil and reactions to the Amazon fires, environmental regulations of the "Mercosur Pact" as well as concerned human and indigenous rights are discussed. Further, this article deals with relevant inter-American law (individual indigenous land rights) and international law (collective land rights). Environmental and climate law provide legal and political options for indigenous people(s), for instance in Brasil. Negative impacts of climate actions on indigenous peoples, the competition between environmental protection areas and indigenous territories, the inclusion of indigenous knowledge in sustainable environmental protection and the allocation of Global Public Goods are discussed. There are various interactions between climate and biodiversity protection, human rights, indigenous peoples rights, and free trade between the EU and South America. While protecting forests as a carbon sink, negative environmental or social consequences must be avoided. Like trade agreements, environmental standards for the protection of the Brazilian Amazon rain forest should be enforceable. To reduce deforestation and to confine the effects of climate change, indigenous peoples rights have to be strengthened. The free, prior, and informed consent of indigenous peoples to projects that may affect their territories is essential. It requires effective, coordinated solutions to protect human rights and indigenous land rights, and it needs a sustainable preservation of climate and forests - nationally and internationally. A collapse of the Amazon forest ecosystem would have global climate effects. In Brazil, alternatives to deforestation and destruction are: strengthening the rule of law and agro-ecology, and to defend indigenous territories.

Even with the constitutional guarantees and international undertakings on the rights of the indigenous communities, the communities in Punjab are still under the process of systematic marginalization by land ownership and cultural heritage protection. The research on Pakistan and similar settings has shown that the deeply rooted land governance structures, patriarchal property laws and informal sources of power have given a disproportionate disadvantage to indigenous and minority groups in securing a land tenure, further contributing to the socio-economic prospects of the groups and cultural continuity. The Objectives of the study research are as follows: To investigate the socio-legal situation under consideration of the protection of the indigenous cultural heritage and land rights in the chosen communities of Punjab, Pakistan. To examine how social work practitioners can advocate the rights of indigenous people and the ways to engage the community into land and heritage protection programs. To find out the institutional, cultural, and policy-level obstacles that limit effective social work interventions to protect indigenous land and cultural rights. The purpose of the proposal is to present culturally responsive and rights-based social work approaches to enhance the defense of the indigenous cultural heritage and the land rights of the indigenous people in Punjab. The research design that was utilized in this study was a qualitative case study research design to examine the role of social work in safeguarding indigenous cultural heritage and land rights in Punjab, Pakistan. It adopted an interpretivist method of research that focuses on the subjective meanings and social constructions of the indigenous rights, their culture, and land ownership. The research was done in some chosen districts in Punjab, Pakistan, especially those areas where the problem of land insecurity and the protection of heritage cultures is eminent such as those with indigenous and nomadic communities. The population of the study included the representatives of indigenous communities, social work practitioners, community leaders, and the interested stakeholders with regard to land rights and the preservation of cultural heritage. The participants were selected using a purposive sampling method to ensure that the sampled individuals had the firsthand experience of the indigenous land rights, cultural heritage, and social work interventions. The data was gathered by conducting semi-structured interviews and focus group discussions, where there was free flexibility to find out the experiences of the participants but in a way that it was tied to the research questions. Thematic analysis was used to analyze the collected data and this included systematic coding, categorization and interpretation of emerging themes pertinent to indigenous rights, social work roles, and institutional barriers.

<p>Indonesia, as an agrarian nation, faces the complexities of land management, particularly concerning customary land. The Basic Agrarian Law (UUPA) of 1960 and Law No. 2 of 2012 regulate land acquisition for public purposes. However, their implementation often triggers conflicts among the government, private entities, and indigenous communities. The case of the Rempang Eco City serves as a vivid illustration of such conflicts, highlighting the need to balance development interests with the protection of indigenous community rights. This study employs a normative juridical method with legal and conceptual approaches. Primary, secondary, and tertiary legal materials are analyzed through literature review and documentation. An inductive approach and legal interpretation are applied to understand customary land acquisition in the context of public interest. Customary land rights (hak ulayat) are recognized under the 1945 Constitution and the Basic Agrarian Law (UUPA) of 1960, provided they do not conflict with national interests. The Rempang Eco City case reveals tensions between the recognition of indigenous rights and the demands of national development. An ideal solution must prioritize deliberation, the acknowledgment of indigenous rights, and fair compensation for indigenous communities, adhering to the principles of social justice and sustainable development.The Rempang Eco City project underscores the importance of recognizing indigenous rights in land acquisition processes. Indigenous community participation, transparent consultations, and fair compensation are crucial steps to prevent conflicts. Therefore, a justice-based approach that emphasizes social welfare and human rights protection must take precedence in the process of acquiring customary land for public purposes.</p>

Modeling indigenous tribes’ land rights with ISO 19152 LADM: A case from Brazil

This study aims to analyze the implementation of the Provincial Regulation of Central Kalimantan Number 2 of 2024 concerning the Recognition and Protection of Indigenous Law Communities, particularly regarding the Dayak indigenous communities in Dusun Selatan District. The main focus of this regulation is to provide recognition and protection for the rights of indigenous communities, especially regarding land rights and indigenous culture, which have often been neglected in various development policies. This research uses a empiric juridical approach to assess how this regional regulation can protect these rights and identify the challenges in its implementation on the ground. The findings indicate that although Provincial Regulation Number 2 of 2024 provides a strong legal basis for the recognition of indigenous rights, its implementation still faces many challenges, especially in the legalization of indigenous land rights, outreach to indigenous communities, and the protection of indigenous cultures from the impacts of modernization and development. Therefore, while there are positive steps through this regulation, the protection of indigenous rights still requires more coordinated and effective efforts from all relevant parties to ensure these rights are fully realized

Over the past decade, Indonesia has experienced a significant surge in agrarian conflicts, largely driven by large-scale foreign investment in sectors such as plantations, mining, and National Strategic Projects (NSPs). These conflicts stem from overlapping regulations between customary law and national law, weak recognition of customary land rights, and the implementation of the Free, Prior, and Informed Consent (FPIC) principle, which often remains a mere formality. Data from the Consortium for Agrarian Reform (2015-2024) records at least 3,234 conflicts affecting 7.4 million hectares of land and involving approximately 1.8 million households. The impacts extend beyond environmental degradation, leading to the loss of traditional livelihoods, social disintegration, and the erosion of indigenous cultural identity. This study employs a qualitative approach with a juridical-normative method through an analysis of legal frameworks, international legal instruments, and academic literature. The findings reveal a significant gap between the normative recognition of indigenous rights and their practical implementation. FPIC is not applied substantively, resulting in minimal community participation and unilateral project decisions. These findings underscore the urgency of policy reform to harmonize national law with customary law, strengthen the registration mechanism for customary land rights, and ensure the transparent and equitable implementation of FPIC. Such measures are essential to align economic development with the protection of indigenous rights and the principles of sustainability.

As expert analysis concentrates on indigenous rights instruments, particularly the long fought for 2007 UN Declaration on the Rights of Indigenous Peoples, a body of jurisprudence over indigenous land and resources parallels specialized standard-setting under general human rights treaties. The aim of the present article is to provide a practical and comparative perspective on indigenous land rights based on the process of jurisprudential articulation under such treaties, principally in the Inter-American and African contexts. While specialized standards inevitably generate a view of such rights (and, indeed, indigenous rights more generally) as a set of entitlements separate from general human rights, judicial and quasi-judicial practice as it exists or is being developed within regional and global human rights systems is effectively shaping up their content and meaning. I argue that indigenous land rights jurisprudence reflects a distinctive type of human rights discourse, which is an indispensable point of reference to vest indigenous land issues with greater legal significance. From a practical standpoint, focussing on human rights judicial and quasi-judicial action to expand existing treaty-based regimes and promote constructive partnerships with national courts, though not a panacea to all the intricacies of indigenous rights, does appear to offer a more realistic alternative to advocacy strategies primarily based on universally binding principles (at least at this stage) or the disengagement of domestic systems from international (human rights) law.

In many parts of the developing world like sub-Sahara Africa, legal pluralism can be found where state and customary law co-exist as legal systems in land administration. On one hand, state law is used to administer state land under statutory tenure while on the other hand, customary law is used to administer customary land under customary tenure systems. However, for many decades now, governments have been reformulating land laws to provide for the transformation of customary land tenure systems into leaseholds under statutory tenure. The assumption behind this transformation is that it would lead to economic growth as the privately owned land can, among other things, be used as collateral to obtain loans. Nonetheless, state laws on land still provide for the statutory recognition of the customary tenure systems that the governments intend to transform. While the effects of the conversion of customary land to state land or leaseholds are well documented, the real root causes of these effects are not well documented. In this paper we postulate that the effects of the conversion of customary land emanate from legal pluralism. To this effect, we focus on the state land law of Zambia, the Lands Act of 1995 to: 1) investigate the meaning and interpretation of the sections in the Act that provide for the statutory recognition on one hand, and conversion of customary land, on the other; and 2) discuss the effects of the said sections on customary landholders. Methodologically, we use qualitative methods (largely in-depth interviews) to conclude that governments in sub-Sahara Africa are the architects of tenure insecurity because they (knowingly or otherwise) enact laws that are contradictory or conflicting in nature. In the case of Zambia, there are contradicting sections within the Lands Act 1995 where, while one section provides for the conversion of customary land, the other provides for statutory recognition of the same traditional tenure. This therefore casts a shadow of confusion regarding the meaning of "statutory recognition" in that in practice "legality", by way of holding private title deed, always takes precedence over "social legitimacy". The implication of this is tenure insecurity and an associated avalanche of evictions, elite capture, sub-division and enclosures of common pool resources, land grabs, and land conflicts. We recommend that, guided by research, concerned governments should consider emulating other countries like Tanzania and Botswana, which have enacted "bespoke" land laws that are specifically meant for state land, and other land laws specifically for customary land.

Introduction: Customary law shapes and protects indigenous cultural identity and rights in the face of rapid modernity. However, customary law incorporation into national legal systems, notably in Malaysia and Indonesia, remains difficult. Both nations recognize and integrate customary law into their legal systems, but disparities in indigenous peoples' land, forestry, and natural resource management rights enforcement and protection exist.Purposes of the Research: The study's main objectives are to (1) understand and evaluate customary law's inclusion into Malaysia and Indonesia's legal systems and (2) determine the best framework for this incorporation given the fast rate of modernization.Methods of the Research: This research employs a normative juridical methodology with statutory and comparative approaches. Through a review of relevant laws and literature from both countries, this study seeks to identify and compare how customary law is integrated into the national legal systems of Malaysia and Indonesia.Results of the Research: The research identified discrepancies in indigenous peoples' rights enforcement and protection, notably in land, forestry, and natural resource management, despite both countries adopting customary law into their legal systems. This research emphasizes the necessity for inclusive and participatory customary law incorporation into national legal systems. Customary law is important to these systems and is acknowledged, preserved, and respected. Scholars, attorneys, and legislators in both countries may utilize this study to protect indigenous rights.

The Return of the Native