Traditional Rights of Indigenous People in Indonesia: Legal Recognition and Court Interpretation

Sartika Intaning Pradhani

doi:10.22437/jlj.1.2.177-205

Abstract

Indigenous peoples are victims of agrarian conflict, but their existence are not recognized by Indonesia. Indonesia recognizes Adat Law Community, distinct community living in Indonesia according to their Adat Law, and their traditional right. This paper is written based on legal normative research to analyze right of Adat Law Community towards their land and territory; and rule of the court regarding right of Adat Law Community. Adat Law Community has strong relation with their land and territory, namely Ulayat Right which guaranteed in Constitution and regulated in various law and regulation, especially regarding natural resources. Recognition towards Ulayat Right held by Adat Law Community through regional law product is declaratory because it only confirms the exiting right. Court has prominent role to enforce right of Adat Law Community. Constitutional Court has revoked several provisions in law which neglect Ulayat Right of Adat Law Community, such as Adat Forest which defined as state forest located in Adat Law Community’s territory; and Right of Coastal Water which limits Ulayat Right of Adat Law Community to access natural resources in coastal area and small islands. Though Constitutional Court has strengthen right of Adat Law Community, this community still face difficulties to claim their right towards land and territory against government and investor before District Court, High Court, and Supreme Court because those Court more focus on formal legal certainty of Adat Law Community’s authorization towards their land and territory than factual authorization as narrated by the community.

Highlights

National Agrarian Reform Committee said that 1% of the richest people in Indonesia controlled 50,3% of national wealth and another 10% richest people in Indonesia control 7% of national wealth.1 By the great number of land monopoly, agrarian conflict increases from time to time
Indigenous people living in Indonesia have enjoyed their traditional rights far before the establishment of Indonesia nation state, but their rights are often violated by issuance of government policies
The Court emphasizes that living ulayat right in the jurisdiction of indigenous people shall be enjoyed hereditary; it shall not be limited by permit issued by the government

Summary

Background

National Agrarian Reform Committee said that 1% of the richest people in Indonesia controlled 50,3% of national wealth and another 10% richest people in Indonesia control 7% of national wealth. By the great number of land monopoly, agrarian conflict increases from time to time. Basic Agrarian Law, and Plantation Law recognizes ulayat right of indigenous people It is defined as authority of indigenous people to collectively regulate the utilization of land, territory and natural resources because resources in their territory are their source of life and livelihood. 37 Minister of Agrarian and Spatial Planning/ Head of National Land Agency Regulation Number 10 of 2016 regarding Procedure to Stipulate Land Communal Right of Adat Law Community and Community in Particular Area. By considering the nature of ulayat rights, Sumardjono says that the government shall only grant communal land right of community living in forest and plantation in order to create new title for their existing land authorization.. By considering the nature of ulayat rights, Sumardjono says that the government shall only grant communal land right of community living in forest and plantation in order to create new title for their existing land authorization. Traditional rights of indigenous people shall not be given, but it shall be recognized by considering the fact that their rights exist hereditary and traditionally

Court Interpretation on Traditional Right of Indigenous People

Findings

Conclusion