Customary Land Research Articles

Sustainable Water in Mining? The Importance of Traditional Owner Involvement in Commercial Water Use and Management in the Pilbara Region of Western Australia

AbstractThe mining industry is a significant water user, an issue that gains a particular prominence in arid zone mining regions, such as the Pilbara region in Western Australia (WA). Mining companies extract vast amounts of water from the groundwater aquifers to access orebodies and to dewater the mine pits. Much of this water is dumped in creeks, injected back into the aquifer downstream or used in mining processing. There is increased awareness from community members for sustainable water use in mining beyond life of mine, and the emergence of Environmental, Social and Governance (ESG) principles in the mining and metals sector signals a shift towards recognizing the importance of water stewardship. Much of the land subject to dewatering in the Pilbara is also subject to native title determinations. For Traditional Owners, important cultural values are associated with water. However, water is not adequately covered in native title, especially in relation to commercial use. We argue that Traditional Owner involvement in design and management of the use of excess water from a mining proponent's water licence (dewatering) can assist in sustainable use of groundwater, as well as provide opportunities in social and economic enterprises. As a provocation style piece, this paper is based on secondary literature, rather than ethnographic data. It explores the political and regulatory landscape of mine dewatering and outlines the limitations that have existed historically and currently and which inhibit Traditional Owners to participate in water management or commercial water interests. We also provide a high‐level analysis of several mining proponents' public policy commitments to water stewardship to assess the sustainable use of water which involves stakeholders such as Traditional Owners in water decision‐making. Finally, we identify possible opportunities and provide some recommendations, for water futures in this dry region where iron ore mining and gas extraction, already massive, are expanding further.

In Search of A Just And Equitable Agricultural Land Dispute Settlement In Indonesia

Agricultural land dispute is commonly resolved by a non-judicial settlement. It however experienced silent conflict and a just and due process of law due to multiple interests involved. Responding to these salient disputes, in 2021 the International Institute for Unification of Private Law (UNIDROIT) established a legal guide to assist developing countries to draft a more sustainable and responsible agricultural land investment contract (ALIC). In Liew to the UN Guiding Principle on Business and Human Rights (2011), the state and enterprises shall exercise adequate oversight to protect the breach of human rights including the customary land rights. The research aims at assessing the agricultural land dispute settlement pursuant to ALIC. It was found that land dispute settlement was dependent upon the maintenance of social control consisting of a dynamic mixture of informal and formal systems. This type of social control enabled creating a balance between disputants, minimizing transactional costs and promoting effective law enforcement. The article elaborated land dispute settlement in two different cases in Indonesia and discusses non-litigation hybrid model of land dispute resolution to promote a better strategy for resolving a land dispute in Indonesia. At the same time, this model may serve as a potential method to provide a better strategy to promote private rulemaking to prevent further disputes as a transition to the application of ALIC.

Analysis of Conflicting Regulations concerning the Food Estate Program and Customary Land in Accordance to Indonesian Customary Law Principles

As a rechstaat, Indonesia has human rights and a law protection guarantee that is regulated in the Constitution of the Republic of Indonesia (UUD 1945). To ensure the protection of the law and human rights, it is necessary to have a legal basis that regulates these matters, including customary rights. The regulations of customary rights are regulated in Article 18B paragraph 2 of the UUD 1945, Law Number 5 of 1960 concerning the Basic Regulation of Agrarian Principles, Law Number 39 of 2014 concerning Plantation, and Law Number 6 of 2023 concerning Job Creation. However, there is a problem in the social field, as happened in Central Kalimantan Province that customary land was turned into a 600-hectare cassava plantation food estate program without involving Dayak indigenous people from planning to implementation. Moreover, Dayak indigenous people do not get any benefits from the food estate program. These reasons are that there are a few legal problems that contradict the food estate program and customary rights.

Compensation assessment practices in expropriation of customary land: Evidence from Malawi

Expropriation of various properties including customary ones requires compensation for the resultant losses suffered. Such compensation is valued based on market value, which assumes exchangeable private property and existence of functioning property markets. This assumption obtains inadequate compensation for customary properties because they do not fundamentally meet these conditions. Thus, this study analyses applicability of compensation theories founded on private land to customary properties in Malawi through a qualitative case study approach. The findings demonstrate that Malawian compensation law is based on indemnity theory and hence market value, whose applicability to customary land suffers from inadequate laws and weak/non-existent property markets. Fundamentally, indemnity compensation is applicable to customary land but current compensation practices obtain inadequate compensation. This calls for other compensation assessment methods to address these issues. Thus, this paper presents the empirical findings of the study, which contributes to compensation theory, empirical literature and policy development.

Implementasi Kebijakan Tanah Adat Dan Hak-Hak Adat Di Atas Tanah di Provinsi Kalimantan Tengah

This research aims to investigate the implementation of policies related to customary land and indigenous rights in Central Kalimantan Province, Indonesia. The research method employed is qualitative analysis involving field surveys, interviews with stakeholders, and analysis of policy-related documents. Theories related to public administration and customary law are used as frameworks for analyzing the policy implementation process. The results of the discussion reveal several challenges in policy implementation, including the mismatch between customary and national laws, land conflicts, and the lack of accurate information provided to indigenous communities. Despite efforts to align policies and improve their implementation, there are still obstacles that need to be addressed to achieve better recognition and protection of customary land and indigenous rights of Dayak indigenous communities in Central Kalimantan Province.

Indigenous nation building and native title: strategic uses of a fraught settler-colonial regime

ABSTRACT Despite the ongoing and destructive nature of invasion and settler-colonial institutions, laws and policies in Australia, many Aboriginal and Torres Strait Islander nations continue to assert their sovereignty; exercise their inherent rights to self-determination as self-defined, autonomous peoples; and pursue collective aspirations in highly constrained and contested environments. Many nations are engaged in Indigenous nation (re)building (INB). One key INB strategy utilised by such nations is to use settler-colonial policy for their own collective ends. This article analyses the relationship between a complex and highly fraught settler-colonial legal-political system, native title, and INB processes in Australia. Using the ‘Identify as a Nation, Organise as a Nation, Act as a Nation’ framework, we explore some of the actual and potential relationships between the native title system and INB. Despite the considerable harms of the native title system on Aboriginal and Torres Strait Islander peoples, we maintain that First Nations may be able to strategically engage in the system in a way that assists them to further their cultural and political autonomy.

Kepemilikan Tanah Eks Eigendom Verponding 1065 Yang Ada Di Negeri Tawiri

Introduction: Land is a very important thing in Customary Law (can be referred to as Customary Land Law). The relationship between humans and land is closely related, namely land as a place for humans to live and continue their lives. Customary land is the property of customary law communities that have been controlled for a long time. Customary land law, known as land rights in Indonesia, such as ulayat lands, private lands, business lands, Gogolan lands, bengkok lands, agrarisch eigendom lands, and others.
 Purposes of the Research: This writing aims to find out the relationship between humans and the soil is very related to the land as a place for humans to live and continue their lives. While eigendom is a right of ownership to a land asset that existed during the Dutch colonial era that is subject to the provisions of Western land law in force for eigendom rights, then with the promulgation of the UUPA, the unification of Indonesian land law with the former Western rights that have not been converted to land rights as stipulated in the UUPA.
 Methods of the Research: legal writing that is juridical normative approach
 Results / Findings / Novelty of the Research: that the arrangement of compensation for the right of ownership of the Land of the former Eigendom Verponding 1065 that has not been converted is still possible to obtain proof of ownership, but not through conversion again but through granting new rights to the Office of the National Land Agency (BPN) with a certificate of ownership issued by the village head of the local area. Procedures and stages of land registration carried out by BPN Ambon on former Land objects eigendom 1065 the process of land rights derived from western rights including eigendom verponding to obtain legal certainty, by implementing the provisions of PP No.24 of 1997 consistently, well and truly will be about the right to land eigendom verponding, which ensures legal protection for holders of rights to the land of the former eigendom verponding. then the bookkeeping is simply done by giving a stamp/stamp on the evidence by writing the type of rights and rights number converted, which is regulated in PP Regulation No.24 of 1997 on land registration

Lexical and Grammatical Cohesion in the Regional Regulation Discourse of West Sumatra Province

This study aims to explain the discourse structure, specifically the lexical and grammatical cohesion in the discourse of West Sumatra Province, with a discourse analysis approach. The object of this research is a special regional regulation (SRR) of West Sumatra Province, which is different from Regional Regulation (RR) in other regions in Indonesia, as evident in the use of local concepts and terms. This regulation is interesting to study in cohesion because its structures represent the social reality of the indigenous people’s lives. One notable regulation is Nagari, the lowest government level in West Sumatra Province, with authority to regulate their communities and customary land in the Republic of Indonesia. That social reality is illustrated in the cohesiveness and harmony of the relationships of the forms that construct the discourse. This mixed-method research employs both quantitative and qualitative data and applied lexical and grammatical cohesion theory in data analysis. Findings show that lexical cohesion is realized in the following forms: repetition, synonym, meronymy, hyponym, and collocation; while grammatical cohesion is realized in the form of references, substitutions, and conjunctions. Based on the analysis, lexical and grammatical cohesion are interconnected constituents in building the integrity of the discourse structure in the SRR of West Sumatra Province. Cohesion plays a role in determining the meaning of the discourse as a whole and reflects the coherence of ideational meanings in discourse.

The resolution of customary community land rights issues based on government regulation no. 18 of 2021 and its relevance to the constitution in indonesia

This research aims to find a solution to the issue of customary community land rights concerning the usurpation of customary land rights in the Percut Sei Tuan District, Deli Serdang Regency. The purpose of this research is to determine the direction of Government Regulation No. 18 of 2021 in shaping policies regarding the resolution of customary land rights of indigenous communities. The research method used in this study is a normative juridical approach conducted by examining secondary data, both primary legal materials (primary sources) and secondary legal materials (secondary sources). The primary legal materials used consist of regulations related to the issues under investigation. The research approach used by the author in this paper is a qualitative approach to examine the problem formulations present in this paper. The nature of the research used by the author is normative research that tests the topic in this paper. The research findings indicate that the orbit of Government Regulation No. 18 of 2021 in shaping policies for resolving disputes regarding the customary land rights occupied by PTPN II. PTPN II is considered not in line with and deviates from the applicable laws, given that the actions of PTPN II have obstructed the indigenous communities from realizing their livelihoods based on their customary land rights. Various efforts have been made to curb the encroachment on customary land in Percut Sei Tuan, but their activities continue due to protection from certain law enforcement authorities, preventing the people of Percut Sei Tuan from benefiting from their customary land rights.

Konstruksi Reforma Pajak Bagi Pemilik Tanah Dati Di Kota Ambon Dalam Perspektif Keadilan

Introduction: The land owner does not have real and legal evidence that has legal force, so Village Officials assume that the land still belongs to the village and can be given or sold by the Village.Purposes of Devotion: This service can produce a legal product in the form of a state regulation and even state regulations regarding the construction of tax reform for dati landowners in the perspective of justice, so that dati landowners can know the tax collection model that can be used as proof of tax payment so that there is proof of ownership that is legally and has legal protection for dati landowners. Method of Devotion: The implementation of this service uses the extension method, through discussion in which the presenter explains material related to the service and is followed by questions and answers between the presenter and the participants.Results of the Devotion: The owner of the Dati lands in Soya Village is state land granted by the Official, so it is necessary to prove ownership of the land under Indonesian law so that it does not become a dispute in the future, the speaker provides information regarding the payment of Land and Building Tax to protect the rights of the villagers including the ulayat rights of indigenous peoples, especially the owners of dati lands. In fact, the land owner in Soya Village has never paid his land tax (traditional land tax) to the tax office related to land tax or regional tax due to the lack of information and understanding regarding the Tax Payment Model which can be used or as proof of ownership and can be used as legal protection in the event of a dispute in the future. As for the gap, namely whether the form of tax reform construction can cover the process of paying taxes on customary lands in Ambon City. in accordance with state regulations in order to create justice.

Legal Counseling Law Number 30 of 1999 About Arbitration And Alternative Dispute Resolution In Nendali Village, East Sentani District Jayapura Regency

This service was carried out under the title Legal Counseling Law Number 30 of 1999 concerning Arbitration and Alternative Dispute Resolution in Nendali Village, East Sentani District, Jayapura Regency, activities carried out for partners due to cases from partners regarding misunderstanding regarding the resolution of customary land disputes based on statutory regulations. the invitation is valid and where the parties to the dispute do not want to give in or want to win on their own so that with the expertise they have, the service can carry out legal counseling so that the parties in the dispute can know about the existence of laws and regulations that regulate non-violent dispute resolution. litigation/outside of court. The method of implementing this service is carried out by applying science and technology through lectures and discussions held on Saturday 29 July 2023, at the Nendali Village Hall as well as providing assistance to partners in providing knowledge about Alternative Dispute Resolution (ADR) based on Law Number 30 of 1999 The output of this service is to provide partners with an understanding of the things that cause customary land disputes between one village and another and to provide legal assistance to partners to resolve customary land boundary disputes within customary law communities based on existing laws and regulations. applies.

Revisiting British Malaya's Era: An Intriguing Historical Legal Analysis of Land Administration and Colonial Forestry

The land and forest administration system in Malaysia faces a complexity bias due to the misinterpretation of rules and legislation, leading to increased disputes. The reliance on British law for matters like land ownership amplifies this issue, and the intricacies of static and dynamic arrangements further compound the complexity. Previously, Malay rural land rights were based on usufructuary principles, but the colonial land alienation policy redefined unalienated land, land reserved for public purposes, and reserved forests as State Land. This study seeks to comprehensively review and analyse legal rules, cases, statutes, and regulations to understand ancient land law practices and the influence of British colonial land law on land administration. Conducted in Peninsular Malaysia, the study focuses on primary documents, cases, and critical analyses from three states: Perak, Penang, and Kelantan. The findings of the study highlight the contentious nature of land rights and autonomy in utilizing natural resources in Malaysia. The country inherits both formal and informal land tenure systems rooted in customary law, making dispute resolution challenging. The principal characteristic of ancient land law is based on a hypothetical model of the ancient customary land tenure system, encompassing different eras, missions, and principles. Significantly, the study reveals a direct and strong connection between colonial land law and current land law practices in the respective states. Additionally, Malaysia's land law has been influenced by Islamic law (Syariah) to some extent and blended with other ancient customary laws before the introduction of Torren in 1897.

Dispute Resolution Model of Druwe Mrajan Land Rights from Different Religious Heirs in Badung Regency

Customary land in Bali has a very close relationship with the daily life of indigenous people in Bali. Until now, inheritance disputes still occur a lot in Bali, especially seeing the economic value of customary land in Bali today, it also triggers people who have converted from Hinduism to have the same rights as those who are still Hindus in terms of inheritance regardless of the various obligations that must be carried out in Balinese Customary society. The objectives of research are to explore and identify the temple land / Druwe Mrajan land which is still sustainable today, and find court decisions that strengthen Balinese Customary Law. The method uses descriptive approach to describe precisely the properties of an individual, situation, symptom or certain group to determine the presence or absence of a relationship between a symptom and other symptoms in society. Through an Empirical approach, with the reality that occurs in the community according to the Awig-awig of the Padang Luwih Traditional village, states that people who have left Hinduism (Ninggal Kedaton) no longer get inheritance rights in the family, because they cannot carry out their obligations both in life in the Customary community, Family, and obligations to ancestors in Mrajan Agung. Inheritance in Balinese customary law does not solely contain the rights of the heirs to the inheritance property, but more than that, the most important is the obligation of the heirs to the testator. The obligation of the heirs is a consequence of the rights they receive.

Skeletons in the cupboard: reading settler anxiety in Mabo and Love

ABSTRACT Thirty years apart, Justices Brennan and Kiefel in the Australian High Court made deeply anxious remarks to define Indigenous identity and assert the power of the Court over Indigenous subjects and subjecthood in the Mabo and Love judgments. The notion that the breadth and depth of the Colonial legal system in Australia in 1992 was so frail as to break its skeleton is a form of gaslighting. Equally, the notion that in 2020 connection to Country is so fragmentable that it can mean one thing in Native Title and another in immigration manipulates an Indigenous notion of Country to fit the mould of settler power. This article analyses the judgments by considering the tone of settler anxiety and finds that in both judgments there remains a sinister logic of seeking to contain Indigenous identity and sovereignty.

Colonialism and Customary Land Tenure in Africa: Portuguese Representations and Policies During the 19th and 20th Centuries

ABSTRACT Colonial representations concerning ‘indigenous uses and customs’ have been the target of postcolonial critique. However, in the Portuguese case, the impacts of the colonial encounter with African customary land tenure has still to be analysed and correspondingly inquiring into the historical relationship between colonialism and the commons. This article focuses on the debates surrounding the ‘indigenous’ common property regime among the political and academic elites and its historical evolution. This, therefore, frames land policies and their legitimising discourse in their production contexts, revealing how customary laws were misrepresented both to deny local populations access to property and as an instrument of social control. Furthermore, this illustrates how the colonial academic and political elites portrayed community management and the transhumance of African agriculture and relate the discourse on the ‘indigenous’ customary law with the evolution of land policies; from the legal initiatives regulating the ‘appropriation of wasteland’ in the mid-nineteenth century through to decolonisation in 1974. This focus on the colonial legacies of land policies is particularly essential to environmental sustainability in Africa. Furthermore, this case study of Portuguese colonialism provides new insights into the production of imperial knowledge for defining and managing colonised populations by approaching the key issue of land tenure.

Komunikasi Penanganan Konflik Tanah Ulayat di Kecamatan Batipuh Selatan Kabupaten Tanah Datar

This study aims to describe and analyze the dynamics of communication in handling Nagari Sumpur customary land conflicts, communication in conflict management of the Ulayat Land Team, and communication barriers faced by the Nagari Sumpur Ulayat Land Team, South Batipuh District. This research uses a qualitative approach with a case study method. As a reference in processing data, researchers use conflict management theory. The results showed that the dynamics of communication in handling customary land conflicts in Nagari Sumpur had political involvement in it. The local government that took office at that time seemed a bit reluctant for fear of reducing its political votes at the time of the election. In addition, the dynamics of communication in handling customary land conflicts in Nagari Sumpur continue to experience changes in patterns, content and channels. The dynamics of communication can also be seen from the emotional involvement of the communicating party. The Tanah Ulayat Team is in a moderate dynamic which means that the Tanah Ulayat Team communicates well in internal meetings with the team. High communication dynamics occur if external meetings that present all institutions, elements and society. As for conflict management, the Tanah Ulayat Team prioritizes the interests of Nagari by striving and striving so that the objectives in handling Nagari customary land conflicts can be resolved.

Dispute Settlement in Complete Matic System Land Registration

This article analyzes Legal Protection for Complete Systematic Land Registration (Pendaftaran Tanah Secara Sistematis Lengkap) or PTSL and Dispute Resolution in PTSL.This research is an empirical legal research with statutory approach, case approach, concept approach, and legal sociology approach. The results of this study indicate that legal protection for certificate holders in the PTSL Program is not absolute and only strong because the land registration system in Indonesia adheres to a negative publication system. Dispute settlement in the PTSL Program is resolved through the Non-Litigation and Litigation channels. Based on research at the Gianyar Regency Badan Pertanahan Nasional Office (BPN) or National Land Agency Office and the Tabanan Regency BPN Office, disputes over Overlapping Certificates and Inheritance Disputes dispute settlement through Non-Litigation Methods are carried out by means of Mediation accompanied by a Mediator, which Overlapping Disputes Pays little attention to the elements of Theory Legal Justice because there is no settlement procedure, whereas inheritance disputes have fulfilled the elements of the Theory of Justice where there is a fair procedure in the stages of settlement. Based on the results of research at the Tabanan Regency BPN Office and Karangasem Regency BPN There is a Customary Land Claim Dispute which was resolved through the Litigation Line at the District Court was decided based on considerations of coherence between Physical Data and Juridical Data in the issuance of Certificates of Land Rights which are in accordance with the Theory of the Legal System reflects the Substance The law has clear rules in the judge's considerations, the legal structure has law enforcement officers formed from the legal system, in this case the Adjudication Committee and Judges at the District Court, the Community's Legal Culture towards the PTSL Program reflects that there is still bad faith from the community in submitting its registration.

The Existence of PT. Freeport Indonesia: Effects for Indigenous Peoples and the Investment Climate in Papua

Objective:This study attempts to identify and assess the social presence of PT. Freeport Indonesia's impact on local public customs, particularly the sizable Amungme and Komoro tribes, as well as the Papuan investment climate. To gather information and meet the research goals, a qualitative approach or sociological juridical research is used. Method: This study, which employs a qualitative methodology, was carried out near PT. Freeport Indonesia in the Papua Province's Mimika Regency. The Amungme and Komoro Tribes, two significant tribes in the area, have opposing views on the existence of PT. Freeport Indonesia. While the second tribe compromises, the first tribe is very reactive.The approach used to acquire the data was conducting interviews with community leaders and distributing questionnaires to residents of the Amungme and Komoro traditional groupings. Pay close attention to people who are impacted by PT. Freeport Indonesia and those who receive business advice from the organization. Result: The study's findings indicate that the local people is affected by the physical environment, including tailings accumulation (mine industry waste) and the extraction of customary land outside of the designated bounds, as indicated in the January Agreement of 1974. PT Freeport's presence, on the other hand, has prompted other businesses to invest in Indonesia and has supported the growth of local communities' entrepreneurs through the establishment of business incubators that focus on ventures in the fields of agriculture, animal husbandry, cooperatives, transportation services, the building materials sector (tela stone, sandstone, processed wood), landscaping, and commercial art. Conclusion: PT. Freeport Indonesia is very closely related to physical environmental impacts, including the accumulation of tailings (mining industrial waste) and the taking of customary land far outside of the agreed boundaries, as stated in the January Agreement made in 1974. As a result, it is biased towards the emergence of rejection of the existence of PT. Freeport Indonesia in Mimika R. The opposition to PT. Freeport Indonesia's presence is a sign of a welfare dispute. On the one hand, strong concentration comes with good fortune, while on the other, helplessness comes with all of its pain.

Impact of land tenure security through customary law on agricultural productivity in Burkina Faso: Propensity score matching approaches

Land tenure security plays an important role in agricultural production systems. The objective of this paper is to empirically assess the impact of land tenure security through customary law on agricultural productivity in Burkina Faso. We use panel data from 15,627 agricultural households over the period 2019–2021. Four propensity score matching methods are used: the nearest neighbor method, the stratification method, the radius method and the kernel method. The instrumental variables technique was used to control for endogeneity. Overall, the results indicate that household land security improves agricultural productivity. The minimum gain in agricultural productivity is estimated to be USD 86.4 per agricultural asset per season for households with customary land tenure. In terms of economic policy implications, the results call on the authorities in charge of conducting agricultural policies to promote comprehensive land policies by adapting them to local contexts through the recognition of customary institutions for rural land management.

Variations and Parallels in Climate Change-Induced Migration Models: Customary Land Tenure in Francophone Pacific Islands

It is tempting to assume that across all Pacific Islands, potential climate change-induced migration (PCCIM) due to sea-level rise can be approached in a unified manner. However, the diversity of the Pacific Islands requires an in-depth analysis in order to establish culturally coherent migration models. The possibilities and limits that customary land tenure can offer in this context on islands of the three Pacific French overseas territories Wallis & Futuna (Wallis, Futuna), French Polynesia (Rangiroa) and New Caledonia (Lifou) are analysed through four lenses: the intergenerational transfer of land rights, the distribution of land plots (geographically and between families), the extent of power exercised by customary authorities, and the different types of ownership or usufruct. The examination of common threads and variations shows that guiding principles (access to land in the interior of a respective island, strength of land rights on a certain plot, infrastructure issues, concepts of mobility, importance of primary land ownership, importance of primogeniture, and potential inter-island access) are shared to different degrees across the islands. The fourfold matrix allows a robust analysis of the possibilities in the context of PCCIM in different locations through examining parallels, differences, advantages, and disadvantages of the different systems.