CUSTOMARY LAND AND ITS UTILIZATION FOR THE DEVELOPMENT OF INVESTMENTS OF CUSTOMARY LEGAL COMMUNITIES IN MALUKU

CUSTOMARY LAND AND ITS UTILIZATION FOR

INVESTMENT DEVELOPMENT OF CUSTOMARY COMMUNITIES

IN MALUKU[1]

 

Mahrita. A. Lakburlawal

 

Introduction

Human life is inseparable from the land. Therefore, when we discuss human existence, we are also indirectly discussing land. Humans conduct all their activities on land, and from it, they obtain the resources to sustain their lives. Therefore, as human civilization advances, so does the demand for land, which ultimately gives rise to various land-related issues.

Land issues are not solely about economic and welfare aspects, but also encompass social, cultural, political, legal, and religious aspects. Therefore, resolving them requires not only legal considerations but also principles of welfare, security, and humanity.

Among the issues related to land issues is the issue of land within the territory of a customary law community. On one hand, there are customary law communities with customary rights, and on the other, there is the use of land for development purposes by the government. This clash of authority between customary law communities and the government is often considered a hindrance to development in Indonesia.

In Maluku province, land disputes occur mainly related to territorial boundaries between villages/villages, claims of customary ownership by different groups of residents, conflicts resulting from overlapping customary territories with administrative territories.              

The National Violence Monitoring System (NVMS) program monitors violent conflicts related to resources including land ownership and use, natural/artificial resources, access to employment, and environmental pollution. It noted that the majority (69%) of violent incidents in Indonesia were related to land issues, and almost half of these occurred in Maluku province, which has a long history of customary land disputes.[2]The root of these recurring land disputes is a system of overlapping land ownership and unregistered access to land.

This conflict is further complicated by the presence of governments and investors, particularly those involving significant (extensive) land use, such as plantations, mining, manufacturing, and forestry. Investment in these sectors will put pressure on land use, specifically soil.

The Maluku Provincial Government continues to strive to improve the investment climate, aiming to accelerate economic growth, expand employment opportunities, increase public income, and reduce poverty. Various steps are being taken, including developing an investment information system, simplifying licensing procedures, and providing investment services.[3], is expected to increase the level of investment in Maluku.

Simplification of investment licensing and service procedures is a form of facility that investment companies must obtain from the government, as mandated by Law Number 25 of 2007 concerning Investment. One form of convenience that investment companies must obtain from the government is in the form of ease of service and/or permits to obtain land rights (Article 21 point a of the Investment Law).

The ease of service and/or permits for land rights as referred to can be granted and extended simultaneously and can be renewed again, in the form of: Right to Cultivate (HGU) which can be granted for a total of 95 (ninety five) by means of being granted and extended in advance at once for 60 (sixty) years and can be renewed for 35 (thirty five) years, Right to Build (HGB) can be granted for a total of 80 (eighty) years by means of being granted and extended in advance at once for 50 (fifty) years and can be renewed for 30 (thirty) years, and Right to Use can be granted for a total of 70 (seventy) years by means of being granted and extended in advance at once for 45 (forty five) years and can be renewed for 25 (twenty five) years.

In relation to cultivation rights, based on article 28 of the Basic Agrarian Law of 1960, what is meant by cultivation rights is "the right to cultivate land that is controlled directly by the State". In reality, in Maluku there is not only land controlled directly by the State, but there are also stretches of customary land. The expanse of customary land can be classified into three categories of customary land, namely state land or land with petuanan rights, dati land owned by relatives or associations, and inheritance land which is owned by individuals. These three categories of land are still regulated according to customary law provisions.

The status of customary lands in Maluku is reinforced by Maluku Provincial Regulation (Perda) No. 14 of 2005 concerning the Re-Establishment of the Village as a Unitary Customary Law Community within the Maluku Provincial Government Area, which states that one of the requirements for someone to claim customary rights is having a historical connection to the area. Communities that do not meet this requirement are classified as administrative villages. Central Maluku Regency Regulation No. 1 of 2006 explicitly states that all land is owned by customary law. This means that communities in administrative villages cannot claim customary ownership rights.[4]. these lands in reality still exist, although in a condition that is almost destroyed, pressed by the interests of providing land for development purposes which should aim for the greatest possible prosperity of the people, but have the opposite impact on the existence of indigenous legal communities who have become alienated and pushed out of their own territory, due to development policies.

 

 

 

Utilization of Customary Land by Indigenous Communities in Maluku

Land holds a very important position in customary law. This is due to two factors:

Because of its nature, namely being the only object of wealth that, despite experiencing any circumstances, remains in its state and sometimes even becomes more profitable. In addition, because of the fact that land is the residence of the community, provides a living for the community, is a place where the deceased members of the community are buried, and lastly, it is also a place of residence for the guardian maids of the community and the spirits of the ancestors of the community. [5]

The above facts demonstrate that there is a very close relationship between customary law communities and the land they occupy. This relationship is religio-magical in nature. This religio-magical nature is the basis for the community's right to control the land they occupy, utilize it, harvest the plants and/or trees growing on it, and hunt the animals that live there.

The community's rights to its territorial land are referred to as lordship rights or ulayat rights. Van Vollenhoven refers to this right as “Beschikkingsrecht”. The term used to refer to this right in Indonesian and in regional languages ​​is understood as "environment of power" while “beshikkingsrecht” describes the relationship between the community and the land itself. However, now the term customary rights is used as a translation of beshikkingsrecht[6].

Van Vollenhoven in his book entitled “Miskenningan in het Adatrecht” and “De Indonesier en Zijn grond” conclude 6 (six) characteristics of customary rights, namely:

1. The Association and its members have the right to utilize the land, harvest from everything that is in the land and that grows and lives on the communal land;

2. Individual rights are covered by community rights. Regarding the relationship between community rights and individual rights, Ter Haar's famous opinion is called the Ball Theory. According to this theory, the relationship between partnership rights and individual rights is reciprocal, which means that the stronger the individual rights to a piece of land, the weaker the partnership's rights to that land, and conversely, the weaker the individual's rights to a piece of land, the stronger the partnership's rights to that land;

3. The leadership of the association can determine to declare and use certain plots of land designated for public purposes. And individual rights are allowed to be placed on this land.

4. Foreigners who want to harvest the produce from customary land must first ask permission from the head of the association, and must pay a recognition fee, and after the harvest must pay rent.

5. The association is responsible for everything that happens in the customary environment.

6. The prohibition on alienating land, including customary land, means that neither the association nor its members are permitted to absolutely decide on a piece of customary land so that the association completely loses its authority over the land.[7].

The lives of people in Maluku are largely dependent on land. Land, with all its resources, is an inseparable part of everyday life. This spiritual and cultural bond between indigenous peoples and the land is the most prominent characteristic that distinguishes indigenous communities from non-indigenous communities, which view land solely as an economic commodity.

Most of the land in Maluku is customary land, subject to or controlled by the petuanan rights of the village or village in question. The boundaries of a village/village in Maluku typically extend beyond residential land or agricultural fields, but also include forests, rivers, and all the produce within them. Generally, the boundaries of a village's petuanan area are marked by natural landmarks, such as rivers, mountains or hills, rocks, forests, etc.

Determining the boundaries of a village's petuanan area was initially determined by the ancestors or datuks through the saniri Negeri or the customary government body of a customary association in the past through a mutual agreement between bordering customary associations.

Along with the growth in the number of members of a customary/country association, the petuanan lands of a customary country in subsequent developments are managed by the members of the association to become individual property or rights where the right to control or process them is stronger than the petuanan rights.

The role of customary associations does not simply disappear even though the land has been individually controlled by a person/family/group, the local government of the customary association still has a role to limit (regulate) legal actions carried out by the land owner in order to maintain order as it is hoped that the opening or management of a petuanan land can create prosperity or welfare for the members of the association.

Based on the above description, customary law communities in Maluku actually have authority over the lands within their community and community. This authority is based on customary land ownership rights based on customary law community rights to manage these lands for the common good.

The authority of indigenous communities over the land and resources in question generally includes;

1. Regulating and organizing land use (for settlements, farming, etc.), supplies (creating new settlements/farms, etc.), and land maintenance.

2. Regulate and determine the legal relationship between people and land (grant certain rights to certain subjects)

3. Regulate and determine legal relationships between people and legal actions related to land (buying and selling, inheritance, etc.).[8]

The authority of indigenous peoples is not only linked to land objects, but also to other natural resource objects, namely everything on the land (trees, animals, rocks that have economic significance); in the land (mining materials), and also along the coast, also above the surface of the water, in the water and the parts of the land that are in it.

As a member of the association, each individual has the right to collect forest products such as wood, rattan and so on, hunt wild animals that live in the area under the authority of the association, take products from wild-growing trees including medicinal plants, clear land and work on the land continuously.

The use of land by indigenous people in Maluku is for settlements, cemeteries and for farming, namely for plantation areas with the main commodities including coconut, cloves, nutmeg, cocoa and cashew nuts, for food crops, which include rice and secondary crops such as corn, cassava, sweet potatoes, peanuts, green beans etc.

Anyone who wishes to obtain benefits from a piece of customary land within the territory of the association must have the knowledge and permission of the head of the local customary community (in Maluku customary society this is called pamerentah/raja).

 

Utilization of Customary Land for Investment Development in Maluku

Regional autonomy, based on the principle of decentralization, grants substantial and concrete authority to local governments to manage and finance development activities within their regions. With this authority, each region continues to strive to boost economic growth in its respective areas, including Maluku Province.

Based on the 2012 Maluku Province RKP, the economic growth of Maluku province in 2007 was 5,79% and increased to 6,02%, until 2010 the economic growth of Maluku province reached 6,47% with an investment climate index until 2008 of 54,44% or ranked 23. This shows that investment development in Maluku is still low, this is because private investment in the form of Domestic Investment (PMDN) and Foreign Investment (PMA) in the Maluku region is still very small. The lack of regional infrastructure and the low investment climate characterized by the lack of development of industries that have added value, are one of the main obstacles, in addition to the problem of guaranteeing certainty of rights, law, protection and complicated licensing procedures and low service.

Simplification of investment licensing and service procedures is a form of facility that investment companies must obtain from the government, as mandated by Law Number 25 of 2007 concerning Investment. One form of convenience that investment companies must obtain from the government is in the form of ease of service and/or permits to obtain land rights (Article 21 point a of the Investment Law).

The ease of service and/or permits for land rights as referred to can be granted and extended simultaneously and can be renewed again, in the form of: Right to Cultivate (HGU) which can be granted for a total of 95 (ninety five) by means of being granted and extended in advance at once for 60 (sixty) years and can be renewed for 35 (thirty five) years, Right to Build (HGB) can be granted for a total of 80 (eighty) years by means of being granted and extended in advance at once for 50 (fifty) years and can be renewed for 30 (thirty) years, and Right to Use can be granted for a total of 70 (seventy) years by means of being granted and extended in advance at once for 45 (forty five) years and can be renewed for 25 (twenty five) years.

In relation to cultivation rights, based on article 28 of the Basic Agrarian Law of 1960, what is meant by cultivation rights is "the right to cultivate land that is controlled directly by the State". In reality, in Maluku there is not only land controlled directly by the State, but there are also stretches of customary land. The expanse of customary land can be classified into three categories of customary land, namely state land or land with petuanan rights, dati land owned by relatives or associations, and inheritance land which is owned by individuals. These three categories of land are still regulated according to customary law provisions.

In relation to the use of customary land by people outside the customary law community association, customary rights have external force, meaning that foreigners who are not members of the association, whether immigrants or those from neighboring associations, can use customary land by first obtaining permission from the head of the association by paying a certain amount of recognition money in advance and a compensation that is paid later, in which foreigners in principle cannot obtain individual rights to land that are longer than the right to enjoy it, which is one harvest period (right to enjoy), and that outsiders who are non-association people are not permitted to inherit, bequeath or buy and accept mortgages on agricultural lands, even entering the customary rights area can be prohibited by customary law or bound by conditions (regardless of the question of whether according to state constitutional law this is still possible).[9].

Regarding the aforementioned issues, there are differing understandings between the government and indigenous communities. Regarding the use of customary land for development, for example, in the plantation sector, the government interprets the payment of a sum of money as a form of relinquishment of rights. This means that indigenous communities relinquish their land to the state, which then issues a permit in the form of a HGU (Cultivation Rights) to the company. Once the HGU expires, the land reverts to its original form.

"Initially" here certainly refers to state land, as the government relies on the UUPA, which stipulates that HGU (UU Guarantor) exists on state land. However, from the perspective of indigenous communities, "Initially" is defined as "customary land." This is because, from the perspective of indigenous communities, the payment of a sum of money does not constitute a relinquishment of rights, but rather simply serves as a sign that they are merely outsiders to the community. Once all permits imposed on the land expire, the land will revert to the indigenous community.

Furthermore, the management of customary land and agrarian resources by third parties often creates problems during implementation. This is because the agreements reached are often not in favor of indigenous communities. Furthermore, activities carried out by third parties sometimes do not comply with the permits or agreements made, and some even fail to comply with the agreements at all. This results in conditions for indigenous communities that are far from prosperous.

Therefore, a Regional Regulation is needed to regulate the use of customary land for investment development that favors indigenous communities as holders of customary rights. This means that investors can utilize customary land based on an agreement with the indigenous community. As holders of customary rights, indigenous communities do not have to relinquish their rights to third parties but can act as shareholders under the principle of profit sharing. However, the ability of communities to enter into cooperation agreements with companies that could harm indigenous communities is a concern, so this is where the government's role as a facilitator is crucial.

The government no longer plays a role as a party in customary land use agreements, but becomes a facilitator so that land use agreements that have previously involved state investors, in this case the government and indigenous communities, can be changed to direct investors to indigenous legal communities as a legal entity. 

However, concrete action is needed from the state to further strengthen the bargaining position of indigenous communities, which can be achieved by increasing programs that facilitate and empower them, as well as by drafting regional regulations governing the use of customary land. This can minimize conflicts between indigenous communities and third parties.

 

 

READING LIST

 

Djaren Saragih, 1996, Introduction to Indonesian Customary Law, Tarsito, Bandung

Martua Sirait, 2001, How Are Indigenous Peoples' Rights in Managing Natural Resources Regulated? In Study Series I: Studies on Community Rights in Indonesia; A Reflection on Policy Arrangements in the Era of Regional Autonomy, ICRAF-Latin and P3AE-UI, Jakarta

Ter Haar B, 2011, Principles and Order of Customary Law (Translation), Mandar Maju, Bandung.

Tolib. Setiady, 2009, The Essence of Indonesian Customary Law in Literature Studies, Alfabeta, Bandung

www.snpk-indonesia.com/docs/NVMS_Brief_19072012.pdf, Study Notes on Monitoring Violent Conflict in Indonesia Map of Violence in Indonesia (January-April 2012) edition 1 July 2012

www.siwalimanews.com/, March 14, 2011 edition MALUKU GRDP: Triggering 6,02% economic growth Newswire on Monday, 7 May 2012