LEGAL ASPECTS OF COASTAL AREA AND SMALL ISLANDS MANAGEMENT REGARDING THE EXISTENCE OF INDIGENOUS COMMUNITIES

LEGAL ASPECTS  COASTAL AREA MANAGEMENT

AND SMALL ISLANDS TO EXISTENCE OF INDIGENOUS COMMUNITIES[1]

 

By: Jantje Tjiptabudy[2]

A.    Introduction

Indonesia is the largest archipelagic state in the world, consisting of approximately 17.500 islands with a sea area of ​​approximately 5,8 million km2 and a coastline of 81.000 km. Most of these islands are small islands that have a wealth of natural resources and environmental services that are very potential for economic development (Department of Maritime Affairs and Fisheries, 2001: 5).

The region's vast natural resource wealth, supported by its ecosystem, includes coral reefs, seagrass beds, seaweeds, and mangrove forests. Marine biodiversity in this region offers diverse and highly economically valuable resources, including grouper, Napoleon wrasse, ornamental fish, seahorses, pearl oysters, giant kirna (Tridacns gigas), and sea cucumbers.

Coastal areas and small islands have not received significant attention because national development in the past has been more land-oriented. Furthermore, the legal aspects of coastal and small island management have paid little attention to the indigenous communities who inhabit coastal areas and small islands, even though they have traditionally controlled and managed these areas through their customary maritime rights.

All provinces in Indonesia have coastal areas, so Law Number 32 of 2004 concerning Regional Government and laws and regulations also regulate the authority to manage and utilize coastal areas and small islands. A closer look reveals that most of these laws and regulations are sectoral in nature, regulating specific development sectors, which are directly or indirectly related to coastal and small island aspects (Article 2 paragraph 3 point 2d of Government Regulation Number 25 of 2000).

Based on the reality and experience that has occurred, it turns out that the implementation of various laws and regulations related to coastal areas and the waters of small islands often clashes with customary laws that are still alive and developing in indigenous communities and also regulate the management and utilization systems of natural resources in coastal areas and the waters of small islands.

Indigenous communities in coastal areas generally manage marine resources through traditional practices known as customary maritime rights. Compared with customary land rights, it appears that customary maritime rights, as a traditional and respected tradition, have not yet been fully recognized by either the government or businesses.

Specifically regarding customary rights over the coast and seas, Titahelu (2000: 164) states that there are several elements that indicate the existence of marine rights areas for coastal indigenous communities, namely:

(1) There are certain areas in the sea where these communities get the materials they need for their daily needs.

(2) The ability to reach these places

(3) Carried out from generation to generation.

(4) Done periodically.

(5) Always be protected against other parties entering the area without permission from the indigenous community.

Actual control over territory by indigenous communities is closely related to the relationships they maintain to meet their needs within that territory and is generally passed down from their ancestors. Within this territory, de jure, indigenous communities possess authority. This authority relates to the management and utilization of natural resources according to customary law principles, each with its own unique characteristics.

When coastal areas and small island waters are managed by business groups licensed by the government, the rights of indigenous communities are marginalized. Consequently, in reality, control and regulation of coastal waters and potential small islands are consistently in the interests of business owners and supported by the government, neglecting the interests of fishing communities, who are part of the indigenous community.

Regarding the boundaries and authority held by indigenous communities. According to Law Number 32 of 2004, the government determines the limits of authority at sea for districts and cities to be 4 nautical miles, and 4 miles to 12 miles for provinces. This has two meanings, namely: (1) there is neglect from the state; (2) customary law as an existing social reality is not regulated by the state, but the state views that customary law can be shifted through various policies within a certain period of time.

This situation inevitably creates an imbalance due to the strong dominance of the government. However, the constitutional recognition of indigenous communities' existence includes customary (ulayat) territories, both at sea and on land. Therefore, there needs to be a balance in indigenous communities' control of coastal areas and small island waters, linked to government policies regarding the boundaries of coastal and marine management authority. From this perspective, there is also a recognition granted by the state, which can be categorized as objective recognition.

The application of balance here essentially means striking a balance between state and private interests, on the one hand, and the importance of considering the interests of indigenous communities. This way, the authority to manage coastal areas and small islands can be implemented effectively, based on values, principles, and norms in a harmonious atmosphere without causing conflict. Based on the above background, the author identifies several issues that need to be addressed, including how to regulate and protect the legal aspects of coastal areas and small islands management regarding the existence of indigenous communities.

 

B.       Discussion

1. Legal Regulations for the Management of Coastal Areas and Small Islands.

1.1. Government Policy

Indonesia, as a state based on law, falls into the category of a modern state based on law. The concept of a modern state based on law can be constitutionally referenced in the formulation of the state's objectives, namely: protecting the entire Indonesian nation and its entire homeland, advancing general welfare, improving the nation's intellectual life, and realizing social justice. The standardization of these state objectives, specifically advancing general welfare and realizing social justice, is contained in Article 33 of the 1945 Constitution.

Article 33 of the 1945 Constitution, as the basis for the State's right to control, regulates the fundamentals of the economic system and desired economic activities in the Republic of Indonesia. However, Article 33 is not seen as something that stands alone, but rather is related to social welfare. Based on this thinking, efforts to understand Article 33 cannot be separated from the basic idea of ​​social welfare (Bagir Manan, 1995: 55). On this basis, the goal of the State's right to control natural resources is social justice and the greatest possible prosperity of the people.

According to Bagir Manan (in Abrar Saleng, 2004: 17), the relationship between the State's right to control and the greatest possible prosperity of the people will realize the State's obligations:

(1) All forms of utilization (of land and water) and the results obtained (natural resources) must significantly increase the prosperity and welfare of the community;

(2) Protect and guarantee all the people's rights in or on the earth, water and certain natural resources which can be produced directly or enjoyed by the people;

(3) Prevent all actions from any party that will result in the people not having the opportunity or losing their rights to enjoy natural resources.

 

The three obligations above serve as a guarantee for the purpose of the State's right to control natural resources, which also provides an understanding that in this right to control, the State only carries out bestuursdaad and beheersdaad and does not carry out eigensdaad. This means that a contrario, if the State's right to control is interpreted as eigensdaad, there is no guarantee for achieving the goal of the State's right to control, namely the greatest possible prosperity for the people.

Furthermore, Bagir Manan formulated the scope of the meaning of being controlled by the State or the State's right to control as follows:

(1) Control is a kind of ownership by the State. This means that the State, through the government, is the sole authority to determine rights and authority over it. This includes land, water and the wealth contained therein.

(2) Regulate and supervise use and utilization;

(3) Capital participation in the form of state-owned companies for certain businesses.

If the concept of the welfare state and the function of the state according to W. Friedmann is linked to the concept of state control rights for Indonesian conditions, it can be accepted with several critical studies as follows (Abrar Saleng, 2004: 18-19):

First, the state's right to control, as stated in Article 33 of the 1945 Constitution, positions the state as the regulator and guarantor of the people's welfare. These functions of the state cannot be separated from one another. This means that the transfer of natural resource management to cooperatives or the private sector must be accompanied by specific forms of regulation and oversight. Therefore, the state remains responsible for realizing the greatest possible prosperity for the people.

Second, the State's right to control in Article 33 of the 1945 Constitution, justifies the State to exploit natural resources related to public utilities and public services based on considerations: philosophical (the basic spirit of the economy is joint effort and family), strategic (public interest), political (preventing monopolies and oligopolies that are detrimental to the State's economy), economic (efficiency and effectiveness) and for the general welfare and the greatest possible prosperity of the people.

 

Specifically related to government policy in managing marine resources, it can be explained that there are at least three characteristics of marine resource management policies that have been practiced so far, namely (1) centralistic, (2) based on the doctrine of common property and (3) ignoring legal pluralism.

Policy centralization concerns both the substance and the process of its creation. The centralized substance of policy is reflected in the authority over marine resource management, at least in the fisheries sector. In this sector, the licensing process and the officials authorized to grant permits are almost entirely in the hands of the central government. Even if there is delegation of authority to governors, it is solely within their capacity as representatives of the central government in the regions.

Similarly, the policy-making process almost entirely involves the central government. This indicates that marine natural resource management policies are generally packaged in the form of laws, government regulations, and presidential decrees, all of which involve central government officials in their implementation.

Marine resource management policies based on common property, as the second characteristic, also have several weaknesses. By basing policies on the doctrine of common property, the sea is positioned as a shared resource. Consequently, the sea is treated as an immovable property, with everyone free to occupy and exploit it (open access). This characteristic is clearly evident in the Fisheries Law and other policies. This is also the underlying cause of various conflicts over resource use, particularly between traditional fishermen and fishing companies.

As a basis for the formation of marine management policies, the common property doctrine actually has many weaknesses. Francois T Christy (in M. Arif Nasution et al., 2005: 105) revealed four negative consequences of a marine resource management policy based on the common property doctrine, namely (a) physical waste of resources, (b) economic inefficiency, (3) poverty of fishermen, and (4) conflict between resource users.
Meanwhile, the neglect of legal pluralism, the third characteristic of current marine management policies, manifests itself in the lack of recognition of marine resource management systems based on customary law. Yet, in fact, such management systems are still practiced in various regions. Some examples include the marine territorial rights system in Maluku or the Bagang and Romping fisheries in South Sulawesi. To a certain extent, legal pluralism in marine resource management also suggests that the sea can become an object of sole ownership, something diametrically different from common property doctrine.

The laws and regulations related to the management of coastal areas and waters of small islands are as follows:

(1) Law Number 23 of 1997 concerning the Environment.

This law stipulates that the objectives of environmental management are (a) achieving harmony, compatibility and balance between humans and the environment; (b) controlling the wise use of resources, rights and obligations and the role of the community in environmental management.

(2) Law Number 5 of 1960 concerning Basic Provisions on Agrarian Principles (UUPA).

The UUPA regulates the state's right to control land, water, airspace, and the natural resources contained therein. It also regulates customary rights, land rights, and water rights.

(3) Law Number 15 of 1990 concerning Conservation of Natural Biological Resources and their Ecosystems

Law No. 5 of 1990 focuses more on regulating the sustainability of natural resources. Conservation of living natural resources and their ecosystems aims to ensure the sustainability of living natural resources and ecosystem balance, thereby supporting efforts to improve public welfare and the quality of human life.

(4) Law Number 11 of 1967 concerning Basic Provisions on Mining.

This law appears to focus more on exploitation than on the sustainability of mining resources. It only contains one article on environmental protection from mining activities.

(5) Law Number 24 of 1992 concerning Spatial Planning

The formation of the Spatial Planning Law is based on the principles of integrated, efficient and effective, harmonious, balanced and sustainable utilization of space for all interests and the principles of openness, equality, justice and legal protection. The Spatial Planning Law regulates spatial planning covering land, sea and air, so this law is very important in the management of coastal areas and small islands.

(6) Law Number 41 of 1999 concerning Forestry.

According to Article 4 of Law Number 41 of 1999 concerning Forestry, it is stated that all forests within the territory of the Republic of Indonesia, including the natural resources contained therein, are controlled by the State for the greatest prosperity of the people. The control of forests by the State as referred to above authorizes the government to:

(a) Regulate and manage everything related to forests, forest areas and forest products;

(b) Determine the status of certain areas as forest areas or forest areas or forest areas as non-forest areas;

(c) Regulating and determining legal relations between people and forests, and regulating legal acts regarding forests.

State forest control still takes into account the rights of indigenous communities, as long as they still exist and their existence is recognized, and do not conflict with national interests.

(7) Law Number 9 of 1985 concerning Fisheries.

Article 3 paragraph (2) states that: "The government carries out integrated and directed management of natural resources by preserving natural resources and their environment for the welfare and prosperity of the Indonesian people."

The authority granted to the government demonstrates that fish resource management remains centralized. The Fisheries Law lacks any space for public participation in decision-making regarding fish management. Similarly, there is no protection for the rights of indigenous communities. Not a single article in this law mentions indigenous communities and their rights to control and manage fish resources.

(8) Law Number 11 of 1974 concerning Waters.

In Law Number 11 of 1974 concerning waters, water regulation is limited to water found above or below the surface of the land, and does not include water found in the sea.

(9) Law Number 32 of 2004 concerning Regional Government.

In this law, the government gives authority to provincial governments and district/city governments to manage coastal sea waters and the sea waters of small islands up to a limit of 12 miles.

(10) Law Number 20 of 1982 concerning the Basic Provisions for Defense and Security.

This Defense and Security Law regulates the security of natural resources and artificial resources which are implemented through conservation and diversification and are utilized for the interests of state land security.

(11) Law Number 9 of 1990 concerning Tourism.

The Tourism Law regulates the management of tourist objects and attractions.

 

 

 

1.2. Customary Law Communities and Their Rights.

According to Soekanto (1983: 3), customary law communities are legal subjects, because they are autonomous, which is then called village autonomy; meaning that these legal communities carry out legal acts, for example making decisions that bind community members, administering justice, regulating land use, inheriting and so on.

According to Ter Haar (Riyanto, 2004: 7), customary law communities are an organized human unity, settled in a certain area, have rulers and have tangible and intangible wealth, where the members of the unity each experience life in society as something natural according to the laws of nature, and none of the members have the thought or tendency to break the bond that has grown, or leave it, in the sense of freeing themselves from the bond forever.

Soepomo (Riyanto, 2004: 7-8) in describing customary law communities/customary law associations states that legal associations in Indonesia can be divided into two groups, according to the basis of their structure, namely (a) those based on a lineage (genealogical); and (b) those based on the regional environment (territorial).

Indigenous communities are a significant segment of national and state life and possess various interests, including political, economic, cultural, legal, historical, and the right to an autonomous life. Indigenous communities also have ownership of the natural environment and the natural resources contained therein, as well as the freedom to manage and utilize natural resources wisely (Titahelu: 1998).

Indonesian anthropologist Koentjaraningrat (1993) used the term "isolated society," which refers to a society that is isolated and has limited ability to communicate with more advanced societies. This group is backward and lags behind in the process of developing economic, political, socio-cultural, and ideological life.

Soebroto (1999) uses the term indigenous society to indicate a group of people with autonomous characteristics, namely the power to regulate their own life systems (law, politics, economics) and autonomous nature, namely a unity that is born or formed by the society itself.

The results of the activities of the Indigenous Peoples Congress of the Archipelago formulated that indigenous peoples are communities that live based on ancestral origins passed down from generation to generation on customary territories that have sovereignty over land and natural resources, social and cultural life that is regulated by customary law and customary institutions that manage the continuity of the lives of their communities (Rudito, 1999).

Social relations between members of indigenous communities are regulated by customary law which regulates the legal relations (rights and obligations) between people or organizations in an indigenous community and the natural resources in their territory.

In relation to the above, customary law will give rise to the concept of customary rights. Essentially, customary rights can be defined as the rights of indigenous communities to control, own, utilize, and manage natural resources within their territory. In the concept of customary tenure rights, the legal subjects entitled to manage and utilize natural resources are only members of the local customary community. Non-members of the local customary community do not have any rights, except with the permission of the indigenous community concerned, because the essence of customary rights is the sovereignty of the local customary community over their territory.

The identification of indigenous communities is not only related to legal concepts about what constitutes an indigenous community and its status, but also essentially leads to a demand for recognition from indigenous communities of their rights related to their status as indigenous communities. Demands for recognition from indigenous communities of their rights are based on two things:

· Its position as an indigenous community;

· Rooted in the original structure and growth of society itself.

Recognition of the existence of indigenous communities varies widely. Similarly, the forms of recognition by local governments vary. In addition to policies governing the existence of indigenous communities, there are also international agreements, some of which have been ratified in Indonesian legislation, as well as national discourses, such as those concerning land tenure systems.

Customary law actually recognizes that control over a land or territory is marked by the activities or actions of the citizens or children of the land, for example gardening, hunting to find forest products and so on (Ter Haar). All of this is evidence that the citizens or children of the land have repeatedly worked on the place or territory, so that in reality (de facto)  they control the area. The next problem is whether legally (de yure) This is acceptable. Regarding this legal issue, it must be accompanied by a verbal or written acknowledgement that the territory belongs to the citizens or the country. This can be seen in agreements between citizens or certain countries, which are adhered to by them, both individually and by the citizens of the country as a whole.

It is worth recognizing that good mastery nor  de yure As mentioned above, it is sometimes not recognized by state authorities, thus giving rise to conflict or disagreement. The state presents various forms of legislation that tend to be detrimental to its own citizens. In fact, the state should recognize and protect the rights of indigenous peoples to the land and agrarian resources (Agrarian Resources include land or earth and the goods or objects contained therein, including in water and airspace) that they own.

Traditionally, indigenous communities have faced weaknesses such as unclear territorial boundaries, unclear who holds the rights to the land, what objects are on the land, and what types of rights are attached to the land. This situation has given indigenous communities the ability to bargain. (bargaining power) which is rather weak, facing certain parties, say the government and entrepreneurs who get permission from the government because they have power and money.

Communities that acknowledge their existence as indigenous communities cannot simply be accepted, but must demonstrate certain identities, criteria and activities that reflect the values ​​and norms of an indigenous community.

Management of marine resources essentially goes hand in hand with the management of resources on land. Therefore, both land and sea resources belong to indigenous communities. Being considered community property means that the community has rights over a specific, fairly large area. These rights are not considered private or public, but rather a collection of rights and obligations of (a) the community or family members of indigenous communities; (b) the indigenous community collectively; and (c) other individuals who are not members of indigenous communities but who obtain permission to use or utilize the land by fulfilling certain conditions beforehand, namely paying something. (recognition).

What was stated last shows that indigenous communities who live on the coast have a petuanan area or customary area which can be on land or on the coast.

In managing coastal and marine resources on small islands, customary law and the customary laws of the communities inhabiting the coasts and small islands are essential for ensuring the availability of local natural resources and protecting them from potential degradation or overexploitation. The state is often unable to conduct oversight within the boundaries of small, medium, and large-scale businesses operating in coastal and marine areas or on small islands far from government centers. Instead, many of these businesses are located near, or even within, the communities inhabiting the coasts and small islands.

 

2. Authority and Rights

2.1. The Right to Control the State.

The basic concept of the right to control by the State in Indonesia is contained in Article 33 paragraph (3) of the 1945 Constitution which states "The land, water and natural resources contained therein are controlled by the State and used for the greatest prosperity of the people."

From the provisions of Article 33 paragraph (3) it is clear that according to the concept of the 1945 Constitution, the relationship between the State and the land, water and natural resources contained therein is a relationship of control. This means that the land, water and natural resources contained therein are controlled by the State and used for the greatest prosperity of the people. What is meant by "controlled" by the State, in the 1945 Constitution there is no explanation.

An authentic explanation of the meaning of the earth, water and natural resources contained therein (called natural resources) controlled by the State, is contained in Law Number 5 of 1960 concerning Basic Agrarian Regulations. Article 2 of the UUPA, which is the implementation of Article 33 of the 1945 Constitution, explains the meaning of the right to control natural resources by the State as follows:

(1) Based on the provisions of Article 33 paragraph (3) of the Basic Law and matters as referred to in Article 1, the earth, water and airspace, including the natural resources contained therein, are controlled at the highest level by the State, as the organization of power of all the people;

(2) The State's right to control as stated in paragraph (1) of this article provides the authority to:

o Regulate and organize the allocation, use, supply and maintenance of the earth, water and space.

o Determine and regulate legal relations between people and the earth, water and space;

o Determine and regulate legal relationships between people and legal actions concerning earth, water and space.

(3) The authority derived from the right to control from the State as referred to in paragraph (2) of this article is used to achieve the greatest prosperity of the people in the sense of nationality, welfare and independence in the society and legal state of Indonesia which is independent, sovereign, just and prosperous.

(4) The implementation of the State's right to control as mentioned above can be delegated to autonomous regions and customary law communities, as necessary and not in conflict with national interests, according to the provisions of Government Regulations.

Based on Article 2 of the UUPA, according to the UUPA concept, the meaning of "controlled" by the State does not mean "owned", but rather the right that gives the State the authority to regulate 3 things, namely:

o Organize and organize the allocation, use, supplies and maintenance;

o Determine and regulate the rights that can be owned over (parts of) the earth, water and space;

o Determine and regulate legal relationships between people and legal actions between people and legal actions concerning earth, water and space.

The content of the State's authority derived from the right to control natural resources by the State is solely "public in nature", namely the authority to regulate (regulatory authority) and not the authority to physically control and use as the authority of rights that are "private in nature" (Muhammad Bakri, 2007: 5). Furthermore, the essence of the term "the greatest prosperity of the people" is a consequence of the words "controlled by the State" and "used". Although the two words have different meanings, they have the same intent and purpose and are interrelated. Because "used" is the purpose of the word "controlled", so that the two have a causal relationship. Thus, it can be understood that the word "used" is a consequence of "state control". (H. Abrar Saleng, 2004: 37).

These two aspects of the rules cannot be separated from each other, both are a systematic unity, the State's right to control is an instrument (instrumental in nature), while being used for the greatest prosperity of the people is the goal (objectives).

Term the greatest possible prosperity for the people is a continuation or normativeization of several terms in paragraph IV of the Preamble to the 1945 Constitution such as "... advancing general welfare, ... eternal peace and social justice, ... and realizing social justice for all Indonesian people..." Regarding the word people, Besides being related to the words prosperity and social justice, it is also related to the concept of sovereignty and representative institutions such as the People's Representative Council. In addition to the relationships mentioned above, the people can also be understood in three possibilities (Jimly Asshiddiqie, 1994: 63-64):

(a) The people as individuals or as individuals. As individuals, the people are autonomous and have rights and obligations detailed in the constitution of a country.

(b) People as groups or classes. In the understanding of sovereignty, the people are not the people as individuals but the people as a whole which includes various groups in society.

(c) People who ignore dichotomies both based on individuals and groups.

These three groups of relationships, according to Soepomo (in Muhammad Yamin, 1971: 112-113) are the theories that underlie the schools of thought on statecraft, namely the individual school (individualism), the communist school of group theory and the totalitarian school of integralist theory.

In line with the above definitions, Philipus Hadjon (1987: 1) mentions the scope of the understanding of the people: First, it contains the essence of subordination which is ruled as opposed to the government; Second, it limits and enunciatively distinguishes the rights and obligations of each legal subject. The understanding of the people in the 1945 Constitution as a subject contains the meaning of subordination to the ruler. Even between the people and the government is a totality as stated by Soepomo which can be understood politically but not in a juridical sense.

The greatest meaning of people's prosperity from a legal perspective is the existence of legal guarantees for people's socio-economic rights, so that they can live decently as citizens.

 

2.2. Authority of the Central Government

The Republic of Indonesia is a unitary state with a decentralized system. The organizational structure of the Republic of Indonesia consists of two main structures, namely the organizational structure of the state at the central level and the regional level.

The organizational structure of the central government reflects all branches of government and state functions in general. The organizational structure of the regional government is limited to the executive branch and regulatory elements involved in governing.

As a consequence of the decentralization system, not all government affairs are handled solely by the central government. Various government affairs can be delegated to lower-level government units in the form of autonomy or assistance tasks (medebewind).

Government affairs delegated to regions become the region's domestic affairs. And with regard to these delegated government affairs, regions have the freedom (vrijheid) to regulate and manage them themselves, under supervision from the central government or a government unit at a higher level than the region concerned.

The granting of authority to regions is based on the principle of decentralization, so it will have implications in the form of governance that includes authority in all areas of government except the authority as contained in Article 10 paragraph (3) of Law Number 32 of 2004, namely:

a. foreign policy;

b. defense;

c. security;

d. justice;

e. national monetary and fiscal; and

f. religion.

In relation to the maritime sector, the government's authority includes (Kuntoro, 2002: 8):

a. determination of policies and regulations for the exploitation, conservation, management and utilization of natural aquatic resources in marine areas outside 12 miles of water, including archipelagic waters and the seabed as well as the EEZ and continental shelf.

b. Determination of policies and regulations for the management and use of valuables from sunken ships outside 12 miles of sea waters.

c. Determination of policies and regulation of maritime boundaries which include the boundaries of autonomous regions at sea and the boundaries of international maritime law provisions.

d. Determination of standards for coastal and small island management.

e. Law enforcement in maritime areas beyond 12 miles and within 12 miles of waters concerning specific matters and international relations.

The breadth of autonomy also includes complete authority in the implementation of planning, implementation, supervision, control and evaluation of various development activities in the region. In the development of coastal areas and beaches of a province is a subsystem in national development. This means that the development of the area is an inseparable part of and at the same time integrated with national development, the implementation of which refers to the guiding legal principles, and is a development of and for the community carried out by the community together with the government, in all aspects of community life in a planned, gradual and sustainable manner, in accordance with the conditions, potential and aspirations of the community that grows and develops in the area or region.

 

2.3. Authority of Provincial and City/District Governments.

With the enactment of Law No. 32 of 2004, the delegation of government authority was handed over to the regions. In the General Explanation of Law No. 32 of 2004, it is stated that the principle of regional autonomy uses the principle of autonomy as broad as possible, meaning that regions are given the authority to manage and regulate all government affairs outside of those that are government affairs stipulated in this law. In line with this principle, the principle of real and responsible autonomy is also implemented. The principle of real autonomy is a principle that to handle government affairs is carried out based on tasks, authorities and obligations that actually exist and have the potential to grow, live and develop in accordance with the potential and uniqueness of the region. What is meant by responsible autonomy is autonomy whose implementation must be truly in line with the goals and purposes of granting autonomy, which is basically to empower regions including improving the welfare of the people which is a major part of the national goal.

Specifically related to the authority to manage marine areas, Law Number 32 of 2004 as regulated in Article 18 paragraph (1) to paragraph (4):

(1) Regions that have marine areas are given the authority to manage resources in marine areas.

(2) Regions receive a share of the profits from the management of natural resources under the seabed and/or on the seabed in accordance with statutory regulations.

(3) Regional authority to manage resources in marine areas as referred to in paragraph (1) includes:

a. exploration, exploitation, conservation and management of marine resources;

b. administrative arrangements;

c. spatial planning;

d. law enforcement against regulations issued by regions or those delegated authority by the government;

e. participate in maintaining security; and

f. participate in the defense of State sovereignty.

(4) The authority to manage resources in the sea area as referred to in paragraph (3) is a maximum of 12 (twelve) nautical miles measured from the coastline towards the open sea and/or towards archipelagic waters for provinces and 1/3 (one third) of the provincial authority area for districts/cities.

Thus, regional governments play a crucial role in utilizing all available potential to contribute to national development in general and, in particular, regional development toward the well-being of the people, utilizing the various potential marine resources they possess, especially for (indigenous) communities inhabiting coastal areas.

The attention of the Government and regional governments to coastal areas that are vulnerable to damage due to human activities in exploiting resources or due to natural disasters on the one hand and on the other hand, namely the accumulation of various partial/sectoral exploitation activities in coastal areas and the impact of other activities upstream in coastal areas supported by existing laws and regulations often cause damage to coastal resources.

Existing laws and regulations are primarily focused on exploiting coastal resources without regard for their sustainability. Meanwhile, awareness of the strategic value of sustainable, integrated, and community-based coastal management is relatively low. Furthermore, the rights of indigenous and local communities in coastal resource management are underappreciated, and there is limited space for community participation, particularly coastal (indigenous) communities, in marine resource management.

 

2.4. Customary Rights of Indigenous Communities to Coastal and Marine Areas

Customary maritime rights is a translation of the English word, sea ​​tenure. Sudo (1983) who quoted Laundgaarde, said that the term sea ​​tenure refers to a set of reciprocal rights and obligations that arise in relation to ownership of maritime areas. Sea tenure is a system, where several people or social groups utilize sea areas, regulate the level of exploitation of these areas, which also means protecting them from excessive exploitation (overexploitation).

Complementing Sudo's limitations, another scientist, namely Akimichi Tomoya (1991), said that ownership rights (property rights) has the connotation of having (to own), enter (to access) and utilize (to use). The connotations of owning, entering, and utilizing not only refer to fishing grounds, but also to fishing techniques, equipment used (technology) or even the resources caught and collected.

Thus, theoretically it can be said that what is meant by marine customary rights (marine customary rights) is a set of rules or practices for managing or administering marine areas and the resources within them based on customs carried out by coastal communities in villages (countries for Central Maluku).

This set of rules or maritime customary rights (marine customary rights) concerns who has rights to an area, the types of resources that may be captured and the permitted techniques for exploiting resources in a marine area.

As mentioned above, customary maritime rights refer to a set of reciprocal rights and obligations that arise within the institution of joint ownership. The term "joint ownership" here refers to the shared distribution of control rights in the management and utilization of certain resources. The concept of ownership, when applied to resources, implies a primary social institution with a structure and function to regulate resources based more on customs, prohibitions, and kinship. Therefore, institutions or institutions within the system of ownership or control of shared resources cannot be separated from the existence of social order which has binding power for each individual member of a community.

The rules formed in a system of shared control are essentially a form of collective consciousness. In this case, collective consciousness has two main characteristics (Wahyono et al., 2000: 8-9). First, implies that the collective consciousness of a community or social group actually exists outside the self of each individual member of society. Thus, collective consciousness does not depend on the existence of each individual, but rather, on the contrary, it is always inherited or socialized from one generation to the next. Secondly, collective consciousness contains a psychic force that compels individual members of the group to adapt to it.

Based on the description as presented above, it can be said that the function of customary maritime rights in a community can be seen from the extent to which the institution of customary maritime rights provides stability to the social structure of that community. Regarding these rights, Brown (Zerner, 1993: 76)

"...define the social function of socially standardized mode of activity or of thought, as its relation to the social structure to the existence and continuity of which it makes some contribution"

Looking at the description above, the understanding of the function of customary maritime rights refers to a dynamic social relationship process in a social system or community structure where customary maritime rights are practiced. In this regard, Robert K Merton (Zerner, 1993: 106) suggests that in conducting a functional analysis of a social institution, more emphasis should be placed on concrete problems, namely how the social mechanism of a social institution operates, such as the division of roles, institutional barriers, the structure of values, the division of labor, and ritual practices.

Merton differentiates functions into two things, namely manifest function and latent function. According to Merton, something has a manifest function if:

“……those objective consequences contributing to the adjustment or adaptation of the system which are intended and recognized by participants in the system”(in Zerner, 1993: 105).

        The latent function is related to: …. those which are neither nor recognized. When linked to customary maritime rights, the manifest function refers to the understanding of the various consequences of the practice of customary maritime rights that are realized by every member of society in order to maintain the integrity of society or social integration, while the various consequences of the practice of customary maritime rights that are not based on this are the latent function of these customary maritime rights.

In this regard, Johanes provides examples of the functions contained in customary maritime rights as follows:

"Costumary marine tenure can play a number of valuable roles and contemporary fisheries management. It can: (1) provide culturally sanctioned rules for allocating marine resources acquitable, apprehending and punishing trangressor and adjudicating disputes (usually without resources to government, greatly reducing administrative costs); (2) function as a form of conservation measure by limiting entry to a fishery and providing the owners with an incentive to regulate their harvest; and (3) facilitate more flexible adjustments to their own changing biological or socio economic conditions affecting the fishery rather than government regulation”

A more dynamic discussion of maritime customary rights stems from the fundamental question of why a community practices maritime customary rights and what factors influence them. No single theory can fully answer this question. However, numerous hypotheses attempt to address this issue, focusing on specific cases. This means that many variables influence the existence or absence of maritime customary rights regulations and practices within a community. However, a key consideration is the assumption that the sea is a valuable resource.

Many factors lead to the assumption that marine resources are valuable or not. First, for example, the level of importance of the sea. Second,, The sea can also be considered valuable if it possesses resources and its ecological conditions are such that people can easily exploit them. This latter aspect is also related to the ease of distribution, or in other words, the existence of a market. Market conditions themselves are influenced to some extent by other communities, thus increasing the likelihood of exchange.

One variable that is different from the variables above is the belief system.. On belief system In certain communities, the sea may be considered a source of life. Based on this belief, people's attitudes toward the sea vary, including issues related to the development or otherwise of maritime control rights.

Furthermore, if the variables above are identified in an effort to find answers to why marine customary rights are practiced by a community, then the answer to what variables influence the implementation of marine customary rights is more tied to one key variable, namely conflict (Pollnac: 1984). This is because conflict is a fairly strong potential for changes in marine customary rights. In this case, the changes that occur are very varied, from changes in the content of the rules and practices of marine customary rights to changes concerning the strengthening or weakening of the practice of implementing these marine customary rights rules.

 

2.5. Customary Rights and State Control Rights.

Customary rights are not the same as state control rights, which stem from the state constitution. Customary rights are recognized and referred to in Article 3 of the UUPA. Recognition of the existence of customary rights is reasonable, as customary rights, along with customary law communities, existed before the formation of the 1945 Constitution, which includes the concept of state control rights. The UUPA itself does not provide an explanation of the meaning of customary rights, except to state that customary rights are beschikkingsrecht in customary law literature. Maria SW Sumardjono (in Abrar Saleng, 2004: 51) defines customary law communities as communities that arise spontaneously in certain areas with a strong sense of solidarity among their members and view non-members as outsiders, using their areas as a source of wealth that can only be fully utilized by their members, utilization by outsiders must be with permission and the provision of certain compensation in the form of recognition.

Thus, customary rights indicate a legal relationship between customary law communities (the subject of rights) and natural resources and specific territories (the objects of rights). Customary rights contain authorities that state that the legal relationship between customary law communities and their natural resources/territory is a relationship of control, not ownership. This legal relationship is called ulayat, which comes from the Minang language meaning "territory" (Boedi Harsono, 1975: 83).

Based on the understanding and theoretical views above, there are indications of a relationship of similarities and differences between customary rights and state control rights, namely (Abrar Saleng, 2004: 52):

(a) The subject, for customary rights, is the legal community, not individuals, whereas for state control rights, it is the state.

(b) The object, for customary rights, is land, water and (certain) natural resources within its territory, whereas the State's right to control is broader, because apart from all the potential natural resources within the territory of the Republic of Indonesia, there are also branches of production which are important for the State and control the livelihoods of many people.

(c) The contents, for customary rights, are a series of authorities and obligations which include: regulation, providing methods for the use of natural resources and their maintenance, while for the State's right to control, there are a number of public authorities and obligations which include: regulation, delegation and supervision of the use and utilization of all potential natural resources and branches of production for the greatest prosperity of the people.

(d) The executor, for customary rights is the Head of the Legal Association or traditional head, while for State control rights it is the government of the Republic of Indonesia.

Based on the above differences, customary rights can be equated with national rights, and the authority of the head of a customary law association can be equated with state control rights. The scope of customary rights is narrower and more limited, while state control rights are national in scope and encompass all natural resources within the Indonesian archipelago.

 

C.      The Existence and Applicability of Customary Law in Natural Resource Management.

Customary law and factual rights, or perhaps also called local law, regarding these matters, namely the rights of indigenous peoples in relation to individuals, other community groups that utilize the natural environment around them, ownership of customary land, coasts and seas, mangrove forests, the sale and purchase of agricultural, plantation and fishery products that follow market laws. Specifically for the management of coastal and archipelagic waters, customary law and factual law have been accommodated in provincial and district regulations. It is found that many very small islands have been inhabited by residents since their ancestors and are considered their property. This becomes a problem when the government often issues the opinion that small islands cannot be owned by individuals (Titahelu, 2003: 4).

Factual rights are rights that apply within local communities and do not originate from customary law. These rights are not identified within the types of rights recognized in customary law literature. They are rights that arise spontaneously in community life. For example, a community's right to plant seaweed on the coast of a particular island. Planting seaweed is not recognized in their customary law. This right is a new right, as are rights to the waters around fish aggregating devices (FADs), the right to the waters around floating cages (keramba), and the right to the waters around fishing boats (bagan). Conflicts often arise between indigenous communities and the government, and the more closely the interests of the various parties are interconnected, the greater the conflict between them. Conversely, the less interconnected the interests, the less likely the conflict arises. Conflicts between communities and foreign or domestic investors supported by the government, such as the Napoleon fishing case in the Metimarang and Wekenau coral reef areas (around Luang Island, Southwest Maluku). Conflicts related to environmental issues include the conflict between the Haruku indigenous community and PT Aneka Tambang in their sasi (separated area).

The above discussion reflects a strong connection to the sociological aspects highlighted, namely the existence of systematic, structured symbols or symbols of interaction that are still in effect today. This demonstrates the existence of fixed norms or rules that, in addition to maintaining order and order in their own environment, are also used to meet daily living needs (Roberth Souhaly, 2006: 74).

The role of positive law that will be discussed is still within the prescription environment that exists within the legal system. This means that this role is to place provisions in legislation as a rule that provides opportunities, which underlies two things: (1) the obligation of government action, and (2) the actual ability of community actions to take action to protect the rights of indigenous peoples and at the same time provide opportunities for movement or opportunities for indigenous peoples to exercise what is part of their rights. This principle is actually a principle that was developed by starting from the application of goals to achieve community welfare.

According to Souhaly (2006: 76), the rights of communities to the natural resources around them, which are born based on customary law, constitute a separate system dating back to ancestral roots, which has practical effects and therefore requires legal protection. Let's say that real legal protection for existing rights... (the existing rights of indigenous people), need to be determined and implemented administratively.

 

D.      Closing Event

Government policies regarding the regulation and management of coastal areas and small islands remain centralized and neglect the interests of indigenous communities. Furthermore, the legal system for managing coastal areas and small islands remains overlapping and contradictory. Regarding the authority between the central and regional governments and indigenous communities, the Indonesian legal system still regulates and recognizes the existence of these communities, but in practice, it has not provided optimal protection.

 

 

Register READING

 

Akimichi Tomoya, 1991, Territorial Regulation in the Small Scale Fisheries of Ittoman, Okinawa, in Maritime Institutions in the Western Pacific, Osaka: National Museum of Ethnology.

A. Wahyono, 1994, Socio-Cultural Aspects of Maritime Communities in Eastern Indonesia: Customary Rights of the Sea in Sangihe Talaud – Case Study of Marine Resource Management Systems for Island Fishermen and Coastal Fishermen, PMB-LIPI, Jakarta.

B. Riyanto, 2004, Regulation of Customary Forests in Indonesia – A Legal Review of Law Number 4 of 1999 concerning Forestry, Forestry and Environmental Law Research Institute, Bogor,

B. Rudito, 1999, The Role of Anthropology in Developing Isolated Communities, Paper at the 10th Jubilee Seminar of the Indonesian Anthropology Journal, May 6-8, 1999.

Charles Zerner, 1993, Imagining Marine Resources Management Institutions in the Maluku Islands, Indonesia 1870-1992, Workshop, Virginia.

H. Abrar Saleng, 2004, Mining Law, UUI Press Publisher, Yogyakarta,

Hesty Irwan et al., 2002, Legal Aspects of Small Island Management in Indonesia, National Legal Development Agency, Ministry of Justice and Human Rights of the Republic of Indonesia, Jakarta.

Jimly Asshiddiqie, 1994, The Concept of Popular Sovereignty in the Constitution and Its Implementation in Indonesia, PT Ichtiar Baru, Jakarta.

Lawrence Friedman, 1975, The Legal Syvote, Russell Sage Foundation, New York.

Muhammad Bakri, 2007, The State's Right to Control Land (New Paradigm for Agrarian Reform, Citra Media Publisher, Yogyakarta.

Muhammad Yamin, 1971, Preparatory Text of the 1945 Constitution, Volume One, Siguntang, Jakarta.

RB Pollnac, 1984, Investigating Territorial Use Rights Among Fishermen, in Maritime Institutions in the Western Pacific, Osaka, National Museum of Ethnology.

Roberth Souhaly, 2006, Law and Natural Resource Management, Publisher: Unesa University Press, Jakarta.

RZ Titahelu, 1998, Paper on Customary Rights, Ambon,

——————, 2004, Legal Recognition to Local and/or Traditional Management on Coastal Resources as Requirement to Increase Coast and Small Islands People's Self Confidence. Presented at the International Congress organized by the Commission of Folk Law and Legal Pluralism in collaboration with the University of New Brunswick, in Fredericton, New Brunswick, Canada, August 26-29, 2004.

_____________, 2005a, Maluku Customary Law in the Context of Legal Pluralism: Implications for Maluku's Natural Resource Management, delivered at the inauguration of the acceptance of the Professorship in the Field of Legal Studies, Introduction to Legal Studies and Agrarian Studies Course at the Faculty of Law, Universitas Pattimura.

______________, 2005b, Just Legal Development: Discussion of Law and Society. Paper presented at the Church and Society Consultation, organized by the AM Synod of Churches in North and Central Sulawesi – Tondano

Shidarta, Dietriec G, Bengen, Jacub Rais, Tommy H. Purwaka, M. Daud Silalahi, Sulaiman N. Sembiring, Rikardo Simarmata, Denny Karwur, RZ Titahelu, Aris Kabul Ptanoto, Jason M. Patlis, Etty R. Agoes, Hasjim Djalal, 2005, Towards Harmonizing the Legal System as a Pillar of Coastal Area Management in Indonesia, US Agency for International Development Coastal Resources Management Project II, Jakarta.

S. Soekanto, 1983, Some Legal Issues Within the Framework of Development in Indonesia, UI-Press, Jakarta.

Sudo Ken Ichi, 1983, Social Organization and Types of Sea Tenure in Micronesia in Kenneth Ruddle and RE Johannes (eds) Traditional Marine Resources Management in the Pacific Basin: an Anthropology, Jakarta, UNESCO/ROOSTSEA.