LEGAL PROTECTION OF THE RIGHTS OF CUSTOMARY COMMUNITIES IN THE MANAGEMENT OF NATURAL RESOURCES IN COASTAL AND MARINE AREAS

Criminal law

LEGAL PROTECTION OF THE RIGHTS OF CUSTOMARY COMMUNITIES IN NATURAL RESOURCE MANAGEMENT IN COASTAL AND MARINE AREAS

 

LILI HALIM

  

A.  Introduction

Article 18B paragraph (2) of the 1945 Constitution of the Republic of Indonesia (UUD NRI 1945) states that: "The state recognizes and respects customary law communities and their traditional rights as long as they are still alive and in accordance with the development of society and the principles of the Unitary State of the Republic of Indonesia, which are regulated by law."

Thus, the unity public hukum customs in coastal areas, recognized rights in Management of marine potential is generally carried out traditionally, known as customary maritime rights. Compared with customary land rights, it appears that customary maritime rights are a customary tradition that has been passed down from generation to generation and is respected by customary law communities. this It turns out that it has not been fully recognized widely by either the government or entrepreneurs who are actually partners.a important in the development process.

In the context of the law governing the management of marine and coastal areas, Law Number 27 of 2007 concerning the Management of Coastal Areas and Small Islands regulates Coastal Waters Business Rights (HP-3), which, according to Article 18, can be granted to:

a.       Individual citizens of Indonesia;

b.      A legal entity established under Indonesian law; or

c.       Customary law communities

In relation to the management period, Article 19 states that HP-3 is granted for a period of 20 (twenty) years and can be extended for another 20 (twenty) years for the first stage and can be extended again for the second stage in accordance with applicable laws and regulations.

Regarding the position of customary law communities, Law Number 27 of 2007 in Article 21 paragraph (4) letter b expressly states: "recognize, respect and protect the rights of customary law communities and/or local communities."

If reviewed and  It is observed that most of these laws and regulations are sectoral in nature, regulating certain development sectors, which are directly or indirectly related to aspects. sea ​​and coast .  

In reality, in addition to positive legal regulations governing the management of marine and coastal natural resources, customary legal regulations are also found.customary law that is still alive and developing in society hukum customs also regulate simanagement and utilization of natural resources in the regions sea ​​and coast.

In the control and management of natural resources in coastal and marine areas, between the government and the customary law community units, conflicts can occur. It can be seen that in the Aru Islands Regency, often the customary law community's petuanan/ulayat areas are controlled by fishermen or large entrepreneurs or those with large capital with various sophisticated tools, so that the customary law community around the coastal areas and small islands becomes difficult to get fish and other marine resources. Fishery entrepreneurs who have large capital because they have permission from the government, they freely install fish aggregating devices (FADs) in areas adjacent to the customary law community's fishing areas, so that in the end fish resources are reduced in the customary law community's fishing areas.[1] .

Other interesting cases include those in Ety Village, West Seram Regency, where pearl entrepreneurs arbitrarily parceled out coastal areas within the customary land of indigenous communities and, ultimately, using their business permits, prohibited the indigenous communities from approaching the pearl cultivation area. This area, however, has long been a source of livelihood for traditional fishing communities, supporting their families from one generation to the next.

On Benjina Island, Aru Islands Regency, the indigenous community no longer has access to pearl diving because the surrounding sea has been contaminated with fish waste. Ultimately, the indigenous community has resigned itself to the situation, unable to do much, and has become impoverished in a marine customary territory rich in natural resources.[2].

Government policies that grant permits to entrepreneurs but pay little attention to the interests of indigenous legal communities, especially those living in coastal areas, will certainly have an impact on the lives of indigenous legal communities and ultimately they will live in an atmosphere of uncertainty.

On Saparua Island, Central Maluku Regency, there is a businessman from Switzerland who is involved in diving activities, who has received permission to build a cottage On a cape in Paperu Village. Because the sea and coral reefs around the island's coast are so beautiful and attractive, traditional fishermen are prohibited from sailing near the cape, claiming it contains rare fish and other biota.[3].

Kcondition thus causing an imbalancebecause there is strong domination from the government. In fact, constitutionally, The existence of customary law communities is recognized, including customary areas (ulayat), both at sea and on land.  This means that the government in various development policies, especially in the legal field, must remain consistent and pay attention to the existence and rights of indigenous legal communities as a community that existed before the state was formed.

Neglect of the rights and existence of customary law communities will create an imbalance, which can result in various upheavals.in the life of society, nation and state.

Based on the various descriptions, the aim of this writing is to find out the legal protection of the rights of customary law communities in the management of natural resources in coastal and marine areas.

 

B.  Discussion

A.  Development of Customary Legal Community Unity

The anthropological approach explains that in the early stages of societal and cultural development, humans initially lived in groups similar to herds of animals, with men and women living freely without any ties. Over time, humans became aware of the need to form families.[4]. Where, by marrying a husband and wife form a social unit called a household, which consists of husband, wife and unmarried children.[5]. The characteristic of this group is the existence of kinship relationships that are created because they are based on common descent.

Where, this grouping originates from a family or clan whose members feel they are descended from the same ancestors, have broad autonomy, and their rules of behavior are based on long-standing traditions of awareness of good decisions taken by many or a few people.[6].

The next development of kinship groups is their interaction with other kinship groups that also inhabit a certain area, thus giving birth to groups called local living units or communities. Koentjaraningrat[7] explains that, unlike kinship groups, this social unit is not solely tied to kinship, but rather to the bond of occupying a specific or specific territory. This characterizes a community as having a territory and a devotion to that territory. Large communities can take the form of cities, states, and countries, while smaller communities can take the form of neighborhood units (RT), hamlets, or customary law communities.

Maccording to Abu Daud Busroh[8], this is related to the process of the primary emergence of the state (Primaire Staats Wording), namely a theory that discusses the emergence of a state that is not connected to a previously existing state.According to this theory, the development of a country primarily goes through four phases, namely:

1)      Phase Genootshap (Genossenschaft)

This phase is a grouping of people who unite for a common interest, based on similarities. This is motivated by the existence of similar interests and goals, and leadership here is chosen systematically. Primus Inter Pares or the foremost among the same. Here, what plays an important role is the National Element

2)      Reich Phase (Rijk)

During this phase, the groups of people who joined together became aware of the right to own land, giving rise to lords who controlled the land and those who rented it. This gave rise to the feudal system. In this phase, the element of territory was paramount.

3)      Phase State

In this phase, awareness of national life emerges. They realize they belong to a group. This fosters the foundations for the formation of a nation, namely, nation, territory, and government.

 

According to Aristotle, a state arises from the merging of families into a larger group, which then merges again to form a customary law community. Then, these customary law communities merge again, and so on until a state emerges, which is still in the nature of a city or polis. A customary law community that is in accordance with its nature is a genealogical customary law community, namely a customary law community based on descent.[9].

Thus, customary law communities evolved from individuals who formed families, and from these families interacted to form groups of families who not only shared common origins or ancestors, but were also bound by the shared territory they shared. This community unity formed customary law communities, and at the same time served as the seed or embryo for the formation of a nation. This community unity was later known as a legal community association or customary law community unity.

According to Ter Haar[10] malegal society is; a permanent and orderly group of people who have their own power and wealth, both tangible and intangible. In addition, according to Tolib Setiady[11] to be called a legal community, it must have a certain territory in addition to having certain leaders and assets. So a legal association or legal community (legal system) is a group of people who are bound together as a unit in an orderly structure, which is eternal and has its own leadership and wealth, both tangible and intangible, and inhabits or lives in a certain area.

Meanwhile, according to the Indigenous Peoples' Alliance of the Archipelago (AMAN), indigenous legal communities are communities that have ancestral origins that have lived for generations in a certain geographical area, and have a unique value system, ideology, political economy, culture and social system.[12]. Thus, customary law communities are a group of people who are bound by their customary legal system as members of a legal association due to the same place of residence or on the basis of descent.[13].

Regarding customary law communities, Dewi Wulansari[14] States that theoretically, its formation is caused by the existence of ties that bind each member of the community.kThe binding factors that form customary law communities are;

1)      Genealogical factors (heredity)

2)      Territorial factor (region)

Based on these two factors, a customary law society was formed based on[15]:

1)      Genealogical legal associations, namely legal community associations whose binding basis for group members is common descent. This means that the group members are bound by a sense of descent from the same ancestor. This legal association is also divided into:

a)      Patrilineal society, where the social structure is drawn according to the line of descent from the father (male)

b)      Matrilineal society, where the social structure is drawn according to the maternal (female) line of descent.

c)      In a bilateral or parental society, the social structure is based on the lineage of both parents, namely the father and mother (male and female). Therefore, kinship is parallel. Each family member belongs to either the father's or mother's clan.

2)      Territorial legal association, this association is a legal community association whose members have ties based on the same place of residence.[16]. Meanwhile, Hilman Hadikusuma[17] further explains that a territorial legal association is an orderly and permanent society, whose members are bound to a certain residential area, both in relation to worldly life as a place of life and in relation to spirituality as a place of worship for spirits. This shows that territorial ties do not only contain the meaning of worldly residential area, but also spiritual residence.

According to van Dijk[18] as quoted by Hilman Hadikusuma, territorial legal associations can be divided into three types;

a)      Association of Indigenous Law Communities (dorps gemeenschap). Including PersekutThe Customary Law Community is like the Javanese Customary Law Community which isan a place of communal residence within its own area including several establishments located around it which are subject to the apparatus of the Customary Law Community which resides in the center of the Customary Law Community. Meanwhile, Tolib Setiady[19] is of the view that an association of Customary Law Communities occurs when a group of people are bound to a residence which also consists of small residences which include villages (hamlets) and where the leaders or government officials of the Customary Law Community reside in the center of the Customary Law Community.

b)      Regional associations, including community associations village in Minangkabau, loam in South Sumatra and Lampung, negorij in Minahasa and Maluku. This is a communal residential area and controls communal customary land rights consisting of several hamlets or villages with one common customary government center.

c)      Customary Law Community Agreement, if several Customary Law Communities or clans located side by side, each of which stands alone, enter into a cooperation agreement to regulate common interests, for example interests in regulating common customary governance, common defense, economic life, agriculture or common marketing.

3)      Genealogical-territorial legal associations, which are a combination of the two aforementioned legal associations. According to Tolib Setiady, this demonstrates that genealogical and territorial factors are important. To become a member of the association, two conditions must be met simultaneously: belonging to a genealogical entity and residing within the area of ​​the association in question.[20]. The same thing was also explained by Hilman Hadikusuma[21] which states that a genealogical-territorial legal association is a permanent and orderly social unit, where its members are not only bound by their place of residence in a certain area, but are also bound by hereditary ties in the form of blood ties and/or kinship. 

 

Thus, historically and based on de facto recognition, the rights of indigenous peoples to control and manage natural resources, including in coastal and marine areas, have automatically been inherent since the customary law community unit was formed, and have been legitimized or recognized de jure in Article 18 of the 1945 Constitution of the Republic of Indonesia.

 

B.  Principle of Recognition of the Unity of Customary Legal Communities

Confession[22] In terminology, it means the process, method, act of admitting, while the word admit[23] means declaring rights. According to Abu Daud Busroh[24], Confession (Erkenning/Recognition) there are (two) types, namely:

1)        Confession (temporary), namely temporary recognition of the emergence or formation of a new country because the new country actually exists, but whether the procedure is through law is still being debated and needs to be researched further. According to Moh Kusnardi and Bintan Saragih as quoted by Husein Alting[25] that recognition temporary in nature, aimed at the facts regarding the position of the new country's government, whether it is supported by its people and whether its government is effective, which causes its position to be stable. If this situation can then be maintained and continues to progress, then recognition will change itself into a confession de jure.

Based on this, then in general The existence of customary law communities or villages is recognized because it is based on the fact that their customary systems still exist, are maintained and supported by their people, so that they still apply in the lives of customary law communities or villages.

2)        Confession de jure (Legal Recognition), namely the broadest and permanent recognition of the emergence or formation of a State, because the formation of a new State is based on law. Meanwhile, according to Husein Alting[26] that recognition de Jure is the recognition of a State towards another State which is followed by certain legal actions, for example the opening of diplomatic relations and the ability to enter into agreements with other States.

Based on this concept, the recognition is de Jure (legal) against the unity of customary law communities occurs when the existence of customary law communities still maintains its customary values ​​and continues to be protected and maintained by the supporting community, so that the State recognizes it and regulates it in the provisions of applicable laws and regulations or is regulated and guaranteed in positive law.

 

Based on this theory, if it is linked to the context of recognizing the existence of customary law community units, it can be seen that the recognition of villages in general... refers to the recognition of the historical reality until now regarding the existence of customary law communities in the Republic of Indonesia which still exist. While the recognition is... de jure refers to the legal recognition of the existence of villages in the Republic of Indonesia.

Recognition in can be seen from the recognition of the diversity of customary law communities in Indonesia in the village context. Indonesian people live on thousands of large and small islands within the territory of the Republic of Indonesia based on their respective customary laws. Due to the diversity of customs and cultures, it is not surprising that during his lifetime, Van Vollenhoven divided the customary law community environment into at least 19 (nineteen) customary law areas (Adatrechtskringen), the division includes 5 (five) large islands in Indonesia and other small islands, with the division as follows[27]  :

1.           Aceh

2.           Gayo-Alas and Batak lands and Nias

3.           Minangkabau and Mentawai

4.           South Sumatra

5.           Malay (East Sumatra, Jambi and Riau)

6.           Bangka and Belitung

7.           Kalimantan

8.           Minahasa- Manado

9.           Gorontalo

10.       Toraja

11.       South Sulawesi

12.       Ternate Islands

13.       Maluku, Ambon

14.       Irian

15.       Timor Islands

16.       Bali and Lombok (along with Sumbawa Besar)

17.       Central Java and East Java (including Madura)

18.       Autonomous Regions (Surakarta and Yogyakarta)

19.       West Java. 

 

Meanwhile, the recognition is de jure can be seen in various provisions of laws and regulations that regulate the existence of customary law community units in the village context, including in Article 18 of the 1945 Constitution states,

The division of Indonesian regions into large and small regions, with the form of government structure, is determined by law, taking into account and remembering the principles of deliberation in the state government system and the original rights of special regions.

 

The provisions of Article 18 of the 1945 Constitution were then clarified by the explanation of Article 18 of the 1945 Constitution, number II, which states that:

Within the territory of Indonesia, there are approximately 250 individual landscapes and collective landscapes, such as villages in Java and Bali, villages in Minangkabau, hamlets and clans in Palembang, and so on. These regions have their own unique structure and can therefore be considered special regions. The Republic of Indonesia respects the status of these special regions, and all state regulations concerning these regions will respect their original rights.

 

Further developments, with the amendment of Article 18 of the 1945 Constitution to Article 18, 18 A and 18 B. Article 18B paragraph (2) The 1945 Constitution of the Republic of Indonesia, which states that:

The state recognizes and respects customary law communities and their traditional rights as long as they are still alive and in accordance with the development of society and the principles of the Unitary State of the Republic of Indonesia, as regulated by law.

 

C.  Achieving Balance in the Management of Natural Resources in Coastal and Marine Areas

According to Hazairin[28], customary law communities are community units that have the completeness to be able to stand alone which have legal unity, unity of authority and unity of the environment based on joint rights to land and water for all its members, the form of family law (patrilinear, matrilinear, or bilateral) influences its government system mainly based on agriculture, animal husbandry, fisheries and collection of forest and water products, plus a little hunting of wild animals, mining and handicrafts. All members have the same rights and obligations, with communal life that has a character of togetherness that gives rise to the values ​​of mutual cooperation and mutual assistance among its members.

Based on this, the adage states that where there is society there is law (ubi societas ubi ius) become real, considering that in any society there will definitely be rules that will regulate the life of the community.

Soepomo, as further explained by MSKaban in describing customary law communities/customary law associations, stated that legal associations in Indonesia can be divided into (a) those based on blood ties (genealogical); (b) which is based on the regional environment (territorial) and (c) the structure which is based on both of these bases (genealogical and territorial).[29]

Social arrangements in customary law communities are based on traditions that are based on experiences passed down from generation to generation which have provided a guarantee for the continuation of a harmonious social order for the community concerned.[30].

According to Bagir Manan, cultural, social, religious and political backgrounds have caused various legal systems to be in effect in Indonesia simultaneously, including customary, Islamic and continental legal systems.[31] Thus, the provisions of Article 18B paragraph (2) of the 1945 Constitution of the Republic of Indonesia provide recognition of the existence of customary law communities with the rights they possess, so that it can be interpreted that the State also recognizes the existence of a diversity of legal systems within the State, and guarantees the validity of the various existing legal systems, including the customary law system.

However, the level of State recognition of community units is somewhat weak in relation to the management of natural resources, especially those controlled by customary law community units, because the State appears to prioritize the principle of State recognition based on Article 33 of the 1945 Constitution of the Republic of Indonesia.

Where, the State in pursuing economic growth will ignore various aspects that could potentially hinder the realization of the economic development goals such as socio-cultural aspects, community participation and human rights. This can be seen from the occurrence of uncontrolled forest destruction indicating that development has placed the State as the sole ruler of forest resources because of the absolute authority and legitimacy of the State in the control and management of natural resources which is only aimed at the interests of increasing State revenue.[32]This condition is often a source of conflict between the state and customary law communities regarding the control of natural resources within the customary law community's territory.

In relation to this, according to WG Vegting as quoted by Ronald Titahelu, the State is not the owner of the land or the relationship between the land and the State is not based on a relationship of ownership.[33]

In another view, quoted by Ronald Titahelu, from the opinions of Karl Marx and Friedrich Engels, which are based on economic theory, especially labor values, the state, as an ideal structure for implementing a real economic system, is the bearer of society's ideals, namely a society without class conflict. The method used is to eliminate private ownership other than ownership in a communist society. In this case, land is seen as a means of production controlled and owned by society in the form of the state.[34].

In this context, there is a conflict of opinion regarding the State's right to control land. On the one hand, the State has no rights, while on the other, the State is granted rights. In national life, this situation creates a conflict between customary law, which is the basis for the unity of customary law communities to control natural resources, and state law, which is the basis for the State's control of natural resources.

In the context of Indonesia, which is a very diverse country, then cThe Unitary State of the Republic of Indonesia (NKRI) aims to establish a state structure that protects all Indonesian citizens. A unitary state will foster the values ​​of togetherness to achieve national goals while still respecting existing differences. Togetherness does not mean uniformity, but rather strives to protect various forms of diversity in governance.[35].

This fact makes the nation Indonesiais a a community that its nature Pluralism. Pluralism provides space for intercultural communities to coexist without losing their identity, as life requires mutual respect for each other's cultural perspectives within the unity and togetherness established within the framework of a Unitary State. Thus, the existence of space for local (customary) laws to be implemented by their supporting communities demonstrates recognition of the existence of these customary law communities. 

According to Eka Dharmaputra, the issues faced by a pluralistic group are issues of identity and modernity. This relates to how to maintain identity without hindering progress, and how to achieve progress without sacrificing identity.[36].

This view shows that efforts to maintain the rights of customary law communities can be carried out without having to hinder the implementation of development, and conversely, the implementation of development can be carried out without having to ignore the rights of the community.

Bernard Tanya explains that the clash between culture (customary law) and modern law (state law) places a burden on communities that still maintain and live by their customs, because only to please the state will they try to obey state law, while customary law is forced to be temporarily put aside.[37]

Meanwhile, according to Eka Dharmaputra, in the life of the state and society in a pluralistic society, those in power tend to face issues related to limiting the freedom of various groups in society, for the benefit of society as a whole. This is related to the sacrifices made by society to limit their freedom, which is positively interpreted as meaning that the sacrifice to limit freedom is not only considered necessary but also right and good.[38].

The sacrifices made by society to limit its freedoms, both individually and within various groups, for the benefit of society as a whole, demonstrates a consensus within the community, demonstrating the creation of integration within a particular society. This agreement is essentially a set of rules for living together that are recognized as valid within the community. Thus, law is one means of achieving integration within society.

This demonstrates that communal living can be realized if members of society are willing to obey and follow various agreed-upon rules or normative behavioral patterns. However, this is not merely a matter of rules, but also a matter of good and right. That is, not merely normative rules but also a matter of values ​​or a kind of shared outlook on life that is considered good and right, and not merely of a regulatory and restrictive nature.[39]. Thus, according to Theodore Steeman as quoted by Eka Dharmaputera[40] that society not only needs integration of norms, but also integration of values, namely the conception of understanding life, how life should be lived and the basic commitments that guide life together.

The reality of the interaction between state law and customary law tends to give rise to conflict, given that the two legal systems have different natures and characteristics. According to Dean Pruit and Jeffrey Rubin[41]Conflict is not only associated with fights, wars, struggles, or physical confrontations between parties. However, conflict also encompasses sharp disagreements or opposition over various interests, ideas, and other matters.

Based on this, there is an interaction between state law which is full of formal forms, procedures and bureaucracy in public administration.[42] and is a reflection of the ruler's will in governing his society[43], with customary law originating from traditions based on experiences passed down from generation to generation[44], cannot be done at the level of norms but at the level of values.

In this context, according to the author, the value that must be put forward to find a solution to the conflict between indigenous legal communities and the state in the management of natural resources is the value of justice.

According to John Rawls, justice is conceptualized as honesty (justice as fairness). According to him, justice is the first policy of social institutions as the truth of thought systems. Therefore, an elegant theory must be rejected or revised if the theory is not true (untrue). Likewise, legal rules and institutions must be updated and abolished, if these rules and institutions are not fair (unjust).

This concept contains principles of justice, namely (i) the principle of equal freedom. (equal liberty), namely that every person has the same right to individual freedom as everyone else; (ii) the principle of equal opportunity, namely that economic injustice in society must be regulated to protect the disadvantaged, by providing equal opportunities for everyone on fair terms.

Thus, the government cannot use the state, state policies and the concept of sovereignty inherent in the state as justification for suppressing society.

The value of justice in the management of natural resources controlled by customary law communities is by paying attention to the rights of customary law communities.

In this regard, the essence of a state or government is not simply to seek approval or agreement, but rather to provide broad access to the community, including indigenous legal communities, to participate in the development process, so that they are not marginalized. However, indigenous legal communities, as part of the state in general, must be positioned as an integral part of the development process. This means that the active participation of the community must be responded to positively by the government as the policy maker and political and legal decision maker. Indigenous legal communities should not be developed solely based on the government's will, but must be given the freedom to create according to their potential, so that there is balance. Development policies must integrated (integrated) while remaining based on customary law communities that have customary law, as part of the national legal system whose existence deserves to be recognized[45].

Menurut RZ Titahelu[46]that customary law communities are communities that have social, economic, cultural and political institutions that have been passed down from generation to generation and have laws that are manifested in rules or norms that are related to their values ​​and outlook on life, and all of this is seen specifically when compared with other communities in the country concerned.

Thus, the customary values ​​still maintained by indigenous communities are expected to become one of the basic assets that can be utilized by the government in supporting the implementation of governance and development, as well as a form of community participation in supporting the running of governance and development. Thus, the government is expected to utilize customary values ​​that are still maintained and held by indigenous communities as an instrument to involve community participation in the process of governance and development in the region, including in the management of natural resources controlled by indigenous legal community units.

This refers to the principle of social justice for all Indonesian people. Social justice means justice that applies in society in all aspects of life, both material and spiritual. All Indonesian people mean every Indonesian citizen, whether residing within the territory of the Republic of Indonesia or Indonesian citizens residing abroad. Therefore, social justice for all Indonesian people means that every Indonesian receives fair treatment in the legal, political, social, economic, and cultural fields. According to the 1945 Constitution, the meaning of social justice also encompasses the notions of justice and prosperity.

Where, to realize social justice in the management of natural resources controlled by customary law communities is by involving customary law communities in the management of these natural resources. The existence of pProviding opportunities for the community to participate in regional governance creates opportunities for regional development that stem from community aspirations. While community participation is crucial for successful regional development, it must also be accompanied by respect for the traditional values ​​inherent in a region, which are its unique characteristics.

From this perspective, good law offers more than just procedural justice. Good law must be both competent and just. Such law should be able to recognize the wishes of the people and be committed to achieving substantive justice.[47]This indicates that laws that recognize the wishes of society are a characteristic of responsive laws.

Responsiveness can be interpreted as serving the social needs and interests experienced and found in society.[48]Based on this, the integration of values ​​that are alive and still maintained within the customary law community into state law is necessary to align customary values ​​with regional autonomy based on state law.

 

C.      Closing Event

Since their formation, customary law communities have been endowed with various rights, including the right to manage coastal and marine areas. Therefore, the government, in managing natural resources within customary law communities, must not rely solely on the principle of economic development while ignoring the rights of customary law communities.

Therefore, the government must prioritize the principle of justice by implementing development while taking into account community rights. Justice, as defined by John Rawls, is justice based on honesty, namely honestly recognizing the rights of indigenous peoples, so that in its implementation, indigenous communities are also involved in natural resource management, from planning to utilizing the economic value of coastal and marine natural resources. This will ensure that efforts to realize the value of social justice for all Indonesians can be realized.

 

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http://kamusbahasaindonesia.org/pengakuan

 

http://kamusbahasaindonesia.org/mengakui

 


[1] MJ Saptenno, 2003, Legal Study on Coastal and Marine Area Management, Paper, Faculty of Law, Universitas Pattimura, Ambon, p. 2

[2] BD Manery et al., 1997, The Influence of Government Policy in Natural Resource Management on the Lives of Indigenous Communities in Maluku Province, Research Results in Collaboration between the Faculty of Law, Universitas Pattimura and the Sejati Foundation, Jakarta. p. 46

[3] Ambon Ekspres Local Daily: June 22, 2008

[4] Koentjaraningrat, 2005, Introduction to Anthropology II (Principles of Ethnography), PT Rineka Cipta, Jakarta, p. 85

[5] Ibid, pp. 105-106

[6] Thomas H Greene et al., 2009, Introduction to Political Science, Rajawali Press, Jakarta, p. 26

[7] Ibid, pp. 143-144

[8]Furthermore, Abu Daud Busroh is of the view that apart from that, there is also a theory of the secondary emergence of the state (Secundaire Staats Wording). That is, a theory that discusses the emergence of a state that is connected to previously existing states. So what is important in discussing the emergence of a secondary state is the issue of recognition or Erkening. Abu Daud Busroh, 2009, Science of the State, ninth edition, Bumi Aksara, Jakarta, p. 46

 

[9] Aristotle, in, Soehino, Science of the State, Liberty, Yogyakarta, pp. 24-25

[10] Ter Haar, in Hilman Hadikusuma, 2003, Introduction to Indonesian Customary Law, second edition, Mandar Maju, Bandung, p. 105

[11] Tolib Setiady, 2009, The Essence of Indonesian Customary Law (In a Literature Review), Alfa Beta, Bandung, p. 76

[12] In, Husein Alting, 2010, Legal Dynamics in the Recognition and Protection of the Rights of Customary Law Communities to Land (Past, Present and Future), LaksBang PressIndo, Yogyakarta, p. 31

[13] Compare ILO Convention No. 169 of 1989 defines indigenous peoples as communities residing in independent countries where their social, cultural and economic conditions distinguish them from other sections of society in that country, and whose status is regulated, either wholly or in part, by the customs and traditions of customary law or by special laws and regulations. See Husen Alting, 2010, Legal Dynamics in the Recognition and Protection of Indigenous Peoples' Rights to Land (Past, Present and Future), LaksBang Press Indo, Yogyakarta, p. 31

[14] Dewi Wulansari, 2010, Indonesian Customary Law - An Introduction, PT Refika Aditama, Bandung, p. 25

[15] Ibid, pp. 26-27

[16] Ibid, p. 27

[17] Hilman Hadikusuma, 2003, Introduction to Indonesian Customary Law, second edition, Mandar Maju, Bandung, p. 106

[18]Ibid, pp. 106-107

[19] Tolib Setiady, Op.cit. p. 82 

[20] Ibid, p. 83

[21] Hilaman Hadikusuma, Op.cit, p. 110

[22] http://kamusbahasaindonesia.org/pengakuan

[23] http://kamusbahasaindonesia.org/mengakui

[24]Abu Daud Busroh, 2009 …..Op.cit, p. 46

[25] Husein Alting, 2010, Legal Dynamics in the Recognition and Protection of Indigenous Peoples' Rights to Land (Past, Present and Future), LaksBang PressIndo, Yogyakarta p. 63

[26] Husein Alting, 2010 ……Ibid, p. 63

HIlman Hadikusuma, 2003……….Op.cit., p. 5-6

[28] Hazairin in Toylib Setiadi, 2009 , The Essence of Indonesian Customary Law (In Literature Review), Alfa Beta, Bandung, p. 77

[29] Kaban, 2005, Recognition of the Existence and Protection of the Rights of Indigenous Communities in Forest Management in Indonesia, Paper, in Indigenous Communities (Inventory and Protection of Rights), National Commission on Human Rights, Constitutional Court of the Republic of Indonesia, Ministry of Home Affairs, Jakarta, p. 17 

[30]EKM Masinambow, 2003, Law and Cultural Pluralism in Law and Cultural Pluralism (Contribution of Essays to Welcome the 70th Anniversary of Prof. Dr. TO Ihromi), Yayasan Obor Indonesia, Jakarta, p. 10

[31]Bagir Manan and Kuntana Magnar, 1997, Several Problems of Indonesian Constitutional Law, Second Edition, First Printing, Alumni, Bandung, p. 101

[32]Fifik Wiryani, 2009, Reform of Customary Land Rights, Setara Press, Malang, p. 140

[33]In Winahyu Erwiningsih, 2009, State's Right to Control Land, Total Media, Yogyakarta, p. 27

[34]Ibid, p. 28

[35]Hari Sabarno, 2007, Guiding Regional Autonomy to Maintain National Unity, Sinar Grafika, Jakarta, p. 10

[36] Eka Dahrmaputera, 1997, Pancasila-Identity and Modernity, BPK Gunung Mulia, Jakarta, p. 5

[37]Bernard L Tanya, 2006, Law in Social Space, Genta Publishing, Yogyakarta, p. 166

[38] Eka Dahrmaputera, 1997…………Op.cit., pp. 7-8

[39] Eka Dahrmaputera, 1997…………Ibid, p. 8

[40] Eka Dahrmaputera, 1997…………Ibid

[41]Dean Pruit and Jeffrey Rubin, Social Conflict, translated by Helly P Soetjipto and Sri Mulyani Soetjipto, 2011, Social Conflict Theory, Pustaka Pelajar, Yogyakarta, p. 9

[42]Satjipto Rahardjo, 2010, Progressive Law Enforcement, Kompas Book Publisher, Jakarta, p. 223

[43]Liria Tjahja, 2003, Legal Pluralism and the Problem of Mixed Marriages in Law and Cultural Pluralism (Contribution to Welcoming the 70th Anniversary of Prof. Dr. TO Ihromi), Yayasan Obor Indonesia, Jakarta, p. 116

[44]EKM Masinambow, 2003……..Op.cit, p. 10

[45] MJ Saptenno, 2006, Development and Preservation of Traditional Social and Cultural Values ​​(Customs) as a National Bond, Aru Customary Seminar, Aru Islands Regency Government, 20-26 November 2006, Dobo: 4-3

[46] RZ Titahelu, 1996, Indigenous Peoples' Rights in Indonesian Law, Paper in the Workshop; Indigenous Peoples' Rights in the Indonesian Context, JK-LPK, May 8-11, 1996, Wisma Gonsalo VEloso, Ambon, p. 3

 

[47]Philippe Nonet and Philip Selznick, Law and Society in Transition: Toward Responsive Law, translated by Raisul Musttaqien, 2011, Responsive Law, Nusa Media, Bandung, p. 84

[48]Fifik Wiryani, 2009, Reform of Customary Rights – Regulation of Indigenous Peoples' Rights in Natural Resource Management, Setara Press, Malang, p. 40

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