THE EXISTENCE OF INDIGENOUS COMMUNITIES' RIGHTS IN NATURAL RESOURCE MANAGEMENT TOWARDS VILLAGE AUTONOMY IN MALUKU

THE EXISTENCE OF INDIGENOUS COMMUNITIES' RIGHTS

IN NATURAL RESOURCE MANAGEMENT

TOWARDS VILLAGE AUTONOMY IN MALUKU[1]

 

Saartje S Alfons

 

Background

It must be acknowledged that long before the Republic of Indonesia was proclaimed on August 17, 1945, various indigenous peoples lived in various communities across the archipelago. These communities have existed, lived, and carried out their social activities in the archipelago for hundreds, even thousands of years. Over the years, patterns of social interaction between community members and their interactions with their physical environment have become institutionalized, forming independent and/or autonomous social units with their own division of labor, value systems, and legal regulations. These communities are independent in the sense that they are able to meet various needs or maintain the continuity of their existence through a process of socialization of values ​​and traditions carried out from generation to generation.[2] .

So it is worth understanding that Indonesia has various social communities with various customs.

The form of state respect and recognition of indigenous communities is stated in the 1945 Constitution, Article 18b, Chapter VI, concerning Regional Government, which reads: "The state recognizes and respects indigenous community units and their traditional rights as long as they are still alive and in accordance with the development of society and the principles of the unity of the Republic of Indonesia as regulated by law." In Law No. 32 of 2004 concerning Regional Government, villages are also regulated. The basis for thinking in regulating villages is diversity, participation, original autonomy, democratization and community empowerment.

In Law No. 32 of 2004 Article 1 paragraph (12) reads as follows: "A village or what is called by another name, hereinafter referred to as a village, is a legal community unit that has jurisdictional boundaries, which has the authority to regulate and manage the interests of the local community, based on the origins and local customs that are recognized and respected in the Government system of the Unitary State of the Republic of Indonesia and is located in the district area." Furthermore, Article 216 paragraph (2) reads: "Regional regulations, as referred to in paragraph (1), must recognize and respect the rights of origin and customs of the village." In this law, what is meant by a rural area is an area whose main activity is agriculture, including the management of natural resources, with the functional structure of the area as a place of settlement, government services, social services, and economic activities.

In the context of managing natural resources in indigenous communities' territories, it is time for indigenous communities to take an important role. Village autonomy granted by Law no. 32 of 2004 provides opportunities for indigenous communities to participate in the development process. Therefore, indigenous peoples must empower themselves and no longer provide opportunities to be exploited for the political interests of groups or individuals. Indigenous communities have the capacity to develop themselves so that they are able to compete in any situation. [3]

Maluku is an island nation home to diverse indigenous communities and is rich in natural resources, both marine and terrestrial, which are key assets for the region's future development. Each indigenous community in a village or village has its own designated territory, encompassing part of the land and part of the sea, with a variety of natural resources within it.

Villages or villages, especially in Maluku, generally have petuanan areas, both on land and at sea, and the existence of these petuanans and the various natural resources within them are utilized for the welfare and survival of the local community, the management of which is regulated by local customary law.

With the existence of various sectoral laws in force relating to natural resources, they include the rights of indigenous peoples, but in reality the existence of indigenous peoples' rights is always forgotten and ignored by the government and entrepreneurs who are two bodies that have great power in managing natural resources.

From what is described above, it is interesting to review the extent to which Indigenous Peoples' Rights exist in Maluku.

 

The Existence of Indigenous Peoples' Rights in Natural Resource Management

The title above encourages us to examine the extent to which indigenous communities, with their rights, can manage the natural resources within their territories to improve the welfare of their members. The general Indonesian dictionary defines rights as the power to do something as determined by rules.[4]From the perspective of customary law communities, the rules in question are none other than customary law.

Land and sea areas, including their natural resources, must be managed sustainably. To achieve sustainable management, rights to these areas must be vested in indigenous communities, based on the customary laws applicable in those areas. This is crucial because indigenous communities' mindsets are communally and religiously-magically (cosmicly) bound. This mindset views everything in life as a homogeneous whole, where human life influences and is interdependent. Everything exists in a balance that must be constantly maintained. [5]

The cosmic way of thinking of customary law communities above places attention on the rights and natural resources contained therein to be protected and managed for the welfare of the nation's children. In this case, rights according to customary law contain 4 foundations:

1. The moral foundation emphasizes that the concept of petuanan supervision always thinks about other people and must not be greedy.

2. Aging as a social asset emphasizes that aging has implications for human relations, including:

a. Provide job opportunities

b. All citizens can enjoy the results;

c. Petuanan is synonymous with status symbols

3. The rational basis for placing land as a fundamental economic asset.

4. The relationship between humans and petuanan is religious and magical, in this case the land is a sacred center that must be guarded and maintained.

These four principles form the basis of the Maluku financial institution's oversight function. This is because both land and sea areas are crucial for the lives of the nation's citizens.

However, the above functions of the financial sector are not properly implemented due to the enactment of various regulations. For example, Law No. 5 of 1960 concerning Basic Agrarian Provisions. This law is based on the recognition of customary rights in the new agrarian law, but its implementation is limited. The new agrarian law is based on customary law provisions, because customary law is the original customary law of the Indonesian people. Therefore, customary law is determined to be the basis of agrarian law, accompanied by the following conditions:

a. It must not conflict with national and state interests.

b. Must not conflict with Indonesian socialism

c. It must not conflict with the regulations stated in the UUPA

d. Must not conflict with other laws and regulations

With the new written national agrarian law being enacted and enforced throughout Indonesia and seen as a protector of national and state interests, the law makers are consciously, gradually and systematically attempting to reduce the applicability of customary law, thereby reducing the power of customary law communities to empower their land and the wealth contained above and hidden within it for the welfare of the people. Therefore, although customary communities have the right to manage the natural resources contained in their land, they are dependent on the mercy of the state which always prioritizes national interests. If we pay close attention, Article 33 of the 1945 Constitution clearly states that the state serves its people, but the reality in the field shows that it is the people who serve the state, even becoming victims because of government policies that do not respect the rights of customary communities.

 

Utilization of Natural Resources as a Source of Original Village Income.

In the administration of government, whether in a village, sub-district, district, province, or country, all of it is inseparable from financial factors or is highly dependent on finances which are used to finance all matters related to government. The implementation of village government is one part of the decentralized government administration system, so that villages or countries have the authority to regulate and manage their own households, and therefore villages also need sufficient financial resources.

In connection with the above understanding, there are provisions of laws and regulations that regulate it, which are stated in Law No. 32 of 2004, Article 212 concerning Village Finance. Village finance is all village rights and obligations that can be valued in money, as well as everything in the form of money or in the form of goods that can be owned by the village. Article 212 paragraph 3 states that village income sources consist of:

a. Original village income

b. Sharing of regional taxes and regional levies of districts or cities

c. Part of the central and regional financial balance funds received by the district or city.

d. Assistance from the central government, provincial government and district or city government.

e. Grants and donations from third parties.

In the explanation of Article 212 paragraph 3 (a) it states that original village income includes:

1. Village business results.

2. Village wealth results.

3. Results of self-help and participation

4. Results of mutual cooperation

5. And other legitimate village income.

What is meant by original village income is the income obtained by the village from sources within its own territory, which is collected based on village regulations in accordance with applicable laws and regulations. Sources of income that have been owned and managed by the village are not permitted to be taken over by the regional government. Empowerment of village potential in increasing original village income and levies on the results obtained from the extraction or utilization of natural resources in the village. Both taxes and levies that have been collected by the district government are not permitted to have village levies, regional income from these sources must be given to the village concerned with proportional and fair distribution. This provision is intended to eliminate high economic burdens and other impacts.

To finance village households, villages need to manage and utilize all the natural resources within their territory. Village resources have enormous potential if managed sustainably. Efforts to increase village or village income include managing village hamlets or village land, designated by the local community as Ewang Negeri, which contains various types of plants, both long-lived and short-lived. These crops are managed by village officials and sold and deposited into the village treasury as a source of original village income.

In accordance with the above understanding, natural resources that are in the custody of indigenous communities in a village or country, both on land and at sea, have the right to be utilized as a source of original village income. For this reason, the rights to land and sea ownership for the Maluku people have the same strong position, as do customary rights. Therefore, the use of petuanan areas or the extraction of natural resources in marine or land petuanan from a village or country by various outside parties for personal or group interests must obtain permission from the country concerned as the owner of petuanan rights with various other natural resources.

 

Closing Event

Based on the principle of diversity and native autonomy, this provides an opportunity for villages or countries to organize their own households based on local origins and customs by relying on the potential of natural resources including land and sea in the land petuanan, however, with the implementation of various sectoral laws related to natural resources, which include the rights of indigenous peoples are always forgotten or ignored. Law No. 32 of 2004 itself still provides an opportunity for villages or countries to manage their sea petuanan through a regional regulation (article 216), although it must be admitted that the opportunity provided by the law is very small. Whereas history shows that the ancestors of the Maluku people have managed land, coastal and sea petuanan for years.

Likewise, it is suggested that the implementation of state autonomy in managing and utilizing the Petuanan area with various natural resources is a real manifestation of the existence and sovereignty of indigenous peoples. Therefore, it is hoped that the government can pay attention to the existence of the rights of indigenous peoples, not only manifested in various regulations but how they are implemented in various areas of community life.

 

 

 

READING LIST

 

Hattu, 1999, Paper on Shaping the Village of the Future  (A Legal Review of Law No. 22 of 1999), Ambon.

Polokila. R Yones and Zakaria Yando R, 1998; Guide to Working with Indigenous Communities, BSP Kemala, Bandung.

Poerwardamita WJ S Edition V, 1992 ; General Dictionary of Indonesian, Library, Jakarta.

Soepomo, 1996, Chapters on Customary Law, Library, Jakarta.