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Laporan Dan Pandangan Hasil Diskusi Pertanahan Workshop Proceeding SUMMARY OF WORKSHOP DISCUSSIONS ON CUSTOMARY LAND AND LAND DISPUTES June 19-20, 2002 Presented by Prof. Ny. Arie S. Hutagalung, SH, MLI Endang Pandamdari, SH, MH, CN Irene Eka Sihombing, SH, MH, CN This workshop proceeding was prepared by the consultants for the Indonesia land policy dialogue, which is sponsored by the Ministry of Home Affairs and National Planning Agency with the collaboration from the World Bank. The views expressed in this paper are those of the workshop participants and consultants and should not be attributed to the World Bank, its Executive Directors, or the countries they represent. Recognizing the need for an integrated land policy and anticipating the fundamental changes in the land administration system with the implementation of decentralization, the Government of Indonesia and the World Bank have engaged in a land policy dialogue during 2002- 2003. The goal of the dialogue is to help the Government to develop a National Land Policy Framework. This proceeding is a summary of a workshop on customary land and land disputes. Regarding the customary land issue, the workshop addressed the value of issuing general guidelines so that the local governments can develop their own subsidiary regulations, with such guidelines focused on issues such as criteria for declaring the existence of traditional land rights, authorities of related agencies, and community participation. Regarding land disputes, the workshop addressed the value of community participation in a bottom-up process as well as the option to establish an arbitration mechanism outside the formal legal process to solve land disputes more effectively. Table of Contents I. Background………………………………………………………..2 II. Objectives of the Discussion on Land Issues……………………...3 III. Arrangement on Land Issues Discussion …………………………3 IV. Customary Land: The Position of Adat Land According to Laws and Regulations….4 V. Customary Land: Views of the Archipelago Adat Community Alliance (AMAN) regarding Re-instatement of Adat Community Rule over Adat Regions…………………………5 VI. Customary Land: Sumedang Bupati’s View on the Dynamics of Land Problems and Land Services Strategy in the Sumedang Regency …………………………………………7 VII. Land Dispute Resolution: View of the West Kutai Regent regarding Land Issues and Ideas of the West Kutai Regency Local Government…………9 VIII. Land Dispute Resolution: Simalungun Regency Head’s View on Comprehensive Approach towards the Resolution of Land Disputes in the Simalungun Regency……………………………………….10 IX. Land Dispute Resolution: West Lampung Regency Head’s View on the Local Regency Government Model for the Resolution of Land Disputes in State Forests Areas and Ulayat Land…………..14 X. Transparency in Land Information………………………………..17 XI. Views of the Resource Persons……………………………………18 XII. Discussion Progress……………………………………………….22 XIII. Consultants’ Views……………………………………………….25 XIV. Closing Remarks…………………………………………………..34 1 I. Background The Decree of the Peoples’ Assembly No. IX/MPR/2001 (TAP MPR No.IX/MPR/2001) provides the legal frame for an integral reform of policies on land administration as well as other natural resources. The Decree has given added impetus to government efforts to reform land policies and the land administration system. Since 2001, a national dialogue on land issues and reform priorities has gained momentum. Amongst the concrete activities permitting an exchange of ideas amongst stakeholders were workshops in the provinces of East Kalimantan and North Sumatra. These two regional workshops identified a number of issues namely, the local government capacity, decentralization of land administration, improvement of the agrarian law, land dispute resolution mechanism, acknowledgement of customary land rights, transparency in land information, and forest land disputes. The present condition is that the regulations and laws acknowledge ulayat and similar customary rights, however in practice no protection is available for customary law communities. With the emergence of the reformation era many land reclaims evolved, particularly in cases regarding Forest Concession (HPH) as well as mining and plantations. In addition, there are inconsistencies amongst the regulations for implementation of the Basic Agrarian Law No. 5 of 1960. Taking into account the above mentioned issues, the World Bank proposed to the Government to provide support in moving forward on: 1. Identifying land policies in relation to the protection of customary law communities and customary land; 2. Identifying land dispute resolution practices performed by the local government since the introduction of the regional government autonomy program. A good example of this at the local level is the improvement of land administration decentralization and the search for an innovative method to enable issuing of useful land policies; and 3. Supporting pilot projects to improve transparency on land tenure, land management and land ownership towards the partnership between the sub-regency and NGO’s. Of those three issues, a decision was jointly made to concentrate activities during 2002 on: a. The customary land perspective; b. comprehensive approach towards land dispute resolution. 2 II. Objectives of the Discussion on Land Issues The objectives of the 2002 land policy dialogue, which focused on the customary land perspective and the comprehensive approach towards the resolution of land disputes, were: a. To formulize proposals for real actions by the government (central/local) to create acknowledgement and prevent denial of adat land including all its consequences; and b. To formulate proposals for concrete actions to be performed by the government, in order to become guidelines for the regencies/municipalities for innovations in land dispute resolution in their respective regions. III. Arrangement on Land Issues Discussion The Department of Home Affairs, being the government institution with main responsibilities for the implementation of regional autonomy, arranged a discussion on land issues at its central office, on the 19th and 20th of June 2002. Regarding the customary land perspective, the material presented comprised: 1. The position of adat/ulayat land according to regulations and laws (presented by Prof. Mrs. Arie Sukanti Hutagalung, SH., MLI.); 2. Returning the adat community authority over adat regions (presented by Abdon Nababan); 3. Dynamics of land issues and land services strategy in the Regency of Sumedang (presented by Drs. H. Misbach / Regency Head of Sumedang). Regarding the comprehensive approach towards the resolution of land disputes, the material presented comprised: 1. Land dispute resolution in the West Lampung Regency (DR. I Wayan Dirpha, SH.); 2. Land dispute resolution in the Simalungun Regency (Ir. John Hugo Silalahi); 3. Transparency in land information (Chris Bennett). Besides the presenters, resource persons made presentations on the above-mentioned topics. The three resource persons, were: a. The Director of Land Acquisition for Government Institutions of the National Land Agency (Mr. Rusmady Murad, SH.); b. The Secretary of the Multi Party Working Group on Land Control Issues In Forest Regions (Maritua Sirait); c. Professor in Agrarian Law (Prof. Boedi Harsono) 3 IV. Customary Land: The Position of Adat Land According to Laws and Regulations In this discussion, four issues were elaborated: 1. What is actually meant by adat/ulayat land ? 2. How do the existing regulations and laws preside over adat/ulayat land? 3. Are these existing regulations and laws sufficient and do they provide assurance and legal protection to the adat law community? 4. Is there a need for these adat/ulayat land to be governed by particular regulations and laws? And if needed, what framework should these regulations and laws have? Prof. Arie Sukanti Hutagalung, SH, MLI quoted van Vollenhoven’s view regarding the existence of six specific characteristics of ulayat rights, namely: a. The existence of inter-communal relationship; b. The existence of extra-communal relationship; c. Tasks of the adat head; d. The functions of ulayat right; e. The presence of two ulayat region dimensions, one of primary and the other of an exceptional nature; and f. Limitation of ulayat region. Also quoted was the opinion of Prof. Boedi Harsono who mentioned that Ulayat Right was the name provided by the law and by the legal society for the relationship that existed between an adat law community and a certain particular region, this region providing an everlasting “lebensraum” for those community members. From the legal point of view, ulayat rights are a series of rights and obligations of a adat community regarding a particular region that is their ulayat, which being this community’s “lebensraum” to utilize its natural resources, including the land that exists in this ulayat region. Amongst the adat law community, two types of land are known, namely: 1. Ulayat land being possessed and managed by the community; 2. Privately owned land of an adat law community member. According to the presenter, a difference in opinion exists amongst government officials, community members, as well as experts regarding the term ulayat land/adat land. The regulations governing ulayat/adat law, ulayat/adat land, ulayat forests, as well as the protections of adat law community rights, are dispersed unsystematically across regulations 4 and laws. At the same time, these regulations are far from being comprehensive whether regarding their form as well as their content, and as such are not capable
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