By Maria SW Sumardjono
It was a very long waiting acknowledgement of indigenous people rights in comprehensive ways through formal Laws (UU), desiderated to be officially legalized through Draft of Laws (RUU) about Indigenous People Rights Acknowledgement and Patronage.
The UU position is such a strategic matter because of, after it would be officially obtained, all of the policies related to indigenous people (MHA/Masyarakat Hukum Adat) rights have to made reference to this UU. In advance, it was known that differences and miss-collaborated between various UU became one of the reason of occured conflicts. The conflicts particularly happened related to access of natural resources governances and utilization.
As the content of RUU, it has been mentioned that state acknowledge indigenous people rights. It means that indigenous people rights were not something that had been given by state. If indigenous people rights had been verified, state would acknowledge it in writing through declaratory provision. It also shown state’s respectability of indigenous people rights that had been such a trully gift since birth, even prior to 17 August 1945.
So, how is the process of indigenous people rights acknowledgement? It is started with self identification of indigenous people and/or government activity, data and information which is related to indigenous people that have been verified by indigenous people committee (regency/city, province or national). The committe will announce verification result to community and then delivered it to mayor/regent, governor or president appropriate with their responsibilities of further conclusions.
Indigenous people did not exclusive matters, besides they had several rights, also in charged of responsibilities such as obeyed to UU. There were bunch of conflicts occured as the result of indigenous people rights refusal, state responsibles to patronage them and also assured of their rights and protect them of every discrimination and violence.
RUU contents said about indigenous people rights of land, region and natural resources. The latter was formulated that “Natural resources covered everything, either upside of land surface or underground also including water area.” Regarding natural resources in underground, it needs restriction. In the references about communal title, appropriate with horizontal separation principle, the rights belong to land, water area, plantation that is naturally grows, also wild animals. It can be a conclusion that communal rights of indigenous people covered land “plus” everything upside it.
How about natural resources where contained in under ground? Articles 8 UU Number 5 Year 1960 about Agrarian Basic Principles explained that natural resources which is contained inside the earth does not include of land rights authority. As example, it was mentioned particular UU that regulated about mining. It was also supported by Constitutional Court (MK/Mahkamah Konstitusi) at material test of UU Number 20 Year 2002 about Electricity Powers.
Referred to Articles 33 Point (2) the Constitution of Indonesia 1945, importance of production affiliates and bearing people needs will be managed by state. If it was clarified in further, production affiliates which is (1) important to the state and bearing people needs; (2) important to the state, but does not bear people needs; (3) not important to the state, but bear people needs, as what MK said, it must be managed by the states as for community welfare.
So, natural resources related to mining of minerals, oil, gas, coal and all of potentia energy resources do not include into indigenous people rights of natural resources which is contained in under ground as have been formulated in RUU. Nonetheless, according to acknowledgement principle of indigenous people rights, if mining resources have located within indigenous people area, so indigenous people have rights to obtained benefits and sharing profit of that resources allocation.
Customary area is one of substancial matter of indigenous people acknowledgement besides of its history, customary law, property and wealth and/or customary wealth, and institutions/customary government system. Particularly about indigenous people area, it must be contained at RUU about regent/mayor decision, governor decision or event president decision about indigenous people with appendix of indigenous people area maps as the result of land registration activity. The object of registration could be indigenous people rights regarding related UU of Land Registration.
Nowadays, there is still no Regional Law (Perda/Peraturan Daerah) regarding indigenous people rights. We do need it and also appendix of indigenous people area maps. The maps importances were to prevent conflicts across its area. Customary area mapping could help government big task to accomplished land registration all over Indonesia, either state land, individual/instituional land or indigenous people land.
RUU said that indigenouspeople have rights to obtain proper restitution and fair compensation upon customary land, water area, customary area and natural resources that were hereditary owned, transferred, bear, utilized or damaged without approval from indigenous people. Further details regarding restitution and compensation should be regulated in government law. RUU formulation about compensation should be clearly clarified so its implementation would be accomplished according to the aims.
First, RUU did not clarify about restitution and compensation purpose, whereas both of these terms pointed at different essences. Referred to various international convention about indigenous people acknowledgement, restitution means effor to take back indigenous people rights into the early condition; besides compensation could not be given in factual restitution. Requirement of compensation is its equity of condition before took over of indigenous people rights.
Second, RUU also did not formulate about restitution or compensation. According to international convetnion, indigenous people authority upon fiar compensation in the form of: land, area, similar and equitable quality of natural resources, its width and law status before it had been took over, or could be given in other forms appropriate with related indigenous people choice.
Third, RUU still not regulated about responsible institution and obligate to do restitution and compensation, also about procedure and mechanism of claims submission by indigenous people. Without comprehensive regulation about restitution and compensation, these magnificent aims would not be accomplished. Take over of land, area and natural resources from indigenous people caused disturbances of social-political relations between the parties that take over it and indigenous people.
Indigenous people rights acknowledgement go along with commitment of restitution and compensation appropriate with policy, so it would be such a reconciliation to turning back its social-political disturbances.
UU of Indigenous Rights Acknowledgement and Patronage is not the only resolutions to solve problem related indigenous people, but it would be a very first beginning to prove law pluralism in Indonesia.
Maria SW Sumardjono
Professor of Agrarian Law
Faculty of Law Gadjah Mada University