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19 Austl. J. Asian L. 299 (2018-2019)
The Enforceability of Formalised Customary Land Rights in Indonesia

handle is hein.journals/ajal19 and id is 299 raw text is: Australian Journal of Asian Law, 2019, Vol 19 No 2, Article 9: 299-313 The Enforceability of Formalised Customary Land Rights in Indonesia Rikardo Simarmata* Ouer the past two decades, the Indonesian government has intensified efforts to recognise customary land rights by formalising them. Formalisation can help establish the legal validity of entitlements to land, thereby providing right holders with legal certainty. One consequence of formalisation is that customary (adat) rules in respect of land become integrated into the formal system, and enforceable. This article examines two ways that formalisation can take place in Indonesia: by recognising the authority of an adat law community to control and manage customary land rights, and by granting rights to an adat law community through a state administratiue decision. Discussing both SKTA (Surat Keterangan Tanah Adat, Declaration of Customary Land Possession) and the granting of customary forest, this article shows that formalisation of crustomay iln rights unler both mecnisms has been hindered by inconsistent liws anud regllions <and resista<nce from b>ureaucrats and crlpolions. It a:rgules lhl lega l inonsistencies anl r'sislance w1ill preb en the ma in goal of form alisatlion: to proecl lhe trdilional lind rigtlIs <<ofadat law coim nities. Adat (or trlitional. customary) law communities who claim rights to landI must usually prove a connection wit h that landl. To lo so. Ihey oflen rely on Ihree lyp)es of evidence, F irsi. they may point to a history or myIh that (demonst rates that they f'irst inhabiled( Ihe lanI (Ioeliono and Iermawan, 2006: 112). Second,. Ihey may p)oint to archaeological evidence, such as a compounl or an oldI cemetery. which dIemonst rates that their ancestors usedI Ihe land many years ago. Thir1. they may seek to (demonstrae that they have been exercising active control over the lanl. such as by cullivaling it in accordance with customary law. Aep~ing these explanations and claims imp)lies recognition ofthe legitimacy and validty of the claimeI customry lanI rights (BIakker. 2009: 66; Bsarr et al. 2006: 112). IFor aat law communities, the fIormalisation o'customary land rights gives them f'reedIom to legally exercise cont rol over the lanl. incluling by using the landI themselves or by granting rights to lo so to others. such as by renting or temp'orary alienation. I ormalisat ion also enables t hem to restrict outsiders f'rom (doing these things withouti permission, and allows communities to pursue violations with eollrceeable santlions. (Communities may also see fIormalisation as helping strengthen their collective id(entity. .\s in many other countries the ;aa law communities of IndIonesia have long considerel landl to be an imp1oriant way - if noI the mosi important way - to represent their religious and cultural idenities (Erb, 200-: 269). I ormalising customary land rights has long been includIedl on governmenI reflrm agendas in Indonesia. The spirit of post-Soeharto Reformasi (Reformation) that prompted formalisation found its constitutional expression in the second amendment to the 1945 Constitution of 2000, in arts 18B(2) and 28I(3). These two provisions specify that the state recognises and protects the traditional rights of adat law communities, including customary land rights and the use of an informal normative system to govern their affairs. Formalisation is also governed by various natural resource management laws. Some of these were promulgated prior to the constitutional amendments mentioned above, such as Law No 5 of 1960 on Basic Principles of Agrarian Affairs, and Law No 41 of 1999 on Forestry. Others were enacted afterwards, including Law No 19 of 2014 on Estate Plantation, and MPR (Majelis Permusyawaratan Rakyat, People's Consultative Assembly) Decree No IX of 2001 on Agrarian Reform and Natural Resources Management. Each of * Lecturer, Agrarian Law Department, Faculty of Law, and Head of Pusat Kajian Hukum Adat Djojodigoeno, University of Gadjah Mada, Indonesia. This is a revised version of a paper that was presented at the inaugural Indonesia-Australia-Netherlands Conference on Socio-legal studies, 'Legal Reform in Indonesia: Towards Justice', held by the University of Gadjah Mada, the University of Melbourne, the University of Sydney, and the University of Leiden in Yogiakarta on 6 and 7 September 2017. I am grateful for the insightful comments of Professor Simon Butt and anonymous reviewers.

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