A comparative study: Traditionally-owned land and investment.
1. Introduction – research background
The research paper argues for stronger legal certainty in legislation where land owned by traditional owners is under threat of investment. It does so in an environment where
the latter may be conducted unethically and in violation of customary laws, and suggests reform at the highest level starting with constitutional reform. It reinforces the
incompatibility of the Australian Constitution with its traditional people to suggest the Constitution of the Republic of Indonesia as a good model to be considered in the
current reform process in Australia. It compares two jurisdictions, one in Bali and one in the Northern Territory of Australia
to show how ‘loopholes’ in national and local legislation can be and are used by
investors and other agents to their advantage over traditional owners of land, who operate under customary law and at times, with a limited understanding of such laws
where they have been labelled as ‘economically weak’,
2
or vulnerable. The
research affirms the latter communities’ rich and long-term knowledge of customary law and relationship with the land on the one hand, while acknowledging at
the root of the problem, their limited knowledge of international and national law, as the supporting issue throughout the paper, on the other.
Recent studies supporting this view have been used to show different perspectives concerning traditional communities in Bali. Among them, a journal article written by
Tjokorda Istri Putra Astiti, Ari Atu Dewi, and Michael Faure focuses on the issue of collective land rights of
Tenganan Pagringsingan
villagers caused by economic changes resulting from tourism investments.
3
Another publication written by Dewa Gde Rudy discusses the characteristics and functions of customary lands in Bali and its legal status
after the enactment of the Indonesian
Basic Agrarian Law
.
4
. Lastly, a study carried out by a Dutch law scholar, Ingrid Westendorp
’s deals with the specific land rights of Balinese Hindu women raised the status of women and their participation in land
2
Article 112, Basic Agrarian Law UUPA, Indonesia.
3
Tjokorda Istri Putra Astiti, Anak Agung Istri Ari Atu Dewi, Michael Faure, Tourism Development and Customary Land Law in Bali: The Case of the Tenganan Pagringsingan Village, South Western
Journal of International Law , Vol. 20, 2014, 122.
4
Dewa Gede Rudy, The Characteristics and Legal Status of Customary Lands Tanah Adat in Bali, Educational Research International
, Vol 42 April 2015, 138. http:www.erint.savap.org.pkPDFVol.428229ERInt.2015284.2-1529.pdf
A comparative study: Traditionally-owned land and investment.
ownership and was used to clarify some legal concepts relatively similar to the issues concerned. Distinct from the abovementioned articles, this research presents a
perspective through a comparative analysis about the land rights of traditional communities and indigenous peoples in regard to investment activities, between Bali and
the Northern Territory of Australia. The research paper has six sections following this introduction with an important
clarification of terms given this is a comparative study where at Section 2 related legal issues are listed and described; at Section 3 the methodology is described; in Section 4
the case studies and their analyses illustrate the issues for the research; Section 5 concludes the paper with Section 6 suggesting five recommendations.
1.1 Aims of the research
Basically, the research has two aims: 1 At first, it aims to find ways to empower traditional communities so they
understand how to use national and local legislation to protect the ownership of their land and deal with ‘loopholes,’ toward ethical and mutually beneficial
investment partnerships. Or in other words, the research aims to find a way where traditional land owners can ‘reconcile investment activities with
collective land rights and customary land law ,’ so any partnerships will benefit
all parties,
5
mindful of the Balinese Tenganan Pagringsingan village case study 2014.
6
It seeks to redress ‘those instances, [where] customary land law was
apparently not effective in preventing [transformation of traditional residences, conversion of land] from taking place.
’
7
2 Secondly, the research aims to reinforce investors and other agents’ obligation
to recognise and respect traditional customary law through ethical behaviour so
they too reconcile their investment activities within the relevant legal
framework to avoid what the research will expose resulted in the most disadvantaged group of people in Australia, in the Northern Territory land
claim case study.
5
Above n 3
6
Ibid, 134.
7
Ibid,121.
A comparative study: Traditionally-owned land and investment.
1.2 Terms used in the comparative study
References to traditional owners and their land rights and related terms are clarified to give a clear meaning, given this study crosses two jurisdictions:
Adat
from Bali as traditional customary law governing community ownership of land
and as ‘Balinese customary community that recognises the existence of customary lands
tanah adat
controlled by unity of the customary law community.
’
8
Awig-awig
is a form of Balinese customary law created by
Adat
communities that
defines the villagers’ obligatory behavior about how to manage the community and its customs, including land ownership. The Bali Provincial
Regulation Number 3 of 2011 concerning
Desa Pakraman,
implies
awig-awig
is a set of rules made by the village to be used as a guideline in the implementation
of the local philosophy of
Tri Hita Karana
in their respective traditional units eg.
Desa Pakraman
, or
Banjar Pakraman
9
The dreaming’ in the Northern Territory of Australia is similar to
Adat
- where Ancestor Spirits created the relationships between groups and individuals to the
land, the animals and other people.
10
Famous and now deceased Kakadu Elder, Bill Neidjie stated: ‘Our story is in the land ... it is written in those sacred places
... My children will look after those places, Thats the law. ’
11
The similarity between
Adat
and the dreaming is stated in the
United Nations Declaration on the Rights of Indigenous People
and in the United Nations Permanent Forum on Indigenous Issues, where Indigenous traditional peoples are identified as;
… holders of unique languages, knowledge systems and beliefs and possess invaluable knowledge of practices for the sustainable
management of natural resources,
12
… where their special
8
Dewa Gede Rudy, The Characteristics and Legal Status of Customary Lands Tanah Adat in Bali, Educational Research International
, Vol 42 April 2015, 137. http:www.erint.savap.org.pkPDFVol.428229ERInt.2015284.2-1529.pdf
9
See Article 1 11 of the Bali Provincial Regulation No 1 Year 2011 concerning Desa Pakraman
10
The Dreaming, http:www.australia.gov.auabout-australiaaustralian-storydreaming.
11
www.australia.gov.auabout-australiaaustralian-storydreaming
12
Fact Sheet, Who are Indigenous peoples, Indigenous Peoples, Indigenous Voices, United Nations Permanent Forum on Indigenous Issues
, and see, Law Reform Commission of Western Australia, ‘Aboriginal Customary Laws, The interaction of Western Australian law with Aboriginal law and
A comparative study: Traditionally-owned land and investment.
relati onship to and use of their traditional land, ‘… has a
fundamental importance for their collective physical and cultural survival as peoples,’ and where they, ‘hold their own diverse
concepts of development, based on their traditional values, visions, needs
and priorities.’
13
Loopholes can occur in legislation where there is an ambiguity or inadequacy in
legislation, which can be used to circumvent or avoid the intent of the law, implied or explicitly stated, in the legislation. Investors can search for and use
them strategically in a variety of ways, mostly to work in their favour.
Native title is defined most clearly by the Australian Human Rights Commission
as ‘a property right which reflects a relationship to land which is the very foundation of Indigenous religion, culture and well-being. The non-
discriminatory protection of native title is a recognised human right. ’
14
Traditional right to land and ownership of land concerning Bali is applied
according to the
Constitution of the Republic of Indonesia
and Law No 5 of 1960
Basic Agrarian Act
, Article 4 and Article 5; Law No 39 of 1999 -
Concerning Human Rights
and Law No. 6 of 2014
Villages Act.
Traditional law and ownership is applied as it is described in the
United Nations Declaration on the Rights of Indigenous People
.
15
It differs from ideologies underpinning international and national law in the relationship
between traditional people with the land. It recognises a ‘special relationship to
and use of … traditional land,’ and a right to the land which, ‘… has a fundamental importance for the collective physical and cultural survival as
peoples ,’ and importantly, where [traditional people], ‘
hold their own diverse
culture ’’ Final Report, Project 94, 2006
http:www.un.orgesasocdevunpfiidocuments5session_factsheet1.pdf .
13
Note the United Nations considers the diversity of Indigenous peoples and does not adopt a system- wide definition of these peoples.
14
Native Title, Australian Human Rights Commission, Native Title, https:www.humanrights.gov.auour-workaboriginal-and-torres-strait-islander-social-
justiceprojectsnative-title.
15
Recognizing the urgent need to respect and promote the inherent rights of indigenous peoples which
derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources
A comparative study: Traditionally-owned land and investment.
concepts of development, based on their traditional values, visions, needs and priorities
’
16
a uthors’ italics.
Vulnerable peoplesgroups or the ‘economically weak’
17
includes traditional owners with a rich knowledge of their traditional laws but a limited
understanding of other legal systems. 1.3. The implications of Loopholes
Th e ‘loopholes’ alluded to in the Introduction paragraph 2, in the two jurisdictions can
be used to threaten traditional ownership of land
Adat
in Bali and the ‘dreaming’ in the Northern Territory, when investors and other agents act in a way that does not serve the
interests of the community and breach statutes that could prevent such behavior. Some Indonesian laws provide examples, such as the Indonesian Law Number 10 of 2009
concerning
Tourism
at Article 26, which obliges: Every tourism entrepreneur
shall …: maintain and honour religious norms, customary, culture, and values of living within the local
community. The loopholes can be found in a number of statutes with an early high-level example in
the
Constitution of the Republic of Indonesia
at Article 18B, which recognises and respects traditional communities and their customary rights, as long as they remain in
existence and are in accordance with the societal development and principles of the unitary State of the Republic of Indonesia, even though at Article 61 in Law Number
39 of 1999 Concerning Human Rights: the differences and needs of indigenous peoples must be taken into
consideration and protected by the law, the public and the Government.
Act No 5 of 1960
Basic Agrarian Act
Indonesia also contains loopholes under Article 5 where it recognises
Adat
traditionally-owned land: provided that it is not contrary to the national interest and the interest
of the State, which are based on national unity, to Indonesian socialism, to the provisions stipulated in this Act, nor to other
16
Note the United Nations considers the diversity of Indigenous peoples and chooses to identify, rather than define-Indigenous peoples.
17
Basic Agrarian Act , Article 2 11.
A comparative study: Traditionally-owned land and investment.
legislation, all with due regard to elements which are based on religious law.
The implications emerging from this situation have already been identified by Dewa Gede Rudy
2015 for Bali where, ‘decisions made by key decision makers … have pursued the growth in tourism, with insufficient regard to [their] impact on local
communities … . ‘
18
Tjokorda Istri Putra Astiti, Anak Agung Istri Ari Atu Dewi, and Michael Faure succinctly captured the problem in their research where as a result of tourism:
… a shift has taken place from collective land ownership to individual ownership, as well as a transfer of property rights from
individuals living in traditional villages to individuals coming from
outside those villages. These transfers have frequently been followed by conflicts concerning the rights to land.
19
The
Commonwealth of Australia Constitution Act
, unlike that of Indonesia, neither details nor protects the rights of its Indigenous people, with a separate
Native Title Act
enacted to deal with land rights. Under this Act, the Government can extinguish Native Title under ‘inconsistency’ along with other criteria, where in section 15c, a,
past act that is wholly or partly inconsistent with the continued existence, enjoyment or exercise of the native title rights and
interests concerned —the act extinguishes the native title to the extent
of the inconsistency. Lessons learned from Bali may contribute to the Northern Terr
itory’s longest land claim over four decades, the Kenbi Land Claim, to argue that in strengthening traditional
owners ’ understanding of international and national laws, legislation will be applied in a
more informed and cost-effective manner for all parties concerned. In the Northern Territory if the status quo, where as an example,
‘some of the most marginalised [and financially excluded] people in the country … with a lack of
accessible and culturally appropriate financial services and products through mainstream
financial service providers’,
20
lingers as they fight to reclaim their land,
18
Suparwoko, N. Sudarmo, A community-Based Approach to Tourism in Indonesia, PhD Thesis, Victoria University, Melbourne, Australia, 2005.
19
Tjokorda Istri Putra Astiti, Anak Agung Istri Ari Atu Dewi, and Michael Faure, Tourism Development and Customary Land Law in Bali: The Case of the Tenganan Pagringsingan Village,
South Western Journal of International Law , Vol. 20, 2013, 120.
20
First Nations Foundation, http:www.fnf.org.aufinancial-inclusion.html.
A comparative study: Traditionally-owned land and investment.
participation in investment by Indigenous Australians will remain inhibited in a global order.
The situation demands an urgent response to build the capacity of traditional land owners in understanding national and local systems of governance, so they can reconcile
and then balance their system of customary law with that of other systems towards fair and just outcomes for ethical and mutually-beneficial investment.
2. Legal Issues: Constitutional and Legal Protection of Traditional Communities and Indigenous People Regarding Investment
There is a body of legislation that could be applied in this research, however in the constraints of the research parameters and to maximise the outcomes, the most pertinent
have been selected for their direct impact on traditional populations and land ownership in these jurisdictions.
Indonesian laws and regulations concerning the research issues are included below: a.
The
Constitution of the Republic of Indonesia
b. Decree of The People’s Consultative Assembly No XVIIMPR1998 Concerning
Human Rights c.
Act No 5 of 1960 Basic Agrarian Law
Undang-Undang Pokok Agraria
d. Act No 6 of 2014 Law of the Village
Undang-Undang tentang Desa
e. Act No 10 of 2009 Tourism Law
Undang-Undang tentang Pariwisata
f. Act No 25 of 2007 Investment Law
Undang-Undang tentang Penanaman Modal
g. Act No 39 of 1999 Concerning Human Rights
Undang-Undang tentang Hak Asasi Manusia
h. Bali Provincial Regulation Number 3 Year 2001 concerning CustomaryVillage
Desa Pakraman
i. Rules of State Ministry of AgrarianHead of the Land National Body Number 5
Year 1999 Concerning Manual Dispute Settlement Land Ownership Rights of Traditional Community
As a comparison, some legal instruments at Australia and the Northern Territory Australia are also relevant to be used as sources.
a.
Commonwealth of Australia Constitution Act
b.
Native Title Act
1993 c.
Aboriginal Land Rights Northern Territory Act
1976
A comparative study: Traditionally-owned land and investment.
d.
The Aboriginal Sacred Sites Act
1989 e.
Australian Human Rights Commission Act
1986 f.
The Planning Act
NT As a constitutional basis, the
Constitution of the Republic of Indonesia
in Article 18B recognises and respects self-determination of traditional communities. With regards to
the issue of investment, Indonesian Law Number 25 of 2007 concerning
Investment
, at Article 15b holds that i
nvestors are to implement corporate social responsibility,’ elucidated in the Law as:
… a responsibility mounted in every investment company to keep creating relationship which [are] in harmony, in balance and suitable
to the lo cal community’s neighborhood, values, norms, and culture.
While at Article 15 d, investors have a responsibility to ‘respect the cultural traditions
of the community around the location of investment business activities .’
Further, Law Number 10 of 2009
Tourism
at Article 26 obliges, ‘ Every tourism entrepreneur shall …: maintain and honour religious
norms, customary, culture, and values of living within the local community.
The situation is more complex in the Northern Territory. In the absence of recognised traditional rights in the
Constitution
built on colonial ideology and a misconception of
terra nullius
200 years ago, traditional people continue to fight for a broad and inclusive legal framework, making an understanding of international and national laws and land
rights more urgent. One final point is to describe the position taken by the two jurisdictions concerning the
position of traditional communities in their Constitutions, where the
Constitution of the Republic of Indonesia
leads on this issue. The
Constitution of the Republic of Indonesia
at Article 28I 3 states that the cultural identities and rights of traditional communities
shall be respected in accordance with the development of times and civilisations. Contrastingly, the
Constitution
of Australia is not so inclusive of its Indigenous population and in need of serious reform. It
does not recognise Indigenous Australian’s unique place in Australian history and identity where in 2015 there are multiple,
contradictory proposals on the table to do so.
A comparative study: Traditionally-owned land and investment.
In its current form it contains a clause at s 51xxvi which allows the Commonwealth to make laws with respect to, ‘The people of any race for whom it is deemed necessary to
make special laws,’ giving the Commonwealth power to treat people differently
according to their ethnicity or origins. It is known as the race power. There is close to universal agreement in Australia that this clause should go.
Section 25 of the
Constitution
penalises states where they remove the vote from Indigenous people, by reducing their population numbers for House of Representatives
seats. The section implies states might perform such an unacceptable act and is basically a dead letter, as a reminder of the past. Like s 51xxvi, there is near universal
agreement it too should go. With this in mind, the circumstances surrounding legal protection of traditional land in
Indonesia starts on a higher level than that in the Northern Territory.
3. Methodology – legal research