A comparative study: Traditionally-owned land and investment.
d. Both require certain conditions to be met where traditional owners have been
dispossessed or seek to reclaim their land. The differences between the jurisdictions can mostly be attributed to their Constitutions:
a. The Constitution of the Republic of Indonesia recognises and respects
traditional land ownership while the
Constitution
of the Commonwealth of Australia does not include reference to its traditional land owners
b. Traditional land owners on Bali have a stable traditional system of land
ownership governed by customary law
Adat
while Indigenous Northern Territorians seek to reclaim their traditional land their dreaming following
the colonisation of Australia 200 years ago and the introduction of
terra nullius
by the British colonisers; c.
Traditional owners on Bali remain culturally strong in spite of inevitable change imposed by the growth in tourism while Indigenous Australians
struggle for national recognition and respect and are the country’s most disadvantaged group and in the Northern Territory have the highest
percentage of prisoners 84, attributed to cultural breakdown and loss of land and language.
This research draws on two case studies to illustrate the impact of investment and disturbance of traditional lands.
In Bali the first case study shows how in a village with a strong commitment to
Adat
, one villager and one investor managed to circumvent the law resulting in violation of
Adat
and external ownership of customary land. The investor concerned was obliged to know his legal obligations and responsibilities under Law Number 25 of 2007
concerning Investment
Law Number 10 of 2009
concerning Tourism, and importantly
the Law No. 5 of 1960 concerning
Basic Agrarian Law
. In the Northern Territory, case study 2 examines a lengthy land claim that was at first
defeated by action of the Government when they too managed to circumvent a local Planning Regulation.
4. Case studies and analysis
The two case studies follow.
A comparative study: Traditionally-owned land and investment.
4.1 Case Study 1 and analysis
At first it is important to note that Indonesian
Constitution
at Article 18B2 and in the Decree of The People’s Consultative Assembly Number XVIIMPR1998 concerning
Human Rights Article 22 provides legal protection and respect and recognition of traditional communities and their ownership of the land.
A brief overview of the origin of Balinese villagers is also important to understand the concept of
Adat
and customary law, and for the differences with case study 2. Traditional villages
desa pakraman
in Bali have an inextricable relationship with their land originating in the arrival of Mahayogi Markandya in Bali to develop Hindu
teachings.
21
Due to these origins, Balinese villages have unique characteristics throughout Indonesia with unwritten laws including religion, economics and social
functions. The laws are protected, in particular under Law No 5 of 1960 Basic Agrarian Principles, as long as those lands exist
Rules of the State Ministry of Agrarian Head of the National Land Body No. 5 of 1999 Concerning Manual Dispute of Land Settlement
and Land Ownership Rights of Traditional Communities, Article 22.
The case study following demonstrates how weaknesses in the law have contributed to a violation of customary law, where the villagers did not recognise they could have used
the law to protect their land. The village of Tenganan Pagringsingan, which has been the subject of earlier research
by Tjokorda Istri Putra Astiti and others 2011,
22
concerned culture, whereas in this research the focus is on how the traditional villagers and owners of the land, bound by a
more-than-usual stricter
Adat
i.e.
awig-awig
not to sell their land to any investors, including other Balinese and those from outside Bali, failed to protect their land.
Unlike some other villages in Bali, Ubud, Kuta, Tabanan
23
the certificates of collective ownership of the land have not been converted to individual ownership under
the villagers’ strong respect for
awig-awig
. And different to other villages the investment activities that have changed the landscape of Bali, have been resisted.
21
Dewa Gde Rudy, The Characteristics and Legal Status of Customary Lands Tanah Adat In Bali, Educational Research International
Vol. 42 April 2015.
22
See above n 19.
23
Dewa Gde Rudy, The Characteristics and Legal Status of Customary Lands Tanah Adat In Bali, Educational Research International
Vol. 42 April 2015.
A comparative study: Traditionally-owned land and investment.
However, in spite of the strength of
awig-awig
in Tenganan Pagringsingan, the lure of investment in tourism has been a loophole a villager to use her land as collateral for
bank loans and then by default, place it in the hands of investors. In this case, a villager sought a bank loan for a business in tourism with her land as
collateral but was unable to repay the loan. The land was auctioned and an outsider bought the land. The villagers tried to reclaim the land and the investor agreed as long as
he was compensated with another piece of land outside the village. The village could not meet this request because the land outside the village was not theirs to give as
compensation. The land in the village remained under the ownership of the outsider. The violation of
awig-awig
by the villager through her unlawful transfer of land as collateral is an example of a weakening of
awig-awig
and a failure of the village to use legal protection from the Act
Law No 25 0f 2007 concerning investment
and an example of the investor failing to respect and recognise the same law Article 15 of the same Act
defining his responsibilities at Article 15b concerning creating relationships in harmony with the local community’s values, norms and culture, that is, their
Adat
. He also failed to recognise Article 15d, the most important Article, concerning respect for
the cultural traditions of the community around the location of business investment activities.
The villagers may not have known, as has been the theme of this research, they could also have sought legal protection by applying
Bali Province Legislation 3
2001
Concerning [Traditional] Village
, Article 9, paragraph 5 that states:
Adat
land andor land ownership by the traditional community cannot be registered by individual persons.
The villager did not have the authority to use her land as collateral for a bank loan in spite of full knowledge of her obligation to
awig-awig
and penalties to be applied in breach of this customary law.
This case raises issues about weaknesses in knowledge of local law, where traditional communities are bound to sanctions under
awig-awig
that only impact on their community - the villager was shamed by the community in this case - and the investor,
as an outsider, could never be subject to
awig-awig
, even where he purchased the land and violated of
awig-awig
. Had the villages enacted the
Bali Provincial Legislation Number 3
Year 2001 they could have prevented the land from being used as collateral and also stop future situations like this arising.
A comparative study: Traditionally-owned land and investment.
In addition, the relationship between local communities and tourism investors in Bali is addressed through global guidelines that set benchmarks applied at national and local
levels. The ‘Global Code of Ethics in Tourism’, at Article 54 makes it clear to
investors as tourism professionals they are: governed by the regulations laid down by the public authorities,
[and] should carry out studies of the impact of their development projects on the environment and natural surroundings; they should
also deliver, with the greatest transparency and objectivity, information on their future programmes and their foreseeable
repercussions and foster dialogue on their contents with the populations [traditional communities] concerned.
24
Article 5 of Law No 10
Indonesian Tourism Act
, makes it clear this global code should be obeyed.
At the highest level in Indonesia there are legal solutions to the Bali case study where with international and national legal knowledge, traditional communities will be able to
work with investors in ways that suit their specific needs and interests. 4.2
Case study 2 and analysis – Kenbi Land Claim, Northern Territory
An overview of Australia’s Indigenous history with key cases is important to illustrate
the different path experienced by traditional land owners and their bid to own their land, compared to their counterparts in Bali just illustrated in case study 1. This leads
the analysis, with an account of the circumstances surrounding the Kenbi Land Claim. Traditional ownership of land in the Northern Territory is vastly different to that in
Bali. It is a story of over 200 years of dispossession for Indigenous clans following the colonisation of Australia by the British from 1900 under the misconception of
terra nullius
, that no-one inhabited the land, allowing the British to settle and colonise the country, and enact a Constitution in 1901, silent on the rights of traditional owners to
their land. Litigation concerning Aboriginal land title did not appear in Australia until the 1970s,
in the
Gove Land Rights Case
,
25
where Justice Mildren rejected native title ruling in
24
Global Code of Ethics for Tourism, http:ethics.unwto.orgencontentglobal-code-ethics-tourism.
25
Milirrpum v Nabalco Pty Ltd, 1971 17 FLR 141.
A comparative study: Traditionally-owned land and investment.
favour of
terra nullius.
Three earlier cases
26
involved issues of native title such as trespassing and one stands out for the way the Government treated the claim.
In 1835 a treaty was signed with Aboriginal Elders and John Batman in the Port Phillip District of Victoria. The Governor of the time, Governor Bourke declared the Treaty
‘void’ with no effect against the Crown because Batman had negotiated directly with the Aboriginal people, for whom the British did not recognise as having any claim to
the land in Australia. It took another 11 years until the doctrine of
terra nullius
was finally overruled by the High Court of Australia in the landmark case,
Mabo v Queensland
No 2.
27
The case recognised the Meriam people of Murray Island in the Torres Strait as native title
holders for a portion of their traditional grounds. In 1993 and under the Keating Government, Indigenous people had their land rights
recognised in law through the
Native Title Act
which made an attempt to place some certainty around the legal position of landholders and the processes that had to be
followed, to determine native title could be claimed, protected and recognised in the court system.
Australia’s legal system operated under the influence of the British legal system until the
Australia Act
in 1986 and even with this transformation of power to the Australian nation, Indigenous peoples continued to remain silent in the Constitution.
4.2.1 Another claim, the same struggle The Kenbi Land Claim has been the longest running claim for Native title in Australia.
It is an example of an agent, the Northern Territory NT Government trying to use loopholes in legislation to defeat Native Title Claims.
The claim has taken some four decades; three hearings before the High Court;
28
four hearings before the Federal Court,
29
and two hearings before the Aboriginal Land
26
Attorney-General v Brown 1847 1 Legge 312; 2 SCR NSW App 30; Cooper v Stuart 1889 14
App Cas 286; Williams v Attorney General NSW 1913 16 CLR 404; Randwick Corporation v Rutledge
1959 102 CLR 54 and Wade v New South Wales Rutile Mining Co. Pty. Ltd. 1969 121 CLR 177.
27
Mabo v Queensland No 2 [1992] HCA 23.
28
Re Toohey; ex parte Northern Land Council [1981] HCA 74
; 1981 151 CLR 170
; Re Kearney; ex parte Northern Land Council
[1984] HCA 15 ;
1984 158 CLR 365 ; Attorney General NT v
Kearney [1985] HCA 60
; 1985 158 CLR 500.
A comparative study: Traditionally-owned land and investment.
Commissioner to be resolved. It has involved, at various times, consideration by all five Commissioners who have been appointed under the
Aboriginal Land Rights Act
NT 1976 ‘the Act’.
For the purposes of this research, only the matter concerning the actions of the NT Government are explained to show how this agent tried to circumvent the law and
defeat the claim, afraid that such a claim would take away their right develop the land. The Act at the centre of the claim, the
Aboriginal Land Rights Northern Territory Act
1971, the
Land Rights Act,
gives the Government the authority to decline or extinguish native title where certain conditions are not met. It can allow traditional claims to
unalienated or alienated land where estates and interests not held by the Crown are held by, or on behalf of Aboriginals.
This analysis describes how the Government enacted new planning regulations under the
Northern Territory Planning Act
for the expansion of the city of Darwin concerned that development was threatened by the claim, identifying a plan for a ’town’ on the land
under claim. According to the Act, a ‘town’ can defeat any claims for Native Title and in
the first attempt to claim their land, this is what happened to the people in the Kenbi Land Claim.
Under section 31 of the
Planning Act
, unalienated Crown land is defined as not to include a ‘town’ where ‘town is defined with:
the same meaning as in the law of the Northern Territory relating to the planning and developing of towns and the use of land in or near
towns, and includes any area that, by virtue of regulations in force under that law, is to be treated as a town,
The Queen v Toohey
, 1981.
30
The claim was first lodged on the 20
th
March 1979 before the Planning Regulations were in place by the Northern Land Council NLC representing the Indigenous
peoples living on the traditional lands on the Cox Peninsula west of Darwin. Their claim - the Kenbi Land Claim
– included islands and reefs and land being unalienated
29
Attorney General NT v Kea rney and Northern Land Council; Re Kenbi Cox Peninsular Land Claim
[1984] FCA 261 ;
55 ALR 545 ; Re Maurice, Aboriginal Land Commissioner; ex parte
Attorney General for the Northern Territory 1987 17 FCR 422
; Attorney General for the Northern Territory v Olney and the Northern Land Council
FCA 143988 Fed No 325 11; Northern Land Council v Olney
[1992] FCA 69 ;
1992 34 FCR 470.
30
R v Toohey, Decision at 2.
A comparative study: Traditionally-owned land and investment.
Crown land, under section 501a of the
Aboriginal Land Rights Northern Territory Act
1971, the
Land Rights Act.
The Commissioner declined the application stating that according to the
Act
, the Cox Peninsula was not unalienated land because the
Planning Act
had identified a ‘town’ in
the area under claim. As a consequence of his decision, the claimant applied to the Court for prerogative
writs of prohibition, certiorari and mandamus before Justice Gibbs who directed that it be made to a Full Court.
The summary earlier listed the size of the litigation cons umed by the Government’s
resistance to the claim, however a final decision by Aboriginal Land Commissioner Mr Justice Gray in 2000 caste some light on the delay in granting the claim and
demonstrates how the NT Government attempted to circumvent the
NT Planning Act
.
31
Although the High Court eventually held that the Government’s planning regulations would be invalid if their real purpose was to defeat the claim, the claim was not
complete and the narrative around the claim continued to grow. In the year 2000, Aboriginal Land Commissioner Mr Justice Gray eventually found in
favour of the Kenbi Land Claim on Cox Peninsula, made under the
Land Rights NT Act
, 1976 and was scathing in his remarks concerning the NT Government’s earlier town
planning exercise. He said: The 1990-91 planning exercise seems to have had more to do with
defeating this land claim than attempting to plan for the possible future expansion of Darwin. Indeed, it is hard to avoid the
conclusion that the aim was to defeat this land claim. The
Land Rights Act
and the claimants are the subject of express criticism. The options are examined in very different ways, using different criteria,
so as to ensure that only one can succeed. Aboriginal interests are given little or no weight, whereas much emphasis is placed on the
desirability of providing vast areas for people who might wish to live in low-density, rural-residential environments.
32
In spite of reaching this point, the claim was not final. It
wasn’t until January 2009 that an ‘in principle agreement’ was reached between the Northern Territory Government, the Northern Land Council, and the Tommy Lyons
31
Ibid.
32
Kenbi Cox Peninsular Land Claim No 37, para 11.13.11 Gray J.
A comparative study: Traditionally-owned land and investment.
group. The ‘in principle agreement’ assigned 15,000 hectares of this land as Territory
Freehold to be managed by the Larrakia Development Corporation for commercial development
However, as has been the narrative in this claim, the struggle was not over, another storm had been brewing over the last 70 years concerning extensive pollution of the land
resulting from Commonwealth occupation of various sites used for maritime, communications and defence purposes within the Kenbi Land Claim.
The pollution including widespread asbestos, pesticides, heavy metals and poly- chlorinated biphenyls PCBs have been detected above safe levels and advice had been
provided that without a substantial remediation project to clean the area, in-ground contamination would migrate and impact on local bore water supplies.
The clean-up is anticipated to cost the Commonwealth Government AUD32 million and is at the end stages of negotiation with the NT Government and representatives of
the Kenbi Land Claim communities.
33
Behind the Claim disputes have arisen over the determination of the controlling agent for the claim. Anthropologist Dr Bill Day attributes the situation to:
At best it can be as a result of the disruption to Aboriginal society since settlement the removal of children and in particular the
division of Larrakia people into Wards and citizens between 1936 and 1964. While the recognition of land rights and native title is a
welcome development, it also has contributed to the disputes that otherwise could have be resolved internally according to customary
law.
34
This case study, so different to case study 1, shows how when traditionally-owned land in Australia has to be reclaimed, and the claimants are at the mercy of the law, it is vital
all loopholes i.e. the NT Government’s unsuccessful attempt to impose new planning
regulations on the claim can be identified at an early stage through knowledge of legal systems different to those of customary law, so claimants can play a part in protecting
their land.
33
Land Rights News - Northern Edition, July 2015, 6.
34
Day, Dr Bill, Larrakia Representative Bodies, www.drbilldayanthropologist.com...LarrakiaRepresentativeBodies.
A comparative study: Traditionally-owned land and investment.
The delay in granting the Kenbi Land Claim has prevented the claimants from pursuing investment and commercial activities to transfer their reliance on Government support to
self-determination.
4. Concluding Remarks