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
This research is a legal, normative research conducted through a desktop audit to locate relevant national laws of Indonesia, local regulations from Bali and legislation from the
Republic of Indonesia and the Commonwealth of Australia and the Northern Territory. A statutory analysis was applied to two selected case studies, one from each jurisdiction
to identify breaches and loopholes used by investors. A comparative approach was then chosen between Bali and the Northern Territory
where the similarities shared by the jurisdictions’ traditional land owners dominated the
differences: a.
Both have communities with traditional ownership of their land under the description of the
United Nations Declaration on the Rights of Indigenous People;
b. Both have communities facing threats from investors and other agents to the
traditional ownership of their land; c.
Both jurisdictions have national and regional legislation that make it possible for ownership of traditional land to be extinguished where the public interest
outweighs the traditional community ’s interest, and
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
