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I.4. Research Methodology
This research is using normative methodology with the primary and secondary sources of law. The primary sources of law are contained cases law, international instrument and statutes
Acts and Local Regulations. The secondary sources of law are journals, books and articles internet. This collaboration research is using the comparative approach, the fact approach, the
case approach and the statute approach. Those sources of law are collected by card systems. The facts, cases law and the sources
of law are analyzed in qualitative. The researcher are collected those materials, explained the relationship between the facts and the sources of law and made some law argumentation for the
legal issues in this research.
II. How are Indonesia the case of Bali and Australia protecting the indigenous culture? II.1. International Instruments
Both Bali and Australia derive some of their domestic laws pertaining to indigenous peoples from international instruments. Jointly they have ratified the
International Covenant on Economic, Social and Cultural Rights 1966 ICESCR
7
and endorsed the
United Nations Declaration on the Rights of Indigenous Peoples 2007
UNDRIP
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. In addition to the ICESCR and UNDRIP the International Labour Organisation ILO Convention on Indigenous and Tribal
Populations 1957 No. 107
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and the ILO Convention on Indigenous and Tribal Peoples 1989 No. 169, although not ratified, are indicative of how the international community views the
economicsocialcultural rightsstatus of indigenous peoples. It is often the principles espoused in these instruments that have been implemented in domestic laws.
II.2. Indonesia The case of Bali
Bali is one of the Indonesian provinces which have a lot of
Desa AdatDesa Pakraman
Indigenous Village as well as being a favorite tourist destination in the world. Indigenous
7
Indonesia ratified the ICESCR on 23 February 2006
8
Australia endorsed the declaration in 2009.
9
This conventions was a first attempt to codify international obligations of States in respect indigenous and tribal populations
5
peoples as the member of
Desa Pakraman
in Bali or other Indigenous Villages in all over the world exist and are recognized at the International level. In Indonesia, there are some regulations
which govern the indigenous peoples and their rights. According to
Stufenbau Theorie
by Hans Kelsen, there is a hierarchy of regulations and the basis of legislation drafting is from the higher
law. It is ongoing until the
grundnorm
as the basic norm.
10
The Indonesian systems of law adopted that theory to draft the Indonesian legislations. It reflected in Article 7 paragraph 1 of
the Indonesian Legislations Drafting Act No. 12 Year 2011: the hierarchy of Indonesian Rules are Indonesian Constitutions 1945 UUD 1945,
Decree of the People’s Consultative Assembly Ketetapan Majelis Permusyawaratan Rakyat, Act Undang-UndangPeraturan Pengganti
Undang-Undang, Government Regulations Peraturan Pemerintah, President Regulations Peraturan Presiden, Province Legislations Peraturan Daerah Provinsi, Regency Legislations
Peraturan Daerah KabupatenKota. The source of law of the Indonesian legislation is
Pancasila
which is the basic norm of the Indonesian regulations.
11
There are four directly relevant regulations related to the indigenous peoples and their culture.
The most significant law is the Indonesian Constitutions 1945.
Desa Adat
and their indigenous peoples are recognized and respected under the Indonesian Constitutions 1945.
12
It means all of the
Desa Adat
in Indonesia which existed prior to Indonesian independence are recognized and respected under the Indonesian Constitutions 1945.
Desa Adat
and their indigenous peoples have the same rights and obligations as other Indonesian peoples. They have
civil, political rights and economic, social cultural rights. According to Indigenous culture related to the economic, social and cultural rights are govern in Article 28 C paragraph 1
13
, Article 28 I Paragraph 3
14
and Article 32
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of the Indonesian Constitutions. It means the Balinese indigenous peoples could maintain, develop and enjoy the benefitsof culture.
10
Kelsen, Hans, General Theory of Law and State, With a new introduction by A. Javier Trevino New Brunswick [U.S.A] London [U.K], 3
rd
printing, 2009. xxvii
11
See Article 2 of the Indonesian Formatting Regulations Act No. 12 Year 2011
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It reflected in Article 18 B paragraph 2 : “The state shall recognize and respect customary law hukumadat community units along with their traditional rights insofar as they are still in existence and are in conformity with
the development of society and the principle of the Unitary State of the Republic of Indonesia, as regulated by law”
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Every person shall have the right to develop himherself through the fulfillment of their basic needs, shall have the right to obtain education and to enjoy the benefits of science and technology, arts and culture, for the enhancement
of the quality of their life and for the welfare of the humankind
14
The cultural identity and the rights of traditional communities shall be respected in conformity with the development of time and civilization
6
Second is the Indonesian Human Rights Act No. 6 Year 1999, specifically Article 6 paragraphs 1 and 2:
1 In the interests of upholding human rights, the differences and needs of indigenous peoples must be taken
into consideration and protected by the law, the public and the Government; 2
The cultural identity of indigenous peoples, including indigenous land rights, must be upheld, in accordance with the development of the times.
The Act is giving protection to the differences and needs of indigenous peoples including the cultural identity and indigenous land rights on basis on human rights. If there is an individual,
group of peoples or stakeholders do not respect and protect the existence of the indigenous peoples then they breach the human rights.
Third is the Indonesian Tourism Act No. 9 Year 2010. According to Article 1 5 of the Indonesia Tourism Act: Tour attraction power shall be all matters having uniqueness, beauty,
and value in the form of variety natural wealth, culture, and the man made product as the target or objective of the tourists visit. The culture is being the power of tour attraction in Indonesia. As
the power of the tour attraction, the indigenous peoples could take a part to maintain and develop the culture.
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The development of the culture is based on Indonesian Tourism principles with due observance with the diversity, uniqueness and typical culture and nature, and the human needs
for tourism.
17
The Balinese Province Legislation No. 2 Year 2012 as the fourth regulation that governs about Balinese Cultural Tourism. The objectives of the Balinese Cultural Tourism are to
conserve Balinese culture which imbued by Hindhu values, to increase economic growth, to increase social welfare, to create employment, to conserve the nature, environment and
resources.
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From those objectives, the primary basis of the Balinese Cultural Tourism is culture itself. If the Balinese culture is maintained in goodly it would be increase social welfare and
create the employment. It means the culture has commercialeconomic value. In fact, the cost of
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The state shall advance the national culture of Indonesia amidst world civilization by guaranteeing freedom to the society in preserving and developing its cultural values
16
See Article 5 e of the Indonesian Tourism Act
17
See Article 6 of the Indonesian Tourism Act
18
See Article 3 of the Local Regulation of Balinese Province No. 2 Year 2012 concerning Balinese Cultural Tourism
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daily ceremonies that spent by the Balinese indigenous peoples to preserve the culture is not giving the benefit to them. The benefits are going to flow only to the Government and the private
sector. That injustice condition is caused by no regulation has treating the culture as an economic resource.
II.3 Australia