Definition and scope of Agrarian Law (KKI)

  

The definiton of Agrarian Law is a set of

laws governing the right to control over

the natural resources which include earth,

water and natural resources contained

   Earth (Article 1 paragraph 4 BAL) that includes:

  In the principles of positive law, namely Law No. 5 of 1960 concerning the Basic Regulations on Agrarian Principles or better known as the Basic Agrarian Law (BAL), stated that Agrarian elements include:

• - the surface of the earth (land);
• - the earth’s part located beneath the ground and under water.

  

 Water (Article 1, paragraph 5 and Article 47 BAL)

including inland waters such as rivers, lakes,

  

 Natural resources contained in the earth

and water (Article 1, paragraph 2 of the BAL), such as mining materials/minerals, fish, pearls and other marine products.

  

The elements in space (Section 48 BAL).

  

 Natural resources there in which is called

extractive includes chemical element, mineral and so on, Law Number 11 of 1967 as amended by Law number 4 of 2009 regarding General Mining and Coal. And Law Number 22 of 2001 regarding Oil and Gas.

  

 National resources which contained in the

water which are fishes and other resources in the water and sea within the territorial of Indonesia (Law Number 31 0f 2004 as

  

The definition of Agrarian in BAL principally is

similar to the definition of space in the Law

Number 26 of 2007 regarding Spatial Planning.

  In Article 1 para 1 reads :

“Space is place that includes space of land, space

of sea and space of air, including space on the

earth as one area where humans and other living

creatures, do the activity, and maintain its

survival".

  

 In the Statement of Indonesian People Consultative

  th

  Assembly Number IX/MPR/2001 dated 9 November, 2001 regarding Agrarian Reform and The Management of Natural Resource, it is stated that " The resources of agrarian/natural resources including land, water, space and natural resources contained therein as grace of God Almighty to the Indonesian people is a national wealth that must be grateful. Therefore, it must be managed and used optimally for present and future generations in framework of achieving just and prosperous society" .

  

 Earth, water, space and natural resource contained

  Agrarian Law in a under since includes group of law which either position right upon natural resources which cover in the definition of agrarian.

  Those group includes :

a. Land Law (Agrarian Law in the narrow sense), is regulated in

  BAL;

  b. Water Rights Law, as stipulated in Law No. 11 of 1994 as amanded by Law No. 7 of 2004 concerning Water Resources;

  c. Mining Law, as stipulated in Law No. 11 of 1967 as amended by Law No. 4 of 2009 regarding General Mining and Coal and Law No. 22 of 2001 on Oil and Gas, successor of Law No. 44/Prp/1960;

  AGRARIAN LAW WIDE NARROW

Definition A set of laws governing the A set of laws governing

right to control over the the right to control over natural resources the land Object The right to control over The land tenure the natural resources Scope Land Law Land Law

• - Water Right Law
• - Fishery Law
>- Forest Law
• -

  

Definition of Land and Land Title/Land Right

1. In Article 4 state that On the basis of the

  “ State’s right of control referred to in Article 2, it is necessary to determine the types of rights to the surface of earth, which is called tanah (land), that can be granted to, and held by, persons, either individually, jointly with others as well as bodies corporate” Therefore it is obvious, that land legally depend as surface of earth and rights of land is right of

  2. a. Which is covered by land right/land right is land in the sense of particular part of the air.

  b. The authority to use the land in question as well as the mess of the earth and the water existing under its surface and the space above it.

c. The limitation state in Article 4 para 2 is read

  

“to a point which is essentially required to

allow for the fulfillment of the interests that are directly related to the use of the land in question, such a point being within the limits

  3. a. In Article 8 :

  “On the basis of the State’s right of control referred to in Article 2, the acquisition of the natural resources which are contained in the earth, water, and airspace is to be regulated”.

b. Elucidation of article 8 stated that :

  land “since…. rights entitle the holder only to the surface of the soil/earth, the powers generated from land rights do not affect the natural resources found inside the earth, water, and airspace. Hence, the taking of such natural resources requires separate regulations. The said provision serves as a basis for mining and other legislation”.

  4. a. In the countries which follow the principle of

  “Accessie” or “Accessories”, construction and plain

  upon the land regarded as a spatial and in separable part of the land.

  b. Any legal acts concerning the land stall automatically by law includes plants and construction upon the land .

c. Our Natural Land Law use the principle of

  Adat/Customary Law, horizontale severance (In Dutch it is called “horizontale scheiding”). Construction and plants do non include or part of the land , therefore land right/title automatically

  5. The legal actions undertaken may include

simply land. or simply include the buildings

and/or plants only, which is then

disassembled (

  “adol bedol") or remain on

the land in question (" adol ngebregi"). Any

legal action could also include the following

land buildings and/or perennials that are

on it, in which case what is meant required

explicitly stated.

6. Definition of

  “land” in other country

a. Land Code Malaysia (1965) Article 5 includes :

  land i.

   and all substances

  that surface of the earth

  forming that surface; ii. the earth below the surface and all substances therein; iii. all vegetation and other natural products, whether or not requiring the periodical application of labor to their production, and whether on or below the surface; iv. all things attached to the earth or permanently fastened to anything attached to the earth,

  b. Land Titles Act Singapore (1993) Article 4 land is defined as : , and all

  The surface of any defined parcel of the earth

  

substances there under, and so much of the column of air

above the surface as is reasonably necessary for the

proprietor’s use and enjoyment, and includes any estate or

interest in land all vegetation growing thereon and

structures affixed thereon or any parcel of airspace or sub-

terranean pace held apart form the surface of the land as

shown in an approved plan Subject to any provisions to

the contrary the proprietorship of land includes natural

rights to air, light, water, and support and the right of

access to any highway on which the land abuts.

  

 There are essential similarities with the definition of

"land" in the juridical sense as described in the BAL, namely which is meant by "land" is also "the surface of the earth". However, it is extended to include also the right to the earth’s body under and the air space above it, within the bounds of reasonable needed.

  

 Another difference is the ownership of buildings and

plants that exist on the land. Malaysia and Singapore, like other countries in general, using the accessie principle. There are also differences regarding the ownership of natural resources in the earth’s body under which is owned. legal provisions in various

  7. In several states in USA such as Arkansas,

Kansas, Mississippi, Ohio, Pennsylvania,

Texas and West Virginia), which is called

ownership of the states, petroleum and gas,

like coal and other minerals in the earth’s body under the land own by the land owner.

  

In the Law of the State of New South

8. Wales, Australia, all petroleum and helium

are owned by Crown, the mastery is in the

State. Gold and Silver also owned by

Crown.

  THE PRINCIPLE PROVISIONS OF LAND LAW BEFORE 24/9/1960

DUALISTIC LAND LAW

  Western Land Law Customary Land Law

  Instrument Instruments

  The Principles The Principles

  Unwritten Written

  Written Unwritten As the

  Created by : Book II BW Customary Law prevailing law

  Book III BW (Ancient Dutch)

• -HB Gov for the native

  Book IV BW Indonesian -Swapraja Gov.

  Prior to BW

  (Bumiputera)

  Customary Land Law Principle Provision

  DUALISTIC Western Land Law

  PLURALISM Inter

• –Group Land Law

  Additional Provision Administration Land Law

  Land in Indonesia prior to BAL

  Indonesia Right of Land

  Regulated by the Adat Law has not been registered Has been registered

  Basically, the Indonesian right of land covered all of the lands which were not regulated by the Western Land Law.

  a. Unwritten provisions, prevailed in Indonesia for the native people from the early year;

b. Written provisions which created by:

  1. Swapraja Government, such as regulations about land in Kesultanan Yogyakarta, Surakarta, or East Sumatera area.

2. Dutch East Indies Government, such as :

  ( 1) Agrarisch Eigendom Right, State Gezattes 1872- 117 (Koninklijk Besluit = Royal Decree) and State

  e.g. Overschrijving Ord. Written

  State Gezattes 1834-27

  The Ancient Netherland

  Regulations about private land

  Law

  lease, for the example in the

  VOC periode, some lands in Jakarta were owned by a private which was rented to built buildings. This (institution) is

  Unwritten regulated according to the

  BUKU II of BW, regulates this following land titles :

• -Eigendom (pasal 571)
• -Opstal (pasal 711)
• -Erfpacht (pasal 720)
• -Gebruik (pasal 818) BUKU III of BW, regulates :

  1. Land sale matter which consist of two articles (article 1457 & 1458):

  After

• - Year

  Agreement Stage, that doesn’t mean the land tenure is

   transferred; 1848

  Juridische Levering

  Stage, the stage in which the transfer - of land tenure to the other party, that is (change of land

  title’s holder) in the cadaster office.

  2. The case of land lease (Article 1588-1600) . The condition of this lease is not applied anymore since the enactment of Basic Agrarian Law.

  BUKU IV of BW, regulates acquisitive verfaring as the remedy

STATE DOMAIN LAND

  Vacant Swapraja Land with Other Customary

  Land Land Eigendom Western Law

  Right Right of Land

WESTERN RIGHT OF LAND

  As owner As authority

  Indonesia’s Rights:

  Individual Rights:

• - Eigendom Right Customary Property - Erfpacht Right Rights - Opstal Right

  Opstal Right

  Erfpacht Right

  Right to Lease

  Gebruik Right

  Agree ment Land with

  Eigendom right State

  Domein Land

  Agree ment Opstal

  Right Erfpacht

  Right Right to

  Lease Gebruik

  Right

CUSTOMARY LAND LAW

  Right of Communal Land

  Elements of Authority Elements of Ownership

  Chief of Adat Individual Right : (Rights of Land)

  Primary: - Customary Property Right

• - Right of Use

NATIONAL LAND LAW

  The Right of the National (Article 1) Elements of Authority

  Elements of Ownership Right of the State

  (Article 2) Individual Right (Right of Land

  Primary : - Right of Ownership

• - Right of Use - Right of Exploitation

  Prior to the BAL until September

  23

  th

  , 1960 After the BAL (after September 24

  th

  , 1960) Legal Position Dispersed in various law:

• Civil Administrative of Western Right of Land
• Civil Administrative of Customary Land Law
• Administrative Land Law
• Swapraja Land Law
• Inter-group Land Law One object A systematic

  State Position Owner/Agency of Civil Law Ruling Agencies