THE EXISTENCE OF THE INDIGENOUS CULTURE AS AN ECONOMIC RESOURCE IN INDONESIA (THE CASE OF BALI) AND AUSTRALIA (COMPARATIVE STUDY).

THE EXISTENCE OF THE INDIGENOUS CULTURE AS AN ECONOMIC RESOURCE IN INDONESIA (THE CASE OF BALI) AND AUSTRALIA

(COMPARATIVE STUDY) By

Made Suksma Prijandhini Devi Salain1 David Isles2

ABSTRACT

The issue of indigenous rights in relation to economic, social and cultural development has been recognized and protected in various international instruments. For example the International Covenant on Economic, Social and Cultural Rights 1966 and the United Nations Declaration on the Rights of Indigenous Peoples 2007, both of which have been ratified or endorsed by Indonesia and Australia. In Bali as in Australia, these instruments have been implemented through various domestic statutes/regulations with limited success in protecting the indigenous peoples as per the intent of the instruments.

In Indonesia, there is no specific act that governs indigenous peoples and their rights (the culture as an economic resource). The Balinese peoples are suffering from that situation because they spend money to maintain and develop the culture but no benefit flow to them. According to those situations, the legal issues are how the Indonesia (the case of Bali) and Australia protect the indigenous culture? And is it sufficient to protect the indigenous culture as an economic resource?

In relation to answer those legal issues, it would be use normative methodology with comparative approach, the fact approach, the case approach and the statute approach. By using normative methodology, the result of the analysis is the Indonesia and Australia protecting the indigenous peoples and their culture through the Constitutions and several legislations. Especially for the Indonesian regulations is insufficient to protect the culture as an economic resource (a unitary approach). Thus, the Indonesia Government needs to review and reconstruct the related regulations. In contrast, Australia has adopted a trichotomous approach wherein economic, social and cultural are separate and can be managed separately, an approach that has had mixed results.

I. Introduction

I.1. Research Background

Bali is a very popular tourist destination, for both domestic and international travellers. With its beautiful and panoramic views of mountains, beaches, working rice paddies, uniquely

Balinese places such as Trunyan, Penglipuran Village and Temples to the local deities. In

1 _{Phd Student in the Doctoral Program of Faculty of Law Udayana University.} 2 _{Student in the graduate Bachelor of Laws programme at Charles Darwin University.}

addition, the innate friendliness and openness, traditions, ceremonies and general way of life of

the Balinese people, the Balinese Culture itself has become a powerful tourist draw.

A core element of the Balinese way is the Desa Pakraman (the simplest parallel in the

Australian system is a small local council area). A Desa Pakra man is a unit of traditional

community which follows Hindu manners, has traditions, a social structure through the

Kahyangan Tiga bond, its own territory and properties. A Desa Pakraman also has the right to

self-regulation long as any regulations are not contrary to the Indonesian Constitution.3

Due to this relatively autonomous governance and strong community identification,

some Desa Pakraman, for example Penglipuran Village are able to organize their cultural

activities as a tourist attraction and as a result return a benefit to the Desa Pakraman.

It has not happened in all Desa Pakraman in Bali, for example Kuta. Only a few tourists would like to watch the Balinese traditional dance performance at there. They prefer to enjoy the night entertainment in Kuta. Kuta is changing from the cultural tourism place into the global touristim. It means a deletion of Balinese culture from traditional community slowly but surely. Consequently the source of income for the traditional community is decreasing because there is no economic benefit derived from Balinese culture.

In addition, there is a cost to maintain the cultural life in Bali. Each Hindhu family is spending about Rp. 10,000 (Ten Thousands Rupiahs) per day for the daily ceremony. For example, there is 2.000.000 Hindhu Families. It means, they are spending their money (Rp. 10.000 x 2.000.000 x 30 days = Rp. 600,000,000,000) per month just for the daily ceremonial activities in order to maintain their cultural life. The owner of the cultural (traditional community) does not get benefit from the use of the culture (The Government and the private

sector). The benefits are going to flow only to the Government and the private sector.4 Those

conditions are caused by no economic relation between the three actors in the Balinese culture (the traditional community, the Government and the private sectors). There is no Indonesian Law

3 _{Sirtha, I Nyoman, Aspek Hukum Dalam Konflik Adat Bali (Udayana University Press, 2008). 1 and See} Indonesian Village Act No. 6 Year 2014 and Indonesian Local Government Act No. 23 Year 2014

4 _{Wyasa Putra, I.B., A Contra-productive Impact of Indonesian New Legislation on Administrative Village against} Indonesian Indigenous Culture as an Economic Resources, International Conference on Acces to Justice for Indigenous Peoples, 9-11 April 2015, Faculty of Law University of Malaya, Malaysia. 2-3

and policy which is governs the economic relations between them and treats the culture as an

economic resource. According to Indonesian Tourism Act No. 9 Year 2010, culture is one the

pillar of tourism development but it does not recognise and protect the culture as an economic

resource.5 In contrast, the Indonesian Culture Heritage Act No. 11 Year 2010 treats culture as a

sign of human civilization.

The Government is using a classic policy model to manage the cultures and the other

sides, the traditional community as the member of Desa Adat (Indigenous Village) manage their

culture as a part of the daily life procession.6 The gap between the Government policy and the

real fact are needs a new approach in development of policy. The new policy shall be set up the

new position and function of the Desa Adat related to their culture. It is including the cultural

programming, budgeting and regularly direct maintaining by the Government and the private sectors. That would be giving the properly rights and obligations to the owner and the user of culture for participates in the sustainable cultural maintenance and development.

I.2. Legal Issues

1. How are Indonesia (the case of Bali) and Australia protecting the indigenous culture?

2. Is the law as enacted in Indonesia (the case of Bali) and Australia sufficient to protect the

indigenous peoples as an economic resource? I.3. Purposes

1. The legal certainty of the existence of indigenous culture as an economic resource.

2. To review and reconstruct the Indonesian Tourism Act No. 9 Year 2010 in order to

recognize and protect the indigenous culture as an economic resources.

3. To make a new approach of Indonesian policy according to give properly rights and

obligations to the owner and the user of culture in order to maintain and develop culture sustainability.

5 _{See Articles 1 (5) and 6 of the Indonesian Tourism Act No. 9 Year 2010} 6 _{I.B. Wyasa Putra, above n 2, 3}

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)8. In addition to the ICESCR and UNDRIP the International Labour Organisation (ILO) Convention on Indigenous and Tribal

Populations 1957 (No. 107)9 and the ILO Convention on Indigenous and Tribal Peoples 1989

(No. 169), although not ratified, are indicative of how the international community views the economic/social/cultural rights/status 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 Adat/Desa 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

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-Undang/Peraturan Pengganti Undang-Undang), Government Regulations (Peraturan Pemerintah), President Regulations (Peraturan Presiden), Province Legislations (Peraturan Daerah Provinsi), Regency Legislations

(Peraturan Daerah Kabupaten/Kota). 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 113,

Article 28 I Paragraph 314 and Article 3215 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], 3rd printing, 2009). xxvii

11 _{See Article 2 of the Indonesian Formatting Regulations Act No. 12 Year 2011}

12 _{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”

13 _{Every person shall have the right to develop him/herself 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

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.16 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.18 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 commercial/economic value. In fact, the cost of 15 _{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

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

As discussed above much of the Australian legislative frame work for indigenous peoples is derived from international legal instruments. These principles are reflected in Australian

legislation through Acts such as the Aboriginal Land Rights (Northern Territory) Act 1979 and

Native Title Act 1993 (Cth). Additionally cases such as Mabo19 and Wik20 have provided impetus for legislative responses to changes in jurisprudence in relation to indigenous peoples in Australia.

The international instruments and Australian Law promote the protection of economic and social and cultural protection/development of indigenous peoples. However, no explanation of what these terms mean is given, more importantly, no explanation of what these terms mean to the indigenous peoples is given. As the Balinese are demonstrating, and equally relevant to Australia, an understanding of these terms is critical to determining fair and just outcomes to the peoples involved.

III. Is the law as enacted in Indonesia (the case of Bali) and Australia sufficient to protect the indigenous culture as an economic resource?

III.1. Indonesia (The case of Bali)

In relation to the Indonesian regulations above, there are two kinds of regulations, the Indigenous peoples regulations and culture as the primary pillar of the tourism regulations. The

indigenous people, their rights and Desa Adat are recognized and protected under Indonesian

Constitutions 1945 but there is no specific Act that governs about that. It is important to enact a Specific Act for the Indigenous peoples to implement their rights under Constitutions and to

19 _{Mabo v Queensland [No 2] (1992) 175 CLR 1} 20 _{The Wik Peoples v Queensland (1996) 141 ALR 129}

make legal certainty of their existence in Indonesia. The regulations of indigenous peoples are

spreading into different Act, such as Indonesian Human Rights Act, Indonesian Tourism Act21,

Indonesian Forestry Act No. 18 Year 2013.

As previously discussed there are some Indonesian regulations in relation to the indigenous culture, such as Indonesian Tourism Act and the Balinese Province Legislation No. 2

Year 2012. One of the objectives of the Indonesian Tourism is to enhance the culture.22

According to Article 7 of the Indonesian Tourism Act state that the development of tourism shall covers: (a) Tourism industry; (b) Destination of tourism; (c) Marketing; and (d) Tourism institution. There is no development of the culture in order to give benefit to the owner of culture.

The way of life of the Balinese indigenous peoples are their tradition. Tourists are coming to Bali for the Balinese tradition. They are curious and like to watch the Balinese ceremonies. Thus, the Balinese indigenous peoples have to maintain and develop the Balinese culture in order to keep it sustained. They are spending about Rp. 10,000 (Ten Thousands Rupiahs) per-day for the daily ceremonial activities. For example, there is 2.000.000 Hindhu

Families. Could you imagine how much many the Hindhu families have to spend their money in

a month in order to maintain their cultural life.23 In other words, the Balinese culture has an

economic value for the Balinese Indigenous peoples. In fact, the benefit of the culture is going to flow only to the Government and the private sectors.

Hindhu families are not forced to spend their money to conduct the daily ceremonial activities, but that is a form of their religion. They incorporate their religion into their daily life.

Moreover, the Balinese peoples (especially Hindhu peoples) have the Tri Hita Karana

philosophy, the relationship between the individual with the God, between the individual and the other individuals, between the individual and the environmental. They believe in that philosophy, they have to implement in daily life to keep Bali in harmony.

21 _{Article 5 (e) of the Indonesian Tourism Act : Tourisms shall be implemented based on the principles below : make} efficient use of the local community. It means the local community or indigenous people have the rights to

participate in maintain and develop the tourism. 22 _{See Article 4 (f) of Indonesian Tourism Act} 23 _{I.B. Wyasa Putra, above n 2, 3}

The injustice condition above is caused by both of those regulations.24 Those are not sufficient to protect the indigenous culture. Those are not treating the culture as an economic resource. Conversely, in fact, the Balinese tradition is an economic resource. Refers to that situations, there is a problem definition of the culture. The Indonesian Tourism Act does not explaining what exactly the culture it is. Definition of subject of policy is one of the most

fundamental elements of policy construction and analyses.25 Definition is considered as the very

basis requirement for construction of logic of concept. Problem of definition is the first and the very fundamental problem of scientific work, particularly of those related to the development of

concept.26 That is why the definition of the culture shall be clear enough and the fact is, the

Indonesian Tourism Act does not containing the definition of the culture.

The Indonesian Government should be review the Indonesian Tourism Act in order to make a clear definition of the culture including the culture as an economic resource. The problem definition of the culture is going to be the cause of the problem concept and the problem how to regulate the culture. Those conditions could not give justice, expediency and legal certainty to the indigenous peoples (included Balinese peoples) as the owner of the culture. It is contrary

with the rechtsidee of the law purposes mentioned above by Gustav Radbruch.27

A good policy/law/act/regulation is made from the needs and the expectations of the communities. The appropriate method in order knowing what are the community needs and expectations, that is bottom-up approach. It is come up from the bottom (the community) not from the top (the Government). According to the Article 5 (e) of the Indonesian Tourism Act, the bottom-up approach is explicitly recognized but the problem is the community (including the indigenous peoples) does not aware about it. Even though the community does not aware about their participation in tourism, the Indonesian Government should be actively to see and observe the phenomena of tourism related to the existence of the culture as an economic resource.

24 _{Indonesian Tourism Act No. 9 Year 2010 and Balinese Province Legislation No.2 Year 2012} 25

Iida, Akira, Paradigm Theory & Policy Making: Reconfiguring The Future (Tutle Publishing,1st edition,2004). 17 26 _{Wyasa Putra, I.B., Indonesian Tourism Law: In Search of Law and Regulations Model (2013) 1 Lex Mercantoria} Journal of International Trade and Business Law 63

IV. Conclusion

The Indigenous Peoples of Indonesia (the Province of Bali) and Australia are facing similar issues in relation to the pressures that non-traditional factors are placing on the traditional way of life and social systems. The international instruments to protect the indigenous peoples rights are the same for both nations, and both have implemented the principles with varying degrees of success.

The people of Bali have identified the notion of “culture as an economic resource” and

are seeking to amend the laws to reflect the innate economic value of a culture. This principle

aligns with the principle of Tri Hita Karana and as a people they do not distinguish between

economic and cultural value. Unfortunately, the Indonesian Regulations that related to the indigenous peoples and their culture are not sufficient to protect the indigenous culture as an economic resource. Those regulations are not treats the indigenous culture as an economic culture. The Indonesian Tourism Act is not containing the definition of the culture. It is causing a problem definition. Thus, the Indonesian Government has to make a specific act for the Indigenous peoples and to review the Indonesian Tourism Act in order to make clear and appropriate definition of the culture which is included the culture as an economic resource.

In contrast, the Australian approach has been and still is the trichotomy of economic and social and cultural, each with its own measure, be it financial or the intangible value of the human condition. This trichotomous approach translates easily to the hegemony in Australia but perhaps loses efficacy when applied to the indigenous peoples; particularly with their spiritual connection to the land and community, which is more aligned with the Balinese approach.

V. Recommendations

The issue of protecting indigenous cultures is vexed and laden with misunderstanding. This however only makes finding a workable and sustainable solution even more important. Moving forward the Balinese people may derive some benefit from analyzing their cultural traditions and values using a paradigm that economic, social and cultural activities are or can be uniquely identified and consequently protected using the existing framework of regulation. The opposite may hold true for the Australian context. Australian law and policy makers may derive

greater insight into the indigenous peoples of Australia by examining the Balinese approach that economic, social and cultural activities can be considered unitary, wherein valuing any part means valuing the whole.

This is a complex area for jurisprudence, due to the complexity of the subject matter, and inherent and often unknown effect that the commentators own culture brings to any observation. It is also from this complexity that new solutions may grow as understanding of alternative paradigms develops. More research is needed.

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.16 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.18 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 commercial/economic value. In fact, the cost of

15 _{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

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

As discussed above much of the Australian legislative frame work for indigenous peoples is derived from international legal instruments. These principles are reflected in Australian legislation through Acts such as the Aboriginal Land Rights (Northern Territory) Act 1979 and

Native Title Act 1993 (Cth). Additionally cases such as Mabo19 and Wik20 have provided impetus for legislative responses to changes in jurisprudence in relation to indigenous peoples in Australia.

The international instruments and Australian Law promote the protection of economic and social and cultural protection/development of indigenous peoples. However, no explanation of what these terms mean is given, more importantly, no explanation of what these terms mean to the indigenous peoples is given. As the Balinese are demonstrating, and equally relevant to Australia, an understanding of these terms is critical to determining fair and just outcomes to the peoples involved.

III. Is the law as enacted in Indonesia (the case of Bali) and Australia sufficient to protect the indigenous culture as an economic resource?

III.1. Indonesia (The case of Bali)

In relation to the Indonesian regulations above, there are two kinds of regulations, the Indigenous peoples regulations and culture as the primary pillar of the tourism regulations. The indigenous people, their rights and Desa Adat are recognized and protected under Indonesian Constitutions 1945 but there is no specific Act that governs about that. It is important to enact a Specific Act for the Indigenous peoples to implement their rights under Constitutions and to

19 _{Mabo v Queensland [No 2] (1992) 175 CLR 1}

make legal certainty of their existence in Indonesia. The regulations of indigenous peoples are spreading into different Act, such as Indonesian Human Rights Act, Indonesian Tourism Act21, Indonesian Forestry Act No. 18 Year 2013.

As previously discussed there are some Indonesian regulations in relation to the indigenous culture, such as Indonesian Tourism Act and the Balinese Province Legislation No. 2 Year 2012. One of the objectives of the Indonesian Tourism is to enhance the culture.22 According to Article 7 of the Indonesian Tourism Act state that the development of tourism shall covers: (a) Tourism industry; (b) Destination of tourism; (c) Marketing; and (d) Tourism institution. There is no development of the culture in order to give benefit to the owner of culture.

The way of life of the Balinese indigenous peoples are their tradition. Tourists are coming to Bali for the Balinese tradition. They are curious and like to watch the Balinese ceremonies. Thus, the Balinese indigenous peoples have to maintain and develop the Balinese culture in order to keep it sustained. They are spending about Rp. 10,000 (Ten Thousands Rupiahs) per-day for the daily ceremonial activities. For example, there is 2.000.000 Hindhu Families. Could you imagine how much many the Hindhu families have to spend their money in a month in order to maintain their cultural life.23 In other words, the Balinese culture has an economic value for the Balinese Indigenous peoples. In fact, the benefit of the culture is going to flow only to the Government and the private sectors.

Hindhu families are not forced to spend their money to conduct the daily ceremonial activities, but that is a form of their religion. They incorporate their religion into their daily life. Moreover, the Balinese peoples (especially Hindhu peoples) have the Tri Hita Karana

philosophy, the relationship between the individual with the God, between the individual and the other individuals, between the individual and the environmental. They believe in that philosophy, they have to implement in daily life to keep Bali in harmony.

21 _{Article 5 (e) of the Indonesian Tourism Act : Tourisms shall be implemented based on the principles below : make}

efficient use of the local community. It means the local community or indigenous people have the rights to participate in maintain and develop the tourism.

22 _{See Article 4 (f) of Indonesian Tourism Act} 23 _{I.B. Wyasa Putra, above n 2, 3}

The injustice condition above is caused by both of those regulations.24 Those are not sufficient to protect the indigenous culture. Those are not treating the culture as an economic resource. Conversely, in fact, the Balinese tradition is an economic resource. Refers to that situations, there is a problem definition of the culture. The Indonesian Tourism Act does not explaining what exactly the culture it is. Definition of subject of policy is one of the most fundamental elements of policy construction and analyses.25 Definition is considered as the very basis requirement for construction of logic of concept. Problem of definition is the first and the very fundamental problem of scientific work, particularly of those related to the development of concept.26 That is why the definition of the culture shall be clear enough and the fact is, the Indonesian Tourism Act does not containing the definition of the culture.

The Indonesian Government should be review the Indonesian Tourism Act in order to make a clear definition of the culture including the culture as an economic resource. The problem definition of the culture is going to be the cause of the problem concept and the problem how to regulate the culture. Those conditions could not give justice, expediency and legal certainty to the indigenous peoples (included Balinese peoples) as the owner of the culture. It is contrary with the rechtsidee of the law purposes mentioned above by Gustav Radbruch.27

A good policy/law/act/regulation is made from the needs and the expectations of the communities. The appropriate method in order knowing what are the community needs and expectations, that is bottom-up approach. It is come up from the bottom (the community) not from the top (the Government). According to the Article 5 (e) of the Indonesian Tourism Act, the bottom-up approach is explicitly recognized but the problem is the community (including the indigenous peoples) does not aware about it. Even though the community does not aware about their participation in tourism, the Indonesian Government should be actively to see and observe the phenomena of tourism related to the existence of the culture as an economic resource.

24 _{Indonesian Tourism Act No. 9 Year 2010 and Balinese Province Legislation No.2 Year 2012}

25

Iida, Akira, Paradigm Theory & Policy Making: Reconfiguring The Future (Tutle Publishing,1st edition,2004). 17

26 _{Wyasa Putra, I.B., Indonesian Tourism Law: In Search of Law and Regulations Model (2013) 1 Lex Mercantoria}

Journal of International Trade and Business Law 63

IV. Conclusion

The Indigenous Peoples of Indonesia (the Province of Bali) and Australia are facing similar issues in relation to the pressures that non-traditional factors are placing on the traditional way of life and social systems. The international instruments to protect the indigenous peoples rights are the same for both nations, and both have implemented the principles with varying degrees of success.

The people of Bali have identified the notion of “culture as an economic resource” and are seeking to amend the laws to reflect the innate economic value of a culture. This principle aligns with the principle of Tri Hita Karana and as a people they do not distinguish between economic and cultural value. Unfortunately, the Indonesian Regulations that related to the indigenous peoples and their culture are not sufficient to protect the indigenous culture as an economic resource. Those regulations are not treats the indigenous culture as an economic culture. The Indonesian Tourism Act is not containing the definition of the culture. It is causing a problem definition. Thus, the Indonesian Government has to make a specific act for the Indigenous peoples and to review the Indonesian Tourism Act in order to make clear and appropriate definition of the culture which is included the culture as an economic resource.

In contrast, the Australian approach has been and still is the trichotomy of economic and social and cultural, each with its own measure, be it financial or the intangible value of the human condition. This trichotomous approach translates easily to the hegemony in Australia but perhaps loses efficacy when applied to the indigenous peoples; particularly with their spiritual connection to the land and community, which is more aligned with the Balinese approach.

V. Recommendations

The issue of protecting indigenous cultures is vexed and laden with misunderstanding. This however only makes finding a workable and sustainable solution even more important. Moving forward the Balinese people may derive some benefit from analyzing their cultural traditions and values using a paradigm that economic, social and cultural activities are or can be uniquely identified and consequently protected using the existing framework of regulation. The opposite may hold true for the Australian context. Australian law and policy makers may derive

greater insight into the indigenous peoples of Australia by examining the Balinese approach that economic, social and cultural activities can be considered unitary, wherein valuing any part means valuing the whole.

This is a complex area for jurisprudence, due to the complexity of the subject matter, and inherent and often unknown effect that the commentators own culture brings to any observation. It is also from this complexity that new solutions may grow as understanding of alternative paradigms develops. More research is needed.