HGU and Recognition versus Customary Rights

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Land owned by customary-law communities with customary rights on it can be encumbered by HGU (right to use). If the government intends to burden it with the HGU, the holders of customary rights will be given an “recognitie” (see: general agreement btr II UUPA 1960/5).

It is surprising that the HGU (30-90 years old) may be imposed on customary land, given that by definition (see section 28-35 UUPA 1960/5) HGUs can only be placed on “lands which are directly controlled by Negara “(commonly called” State land “). Even if that can happen, then logically it is necessary to change the status of land from customary land to “State land” first before the government (cq BPN) issues HGU certificates on behalf of the applicant’s company.

In practice, since 1960, legal events have often been heard, commonly known as “Relinquishment of Rights” on islands outside Java.

Indigenous Recognition

The word “recognitie” is actually not new in the practice of borrowing large tracts of land during the Dutch East Indies. At least in New Guinea the practice of surrendering adat recognitie has been carried out by the colonial government with the aim of gaining control over the lands belonging to the local indigenous population to administer the government in that place. Local residents are even very fluent in the term “adat recognitie”, which is a kind of reward given to the holders of beschikkingsrecht (see article 3 of UUPA 1960/5) when the local government intends to take over their rights to build public facilities such as hospitals, ports, buildings government buildings and so on.

Petrus Hammadi, for example, who at that time was the head of the Hammadi clan at Engros bay near Jayapura, had received an “adat recognitie” worth 100 guilders in 1933 in return for separating their clans from part of the beschikkingsrechtyang land requested (read: borrowed) by the New Hollandia government in order to build a seaport. Later this place was known as the port of Hammadi. The amount of money deposited in Jayapura Bank Indonesia now in the name of Petrus Hammadi represents the entire Hammadi clan, and the interest may be taken annually to support the welfare of all members of the clan (source: Legal Bureau of the Irian Jaya Governor’s Office, 1988).

Agreement on the Release of Customary Rights

However, the process of relinquishing a customary right must be preceded by a clear, fair and written agreement; even though the owners of these customary rights are not literate. Even if the clan owner of local customary rights agrees to accept adat recognitie in return for the separation of the whole clan from a portion of their land, to whom will the customary rights be surrendered? Who is legally obliged to provide custom recognitie and prepare the agreement? How long will the customary rights be separated from their owners: for a time or for a while?

Initially the idea of ​​providing indigenous recognitie originated with the advice of Dutch anthropologists who had learned that for the indigenous population of New Guinea it was impossible to sell (release on) their land. In general all of New Guinea lands belong to the clan (beschikkingsrecht) and are alienated. Nevertheless they will gladly lend a small portion of their land if the applicant really needs and is willing to acknowledge their beschikkingsrecht; which confession is generally accompanied by valuable gifts desired by these landlords.

How is the practice now?

In practice in the field after 1960, the task of procurement as well as the surrender of “recognitie” was assigned to the HGU applicant company; at the risk of the recognized recognitie indigenous peoples’ would immediately think that the legal relationship that occurred with the HGU applicant company was an ordinary civil relationship, a kind of “civil rent” relationship.

In fact, without the knowledge of the customary rights holders there is actually another party (ie BPN) who holds a public authority to change the status of customary land rights to “State land” and on this basis issue HGU certificates on behalf of the applicant company. Later, in the event of a conflict, the former customary rights holders only know the company holding the HGU as their sole opponent. Meanwhile, legally the conflict between them is actually not an ordinary civil conflict (people versus people) but included in the category of “structural conflict” (where state power is involved) which is not possible to be resolved through civil justice.

Maria R Ruwiastuti Suryaalam

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