THE DYNAMICS OF THE
PROTECTION OF
INDIGENOUS PEOPLE’S
RIGHTS IN INDONESIA
Joeni A. Kurniawan
Who are the “Indigenous People”?
• ILO Convention 169, Art. 1 point 1:
“IP are people in independent countries who have descent from the populations which inhabited the country, or a geographical region to which the
country belongs, at the time of conquest or
colonization or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social,
Who are the “Indigenous People”?
• ILO Convention 169, Art. 1 point 1:
“Tribal people are people in independent countries whose social, cultural, and economic conditions
distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by
The Developing Context of Indigenous
People in Indonesia
• Indigenous People = “Masyarakat (Hukum) Adat.”
• Colonialism context
The Developing Context of Indigenous
People in Indonesia
Colonialism Context:
• Differentiation of inhabitants into three groups:
1. Europeans.
2. Foreign Orientals.
3. Indigenous People (pribumi/bumi putra).
• Each group was ruled by different laws, where the IP
was ruled by their adat laws (customary law). That’s
why, in term of their structural form, they are also called as persekutuan hukum adat / masyarakat hukum
The Developing Context of Indigenous
People in Indonesia
Independence Context:
• There is no more differentiation of inhabitants.
• The inhabitants are simply categorized into: the citizens and the foreigners.
• All inhabitants are ruled by the Indonesian Law (a state legal system).
Some Facts Regarding the Indigenous
People in Indonesia
• According to AMAN (Aliansi Masyarakat Adat Nusantara / The Alliance of the Indigenous Communities of
Nusantara), there are at least 2.244 indigenous communities existing in Indonesia in 2014.
• Indonesia is listed as one of countries refusing to sign the ILO Convention 169 in 1989.
• Indonesia is listed as one of countries supporting the
Some Basic IP’s Rights according to
UNDRIP
• Right to self-determination (Art. 3).
• Rights of political authority (Art. 4-5).
The Dynamic of the Protection of IP’s
Rights in Indonesia
• The rights of the IP is firmly regulated by the Indonesian Constitution (the UUD 1945), which is in the article
18B(2).
• The Article 18B(2) of the UUD 1945:
“The state recognizes and respects individual adat law communities and their traditional rights, in as far as they are still alive and in line with the evolution of society and the principle of the Unitary State of Indonesia, as
The Dynamic of the Protection of IP’s
Rights in Indonesia
• There is no coherence of the laws regulating the IP in Indonesia. So, there are still plenty of laws contradicting with the principle of the Art. 18B(2) of UUD 1945, such as the Basic Agrarian Law (Law 5/1960), the Forestry Law (Law 41/1999), etc.
• However, the Article 18B(2) of UUD 1945 has also been
The Dynamic of the Protection of IP’s
Rights in Indonesia
• The Village Law (Law 6/2014):
Establishing the so-called “Desa Adat (the Adat Village)”,
as part of the (lowest) governmental institution.
• The Verdict of Constitutional Court Numb. 35/2012: Establishing the so-called “Hutan Adat (the Adat Forest)”
The Legal Problems Regarding the
Protection of IP’s Rights in Indonesia
• The Art.18B(2) of UUD 1945 is still a conditional recognition.
• The rejection of right to self-determination.
• The Basic Agrarian Law (Law 5/1960), as the major offense to the tenurial rights of the IP, is still in force.
• The contradiction between the Basic Agrarian Law and the Post-Amendment of Forestry Law.
The Legal Problems Regarding the
Protection of IP’s Rights in Indonesia
The Conditional Recognition of the Art. 18B(2) UUD 1945:
A community of IP has to be: factually existing, in line with the development of the society, in line with the principle of the unitary state of Indonesia, and regulated by the Act of Parliament.
There are some requirements which need to be met for a community in order to
be declared as a “factually existing IP” (look: the Verdict of Constitutional Court
Numb. 31/PUU-V/2007 pp.155-156, 165-166) contradictory with the principle of self-identification.
The Art. 18B(2) of UUD 1945 is only for the indigenous communities who
successfully defend their existence until nowadays. Those who previously have been dispersed are considered not eligible to be regulated by the Art. 18B(2) (look: the Verdict of Constitutional Court Numb. 35/PUU-X/2012 pp.177).
The Legal Problems Regarding the
Protection of IP’s Rights in Indonesia
The Regulation of Basic Agrarian Law (Law 5/1960): • Art. 3:
“Given the article 1 and article 2, the implementation of the
ulayat right and any similar right of the adat legal entities, as long as it factually exists, has to be in accordance with the state and national interest, according to the unity of the nation, and not contradictory with any higher legislation.”
conditional recognition.
• The IP is not allowed to reject any issuance of permit given by the government to any third party on particular piece of land
The Legal Problems Regarding the
Protection of IP’s Rights in Indonesia
Post-amendment Forestry Law:
• The Forestry Law uses Basic Agrarian Law as its basis, while the Basic Agrarian Law has not been amended.
The Legal Problems Regarding the
Protection of IP’s Rights in Indonesia
Village Law (Law 6/2014):
• Still giving conditionality to a community of IP in order to be an adat village.
• The position of an adat village as the lowest level of state institution
• The VL does not include all kind of indigenous
communities and only giving attention to the territorial based community.
Conclusions…
• The existence and the rights of IP in Indonesia is recognized, but not in the sense of human rights protection, especially as regulated by the UNDRIP.
• The rights of IP is recognized conditionally, since the
