Traditional Owners and their Land Rights in Bali, Indonesia and the Northern Territory of Australia 1
by
Dwi Krisna Arjati, Lee Campbell, and I Made Budi Arsika
ABSTRACT
Traditional communities operate under long-term and rich customary laws, mostly unwritten, that protect and sustain the ownership of their traditional lands. Examples from adat communities in Bali, Indonesia and indigenous communities in the Northern Territory of Australia (with laws in the dreaming), are at the centre of this research. Parallel to the attraction of these traditional communities luring investors for tourism and other activities, is the enactment of national laws and local regulations that bring with them a challenge in the way they apply to traditional land owners. Under these circumstances, the traditional landowners are disadvantaged by not entirely understanding the characteristics of such laws, while investors come more informed, to serve their interests and not always ethically. This paper is a legal, normative research project aimed at comparing legal protection of traditional law and ownership of land between Bali and the Northern Territory in Australia. In addition, it aims to identify ways to embed ethical investment practices in legislation, to address legal protection of land ownership. This research discovers how legal protection, available in legislation, can be circumvented by investors who find loopholes to get access to traditional lands. A case study from the village of Tenganan Pagringsingan in Bali involving a villager violating Adat to purchase a tourism business will be analysed with a second case study on how a government used a loophole (unsuccessfully) to defeat a claim for native title in the Northern Territory. The analysis shows traditional owners of land will benefit from knowledge and understanding of written laws imposed on their traditional laws where their capacity to participate at a mutual level with investors is achieved and reform of some laws is completed to enable this to occur.
Keywords: Land, Traditional Community of Bali, Indigenous Peoples at Northern Territory of Australia
1 This research paper is presented at the ‘International Conference on Strengthening Local Communities
1. Introduction – research background
The research paper argues for stronger legal certainty in legislation where land owned by traditional owners is under threat of investment. It does so in an environment where the latter may be conducted unethically and in violation of customary laws, and suggests reform at the highest level starting with constitutional reform. It reinforces the incompatibility of the Australian Constitution with its traditional people to suggest the Constitution of the Republic of Indonesia as a good model to be considered in the current reform process in Australia.
It compares two jurisdictions, one in Bali and one in the Northern Territory of Australia to show how ‘loopholes’ in national and local legislation can be and are used by investors and other agents to their advantage over traditional owners of land, who operate under customary law and at times, with a limited understanding of such laws where they have been labelled as ‘economically weak’, 2 or vulnerable.
The research affirms the latter communities’ rich and long-term knowledge of customary law and relationship with the land on the one hand, while acknowledging at the root of the problem, their limited knowledge of international and national law, as the supporting issue throughout the paper, on the other.
Recent studies supporting this view have been used to show different perspectives concerning traditional communities in Bali. Among them, a journal article written by Tjokorda Istri Putra Astiti, Ari Atu Dewi, and Michael Faure focuses on the issue of collective land rights of Tenganan Pagringsingan villagers caused by economic changes (resulting from tourism investments).3 Another publication written by Dewa Gde Rudy discusses the characteristics and functions of customary lands in Bali and its legal status after the enactment of the Indonesian Basic Agrarian Law.4. Lastly, a study carried out by a Dutch law scholar, Ingrid Westendorp’s deals with the specific land rights of Balinese Hindu women raised the status of women and their participation in land
2 Article 11(2), Basic Agrarian Law (UUPA), Indonesia.
3 Tjokorda Istri Putra Astiti, Anak Agung Istri Ari Atu Dewi, Michael Faure, Tourism Development
and Customary Land Law in Bali: The Case of the Tenganan Pagringsingan Village, South Western Journal of International Law, Vol. 20, 2014, 122.
4 Dewa Gede Rudy, The Characteristics and Legal Status of Customary Lands (Tanah Adat) in Bali,
Educational Research International, Vol 4(2) April 2015, 138.
ownership and was used to clarify some legal concepts relatively similar to the issues concerned. Distinct from the abovementioned articles, this research presents a perspective through a comparative analysis about the land rights of traditional communities and indigenous peoples in regard to investment activities, between Bali and the Northern Territory of Australia.
The research paper has six sections following this introduction with an important clarification of terms given this is a comparative study where at Section 2 related legal issues are listed and described; at Section 3 the methodology is described; in Section 4 the case studies and their analyses illustrate the issues for the research; Section 5 concludes the paper with Section 6 suggesting five recommendations.
1.1 Aims of the research
Basically, the research has two aims:
(1) At first, it aims to find ways to empower traditional communities so they understand how to use national and local legislation to protect the ownership of
their land and deal with ‘loopholes,’ toward ethical and mutually beneficial investment partnerships. Or in other words, the research aims to find a way
where traditional land owners can ‘reconcile investment activities with collective land rights and customary land law,’ so any partnerships will benefit all parties, 5 mindful of the Balinese Tenganan Pagringsingan village case study (2014). 6 It seeks to redress ‘those instances, [where] customary land law was apparently not effective in preventing [transformation of traditional residences, conversion of land] from taking place.’ 7
(2) Secondly, the research aims to reinforce investors and other agents’ obligation to recognise and respect traditional customary law through ethical behaviour so
they too reconcile their investment activities within the relevant legal
framework to avoid what the research will expose resulted in the most disadvantaged group of people in Australia, in the Northern Territory land claim case study.
5 Above n 3
1.2 Terms used in the comparative study
References to traditional owners and their land rights and related terms are clarified to give a clear meaning, given this study crosses two jurisdictions:
Adat from Bali as traditional customary law governing community ownership of land and as ‘Balinese customary community that recognises the existence of customary lands (tanah adat) controlled by unity of the customary law community.’8
Awig-awig is a form of Balinese customary law created by Adat communities that defines the villagers’ obligatory behavior about how to manage the community and its customs, including land ownership. The Bali Provincial Regulation Number 3 of 2011 concerning Desa Pakraman, implies awig-awig is a set of rules made by the village to be used as a guideline in the implementation of the local philosophy of Tri Hita Karana in their respective traditional units (eg. Desa Pakraman, or Banjar Pakraman) 9
The dreaming’ in the Northern Territory of Australia is similar to Adat - where Ancestor Spirits created the relationships between groups and individuals to the land, the animals and other people. 10 Famous (and now deceased) Kakadu Elder,
Bill Neidjie stated: ‘Our story is in the land ... it is written in those sacred places ... My children will look after those places, That's the law.’11
The similarity between Adat and the dreaming is stated in the United Nations Declaration on the Rights of Indigenous People and in the United Nations Permanent Forum on Indigenous Issues, where Indigenous (traditional) peoples are identified as;
… holders of unique languages, knowledge systems and beliefs and possess invaluable knowledge of practices for the sustainable management of natural resources, 12 … where their special
8 Dewa Gede Rudy, The Characteristics and Legal Status of Customary Lands (Tanah Adat) in Bali,
Educational Research International, Vol 4(2) April 2015, 137.
http://www.erint.savap.org.pk/PDF/Vol.4%282%29/ERInt.2015%284.2-15%29.pdf
9 See Article 1 (11) of the Bali Provincial Regulation No 1 Year 2011 concerning Desa Pakraman 10 The Dreaming, http://www.australia.gov.au/about-australia/australian-story/dreaming.
11 www.australia.gov.au/about-australia/australian-story/dreaming
12 Fact Sheet, Who are Indigenous peoples, Indigenous Peoples, Indigenous Voices, United Nations
Permanent Forum on Indigenous Issues, and see, Law Reform Commission of Western Australia,
relationship to and use of their traditional land, ‘… has a fundamental importance for their collective physical and cultural
survival as peoples,’ and where they, ‘hold their own diverse
concepts of development, based on their traditional values, visions, needs and priorities.’ 13
Loopholes can occur in legislation where there is an ambiguity or inadequacy in
legislation, which can be used to circumvent or avoid the intent of the law, implied or explicitly stated, in the legislation. Investors can search for and use them strategically in a variety of ways, mostly to work in their favour.
Native title is defined most clearly by the Australian Human Rights Commission
as ‘a property right which reflects a relationship to land which is the very foundation of Indigenous religion, culture and well-being. The non-discriminatory protection of native title is a recognised human right.’ 14
Traditional right to land and ownership of land concerning Bali is applied
according to the Constitution of the Republic of Indonesia and Law No 5 of 1960
Basic Agrarian Act, Article 4 and Article 5; Law No 39 of 1999 - Concerning Human Rights and Law No. 6 of 2014 Villages Act.
Traditional law and ownership is applied as it is described in the United Nations Declaration on the Rights of Indigenous People. 15 It differs from ideologies underpinning international and national law in the relationship between traditional people with the land. It recognises a ‘special relationship to
and use of … traditional land,’ and a right to the land which, ‘… has a fundamental importance for the collective physical and cultural survival as peoples,’ and importantly, where [traditional people], ‘hold their own diverse
culture’’ Final Report, Project 94, 2006
http://www.un.org/esa/socdev/unpfii/documents/5session_factsheet1.pdf.
13 Note the United Nations considers the diversity of Indigenous peoples and does not adopt a
system-wide definition of these peoples.
14 Native Title, Australian Human Rights Commission, Native Title,
https://www.humanrights.gov.au/our-work/aboriginal-and-torres-strait-islander-social-justice/projects/native-title.
15 Recognizing the urgent need to respect and promote the inherent rights of indigenous peoples which
concepts of development, based on their traditional values, visions, needs and
priorities’16 (authors’ italics).
Vulnerable peoples/groups or the ‘economically weak’17 includes traditional owners with a rich knowledge of their traditional laws but a limited understanding of other legal systems.
1.3. The implications of Loopholes
The ‘loopholes’ alluded to in the Introduction (paragraph 2), in the two jurisdictions can be used to threaten traditional ownership of land (Adat in Bali and the ‘dreaming’ in the
Northern Territory), when investors and other agents act in a way that does not serve the interests of the community and breach statutes that could prevent such behavior. Some Indonesian laws provide examples, such as the Indonesian Law Number 10 of 2009 concerning Tourism at Article 26, which obliges:
Every tourism entrepreneur shall …: maintain and honour religious norms, customary, culture, and values of living within the local community.
The loopholes can be found in a number of statutes with an early high-level example in the Constitution of the Republic of Indonesia at Article 18B, which recognises and respects traditional communities and their customary rights, as long as they remain in existence and are in accordance with the societal development and principles of the unitary State of the Republic of Indonesia, even though at Article 6(1) in Law Number 39 of 1999 Concerning Human Rights:
the differences and needs of indigenous peoples must be taken into consideration and protected by the law, the public and the Government.
Act No 5 of 1960 Basic Agrarian Act (Indonesia) also contains loopholes under Article 5 where it recognises Adat (traditionally-owned land):
provided that it is not contrary to the national interest and the interest of the State, which are based on national unity, to Indonesian socialism, to the provisions stipulated in this Act, nor to other
16 Note the United Nations considers the diversity of Indigenous peoples and chooses to identify, rather
than define-Indigenous peoples.
legislation, all with due regard to elements which are based on religious law.
The implications emerging from this situation have already been identified by Dewa Gede Rudy (2015) for Bali where, ‘decisions made by key decision makers … have pursued the growth in tourism, with insufficient regard to [their] impact on local
communities … .‘ 18
Tjokorda Istri Putra Astiti, Anak Agung Istri Ari Atu Dewi, and Michael Faure succinctly captured the problem in their research where as a result of tourism:
… a shift has taken place from collective land ownership to individual ownership, as well as a transfer of property rights from individuals living in traditional villages to individuals coming from outside those villages. These transfers have frequently been followed by conflicts concerning the rights to land. 19
The Commonwealth of Australia Constitution Act, unlike that of Indonesia, neither details nor protects the rights of its Indigenous people, with a separate Native Title Act
enacted to deal with land rights. Under this Act, the Government can extinguish Native
Title under ‘inconsistency’ (along with other criteria), where in section 15(c), a,
past act that is wholly or partly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests concerned—the act extinguishes the native title to the extent of the inconsistency.
Lessons learned from Bali may contribute to the Northern Territory’s longest land claim (over four decades), the Kenbi Land Claim, to argue that in strengthening traditional owners’ understanding of international and national laws, legislation will be applied in a more informed and cost-effective manner for all parties concerned.
In the Northern Territory if the status quo, where as an example, ‘some of the most
marginalised [and financially excluded] people in the country … with a lack of
accessible and culturally appropriate financial services and products through mainstream financial service providers’, 20 lingers (as they fight to reclaim their land),
18 Suparwoko, N. Sudarmo, A community-Based Approach to Tourism in Indonesia, PhD Thesis,
Victoria University, Melbourne, Australia, 2005.
19 Tjokorda Istri Putra Astiti, Anak Agung Istri Ari Atu Dewi, and Michael Faure, Tourism
Development and Customary Land Law in Bali: The Case of the Tenganan Pagringsingan Village, South Western Journal of International Law, Vol. 20, 2013, 120.
participation in investment by Indigenous Australians will remain inhibited in a global order.
The situation demands an urgent response to build the capacity of traditional land owners in understanding national and local systems of governance, so they can reconcile and then balance their system of customary law with that of other systems towards fair and just outcomes for ethical and mutually-beneficial investment.
2. Legal Issues: Constitutional and Legal Protection of Traditional Communities
and Indigenous People Regarding Investment
There is a body of legislation that could be applied in this research, however in the constraints of the research parameters and to maximise the outcomes, the most pertinent have been selected for their direct impact on traditional populations and land ownership in these jurisdictions.
Indonesian laws and regulations concerning the research issues are included below: a. The Constitution of the Republic of Indonesia
b. Decree of The People’s Consultative Assembly No XVII/MPR/1998 Concerning Human Rights
c. Act No 5 of 1960 Basic Agrarian Law / Undang-Undang Pokok Agraria
d. Act No 6 of 2014 Law of the Village / Undang-Undang tentang Desa
e. Act No 10 of 2009 Tourism Law / Undang-Undang tentang Pariwisata
f. Act No 25 of 2007 Investment Law / Undang-Undang tentang Penanaman Modal
g. Act No 39 of 1999 Concerning Human Rights / Undang-Undang tentang Hak Asasi Manusia
h. Bali Provincial Regulation Number 3 Year 2001 concerning CustomaryVillage
(Desa Pakraman)
i. Rules of State Ministry of Agrarian/Head of the Land National Body Number 5 Year 1999 Concerning Manual Dispute Settlement Land Ownership Rights of Traditional Community
As a comparison, some legal instruments at Australia and the Northern Territory Australia are also relevant to be used as sources.
a. Commonwealth of Australia ConstitutionAct
b. Native Title Act 1993
d. The Aboriginal Sacred Sites Act 1989
e. Australian Human Rights Commission Act 1986 f. The Planning Act (NT)
As a constitutional basis, the Constitution of the Republic of Indonesia in Article 18B recognises and respects self-determination of traditional communities. With regards to the issue of investment, Indonesian Law Number 25 of 2007 concerning Investment, at Article 15b holds that investors are to implement corporate social responsibility,’ elucidated in the Law as:
… a responsibility mounted in every investment company to keep
creating relationship which [are] in harmony, in balance and suitable to the local community’s neighborhood, values, norms, and culture.
While at Article 15 (d), investors have a responsibility to ‘respect the cultural traditions of the community around the location of investment business activities.’
Further, Law Number 10 of 2009 Tourismat Article 26 obliges, ‘
Every tourism entrepreneur shall …: maintain and honour religious
norms, customary, culture, and values of living within the local community.
The situation is more complex in the Northern Territory. In the absence of recognised traditional rights in the Constitution built on colonial ideology and a misconception of
terra nullius 200 years ago, traditional people continue to fight for a broad and inclusive legal framework, making an understanding of international and national laws and land rights more urgent.
One final point is to describe the position taken by the two jurisdictions concerning the position of traditional communities in their Constitutions, where the Constitution of the Republic of Indonesia leads on this issue. The Constitution of the Republic of Indonesia
In its current form it contains a clause at s 51(xxvi) which allows the Commonwealth to
make laws with respect to, ‘The people of any race for whom it is deemed necessary to make special laws,’ giving the Commonwealth power to treat people differently according to their ethnicity or origins. It is known as the "race power". There is close to universal agreement in Australia that this clause should go.
Section 25 of the Constitution penalises states where they remove the vote from Indigenous people, by reducing their population numbers for House of Representatives seats. The section implies states might perform such an unacceptable act and is basically a dead letter, as a reminder of the past. Like s 51(xxvi), there is near universal agreement it too should go.
With this in mind, the circumstances surrounding legal protection of traditional land in Indonesia starts on a higher level than that in the Northern Territory.
3. Methodology – legal research
This research is a legal, normative research conducted through a desktop audit to locate relevant national laws of Indonesia, local regulations from Bali and legislation from the Republic of Indonesia and the Commonwealth of Australia and the Northern Territory. A statutory analysis was applied to two selected case studies, one from each jurisdiction to identify breaches and loopholes used by investors.
A comparative approach was then chosen between Bali and the Northern Territory where the similarities shared by the jurisdictions’ traditional land owners dominated the differences:
a. Both have communities with traditional ownership of their land under the description of the United Nations Declaration on the Rights of Indigenous People;
b. Both have communities facing threats from investors and other agents to the traditional ownership of their land;
d. Both require certain conditions to be met where traditional owners have been dispossessed or seek to reclaim their land.
The differences between the jurisdictions can mostly be attributed to their Constitutions: a. The Constitution of the Republic of Indonesia recognises and respects
traditional land ownership while the Constitution of the Commonwealth of Australia does not include reference to its traditional land owners
b. Traditional land owners on Bali have a stable traditional system of land ownership governed by customary law (Adat) while Indigenous Northern Territorians seek to reclaim their traditional land (their dreaming) following the colonisation of Australia 200 years ago and the introduction of terra nullius by the British colonisers;
c. Traditional owners on Bali remain culturally strong in spite of inevitable change imposed by the growth in tourism while Indigenous Australians
struggle for national recognition and respect and are the country’s most disadvantaged group and in the Northern Territory have the highest percentage of prisoners (84%), attributed to cultural breakdown and loss of land and language.
This research draws on two case studies to illustrate the impact of investment and disturbance of traditional lands.
In Bali the first case study shows how in a village with a strong commitment to Adat, one villager and one investor managed to circumvent the law resulting in violation of
Adat and external ownership of customary land. The investor concerned was obliged to know his legal obligations and responsibilities under Law Number 25 of 2007 concerning Investment Law Number 10 of 2009 concerning Tourism, and importantly the Law No. 5 of 1960 concerning Basic Agrarian Law.
In the Northern Territory, case study 2 examines a lengthy land claim that was at first defeated by action of the Government when they too managed to circumvent a local Planning Regulation.
4. Case studies and analysis
4.1 Case Study 1 and analysis
At first it is important to note that Indonesian Constitution at Article 18B(2) and in the Decree of The People’s Consultative Assembly Number XVII/MPR/1998 concerning Human Rights Article 2(2) provides legal protection and respect and recognition of traditional communities and their ownership of the land.
A brief overview of the origin of Balinese villagers is also important to understand the concept of Adat and customary law, and for the differences with case study 2.
Traditional villages (desa pakraman) in Bali have an inextricable relationship with their land originating in the arrival of Mahayogi Markandya in Bali to develop Hindu teachings. 21 Due to these origins, Balinese villages have unique characteristics throughout Indonesia with unwritten laws including religion, economics and social functions. The laws are protected, in particular under Law No 5 of 1960 Basic Agrarian Principles, as long as those lands exist (Rules of the State Ministry of Agrarian / Head of the National Land Body No. 5 of 1999 Concerning Manual Dispute of Land Settlement
and Land Ownership Rights of Traditional Communities, Article 2(2).
The case study following demonstrates how weaknesses in the law have contributed to a violation of customary law, where the villagers did not recognise they could have used the law to protect their land.
The village of Tenganan Pagringsingan, which has been the subject of earlier research by Tjokorda Istri Putra Astiti and others (2011), 22 concerned culture, whereas in this research the focus is on how the traditional villagers and owners of the land, bound by a more-than-usual stricter Adat (i.e. awig-awig) not to sell their land to any investors, including other Balinese and those from outside Bali, failed to protect their land.
Unlike some other villages in Bali, (Ubud, Kuta, Tabanan) 23 the certificates of collective ownership of the land have not been converted to individual ownership under
the villagers’ strong respect for awig-awig. And different to other villages the investment activities that have changed the landscape of Bali, have been resisted.
21 Dewa Gde Rudy, The Characteristics and Legal Status of Customary Lands (Tanah Adat) In Bali,
Educational Research International Vol. 4(2) April 2015.
22 See above n 19.
23 Dewa Gde Rudy, The Characteristics and Legal Status of Customary Lands (Tanah Adat) In Bali,
However, in spite of the strength of awig-awig in Tenganan Pagringsingan, the lure of investment in tourism has been a loophole a villager to use her land as collateral for bank loans and then by default, place it in the hands of investors.
In this case, a villager sought a bank loan for a business in tourism with her land as collateral but was unable to repay the loan. The land was auctioned and an outsider bought the land. The villagers tried to reclaim the land and the investor agreed as long as he was compensated with another piece of land outside the village. The village could not meet this request because the land outside the village was not theirs to give as compensation. The land in the village remained under the ownership of the outsider. The violation of awig-awig by the villager through her unlawful transfer of land as collateral is an example of a weakening of awig-awig and a failure of the village to use legal protection from the Act Law No 25 0f 2007 concerning investment and an example of the investor failing to respect and recognise the same law Article 15 of the same Act defining his responsibilities at Article 15(b) concerning creating relationships in
harmony with the local community’s values, norms and culture, that is, their Adat. He also failed to recognise Article 15(d), the most important Article, concerning respect for the cultural traditions of the community around the location of business investment activities.
The villagers may not have known, as has been the theme of this research, they could also have sought legal protection by applying Bali Province Legislation 3 (2001)
Concerning [Traditional] Village, Article 9, paragraph 5 that states:
Adat land and/or land ownership by the traditional community cannot be registered by individual persons.
The villager did not have the authority to use her land as collateral for a bank loan in spite of full knowledge of her obligation to awig-awig and penalties to be applied in breach of this customary law.
In addition, the relationship between local communities and tourism investors in Bali is addressed through global guidelines that set benchmarks applied at national and local levels. The ‘Global Code of Ethics in Tourism’, at Article 5(4) makes it clear to investors as tourism professionals they are:
governed by the regulations laid down by the public authorities, [and] should carry out studies of the impact of their development projects on the environment and natural surroundings; they should also deliver, with the greatest transparency and objectivity, information on their future programmes and their foreseeable repercussions and foster dialogue on their contents with the populations [traditional communities] concerned. 24
Article 5 of Law No 10 Indonesian Tourism Act, makes it clear this global code should be obeyed.
At the highest level in Indonesia there are legal solutions to the Bali case study where with international and national legal knowledge, traditional communities will be able to work with investors in ways that suit their specific needs and interests.
4.2 Case study 2 and analysis – Kenbi Land Claim, Northern Territory
An overview of Australia’s Indigenous history with key cases is important to illustrate the different path experienced by traditional land owners and their bid to own their land, compared to their counterparts in Bali just illustrated in case study 1. This leads the analysis, with an account of the circumstances surrounding the Kenbi Land Claim. Traditional ownership of land in the Northern Territory is vastly different to that in Bali. It is a story of over 200 years of dispossession for Indigenous clans following the colonisation of Australia by the British from 1900 under the misconception of terra nullius, that no-one inhabited the land, allowing the British to settle and colonise the country, and enact a Constitution in 1901, silent on the rights of traditional owners to their land.
Litigation concerning Aboriginal land title did not appear in Australia until the 1970s, in the Gove Land Rights Case, 25 where Justice Mildren rejected native title ruling in
24 Global Code of Ethics for Tourism, http://ethics.unwto.org/en/content/global-code-ethics-tourism.
favour of terra nullius. Three earlier cases 26 involved issues of native title such as trespassing and one stands out for the way the Government treated the claim.
In 1835 a treaty was signed with Aboriginal Elders and John Batman in the Port Phillip District of Victoria. The Governor of the time, Governor Bourke declared the Treaty
‘void’ with no effect against the Crown because Batman had negotiated directly with
the Aboriginal people, for whom the British did not recognise as having any claim to the land in Australia.
It took another 11 years until the doctrine of terra nullius was finally overruled by the High Court of Australia in the landmark case, Mabo v Queensland (No 2). 27 The case recognised the Meriam people of Murray Island in the Torres Strait as native title holders for a portion of their traditional grounds.
In 1993 and under the Keating Government, Indigenous people had their land rights recognised in law through the Native Title Act which made an attempt to place some certainty around the legal position of landholders and the processes that had to be followed, to determine native title could be claimed, protected and recognised in the court system.
Australia’s legal system operated under the influence of the British legal system until
the Australia Act in 1986 and even with this transformation of power to the Australian nation, Indigenous peoples continued to remain silent in the Constitution.
4.2.1 Another claim, the same struggle
The Kenbi Land Claim has been the longest running claim for Native title in Australia. It is an example of an agent, the Northern Territory (NT) Government trying to use loopholes in legislation to defeat Native Title Claims.
The claim has taken some four decades; three hearings before the High Court; 28 four hearings before the Federal Court, 29 and two hearings before the Aboriginal Land
26 Attorney-General v Brown (1847) 1 Legge 312; 2 SCR (NSW) App 30; Cooper v Stuart (1889) 14
App Cas 286; Williams v Attorney General (NSW) (1913) 16 CLR 404; Randwick Corporation v Rutledge (1959) 102 CLR 54 and Wade v New South Wales Rutile Mining Co. Pty. Ltd. (1969) 121 CLR 177.
27 Mabo v Queensland (No 2) [1992] HCA 23.
28 Re Toohey; ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170; Re Kearney; ex
Commissioner to be resolved. It has involved, at various times, consideration by all five Commissioners who have been appointed under the Aboriginal Land Rights Act (NT)
1976 (‘the Act’).
For the purposes of this research, only the matter concerning the actions of the NT Government are explained to show how this agent tried to circumvent the law and defeat the claim, afraid that such a claim would take away their right develop the land. The Act at the centre of the claim, the Aboriginal Land Rights (Northern Territory) Act
1971, the Land Rights Act, gives the Government the authority to decline or extinguish native title where certain conditions are not met. It can allow traditional claims to unalienated or alienated land where estates and interests not held by the Crown are held by, or on behalf of Aboriginals.
This analysis describes how the Government enacted new planning regulations under the
Northern Territory Planning Act for the expansion of the city of Darwin (concerned that
development was threatened by the claim), identifying a plan for a ’town’ on the land under claim. According to the Act, a ‘town’ can defeat any claims for Native Title and in the first attempt to claim their land, this is what happened to the people in the Kenbi Land Claim.
Under section 3(1) of the Planning Act, unalienated Crown land is defined as not to
include a ‘town’ where ‘town is defined with:
the same meaning as in the law of the Northern Territory relating to the planning and developing of towns and the use of land in or near towns, and includes any area that, by virtue of regulations in force under that law, is to be treated as a town, (The Queen v Toohey, 1981). 30
The claim was first lodged on the 20th March 1979 (before the Planning Regulations were in place) by the Northern Land Council (NLC) representing the Indigenous peoples living on the traditional lands on the Cox Peninsula west of Darwin. Their claim - the Kenbi Land Claim – included islands and reefs and land being unalienated 29 Attorney General (NT) v Kea rney and Northern Land Council; Re Kenbi (Cox Peninsular ) Land
Claim [1984] FCA 261; 55 ALR 545; Re Maurice, Aboriginal Land Commissioner; ex parte Attorney General for the Northern Territory (1987) 17 FCR 422; Attorney General for the Northern Territory v Olney and the Northern Land Council FCA (1439/88 Fed No 325) 11; Northern Land Council v Olney [1992] FCA 69; (1992) 34 FCR 470.
Crown land, under section 50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1971, the Land Rights Act.
The Commissioner declined the application stating that according to the Act, the Cox Peninsula was not unalienated land because the Planning Act had identified a ‘town’ in the area under claim.
As a consequence of his decision, the claimant applied to the Court for prerogative writs of prohibition, certiorari and mandamus before Justice Gibbs who directed that it be made to a Full Court.
The summary earlier listed the size of the litigation consumed by the Government’s resistance to the claim, however a final decision by Aboriginal Land Commissioner Mr Justice Gray in 2000 caste some light on the delay in granting the claim and demonstrates how the NT Government attempted to circumvent the NT Planning Act. 31
Although the High Court eventually held that the Government’s planning regulations
would be invalid if their real purpose was to defeat the claim, the claim was not complete and the narrative around the claim continued to grow.
In the year 2000, Aboriginal Land Commissioner Mr Justice Gray eventually found in favour of the Kenbi Land Claim on Cox Peninsula, made under the Land Rights (NT) Act, 1976 and was scathing in his remarks concerning the NT Government’s earlier town planning exercise. He said:
The 1990-91 planning exercise seems to have had more to do with defeating this land claim than attempting to plan for the possible future expansion of Darwin. Indeed, it is hard to avoid the conclusion that the aim was to defeat this land claim. The Land Rights Act and the claimants are the subject of express criticism. The options are examined in very different ways, using different criteria, so as to ensure that only one can succeed. Aboriginal interests are given little or no weight, whereas much emphasis is placed on the desirability of providing vast areas for people who might wish to live in low-density, rural-residential environments. 32
In spite of reaching this point, the claim was not final.
It wasn’t until January 2009 that an ‘in principle agreement’ was reached between the Northern Territory Government, the Northern Land Council, and the Tommy Lyons
31 Ibid.
group. The ‘in principle agreement’ assigned 15,000 hectares of this land as Territory Freehold to be managed by the Larrakia Development Corporation for commercial development
However, as has been the narrative in this claim, the struggle was not over, another storm had been brewing over the last 70 years concerning extensive pollution of the land resulting from Commonwealth occupation of various sites used for maritime, communications and defence purposes within the Kenbi Land Claim.
The pollution including widespread asbestos, pesticides, heavy metals and poly- chlorinated biphenyls (PCBs) have been detected above safe levels and advice had been provided that without a substantial remediation project to clean the area, in-ground contamination would migrate and impact on local bore water supplies.
The clean-up is anticipated to cost the Commonwealth Government AUD$32 million and is at the end stages of negotiation with the NT Government and representatives of the Kenbi Land Claim communities. 33
Behind the Claim disputes have arisen over the determination of the controlling agent for the claim. Anthropologist Dr Bill Day attributes the situation to:
At best it can be as a result of the disruption to Aboriginal society since settlement the removal of children and in particular the division of Larrakia people into Wards and citizens between 1936 and 1964. While the recognition of land rights and native title is a welcome development, it also has contributed to the disputes that otherwise could have be resolved internally according to customary law. 34
This case study, so different to case study 1, shows how when traditionally-owned land in Australia has to be reclaimed, and the claimants are at the mercy of the law, it is vital all loopholes (i.e. the NT Government’s unsuccessful attempt to impose new planning regulations on the claim) can be identified at an early stage through knowledge of legal systems different to those of customary law, so claimants can play a part in protecting their land.
33 Land Rights News - Northern Edition, July 2015, 6. 34 Day, Dr Bill, Larrakia Representative Bodies,
The delay in granting the Kenbi Land Claim has prevented the claimants from pursuing investment and commercial activities to transfer their reliance on Government support to self-determination.
4. Concluding Remarks
This study has shown that traditional owners of land in situations concerning investment on their land, (even when it has to be reclaimed), do not always start on an equal footing with their potential investors who most likely have a more-informed knowledge of international and national laws to allow them to find loopholes to circumvent the law. It demonstrates the necessity to educate and empower traditional communities about all forms of legislation, at all levels so they can participate in investment activities concerning their land towards fair and just outcomes, that do not violate their Adat or their dreaming, i.e. traditional law and ownership of land.
Investors must meet their obligations to know and understand the implications of their investment activities on traditionally-held land to ensure Adat and other customary laws are sustained to avoid the impact of loss of culture and language evident in the Indigenous communities in the Northern Territory, from dispossession of their land. Governments should revisit the ways in which legislation is written, used and interpreted concerning investment on traditionally-owned land to ensure loopholes available to unethical investors are closed.
The study has alluded to an international code for ethical behavour (Global Code of Ethics for Tourism) that might be modeled in the investment sector as a benchmark, to enforce investors to commit to learn about the traditional systems of land ownership and the impact from investment to avoid the outcomes in the Tenganan Pagringsingan case study, where a villager ‘sold’ her land to investors, neither knowing, nor understanding local and national laws relevant to her actions.
5. Recommendations
1. Educate traditional owners, in particular the leaders of the community about international, national and local laws through participatory research in real investment activities, so they can use their knowledge to protect their land rights under Adat and traditional customary law (the dreaming)
2. Raise the awareness of community members to the implications of their actions should they violate Adat, intentionally or unintentionally to pursue investment opportunities on their traditional land, through community-based training programs.
3. Strengthen the obligations of investors towards ethical investment practices in traditional communities by reforming relevant laws to mandate regulations concerning knowledge, understanding, recognition and respect for Adat.
4. Include Adat and other traditional customary law in initial investment design activities through a collaborative action with all stakeholders, to ensure existing rights are recognised and respected, more secure, and avoid conflicts, (adapted from the Food, Agriculture Organisation, Land, Tenure and Rural Development, (2002), towards mutually-beneficial investment).
REFERENCES
Case Law
Kenbi (Cox Peninsular) Land Claim No 37, para 11.13.11 (Gray J).
R v Toohey: ex Parte Northern Land Council [1981] HCA 74, (1981)
Legislation
Act No 5 of 1960 Basic Agrarian Law / Undang-Undang Pokok Agraria
Act No 6 of 2014 Law of the Village / Undang-Undang tentang Desa
Act No 39 of 1999 Concerning Human Rights / Undang-Undang tentang hak asasi manusia
Act No 25of 2007 Investment Law / Undang-Undang tentang Penanaman Modal
Act No 10 of 2009 Tourism Law / Undang-Undang tentang Pariwisata, Article 26
The Constitution of the Republic of Indonesia / Undang-Undang Dasar Republik Indonesia 1945 (UUD)
Commonwealth of Australia Constitution Act
Tourism Act NT 2012.
Law of Property Act (does not apply - Statutory rights of users in 2(d) Aboriginal land within the meaning of section 3(1) of the Aboriginal Land Rights (Northern Territory) Act1976 of the Commonwealth)
The Native Title Act 1993
Aboriginal Land Rights (Northern Territory) Act 1976
The Aboriginal Sacred Sites Act 1989
Human Rights Act
Planning Act (NT)
Codes
Global Code of Ethics for Tourism, http://ethics.unwto.org/en/content/global-code-ethics-tourism
Articles
Bauman, T. and D Smyth, Indigenous Partnerships in Protected Area Management in Australia: Three case studies, 2007, Australian Institute of Aboriginal and Torres Strait Islander Studies in association with the Australian Collaboration and the Poola Foundation (Tom Kantor fund), Canberra 9.
Decades-old Kenbi land claim held up by $32m clean-up bill for asbestos and pollutants hazard, ABC News 29 Jun 2015.
Tjokorda Istri Putra Astiti, Anak Agung Istri Ari Atu Dewi, Michael Faure, Tourism Development and Customary Land Law in Bali: The Case of the Tenganan Pagringsingan Village, South Western Journal of International Law, Vol. 20, 2014. Food, Agriculture Organisation (FAO), Land, Tenure and Rural Development, (2002). Heryani, E amd Grant, Chris, Land Administration in Indonesia, Developing Asia and the Pacific - The World Bank Financed Land Administration Projects and Principles, 3rd FIG Regional Conference, Jakarta, Indonesia, October 3-7 Oct, 2004, https://www.fig.net/resources/proceedings/fig_proceedings/jakarta/papers/ps_04/ps_04_ 3_heryani_grant.pdf
Levy, Ron, The Kenbi Land Claim 2002, Indigenous Law Bulletin 16; (2002) 5(15). Ni Ketut Supasti Dharmawan, Tourisn and Environment: Toward Promoting Sustanable Development of Tourism: A Human Rights Perspective, Law Review, Year 2 Vol. 1, January - April 2012.
Slaats, H., Land Law in Indonesia, Changing Approaches, ILAS Newsletter Online (No 22), Law Faculty, University of Nijmegen,
http://www.iias.nl/iiasn/22/regions/22SEA11.html
Westendorp, Ingrid,Personal Status Law and Women’s Right to Equality in Law and in Practice: The Case of Land Rights of Balinese Hindu Women, Journal of Human Rights Practice ,Vol. 7 | Number 3, (November 2015) 430 – 450, DOI:10.1093/jhuman/huv013 Advance Access publication.
Reports
Aboriginal Areas Protection Authority, Annual Report 2013-2014, http://www.aapant.org.au/publication/annual-reports.
Treaties
UN Declaration On the Right Of Indigeneous People,
https://www.humanrights.gov.au/publications/un-declaration-rights-indigenous-peoples-1
Global Code of Ethics for Tourism adopted by resolution A/RES/406[XIII} at the thirteenth WTO General Assembly [Santiago, Chile, 27 September – 1 October 1999.
Web sites
Native Title, Australian Human Rights Commission, Native Title,
