In the principles of positive law, namely Law No. 5 of 1960 concerning the Basic Regulations on Agrarian Principles or better known as the Basic Agrarian Law (BAL), stated that
Agrarian elements include:
Earth (Article 1 paragraph 4 BAL) that includes:
- the surface of the earth (land);
-
the earth’s part located beneath the ground and
under water.
Water (Article 1, paragraph 5 and Article 47 BAL)
Natural resources contained in the earth
and water (Article 1, paragraph 2 of the
BAL), such as mining materials/minerals,
fish, pearls and other marine products.
Natural resources there in which is called
extractive includes chemical element, mineral
and so on, Law Number 11 of 1967 as
amended by Law number 4 of 2009 regarding
General Mining and Coal. And Law Number
22 of 2001 regarding Oil and Gas.
The definition of Agrarian in BAL principally is
similar to the definition of space in the Law
Number 26 of 2007 regarding Spatial Planning.
In Article 1 para 1 reads :
“Space
is place that includes space of land, space
In the Statement of Indonesian People Consultative
Assembly Number IX/MPR/2001 dated 9
thNovember,
2001
regarding
Agrarian
Reform
and
The
Management of Natural Resource, it is stated that
"
The resources of agrarian/natural resources
including land, water, space and natural resources
contained therein as grace of God Almighty to the
Indonesian people is a national wealth that must be
grateful. Therefore, it must be managed and used
optimally for present and future generations in
framework of achieving just and prosperous society"
.
Earth, water, space and natural resource contained
therein in the BAL are covered by the definition of
“Agraria”,
as stated in
People’s
Consultative
Agrarian Law in a under since includes group of law which either position right upon natural resources which cover in the definition of agrarian.
Those group includes :
a. Land Law (Agrarian Law in the narrow sense), is regulated in BAL;
b. Water Rights Law, as stipulated in Law No. 11 of 1994 as amanded by Law No. 7 of 2004 concerning Water Resources;
c. Mining Law, as stipulated in Law No. 11 of 1967 as amended by Law No. 4 of 2009 regarding General Mining and Coal and Law No. 22 of 2001 on Oil and Gas, successor of Law No. 44/Prp/1960;
d. Fisheries Law, as stipulated in Law No. 31 of 2004 as amended by Law No. 45 of 2009;
e. Forestry Law, as stipulated in Law No. 41 of 1999;
AGRARIAN LAW
WIDE NARROW
Definition A set of laws governing the right to control over the natural resources
A set of laws governing the right to control over the land
Object The right to control over the natural resources
The land tenure
Scope - Land Law
- Water Right Law - Fishery Law
- Forest Law - Mining Law
- Law Upon frond and
particle in air space (but not space Law)
1. In Article 4 state that
“
On the basis of the
State’s
right of control referred to in Article 2, it is
necessary to determine the types of rights to the
surface of earth, which is called tanah (land), that
can be granted to, and held by, persons, either
individually, jointly with others as well as bodies
corporate”
Therefore it is obvious, that land legally depend as
surface of earth and rights of land is right of
particular (article 1) part of surface of land which
has two boarder and two dimension with
measured length and width.
2. a. Which is covered by land right/land right is land
in the sense of particular part of the air.
b. The authority to use the land in question as well
as the mess of the earth and the water existing
under its surface and the space above it.
c. The limitation state in Article 4 para 2 is read
“to
a point which is essentially required to
allow for the fulfillment of the interests that
are directly related to the use of the land in
question, such a point being within the limits
3. a. In Article 8 :
“On
the basis of the
State’s
right of
control referred to in Article 2, the acquisition of the
natural resources which are contained in the earth,
water, and airspace is to be
regulated”
.
b. Elucidation of article 8 stated that : “since….
land
rights entitle the holder only to the surface of the
soil/earth, the powers generated from land rights
do not affect the natural resources found inside the
earth, water, and airspace. Hence, the taking of such
natural resources requires separate regulations.
The said provision serves as a basis for mining
and other
legislation”
.
4. a. In the countries which follow the principle of
“Accessie” or “Accessories”, construction and plain upon the land regarded as a spatial and in separable part of the land.
b. Any legal acts concerning the land stall automatically by law includes plants and construction upon the land .
6. Definition of “land” in other country
a. Land Code Malaysia (1965) Article 5
land
includes :i.
that surface of the earth
and all substances forming that surface;ii. the earth below the surface and all substances therein;
iii. all vegetation and other natural products, whether or not requiring the periodical
application of labor to their production, and whether on or below the surface;
iv. all things attached to the earth or permanently fastened to anything attached to the earth,
b. Land Titles Act Singapore (1993) Article 4 land is defined as :
The surface of any defined parcel of the earth, and all substances there under, and so much of the column of air above the surface as is reasonably necessary for the
proprietor’s use and enjoyment, and includes any estate or
There are essential similarities with the definition of "land" in the juridical sense as described in the BAL, namely which is meant by "land" is also "the surface of the earth". However, it is extended to include also the right to the earth’s body under and the air space above it, within the bounds of reasonable needed.
DUALISTIC LAND LAW
Western Land Law Instrument
Customary Land Law Instruments
The Principles The Principles
Written Unwritten Written Unwritten
Book II BW Book III BW Book IV BW
Customary Law (Ancient Dutch)
Agr. Wet 1870 (Agr. Law 1870)
Agr. Besluit 1870 (Agr. Decree 1870)
Prior to BW (before 1848)
Administrative Land Law
Created by :
-HB Gov
-Swapraja Gov.
As the prevailing law
for the native Indonesian (Bumiputera) Swapraja Land
Law
PLURALISM
Principle Provision
Additional Provision
Customary Land Law
Western Land Law
DUALISTIC
Inter –Group Land Law
Administration Land Law
Land in
Indonesia prior to BAL
Indonesia Right of Land
Western Right of Land
Regulated by the Adat Law has not been registered
Basically, the Indonesian right of land covered all of the lands which were not regulated by the Western Land Law.
a. Unwritten provisions, prevailed in Indonesia for the native people from the early year;
b. Written provisions which created by:
1. Swapraja Government, such as regulations about land in Kesultanan Yogyakarta, Surakarta, or East Sumatera area.
2. Dutch East Indies Government, such as :
(1) Agrarisch Eigendom Right, State Gezattes 1872-117 (Koninklijk Besluit = Royal Decree) and State Gezattes 1873-38;
The
Ancient
Netherland Law
Written
Unwritten
e.g. Overschrijving Ord. State Gezattes 1834-27
Regulations about private land lease, for the example in the VOC periode, some lands in Jakarta were owned by a private which was rented to built buildings. This (institution) is regulated according to the customary law and known as
After Year 1848
BUKU II of BW, regulates this following land titles : -Eigendom (pasal 571)
-Opstal (pasal 711) -Erfpacht (pasal 720) -Gebruik (pasal 818)
BUKU III of BW, regulates :
1. Land sale matter which consist of two articles (article 1457 & 1458):
- Agreement Stage, that doesn’t mean the land tenure is transferred;
- Juridische Levering Stage, the stage in which the transfer of land tenure to the other party, that is (change of land
title’s holder) in the cadaster office.
2. The case of land lease (Article 1588-1600) . The condition of this lease is not applied anymore since the enactment of Basic Agrarian Law.
BUKU IV of BW, regulates acquisitive verfaring as the remedy to become land owner (Article 610-1955 jo 1963). The event
STATE DOMAIN LAND
Vacant Land Customary
Law Other
Western Right of Land Land with
Eigendom Right
WESTERN RIGHT OF LAND
As owner
As authority
Individual Rights: - Eigendom Right - Erfpacht Right - Opstal Right - Gebruik Right - Right to Lease
Indonesia’s Rights:
Opstal Right Erfpacht Right Right to Lease Gebruik Right Agree ment Land with Eigendom right State Domein Land Agree ment Opstal Right Erfpacht Right Right to Lease Gebruik Right
Through buying and selling
CUSTOMARY LAND LAW
Right of Communal Land
Elements of Ownership Elements of Authority
Chief of Adat
Individual Right : (Rights of Land)
Primary: - Customary Property Right - Right of Use
Secondary: - Right of Pledge
NATIONAL LAND LAW
The Right of the National (Article 1)
Elements of Ownership Elements of Authority
Right of the State (Article 2)
Individual Right (Right of Land
Primary : - Right of Ownership - Right of Use
- Right of Exploitation - Right of building
Secondary : - Right of building - Right of Use - Right of Pledge
Prior to the BAL until September 23th, 1960
After the BAL (after September 24th, 1960)
Legal Position Dispersed in various law:
- Civil Administrative of Western Right of Land
- Civil Administrative of Customary Land Law
- Administrative Land Law
- Swapraja Land Law
- Inter-group Land Law
One object
A systematic
State Position Owner/Agency of Civil Law Ruling Agencies
Right Position - Western Rights
- Customary Rights
- Swapraja Rights
