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
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
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.
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.
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
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
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
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
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
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