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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

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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

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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.

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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.

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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

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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

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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

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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

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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

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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

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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

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