precursor to the new agrarian law stated, “The land and the waters as well as the
natural riches therein are to be controlled [dikuasai] by the State to be exploited to
the greatest benefit of the people.” The explanatory note of the Basic Agrarian Act
explains that the control referred to in the constitution does not signify ownership
and that the state must not act as the landowner. In addition, it explains that the state
exists as a governing body established as a management organization formed from
Indonesia’s people.
This assumption of the state’s right of control and revocation of the concept of the
state’s domain simultaneously rejects both the property right of an individual
established through the proof of ownership (an absolute and exclusive individual
ownership based on Western law, or Civil Code) and the concept of the state’s
domain. In other words, explanatory note II (1) of the Basic Agrarian Act stipulates
that the relationship between the earth, water, and airspace, including the natural
resources contained therein, represents a customary communal right of disposal
(Hak ulayat) and not an absolute and exclusive individual ownership. That said,
just as rights of individual inheritable ownership (milik) exist within the framework
of customary communal disposal rights, the right of ownership also exists within the
land tenure stipulated in the Basic Agrarian Act. In addition, the Act stipulates that
land that is not covered by a resident’s rights on it, such as the right of ownership, be
directly controlled by the State and that this land be called “State-directly controlled
land (tanah yang langsung dikuasai Negara).”
In addition, given that the new Basic Agrarian Act needed to concur with the
Indonesian people’s concept of the law, it was decided that the new law should
follow the customary laws of the Indonesian people and be based on the provisions
of customary law as inherited law. Article 5 of the Basic Agrarian Act states that the
law “applies to the earth, water and airspace is as Adat-Law (customary law), as far
as it is not in conflict with the National and State’s interests as well as with the
regulations stipulated in this Act and with other legislative regulations.”
Residents’ rights are all subordinate to the State’s right of control. The same is
true of rights granted to companies, which include the right to build (Hak Guna
Bangunan, HGB) and long-term usufructuary rights (Hak Guna Usaha, HGU). This
long-term business usufructuary right corresponds to the erfpacht during the colonial
period. Whereas the erfpacht period was 75 years, under the Basic Agrarian Act, the
HGU period was 35 years, with the possibility of extending the period by a
maximum of 25 years. In contrast to the colonial period, this right can only be
obtained by Indonesian nationals and a legal body established according to Indonesian law. A company can obtain those rights on state-directly controlled land (land
directly controlled by the state). On the other hand, residents’ land with rights, such
as the right of ownership, do not belong to state-directly controlled land, although
the rights are subordinate to the state’s right of control as mentioned above.
Article 3 of the Basic Agrarian Law recognized the existence of a customary
communal right of disposal (Hak Ulayat). If the right exists, the right should accord
with the national interests, and not collide with the laws and higher regulations.
According to the Basic Agrarian Act explanation, the customary communal right of
disposal was recognized as long as the right exists, and at the time of granting rights
23 Land Tenure on Peatland: A Source of Insecurity and Degradation in Riau, Sumatra
635
natural riches therein are to be controlled [dikuasai] by the State to be exploited to
the greatest benefit of the people.” The explanatory note of the Basic Agrarian Act
explains that the control referred to in the constitution does not signify ownership
and that the state must not act as the landowner. In addition, it explains that the state
exists as a governing body established as a management organization formed from
Indonesia’s people.
This assumption of the state’s right of control and revocation of the concept of the
state’s domain simultaneously rejects both the property right of an individual
established through the proof of ownership (an absolute and exclusive individual
ownership based on Western law, or Civil Code) and the concept of the state’s
domain. In other words, explanatory note II (1) of the Basic Agrarian Act stipulates
that the relationship between the earth, water, and airspace, including the natural
resources contained therein, represents a customary communal right of disposal
(Hak ulayat) and not an absolute and exclusive individual ownership. That said,
just as rights of individual inheritable ownership (milik) exist within the framework
of customary communal disposal rights, the right of ownership also exists within the
land tenure stipulated in the Basic Agrarian Act. In addition, the Act stipulates that
land that is not covered by a resident’s rights on it, such as the right of ownership, be
directly controlled by the State and that this land be called “State-directly controlled
land (tanah yang langsung dikuasai Negara).”
In addition, given that the new Basic Agrarian Act needed to concur with the
Indonesian people’s concept of the law, it was decided that the new law should
follow the customary laws of the Indonesian people and be based on the provisions
of customary law as inherited law. Article 5 of the Basic Agrarian Act states that the
law “applies to the earth, water and airspace is as Adat-Law (customary law), as far
as it is not in conflict with the National and State’s interests as well as with the
regulations stipulated in this Act and with other legislative regulations.”
Residents’ rights are all subordinate to the State’s right of control. The same is
true of rights granted to companies, which include the right to build (Hak Guna
Bangunan, HGB) and long-term usufructuary rights (Hak Guna Usaha, HGU). This
long-term business usufructuary right corresponds to the erfpacht during the colonial
period. Whereas the erfpacht period was 75 years, under the Basic Agrarian Act, the
HGU period was 35 years, with the possibility of extending the period by a
maximum of 25 years. In contrast to the colonial period, this right can only be
obtained by Indonesian nationals and a legal body established according to Indonesian law. A company can obtain those rights on state-directly controlled land (land
directly controlled by the state). On the other hand, residents’ land with rights, such
as the right of ownership, do not belong to state-directly controlled land, although
the rights are subordinate to the state’s right of control as mentioned above.
Article 3 of the Basic Agrarian Law recognized the existence of a customary
communal right of disposal (Hak Ulayat). If the right exists, the right should accord
with the national interests, and not collide with the laws and higher regulations.
According to the Basic Agrarian Act explanation, the customary communal right of
disposal was recognized as long as the right exists, and at the time of granting rights
23 Land Tenure on Peatland: A Source of Insecurity and Degradation in Riau, Sumatra
635