production forests (Hutan produksi), and sanctuary reserve forests (Hutan Suaka
Alam).
In these legal frameworks, most of peat swamp forests that extended vastly at the
beginning of the 1970s are located in the state forest area (kawasan hutan) that is
within state-directly controlled land. State-directly controlled land does not include
the residents’ rights on land, such as the right of ownership or the right to use, by
definition. Once the existence of community customary right of disposition (hak
ulayat) is confirmed, the right would not be neglected, but the community has to
prove its existence. Usually, the minority communities in the remote area in Kalimantan and Sumatra tried to prove this. However, it is quite difficult because the
local governments tend to interpret the qualifications to prove the existence narrowly
and strictly (Sukirno 2018, pp. 18–120).
The Basic Agrarian Act recognized the right to clean the land (hak membuka
tanah) and the right to collect forest products (hak memungut hasil hutan) in Article
16. The explanation of the Basic Agrarian Act said these rights were related
to customary land rights. These right needs to be arranged with government regulations for the general interests rather than individual or concerned community.
These rights tend to be interpreted narrowly. For example, Harsono said these rights
are the realization of the customary community right of disposition (hak ulayat) in
relation to customary land rights (Harsono 1997, p. 255). When the customary
community right of disposition on land is strictly interpreted, these rights—to clear
land and collect forest products—are also strictly interpreted (Sukirno 2018,
pp. 18–120).
The Basic Forestry Act mentioned the right to clear the land (hak membuka
tanah) in the explanation as land that is in the reserve forest (Hutan Cadangan) and
not in the state forest area. While the Basic Agrarian Act and the Basic Forestry Act
apparently recognized customary laws, they tended to interpret them narrowly. The
state domain declaration was abandoned, and the state would not own the land
according to these basic acts, but it controls the land within the idea of the state’s
right to control. Concessions had been granted on waste land (woeste grond) during
the colonial era, now concessions were granted in the state forest area (kawasan
hutan) that is not covered by residents’ rights on land except for the hak ulayat.
The Forestry Act in 1999 added the stipulation that each person was prohibited
from cultivating and or making use of and/or occupying the state forest area illegally
(Article 50 (3)).
Ministry regulation of forestry No. P.50/Menhut-II/2009 concerning the
clarification on the status and function of the state forest area
4 defined the area of
other use (Area Penggunaan Lain, APL), which means the area outside the state
forestry area.
4 Peraturan Menteri Kehutanan Republik Indonesia Nomor : P. 50/Menhut-II/2009 Tentang
Penegasan Status Dan Fungsi Kawasan Hutan.
23 Land Tenure on Peatland: A Source of Insecurity and Degradation in Riau, Sumatra
637
Alam).
In these legal frameworks, most of peat swamp forests that extended vastly at the
beginning of the 1970s are located in the state forest area (kawasan hutan) that is
within state-directly controlled land. State-directly controlled land does not include
the residents’ rights on land, such as the right of ownership or the right to use, by
definition. Once the existence of community customary right of disposition (hak
ulayat) is confirmed, the right would not be neglected, but the community has to
prove its existence. Usually, the minority communities in the remote area in Kalimantan and Sumatra tried to prove this. However, it is quite difficult because the
local governments tend to interpret the qualifications to prove the existence narrowly
and strictly (Sukirno 2018, pp. 18–120).
The Basic Agrarian Act recognized the right to clean the land (hak membuka
tanah) and the right to collect forest products (hak memungut hasil hutan) in Article
16. The explanation of the Basic Agrarian Act said these rights were related
to customary land rights. These right needs to be arranged with government regulations for the general interests rather than individual or concerned community.
These rights tend to be interpreted narrowly. For example, Harsono said these rights
are the realization of the customary community right of disposition (hak ulayat) in
relation to customary land rights (Harsono 1997, p. 255). When the customary
community right of disposition on land is strictly interpreted, these rights—to clear
land and collect forest products—are also strictly interpreted (Sukirno 2018,
pp. 18–120).
The Basic Forestry Act mentioned the right to clear the land (hak membuka
tanah) in the explanation as land that is in the reserve forest (Hutan Cadangan) and
not in the state forest area. While the Basic Agrarian Act and the Basic Forestry Act
apparently recognized customary laws, they tended to interpret them narrowly. The
state domain declaration was abandoned, and the state would not own the land
according to these basic acts, but it controls the land within the idea of the state’s
right to control. Concessions had been granted on waste land (woeste grond) during
the colonial era, now concessions were granted in the state forest area (kawasan
hutan) that is not covered by residents’ rights on land except for the hak ulayat.
The Forestry Act in 1999 added the stipulation that each person was prohibited
from cultivating and or making use of and/or occupying the state forest area illegally
(Article 50 (3)).
Ministry regulation of forestry No. P.50/Menhut-II/2009 concerning the
clarification on the status and function of the state forest area
4 defined the area of
other use (Area Penggunaan Lain, APL), which means the area outside the state
forestry area.
4 Peraturan Menteri Kehutanan Republik Indonesia Nomor : P. 50/Menhut-II/2009 Tentang
Penegasan Status Dan Fungsi Kawasan Hutan.
23 Land Tenure on Peatland: A Source of Insecurity and Degradation in Riau, Sumatra
637