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Abstract:
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"Following decentralization, district governments throughout Indonesia saw themselves confronted with claims to land based on local customary rights, or adat. A particular category of these are claims to communal land (tanah ulayat), made by a group rather than by individuals. Quite common as a traditional type of land tenure, hak ulayat is an ambiguous base for land claims under Indonesian land law, and impossible to register with the Indonesian national land agency (BPN). When in 1999 the Minister of Agraria/Head of BPN issued ministerial regulation 5/1999 containing directions to district governments on how to settle claims of hak ulayat, claimants expectations rose. Eight years later, the actual impact of the regulation seems negligible for most of Indonesia, but some noteworthy exceptions do exist.
"In East Kalimantan two district governments, from Pasir and Nunukan, chose to act upon regulation 5/1999. In this paper I discuss the processes of implementing ministerial regulation 5/1999 in these two districts and their (opposite) results. Looking at the legal concept of hak ulayat and its position within Indonesian society and Indonesian law, the usage of a wider approach to ulayat claims, that takes in the social and political contexts, is argued. I argue that claimants in the hak ulayat debate (and regarding adat land in general) stand a better chance of success if they are able to appeal to other, more modern arguments than tradition or custom. A paradox with as yet unforeseeable consequences, yet one that a strictly legal approach seems to ignore."
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