Legal Literacy - The Issue communal rights has been a concern for a long time. Special attention to customary land rights arises because of its legal and social impacts, especially for rural communities in Indonesia. Reported by the media hukumonline.com, customary land is the communal land of the customary law community concerned. The right of control over the land of indigenous peoples is known as customary rights. Customary rights are a series of authorities and obligations of a customary law community related to land located within its territory. Meanwhile, according to G. Kertasapoetra, customary rights are the highest rights to land owned by a legal association to guarantee the orderly use/utilization of land. The community has the right to control the land, where its implementation is regulated by the tribal chief or village head.
Recognition of Customary Land Rights in the Basic Agrarian Law
Law No. 5 of 1960 or the Basic Agrarian Law (UUPA) recognizes the existence of customary land rights. This recognition is accompanied by two conditions, namely regarding its existence and its implementation. This article discusses how a customary right is recognized in an indigenous community, especially the farming community of Pakel, Banyuwangi, who have fought for their customary land to this day.
History of the Pakel Land Conflict
According to Walhi's records, the history of residents' claims to land in Pakel Village began during the Dutch colonial period. The Dutch colonial government, through the Regent of Banyuwangi, Achmad Noto Hadi Soeryo, as Regent/Assistant Resident in Banyuwangi on behalf of Her Majesty the Queen of the Netherlands, once granted the right to open forests located in Pakel Village on January 11, 1929.
Starting in 1925, out of 2956 people, there were seven community representatives who submitted an application for the opening of the Sengkan Kandang and Keseran forests, located in Pakel, Licin, Banyuwangi, to the Dutch colonial government. Four years later, on January 11, 1929, the application of these seven people was granted and given the right to open a forest area of 4000 bahu (3000 hectares) by the Regent of Banyuwangi.
Despite holding a letter of application for land grant (deed 1929) from the Banyuwangi regent government, Achmad Noto Hadi Soeryo, there was a lot of intimidation and violent treatment from the Dutch colonial. Despite experiencing these repressive actions, the Pakel community continued to fight for their land rights.
Continuing into the post-independence era, the Pakel community persisted by relying on land granted by the Dutch government, namely the 1929 Deed, until the Indonesian government issued the Basic Agrarian Law (UUPA) of 1960. Agrarian reform efforts had not yet reached the Banyuwangi region, but farmers and the Pakel community waited while using the 1929 Deed land for cultivation to sustain their lives. Then, in September 1965, the major tragedy of the PKI rebellion emerged, impacting the Pakel community. The assumption that those who opposed and fought for their rights were PKI members silenced the Pakel community, who were fighting for their land, and they did not dare to speak out to fight for their rights.
Land Acquisition by PT. Bumi Sari
Then, in 1970, the cultivated land of Pakel farmers, which was used daily for planting, was acquired by PT. Bumi Sari. On December 13, 1985, PT. Bumi Sari obtained a Right to Cultivate (HGU) over an area of 1,189.89 hectares, divided into two certificates, namely HGU Certificate Number 1 Kluncing covering 1,902,600 square meters and HGU Certificate Number 8 Songgon covering 9,995,500 square meters. However, Walhi stated that in its implementation, PT. Bumi Sari claimed management permits for the area up to Pakel Village. Clearly, we can see from the HGU Certificate that Pakel Village is not included in the land use for the corporation. This is reinforced by the Banyuwangi National Land Agency (BPN) that the land of Pakel Village is not included in the HGU of PT. Bumi Sari.
The Struggle of the Pakel Community
Amidst the conflict occurring in Pakel Village, Banyuwangi, the Pakel community continues to fight for and reclaim their land rights. The state must open its eyes wide. Independence is not just symbolic, but there is prosperity of the people within it. As stated in the fifth principle of Pancasila, the narrative of "social justice for all Indonesian people" mandates that the state must provide fundamental implementation. The granting of HGU by the government to PT. Bumi Sari must consider the history of the land. Clearly, the granting of HGU can only be done on land with the status of state land.
Meanwhile, some of the land given to the company is land that is still actively controlled and cultivated by residents, and there has been no process of providing compensation or relocation policies for affected residents. The categorization of land that can be used as an object of HGU includes state land and management rights land, as regulated in Article 21 of Government Regulation No. 18/2021. Meanwhile, the land of Pakel Village cannot be categorized as state land because the people of Pakel Village have been cultivating the land long before independence and there is evidence in the form of the 1929 Akta Van Verwizing from the officials in power at that time.
Moreover, residents had already controlled the land long before the HGU certificate was issued. Based on these rights, the community has also proposed a transformation of rights to improve the legal status of these right instruments, which were then issued by the competent authorities but have never been followed up by the current government.
Application for Changes to Land Rights
From 1963 to 1965, the Pakel community applied for changes to land rights and applications for ownership rights based on the 1929 Deed issued by the Dutch Colonial Government. However, the government did not respond. The letter contained a request for land registration to increase community production yields and reminded that this land is our right, addressed to Basuki-Syutyo Haseibu as the Head of the Banyuwangi Regency at that time.
The issuance of Cultivation Rights (HGU) by the National Land Agency (BPN) of Banyuwangi in the name of PT Bumi Sari deprives the rights of the community, especially the right to independently manage and administer their village area, and is contrary to the obligations of the Constitution of the Republic of Indonesia. Article 28 in its entirety and Article 33(3). This is because the HGU issue lies in the midst of severe poverty in the region, which results in many residents not owning land. Thus, the issuance of HGU violates the rights of the community and prolongs agrarian disputes.
In accordance with the Basic Agrarian Law (UUPA) of 1960, the HGU from PT Bumi Sari must be fundamentally evaluated and immediately accelerate the process of returning the enclave to the state, as well as accelerating the process of returning it to the residents through Pakel Village. The rationale comes from the explanation of Article 11 paragraphs (1) and (2) of the UUPA 1960 which generally states that in land management, excessive control is not allowed, especially to the point of causing inequality. This article strongly emphasizes that land management must not conflict with national interests, especially in efforts to protect economically vulnerable communities.
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