At this point, the Indonesian Parliament under Commission II is preparing a Land Bill to be discussed with the Government. The Indonesian Parliament has submitted the Land Bill and academic papers since July 18th, 2016, and has been discussing it with the Indonesian authority. Starting in May 2017, the discussion of this land bill quickened. Minister of Agrarian Affairs and Spatial Planning (ATR) / Head of the National Land Agency (BPN) Sofyan Djalil targets the Land Bill to complete in the middle of next year (2018).

Several groups have begun to pay close attention and criticize the processes and materials developed in the discussion of this land bill. Based on the authority’s inventory of problems (DIM) dated June 13th, 2017, here are some critical notes on the material of the Land Bill:

1. The Land Bill needs to emphasize the aspects of the designation, use, utilization, and maintenance of land before making arrangements regarding the administration of land rights. As land cannot be distinct from an ecosystem, the Land Bill needs to identify and classify the land, before regulating the improvement of land rights, which should include:

A. The function of the soil based on its characteristics, such as mineral soils, peat soils, karst that will determine the designation, use, utilization, and maintenance of the land.

B. De facto and de jure land tenure

C. Land conflicts

D. Abandonment of land

E. And so on.

2. Currently, there have been many land tenure conflicts between the state and the community. Therefore, the definition related to state land based on the criteria (Chapter 7) is the following:

A. Directly controlled by the state

B. The land should not:

i. The ulayat lands of the customary public

ii. Waqf land

C. State / regional / village property;

D. BUMN/D assets

D. Land that already has control and has not any a title to the land.

This provision might cause new conflicts, given the evidence that there is still a lot of control over land that has not been completed, especially for indigenous peoples. On the other hand, the arrangement on land rights for indigenous peoples in the Land Bill is not taking proactive options for the authority to conduct an inventory of customary land (Chapter 8). It will give rise to the interpretation that the scheme of recognition of land rights by the community there is still regulated poorly, which requires the proactive attitude of indigenous peoples to apply for land rights. Constitutionally, it is the state that should be proactive in giving such recognition.

3. The provision of maximum restriction of land ownership (chapter 16) should be regulated in the Law. It is as a consequence of restricting the rights of citizens that must be directed in chapter 28 J paragraph (2) of the 1945 Constitution that states: “everyone is obliged to comply with the restrictions set by the law” also, the provisions of restrictions in the Land Bill are very likely to be kept based on the reasons that are still blurred (Chapter 16 paragraph 2), namely: (a) economies of scale; (b) broader community participation; (c) national strategic interests. The three criteria only consider the technical aspects of the economy. Besides, utilization has not accommodated restrictions regarding its function, for example how to restrict cultivation rights title that has a significant ecological implication, such as land tenure in certain protected function areas, or peatland protected purposes that can not be similarized with the utilization of another land. It is also necessary to regulate the takeover procedure if it violates the maximum limit or is utilized not under its function.

4. The entire agrarian reformation process, including access to monitor the implementation of rights and obligations of TORA recipients (chapter 43-50), legitimacy of the reform organization, should be regulated in the upcoming bill to ensure it runs on the desired course. Agrarian reform should organize, not only land tenure relationships but also the mandate of TAP MPR No. IX / MPR / 2001, which contains:

a. Reviewing various laws and regulations relating to agrarian affairs to synchronize policies between sectors of law implementation based on the principles referred to in Chapter 4 of this stipulation.

b. Carry out the restructuring of control, ownership, land use (landform) in a just manner by maintaining land ownership for the people.

c. Carrying out land data collection through a comprehensive and systematic inventory and registration of control, ownership, use, and utilization of land in the context of implementing the landform.

d. Resolving conflicts related to agrarian resources can also prevent conflicts in the future and ensure the implementation of law based on the principles referred to in chapter 4 of this stipulation.

e. Strengthening institutions and authorities to encourage the implementation of agrarian reform and resolve conflicts related to existing agrarian resources.

f. Make serious efforts for financing in implementing the agrarian reform program and resolving conflicts over agrarian resources that occur

5. Land acquisition for public interest and land conversion should be regulated under the Land Bill and thereby correcting Law No.2 of 2012 about land acquisition for the public interest development. In particular, related to developing criteria for the public interest, it should be interpreted as the planning development based on good governance and equal public access.

6. Institutional Land Bank Management Agency (Chapter 61). The emergence of a land bank should be regulated so that this institution does not fall to commercialize land. Any gap land banks might get profit from should be sealed. If the bank was to provide land objects for development, the authority should go through BPN first. Had the registration system/database works well, it is not required nevertheless. Let alone this land bank is given the same powers as the government in planning, acquiring, managing, and utilizing land, financial, or other asset management, which may increase the profit.

7. Resolving of land conflicts. No complete regulations have been devised on land conflict resolution, as mandated in the agrarian reform. The land bill stipulates that the settlement disputes should be resolved by a specific body within the general judiciary (chapter 67). The establishment of land disputes does not adopt the right approach to conflict resolution, especially those that have occurred due to poor land regulation. This kind of court approach will result in a positivistic legal procedure that is less compatible with the land conflict issue. Therefore, this land bill should adopt methods and institutional resolution that more appropriate than using a judicial approach. The methods may be adopted for land disputes having no dimension of current land conflicts and are civil. 8. The land bill has not been regulated on law enforcement mechanisms, especially administration for violations committed by rights holders. In practice, many violations committed by rights holders may threaten the sustainability/protection of land. For example, the exercise of land rights unbounded by the rule results in forest and land fires. The provisions of administrative law enforcement in the land bill only concern violations of land certification and the maximum limit (chapter 86). The principle of the land bill is one of them is social and ecological functions (Chapter 2).

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