Introduction

 Indonesia is the largest archipelagic country in the world which has more than 17.000 islands. The islands scattered in Indonesia do not necessarily become the right of the indigenous people of these islands. According to Article 2 paragraph (1) of Law Number 5 of 1960 on Basic Agrarian Regulations (“Agrarian Law”), stated that the earth, water, and airspace, including the natural resources contained therein, are at the highest hierarchical level controlled by the State in its capacity as the organization of power of the entire people. Furthermore, in Roman II number (1) of the Elucidation of Agrarian Law, emphasized that lands in the regions and islands are not solely the rights of the indigenous people of the regions or islands concerned. The rights of Coastal Residents to live and utilize Coastal Lands are specifically guaranteed under Law Number 27 of 2007 on the Management of Coastal Areas and Small Islands as amended several times, most recently through the issuance of Law Number 6 of 2023 on the Determination of Government Regulation In Lieu of Law Number 2 of 2022 on Job Creation Into Law (altogether referred to as “Law Number 27/2007”). In order to provide certainty and clarity regarding the granting of suitable land-rights for coastal areas and small islands, the government has issued Minister of Agrarian Affairs and Spatial Planning/Head of the National Land Agency Regulation Number 17 of 2016 on the Management of Land in Coastal Areas and Small Islands (“Regulation 17/2016”). Regulation 17/2016 sets out guidelines for the granting of land rights in the coastal areas and small islands in Indonesia.

Discussion

According to Regulation 17/2016, the Coastal Areas and Small Islands may be granted the Land Rights. The Land Rights that may be granted are the rights referred to in Article 16 of Agrarian Law, are right of ownership, right to cultivate, right to build and right of use.

Land Rights in Coastal Areas

Coastal Areas that may be granted land rights are beaches/shorelines and coastal water areas measured from the coastline outward to the sea up to the territorial sea limits of the province concerned.1 Land rights in coastal water areas can only be granted over buildings for2:

  1. Defense and security purposes;
  2. Seaports;
  3. Costal guard towers;
  4. Living areas for customary law communities or certain communities who are inhabitants of the area; and/or
  5. Power plants.
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Whereas in coastal waters areas, the land right may only be granted over buildings for (i) the development of strategic programs, (ii) facilities in the public interest, (iii) housing for customary law communities; and/or (iv) tourism.3 However, the land rights for beaches/shorelines and coastal water areas may not be granted for the following purposes4:

  1. Construction which is located outside of provincial sea borders;
  2. Installation intended for the exploration and exploitation of oil and gas, mining and geothermal energy;
  3. Installations of underwater cables, pipelines, and other transmission networks; and/or
  4. Floating constructions.

In addition, the land rights for the Coastal Areas can only be granted if5:

  1. The land utilization is in compliance with the following: (i) any provincial/regional/municipal spatial-layout or coastal zoning plan, and (ii) all of the applicable licensing procedures issued by relevant institutions; and
  2. The prospective land-rights holder has already secured a recommendation from the respective regional government as regards the land function and its conformity with the spatial-layout plan.

The aforementioned requirements do not apply to the customary law communities which have occupied land in the Coastal Areas for generation.6 Nonetheless, the land rights for such communities must still be granted in accordance with applicable laws and regulations relating to the land rights for the customary law communities. 7

Land Rights in Small Islands

Small island is an island that has an area of less than or equal to 2.000 km2 (two thousand square kilometers).8 The land rights for small islands may now only be granted under the following conditions9:

  1. Occupations/acquisitions for non-governmental purposes may only cover a maximum of 70% of an island’s total area or must be in accordance with the spatial layout plan/zoning plan for the island; and
  2. The remaining 30% (thirty percent) of an island’s area must be directly occupied by the state and must be protected in the public interest; dan
  3. Must allocate 30% (thirty percent) of the island area for protected areas.
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Additionally, the government can utilize the entire island if necessary to fulfill national interest such as for (i) defense and security purposes, (ii) economic growth, (iii) social and cultural, (iv) environmental functions and carrying capacity, (v) world heritage preservation, and/or (vi) national strategic programs.10 The land rights for the small islands can only be granted if11:

  1. The land utilization is in compliance with the following: (i) any provincial/regional/municipal spatial-layout or coastal zoning plan, and (ii) all of the applicable licensing procedures issued by relevant institutions; and
  2. The prospective land-rights holder has already secured a recommendation from the respective regional government as regards the land function and its conformity with the spatial-layout plan.

Any occupation or acquisition undertaken by government or non-governmental institutions must not curtail the right of the public to access the island. Public access in question is access for both individuals and groups to take shelter, protect themselves, seek help in shipping, and access for every party with official permission to carry out activities related to education, research, conservation, and preservation.12

Closing

It is necessary to pay attention to Regulation 17/2016 and Agrarian Law on the procurement of land rights in the coastal areas and small islands in Indonesia. In addition, one must also comply with the spatial planning regulated by Regional Regulations, both Provincial and Regional/Municipal.

Ardelia Ignatius

Sources

  1. Article 4 Regulation 17/2016
  2. Article 5 paragraph (1) Regulation 17/2016
  3. Article 5 paragraph (2) Regulation 17/2016
  4. Article 8 Regulation 17/2016
  5. Article 6 paragraph (2) Regulation 17/2016
  6. Article 6 paragraph (3) Regulation 17/2016
  7. Article 6 paragraph (3) and (4) Regulation 17/2016
  8. Article 1 point 4 Regulation 17/2016
  9. Article 9 paragraph (2) Regulation 17/2016
  10. Article 9 paragraph (4) Regulation 17/2016
  11. Article 11 paragraph (2) Regulation 17/2016
  12. Article 10 Regulation 17/2016