Registration of Ulayat Rights: Recognition and Protection by the Government for Customary Law Communities in Indonesia

This new regulation provides three forms of recognition for ulayat land, namely:

• Recording in the ulayat land register;
• Registration of ulayat land as rights of management; and
• Registration as jointly-owned right of ownership.

Foundational Principles on Customary Law over Land in Indonesia

Customary law relating to land is not uncommon things for Indonesian society. Customary law has developed and continues to be applied in various regions to date. Recognition and protection of the customary rights are stated in Article 18B paragraph (2) of the 1945 Constitution, which states “the state recognizes and respects the existence of customary communities and its traditional rights as long as they still exist and in harmony with the transformation of society and the principles of the Republic of Indonesia.”

In the perspective of customary law, land has a very fundamental position for customary community. Land is a unifying element that strengthens the bonds within a customary community. In customary law, the highest land control right is ulayat rights (hak ulayat) (Harsono, 2008: 184). Ulayat rights are a series of authorities and obligations of a customary law community, which relate to land located within its territorial environment which is the main supporting source of livelihood and life for all time (Harsono, 2008: 185-186).

The recognition of ulayat rights is stated in Article 3 and General Elucidation Part II Number 3 of Law Number 5 of 1960 on Basic Agrarian Principles (“UUPA”) which basically stipulates that the state’s power over land is also limited by the ulayat rights of the legal community unit, to the extent that according to reality the ulayat rights still exist, must be in such a way that it is in accordance with national and state interests, which are based on national unity and must not conflict with other higher laws and regulations.

The recognition of customary rights in the Constitution and UUPA, however, does not seem to be enough to ensure legal certainty over ulayat rights. This is evidenced by the many land disputes related to ulayat rights. The main problem of ulayat land disputes is the absence of evidence of ownership of ulayat land rights from customary communities.

Regulatory Framework of Ulayat Land Rights and Customary Law Community

The government through the Ministry of Agrarian Affairs and Spatial Planning/National Land Agency (“Ministry of Agrarian”) in 2015 tried to address this by issuing Minister of Agrarian Affairs and Spatial Planning Head of the National Land Agency Regulation No. 9 of 2015 on Procedures for Determining Communal Rights to Land of Customary Communities and Communities Located in Certain Areas (“MoA Regulation No. 9/2015”). Under MoA Regulation No. 9/2015, customary communities or communities located in certain areas could hold communal ownership rights to land through the issuance of Communal Rights certificates. Nevertheless, this regulation was later revoked by Minister of Agrarian and Spatial Planning/Head of the National Land Agency Regulation No. 18 of 2019 on Procedures for Administering Customary Land of Customary Law Communities (“MoA Regulation No. 18/2019”). MoA Regulation No. 18/2019 regulates the administration of the customary land of the Customary Law Community Unit which results in the customary land of the Customary Law Community Unit only being recorded in the land registry, unlike MoA Regulation No. 9/2015, which gives customary community the right to obtain communal rights. This MoA Regulation No. 18/2019 was later revoked and replaced with Minister of Agrarian and Spatial Planning/Head of the National Land Agency Regulation No. 14 of 2024 on the Implementation of Land Administration and Land Registration of Customary Land Rights of Customary Communities (“MoA Regulation No. 14/2024”).

In general, MoA Regulation No. 14/2024 is a strategic step from the Government to strengthen the recognition and protection of customary land rights of customary community in Indonesia. In contrast to MoA Regulation No. 18/2019, which only leads to the customary land being registered in the land register, MoA Regulation No. 14/2024 comprehensively regulates from the administration of customary land rights to the registration of customary land rights which can become management rights or ownership rights.

Characteristics of Customary Rights and Customary Law Communities

Article 2 paragraphs (1) and (2) of MoA Regulation No. 14/2024 stipulates that customary rights are implemented to the extent that in reality they still exist according to the provisions of customary law applicable by costumary community. Ulayat rights are declared to still exist if:

• there is a group of people who still feel bound by their customary legal order that recognizes and applies the provisions of the community in their daily lives;
• there is a certain ulayat rights which becomes the living environment of its citizens and the place where they take their daily needs; and/or
• there is an order of customary law regarding the management, control, and use of the ulayat rights that applies and is obeyed by its citizens.

Article 2 paragraph (3) of MoA Regulation No. 14/2024 stipulates that a customary law community is a group of people who are bound by their customary legal order as joint citizens of a legal community due to similarity of residence or on the basis of descent. The characteristics of customary law communities can be divided into:

• Customary Law Community Unit; or
• Group of Members of Customary Law Communities.

Based on Article 1 of MoA Regulation No. 14/2024, the Customary Law Community Unit is a group of people who are bound by their customary law order as joint citizens of a legal community due to similarity of residence or on the basis of descent who have customary institutions, have property and/or customary objects owned together, and a system of values that determines customary institutions and customary law norms. Whilst, Group of Members of Customary Law Communities is a group of people who gather as a social unit based on ties of origin of descent, residence, and/or common interests in accordance with the applicable rules of customary law.

Nevertheless, the distinction between customary law communities is not easy to understand as this regulation does not include examples that can be used as a reference to distinguish between the two. However, there are several differences that we can observe. First, there is a different emphasis in the definiton of both adat communities. The definition of Customary Law Community Unit includes properties and community’s properties jointly owned and value system that determines the customary order and customary rules, while there is no mention of properties and community’s properties in the Group of Members of Customary Law Communities. The emphasis on Group of Members of Customary Law Communities is more on the association as a social unit and based on joint interests, even though both still refer to customary law. Looking at the previous regulation in MoA Regulation No. 9/2015, the regulation distinguishes between customary law communities and communities within certain areas as recipients of communal rights. Article 3 paragraph (1) of MoA Regulation No. 9/2015 explains the requirements for a customary law community, which include:

• the community is in the form of a fellowship (paguyuban),
• there is an institutional structure within its customary authority,
• there is a clear customary law territory, and
• there are customary norms and legal instruments that are still obeyed. Whilst, Article 3 paragraph (2) of MoA Regulation No. 9/2015 explains that the requirements for communities within certain areas that can obtain communal rights include:
  • (i) physical control of the land for at least 10 (ten) consecutive years or more,
  • (ii) continued harvesting of natural products in the area and its surroundings to meet daily living needs. In MoA Regulation No. 14/2024, the term “communities within certain areas” is no longer used, but from the definitions and requirements provided, it can be seen that the concept of Group of Members of Customary Law Communities aligns with the previous term, as it emphasizes the joint interest of a group of people in a certain area.

 

Second, the legal status between Customary Law Community Units and Group of Members of Customary Law Communities.  A Customary Law Community Unit must obtain formal recognition. This is regulated under Minister of Home Affairs Regulation No. 52 of 2014 on Guidelines for the Recognition and Protection of Customary Law Communities (“MoHA Regulation No. 52/2014”). Article 6 paragraph (2) of MoHA Regulation No. 52/2014 stipulates that the regent/mayor shall issue a decision to recognize and protect a Customary Law Community through a regional head decree. Nevertheless, Group of Members of Customary Law Communities only requires a recommendation from the local government. The difference in the form of recognition and protection clearly affects the legal standing of the two forms of customary law communities. A Customary Law Community Unit holds a stronger legal standing. For instance, under Law No. 41 of 1999 on Forestry as amended by Law No. 6 of 2023 on the Stipulation of Government Regulation in Lieu of Law No. 2 of 2022 on Job Creation as Law, and Minister of Environment and Forestry Regulation No. 9 of 2021 on the Management of Social Forestry, customary forests can only be managed by customary law communities that have obtained recognition and protection through a regional regulation or a decree by a regional head.

In addition to laws and regulations,  a concrete example can be seen in the consideration of judges in the Makassar State Administrative High Court Decision No. 01/B/2016/PT.TUN.MKS jo. Supreme Court Decision Number 248 K/TUN/2016. The Judex Facti in Appeal in its consideration essentially considered that customary law communities must be truly recognized and cannot be recognized unilaterally but require legal recognition. Since there was no legal recognition, the Judex Facti in Appeal considered that the plaintiffs as customary law communities did not have legal standing to file a claim since the plaintiffs did not have interests that were harmed by the existence of the object of dispute in the form of wood utilization permits (izin pemanfaatan kayu). This consideration was affirmed by the Supreme Court, which essentially stated that the plaintiffs could not prove that they were customary communities whose interests were harmed since the plaintiffs’ arguments customary communities were only unilateral statements that needed legal recognition through regional regulations. Additionally, MoA Regulation No. 14 of 2024 also clearly regulates that customary land plots belonging to the Customary Law Community Unit still have the status of ulayat land, even though management rights application is not submitted. Additionally, MoA Regulation No. 14 of 2024 also clearly regulates that customary land plots belonging to the Customary Law Community Unit still have the status of ulayat land, even though management rights application is not submitted.

Third, the existence of Customary Law Community Units as holders of management rights has already been recognized under Government Regulation No. 18 of 2021 concerning Management Rights, Land Rights, Condominium Units, and Land Registration (“GR No. 18/2021”). Article 5 in jo. Article 10 of GR No. 18/2021 stipulates that management rights derived from ulayat land are granted to customary law communities. The explanation of Article 5 paragraph (2) of GR No. 18/2021 states that the term “customary law community” refers to a community that controls ulayat land, whose existence has been recognized and determined in accordance with laws and regulations, and possesses a customary institutional structure, a defined customary law territory, and legal norms or instruments that are still adhered to. In contrast, the granting of ownership rights to Groups of Customary Law Community Members is a new legal norm that has not been previously regulated. This will also be further explained in the next section on land registration.

Land on Which Ulayat Rights Cannot Be Implemented

The implementation of ulayat rights by customary law communities cannot be carried out in the case of land plots:

• already owned by an individual or legal entity with a land right;
• land plot that has been used as a public facility/social facility;
• land plot that has been acquired or acquired by a government agency, legal entity or individual in accordance with applicable provisions and procedures; and/or
• swapraja land and former swapraja land that has been abolished by the Conversion Provisions in the UUPA.

Stages of Ulayat Rights Administration

Land administration of ulayat rights is carried out to record the ulayat rights in the ulayat rights register (daftar tanah ulayat) through several stages as follows:

Inventory and Identification

Inventory and identification of ulayat land is carried out by the Directorate General in the field of rights determination and land registration which can be assisted by local governments, universities, and/or customary institutions determined by the local government. Customary law communities can also apply for inventory and identification of their ulayat land. Inventory of ulayat rights is carried out through a survey of the existence of customary community to collect data on:

• subjects and characteristics of customary law communities;
• ulayat land of the customary law community;
• the legal relationship of the customary law community with the ulayat land;
• determination of the existence of customary community; and/or
• other data and information.

The results of this inventory activity are used as the basis for conducting identification to find out the indications of the existence of ulayat land. Identification is carried out through research. The research aims to determine the characteristics of customary law communities and ensure that ulayat land is not in a state of dispute, conflict, and/or case. Inventory results and identification results are submitted by the directorate general in the field of rights determination and land registration to the head of the Land Office for verification through physical data and juridical data checking at the Land Office.

Measurement and Mapping

Based on the results of verification, boundary markers are installed. The installation of boundary markers is carried out by the customary law community and outlined in a statement letter on the installation of boundary markers.

The installation of boundary markers is followed up with a request for measurement and mapping of ulayat land plot by the customary law community to the Head of the Land Office. After that, the Head of the Land Office conducts a spatial review to ensure that the ulayat land plot is not in a state of dispute, conflict, case, and/or there are no other encumbrances; and the location, area, or boundaries are clear, for the measurement and mapping of the ulayat land plot.

Based on the results of the spatial review, the Director General in charge of surveying and mapping shall order the Head of the Regional Office or the Head of the Land Office in accordance with the location of the ulayat land to conduct measurement and mapping of the ulayat land in accordance with the area of measurement authority in order to obtain physical data of the ulayat land.

Recording of Ulayat Land Register

Ulayat land plot that have been measured and mapped and the identification number of the land parcel is affixed to the registration map, are recorded in the ulayat land register at the Land Office according to the location of the land and the Land Office will issue a copy of the ulayat land register which is then submitted to the customary law community and the local government.

The process of recording ulayat land into the ulayat land register in MoA Regulation ATR/BPN No. 14/2024 is different from the provisions in the MoA Regulation No. 18/2019. Article 5 of MoA Regulation No. 18/2019 requires that before the process of administration of ulayat land, the Customary Law Community Unit must first obtain a determination of recognition and protection of the Customary Law Community Unit. MoA Regulation No. 14/2024 provides a breakthrough that the process of administration of ulayat rights up to the process of recording ulayat rights (pencatatan hak ulayat) to the ulayat land register (daftar tanah ulayat) can be done without obtaining a determination beforehand. On the contrary, the copy of the ulayat land register provided can be used as consideration for the determination of customary law communities. Nevertheless, in the event that the customary law community wants to apply for ulayat rights registration, especially for management rights, then the determination of the customary law community becomes a requirement for ulayat land registration for management rights.

Registration of Ulayat Land

Right of Management

As has been outlined in the general section above, the granting of right of management over ulayat land has been regulated in GR No. 18/2021. The elucidation of Article 4 of GR No. 18/2021 stipulates that the determination of ulayat rights into management rights is a form of recognition to customary law communities. The granting of management rights to customary law communities is then further regulated in Permen ATR/BPN No. 14/2024.

Article 15 of MoA Regulation No. 14/2024 stipulates that ulayat land areas that have been recorded in the ulayat land register can be submitted for management rights by the Customary Law Community Unit to the Minister through the Land Office. Applications for registration of ulayat land in the form of management rights contain information regarding:

• the ulayat land area to be registered;
• the legal subject of the customary law community unit;
• the legal relationship between the customary law community unit and the ulayat land;
• determination of the existence of the customary law community.

Application for registration of ulayat land in the form of management rights is accompanied by:

• Identity:
  • Applicant; or
  • The applicant and its representative (if represented);
• Regional regulations, governor’s regulations/decrees, or regent’s/mayor’s regulations/decrees that determine customary law communities;
• Land plot maps;
• Land designation, use and utilization planning documents;
• Tax evidence related to the land requested (if any);
• Statement of physical control of the land area containing:
  • Information regarding the customary land area;
  • History of control and ownership of the ulayat land area;
  • Legal relationship between the customary law community unit and the customary land;
  • Statement that the ulayat land area is not in dispute; and
  • Other information related to the use and utilization of ulayat land.

Based on the above requirements, it can be seen that the application for registration of ulayat land in the form of management rights is carried out by the Customary Law Community Unit that has received recognition and protection of the Customary Law Community Unit. This can be seen from the fact that regional regulations, governor regulations/decrees, or regent/mayor regulations/decrees that determine customary law communities are one of the requirements for submitting an application for land registration in the form of management rights.

The application for registration of ulayat land in the form of management rights is then followed up with land inspection activities in accordance with the provisions of laws and regulations. For the purpose of land inspection, the applicant or its representative collects evidence regarding land ownership or control, both written evidence and unwritten evidence in the form of witness statements and/or statements from the person concerned.

The Minister has the authority to issue or not issue a decision on the determination of management rights over ulayat land based on the recommendation of the head of the land office. The decision that grants the determination of management rights will be registered to the Land Office and will be recorded in the land book and the issuance of a certificate of management rights which is carried out in accordance with the laws and regulations.

It is important to note that Article 16 of the MoA Regulation No. 14/2024 stipulates that ulayat land areas that are not submitted for the affirmation as management rights by customary law community units still have ulayat land status. For ulayat land that is not registered for management rights, the Customary Law Community Unit can cooperate with third parties based on an agreement.

Read also: Differences of Right of Management under the Old and New Law

Right of Ownership

As has been outlined in the general section above, the granting of ownership rights to customary communities was previously regulated under MoA Regulation No. 9/2015, which was later revoked by MoA Regulation No. 18/2019. MoA Regulation No. 18/2019 regulation only stipulates that ulayat is to be registered in the land registry. The granting of land rights over ulayat land is also not regulated in Government Regulation No. 24 of 1997 on Land Registration (“GR on Land Registration”) nor in GR No. 18/2021. Article 31 paragraph (4) of GR on Land Registration only provides that land rights may be jointly owned by several individuals. Nevertheless, neither the GR on Land Registration nor GR No. 18/2021 governs the granting of ownership rights over ulayat land to customary communities.

MoA Regulation No. 14/2024 then regulates new provisions that land owned by the Group of Members of Customary Law Communities can be determined as ownership rights in the name of the Group of Members of Customary Law Communities as joint land. Applications for registration of ulayat land in the form of ownership rights are submitted by the Group of Members of Customary Law Communities to the Head of the Land Office.

Application for registration of ulayat land in the form of ownership rights contains information regarding:

• the ulayat land area to be registered;
• the legal subjects of the Group of Members of Customary Law Communities based on recommendations from the regional government;
• the legal relationship between the Group of Members of Customary Law Communities and the ulayat land.

Application for registration of ulayat land in the form of ownership rights is accompanied by:

• Identity:
• Applicant; or
• The applicant and its representative (if represented);
• Land plot maps;
• Tax evidence related to the land requested (if any);
• Statement of physical control of the land area containing:
  • Information regarding the customary land area;
  • History of control and ownership of the ulayat land area;
  • Legal relationship between the Group of Members of Customary Law Communities and the ulayat land;
  • Statement that the ulayat land area is not in dispute; and
  • Other information related to the use and utilization of ulayat land.

• Genealogy or other names that provide information on the names of group members and/or legal relationships between group members as a social unit based on ties of descent, place of residence, and/or common interests in accordance with applicable customary law.

Application for registration of ulayat rights in the form of ownership rights is followed up with juridical data research activities. For the purposes of juridical data research, the applicant or its representatives collects evidence regarding land ownership or control, both written evidence and unwritten evidence in the form of witness statements and/or statements from the person concerned.

The list of juridical data and physical data of the land plot as well as the land plot map are announced at the Land Office and village/sub-district office for 30 (thirty) calendar days. After 30 (thirty) days, the list of juridical data and physical data is ratified by the head of the Land Office with minutes on the ratification of physical data and juridical data.

Based on the minutes of the ratification of physical data and juridical data, the determination of ownership rights to ulayat land is recorded which is validated by the head of the Land Office. The determination of ownership rights to ulayat land is then recorded in the land book and a certificate of ownership is issued.

Certificate of Ulayat Land Ownership

The ulayat land ownership certificate includes the name of the leader of the Group of Members of Customary Law Communities which is the result of a written agreement from the Group of Members of Customary Law Communities that has received a recommendation from the local government. The name of the leader of the Group of Members of Customary Law Communities listed in the ownership certificate is accompanied by a mention of the position in accordance with customary law.

Based on the procedure above, it appears that a Group of Members of Customary Law Communities requires a recommendation from the local government before registering their communal land as ownership rights. Nevertheless, unlike an Costumary Law Community Unit, a Group of Members of Customary Law Communities does not require a formal regulation or decision from the local government to obtain land rights.

Conclusion

MoA Regulation No. 14/2024 provides more comprehensive protection for ulayat land of customary communities. In general, there are three forms of recognition for ulayat land under this regulation:

• recording of ulayat land in the ulayat land register;
• registration of ulayat land through the issuance of management rights in the name of the Customary Law Community Unit; and
• granting of joint ownership rights to Groups of Members of Customary Law Communities over the land they control. A positive aspect of this regulation is the flexibility it offers in the administration of ulayat land, where the process does not necessarily require a prior formal recognition of the Customary Law Community Unit, except when the process is intended to result in the issuance of management rights over the ulayat land. In fact, the outcome of this administrative process can serve as a basis for obtaining official recognition and protection of the Customary Law Community Unit through local government regulations. Moreover, the regulation emphasizes the role and responsibility of the government in conducting inventories and identification of ulayat land, while still allowing customary communities to actively apply for recognition.

The distinction between Customary Law Community Units and Groups of Members of Customary Law Communities in MoA Regulation No. 14/2024 is not easily understood, as the regulation does not provide explanation on the differences between these two types of customary communities. Nevertheless, several distinctions can be identified:

• the definition of a Customary Law Community Unit emphasizes the existence of properties and/or community’s properties jointly owned and value system that determines the customary order and customary rules, whereas the Groups of Members of Customary Law Communities is more focused on a social association based on joint interests;
• in terms of legal standing, a Customary Law Community Unit must be formally recognized through a regional head’s decree, as stipulated in MoHA Regulation No. 52/2014, while a Groups of Members of Customary Law Communities only requires a recommendation from the local government, making the legal status of the Customary Law Community Unit stronger—this is reflected in various regulations, such as the Forestry Law and Minister of Environment and Forestry Regulation No. 9/2021;
• the Customary Law Community Unit has already been recognized as a management rights holder over ulayat land under Government Regulation No. 18/2021, whereas the granting of ownership rights to Groups of Members of Customary Law Communities is a new legal norm that has not been previously regulated.

Fitri Nabilla Aulia

Sources:

1. Constitution of the Republic of Indonesia 1945
2. Law Number 5 of 1960 on Basic Agrarian Principle
3. Law No. 41 of 1999 on Forestry as amended by Law No. 6 of 2023 on the Stipulation of Government Regulation in Lieu of Law No. 2 of 2022 on Job Creation as Law
4. Government Regulation No. 24 of 1997 on Land Registration 
5. Government Regulation No. 18 of 2021 on Management Rights, Land Rights, Condominium Units, and Land Registration 
6. Minister of Home Affairs Regulation No. 52 of 2014 on Guidelines for the Recognition and Protection of Customary Law Communities
7. Minister of Agrarian Affairs and Spatial Planning Head of the National Land Agency Regulation No. 9 of 2015 on Procedures for Determining Communal Rights to Land of Customary Communities and Communities Located in Certain Areas 
8. Minister of Agrarian and Spatial Planning/Head of the National Land Agency Regulation No. 18 of 2019 on Procedures for Administering Customary Land of Customary Law Communities
9. Minister of Environment and Forestry Regulation No. 9 of 2021 on the Management of Social Forestry
10. Minister of Agrarian and Spatial Planning/Head of the National Land Agency Regulation No. 14/2024 on the Implementation of Land Administration and Land Registration of Customary Land Rights of Customary Communities
11. Harsono, Boedi. 2008. Hukum Agraria Indonesia, Sejarah Pembentukan Undang-Undang Pokok Agraria, Isi, dan Pelaksanaannya, Jilid 1, Jakarta:Djambatan.