Many claims to customary land stop at the verification stage not because the evidence is weak, but because the claiming group has not been recognized as a customary law community. These two terms are often used interchangeably in everyday conversation. In legal terms, they are different, and that difference determines whether a claim has a basis.
Having customs is not enough
A group of citizens may live with strong customs, have elders, and cultivate ancestral land through generations. Socially, they are an indigenous community. Their legal status is another matter. The rights to ulayat (customary land) are attached to a customary law community, which is a collective that has undergone a formal recognition process by the local government.
The basis is Article 18B paragraph (2) of the 1945 Constitution: the state recognizes and respects the unity of customary law communities along with their traditional rights as long as they are alive and in accordance with societal developments. Article 3 of Law Number 5 of 1960 on Basic Agrarian Principles uses a similar formulation, which is "as long as in reality it still exists." That phrase is not just embellishment. It is a condition that is truly tested.
Five aspects examined during identification
Ministerial Regulation Number 52 of 2014 regulates three stages: identification, verification and validation, followed by determination. At the identification stage, the regent or mayor through the sub-district head examines five aspects:
- the history of the customary law community
- customary territory
- customary law
- wealth and/or customary objects
- institutional or customary governance system
The results of the identification are verified by the Customary Law Community Committee of the regency or city, then announced to the local community within one month. The determination takes the form of a Decree from the Regional Head. If the territory crosses two or more regencies, it takes the form of a joint decree from the regional heads. Objections to the verification results can only be submitted once, while objections to the regional head's decision are pursued through the State Administrative Court.
The explanation of Article 67 paragraph (1) of Law Number 41 of 1999 on Forestry adds details commonly used as tests: the community is still in the form of a paguyuban (association), there are customary authority officials, there is a clear customary legal territory, and there are customary institutions and courts that are still adhered to.
Land with attached rights is no longer ulayat land
This section is often misunderstood. Since February 29, 2024, Ministerial Regulation ATR/BPN Number 14 of 2024 has been in effect, which revokes Ministerial Regulation ATR/BPN Number 18 of 2019. This new regulation defines ulayat land as land within the control of a customary law community that, in reality, still exists and is not encumbered by any land rights.
Article 3 emphasizes that ulayat rights are not exercised over land parcels that:
- are already owned by individuals or legal entities with a land right
- are already used as public or social facilities
- have been acquired or released by government agencies, legal entities, or individuals in accordance with applicable procedures
- are classified as swapraja land or former swapraja land that has been abolished by Conversion Provisions in the UUPA
Therefore, the claim that a piece of customary land cannot be owned by anyone does not automatically apply if the parcel has already been legally transferred.
Two paths after registration
The administration of ulayat land involves inventory and identification, measurement and mapping, followed by recording in the Ulayat Land Register. The research includes ensuring that the land is not currently in dispute, conflict, or litigation. The customary law community may also submit their own application for inventory and identification of their ulayat land.
After registration, there are two subsequent paths. The Unity of the Customary Law Community can apply for registration as a management right to the Minister through the Head of the Land Office, attaching the determination of the existence of the customary law community. Groups of Members of the Customary Law Community can register their land as joint ownership. Land that is not submitted through either path remains classified as ulayat land and can still be cooperated with third parties based on agreements.
Note the order: the determination of the customary law community comes first, followed by the status of the land. Reversing this order is what causes many claims to be stalled.
This topic also appears in the PPR class with Aditya Sewanggara. If you prefer to see the explanation directly, there is a clip available at taalenta.id/video/ppr-sengketa-tanah-ulayat-masyarakat-adat-dan-masyarakat-hukum-adat.
Sources
- Ministerial Regulation Number 52 of 2014 on Guidelines for Recognition and Protection of Customary Law Communities
- Ministerial Regulation ATR/Head of BPN Number 14 of 2024 on the Administration of Land and Registration of Customary Law Community Land Rights, JDIH BPK
- Procedure for Recognition of Ulayat Land, Hukumonline Clinic