Gauging RI's own native title

Gauging RI's own native title

By Dewi Anggraeni

MELBOURNE, Australia (JP): Many Australians, it seems, find it
hard to accept the concept of sharing a land with other people,
if the difficulty with recognizing Aboriginal native title rights
can be used as an indicator.

How do other countries fare with the issue of coexistence? Or
at home, how does Indonesia handle the issue?

"Native title is not a new concept in Indonesia," said Judge
Maruarar Siahaan of the West Java High Court in Bandung. Judge
Siahaan recently participated in a judicial training program in
Australia, run by the Australia-Indonesia Legal Development
Foundation (AILDF).

"We have Hak Ulayat, which is the equivalent to native title
rights here in Australia," he said.

Hak Ulayat, or right of disposal, is a traditional law in
Indonesia comparable to Australia's Common Law. It is also
similar to native title in the concept of collectiveness of
rights. However, while the principle of native title is still a
source of political conflict, Hak Ulayat is well established in
Indonesia's legal framework.

Siahaan points out that there is a fundamental element which
makes Hak Ulayat different from Australian native title rights.

"Indonesian law is based on Dutch colonial law. Dutch colonial
law, from the start, recognized the plurality of Indonesian (then
Dutch East Indies) society. The legal division of the population
into three groups -- Europeans, Asians from other countries and
the indigenous people -- allowed the different societies to
coexist in a pluralistic manner," he said.

This system was in sharp contrast with the concept of terra
nullius adopted by the British vis-a-vis Australia when they
first claimed this land in 1788. The British then did not
recognize the indigenous people as the rightful owners of the
land. So the Aboriginal population have been at a disadvantage
from the start in relation to Australian law.

In fact, the Australian Aboriginal population did not have the
right to vote until 1967. And half-cast children were
systematically taken away from them to be raised by white
families until 1969.

It was only in 1992 that the Australian High Court made a
landmark reversal of the terra nullius concept by granting a
Torres Strait Islander family, Eddie Mabo and his clan, legal
recognition of a native title over their traditional land. The
decision was handed down 10 years after the Mabo family made the
legal claim.

Only a year later, in 1993, the federal parliament passed the
Native Title Act after a great deal of negotiation and
consultation involving aboriginal and non-aboriginal groups, and
the government. The act was a compromise, in which the indigenous
people traded their substantial rights for procedural rights,
creating a simpler mechanism for proving native title and
negotiating on future development of native title lands.

In 1995 in north Queensland, Aboriginal people and
pastoralists achieved a landmark settlement concerning the land
use in Cape York. The agreement was signed by the Aboriginal Cape
York Land Council, the Cattlemen's Union of Australia, the
Australian Conservation Foundation, the Wilderness Society, and
the Peninsular Regional Council of the Aboriginal and Torres
Strait Islander Commission. It was indeed the first time in
Australian history that such an agreement had been negotiated on
land use between such interests.

Unfortunately, there is no definite formula for such
agreements. They depend on community initiative and the spirit of
reconciliation.

Not long after the Mabo decision, the Wik people from north
Queensland submitted a native title claim on land that was
already subject to pastoral leases. In 1996, the High Court, by a
narrow majority of 4-3, decided that pastoral leases did not
necessarily preclude native title rights. Essentially it meant
that native title rights could also exist over the same piece of
land as some non-exclusive pastoral leases. However, if there was
a conflict, the pastoral rights would prevail.

Many pastoralists regarded the High Court decision as unfair
because it created uncertainty. Instead, they wanted to have
rights as exclusive as freeholder title rights, thereby excluding
any Aboriginal access to the land.

Their dissatisfaction drove the Howard government to propose
amendments to the Native Title Act in what Howard referred to his
"10-point plan".

In the "10-point plan", Howard basically proposed that
pastoral leases should override native titles, but if the native
title claimants could prove that they had been dependent on the
land for their livelihood, they could apply for compensation.

Not only did the pastoralists express further dissatisfaction,
Aboriginal groups were outraged. Howard's "10-point plan" bill
became stuck in the Senate, where there was sufficient opposition
to block it.

While Australia still grapples with the concept of native
title rights and coexistence, Indonesian Hak Ulayat is well
recognized. It was first institutionalized in the colonial
Agrarian Act of 1870, and then after independence. It was further
strengthened by the Basic Agrarian Law of 1960.

The Agrarian Act of 1870 specified that a governor general had
no right to lease lands belonging to traditional communities, or
to take over lands that had been cultivated or used by
traditional communities. It was obvious here that the Dutch
colonial authorities recognized traditional ownership of lands
before their arrival.

It is important to note, however, that despite the existence
of Hak Ulayat, whenever there have been land right disputes in
Indonesia, solving them has not always been clearcut. For
instance, disputes can stem from doubts on whether a community
can still be regarded as a cohesive traditional community.
Another issue that is difficult to resolve is the payment of
compensation.

In the heart of native title problems is the inability, or at
least the reluctance, of modern society to coexist with
traditional communities. There is a tendency of the former to
dismiss the latter as historically irrelevant and economically a
nuisance.

In the case of Indonesia, assessing the problems is not
simple. But then, in Indonesia, nothing is ever simple.

The writer is a free-lance journalist based in Melbourne.