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.