Vol. 5, No. 6, June 2024

E-ISSN: 2723-6692

P-ISSN: 2723-6595

http://jiss.publikasiindonesia.id/

Journal of Indonesian Social Sciences, Vol. 5, No. 6, June 2024 1332

Legal Protection of The Customary Rights of The Pubabu-Besipae

Indigenous People

Yesyurun Bonte

Universitas Kristen Satya Wacana, Indonesia

Email: 312020113@student.uksw.edu

Correspondence: 312020113@student.uksw.edu

KEYWORDS

ABSTRACT

Customary Rights; Culture;

Legal Protection

Ulayat land is land shared by indigenous communities. Customary land is

closely related and is an integral part of customary land rights. Customary

rights are the rights owned by indigenous peoples to utilize natural

resources for survival. The existence of indigenous communities has been

explicitly recognized in national law, such as the Basic Agrarian Law and

the Forestry Law. However, recognition of customary rights is still often

ignored by the Government, this is the case in the Pubabu-Besipae

indigenous community. Therefore, the aim of this research is to find out

how the law protects the customary rights of indigenous communities. This

research uses normative legal methods and uses a statutory approach. The

research findings show that legal recognition and protection of customary

rights are very clearly recognized and regulated, so the government should

not be able to control customary land arbitrarily according to its wishes.

Ownership of customary land has limitations in carrying out legal actions

and must take into account the prosperity of indigenous communities. So

the actions taken by the East Nusa Tenggara Government are actions that

violate the human rights of indigenous peoples because there are arbitrary

actions and even acts of violence against indigenous peoples. The

government should hold joint discussions with indigenous communities to

reach a fair agreement

Attribution-ShareAlike 4.0 International (CC BY-SA 4.0)

1. Introduction

Customary land is the common land of customary law communities, which is believed to be a

relic from their ancestors, which contains spiritual values and is the main supporting element for the

lives and livelihoods of indigenous groups. The use of customary land will always be closely related

to customary rights, where the two things are an inseparable unity (Marizal et al., 2022). Customary

rights are inherent rights of Indigenous peoples owned by certain Indigenous peoples, in certain areas

where their members reside, and these rights have been officially recognized by the government and

have been regulated in national law, so this gives the ability to Indigenous peoples to manage and

utilize natural resources including land to maintain the survival of Indigenous community members

(Wangi et al., 2023).

In general, the existence of indigenous peoples and their customary law is regulated in Article 3

paragraph (1), Law Number 5 of 1960 concerning Basic Regulations on Agrarian Principles

(hereinafter referred to as UUPA) (Indonesia, 1960) which states that "In view of the provisions of

e-ISSN: 2723-6692  p-ISSN: 2723-6695

Journal of Indonesian Social Sciences, Vol. 5, No. 6, June 2024 1333

articles 1 and 2, the exercise of customary rights and similar rights, of Indigenous peoples, so far as

they exist, shall be such that they are in accordance with national interests and States based on

national unity and shall not contradict other higher laws and regulations." Furthermore, it is also

regulated in Article 5 of the UUPA, which states that "Agrarian Law applicable to earth, water and

space is customary law, as long as it does not conflict with national and state interests, based on

national unity, with Indonesian socialism and with regulations contained in the Law and with other

laws and regulations, all by revealing elements that rely on religious law." Also in Article 67 paragraph

(1) of Law Number 41 of 1999 concerning Forestry (hereinafter referred to as the Forestry Law)

(Pemerintah Pusat, 1999), which states that "Indigenous peoples to the extent that they exist and are

recognized have the right: a. to collect forest products to meet the daily needs of the indigenous

peoples concerned; b. carry out forest management activities based on applicable customary law and

not contrary to the law; c. get empowerment in order to improve their welfare.

In spite of the fact that acknowledgment of standard rights is directed in laws and controls,

disregard for standard rights still regularly happens. Presently there are still issues related to innate

people groups and their standard law, as experienced by innate people groups in Pubabu Besipae

Town, South Amanuban Locale, Central Timor Rule, East Nusa Tenggara Territory, where their

standard arrival and standard woodlands will be utilized as product development regions covering a

range of 6000 ha, but the execution of the program without the assent of the Pubabu-Besipae inborn

individuals has activated clashes between Government with innate people groups (Ikatan Tokoh Adat

Pencari Kebenaran dan Keadilan, 2020). Based on this reality, the purpose of this study will examine

how the legal protection of the customary rights of the indigenous people of Pubabu-Besipae.

2. Materials and Methods

Normative legal research was used as a methodology in this study. According to Peter Mahmud

Marzuki; Normative legal research is a process to find a rule of law, legal principles, and legal doctrines

to answer the legal issues faced (Marzuki, 2007, p. 35). The approach used is the statutory approach

(statute approach). That is the approach by examining the laws and regulations related to the legal

issue being studied.

3. Results and Discussions

Conflict between the Local Government of East Nusa Tenggara Province and the Pubabu

Besipae Indigenous People

The conflict began with the rejection of the Besipae indigenous community over the offer of an

extension of land use loans in the Pubabu-Besipae customary forest area. This conflict includes

Linamnutu, Mio, and Oe Ekam villages. In 1987, for 25 years the territory of the indigenous Pubabu-

Besipae community was used as a cattle breeding project area which was a collaboration between the

East Nusa Tenggara Regency Government and the Australian State. Two years before the end of the

cooperation in 2010, the indigenous people of Pubabu-Besipae rejected an offer from the East Nusa

Tenggara Regency Government to extend the time to borrow land (Bere & Lay, 2023). The chronology

of the cases of the Indigenous people of Pubabu-Besipae in detail is as follows: (Wicaksono, 2020)

1. In 1927, the indigenous people of Pubabu-Besipae together with the Dutch Colonial Government

designated the Pubabu-Besipae forest area with an area of 2,674.4 Ha as customary forest. This

e-ISSN: 2723-6692  p-ISSN: 2723-6695

Journal of Indonesian Social Sciences, Vol. 5, No. 6, June 2024 1334

forest is located in South Amanuban District, South Central Timor Regency, East Nusa Tenggara

Province.

2. In 1982, the Provincial Government of East Nusa Tenggara entered the Besipae region by

collaborating with the indigenous people of Pubabu-Besipae in the implementation of the

Livestock Intensification Pilot Project.

3. The project involved Oe Ekam Village, Mio Village, Poli Village, and Linamnutu Village. The land

and forests of indigenous peoples used to cover an area of 6000 Ha.

4. This cooperation project was implemented by the Provincial Government of East Nusa Tenggara

with the Australian Government, for a period of 5 years from 1982 to 1987. This project involves

Oe Ekam Village, Mio Village, Poli Village, and Linamnutu Village.

5. In 1987, after the Livestock Intensification Program ended, the Forestry Service implemented

the National Forest Rehabilitation Movement (GERHAN) program in the areas of Polo Village,

Milo Village, Oe Ekam Village, and Eno Neten Village, South Amanuba District with a land area of

6000 Ha.

6. Through this program, the area was used as a cultivation area for commodity crops, such as teak

and mahogany, under the Right to Cultivate (HGU) scheme, starting from 1988 to 2008. Where

the implementation of this program is without the consent of the community.

7. Since this program was implemented, the rights of the indigenous people of Pubabu-Besipae

began to be taken away. In 1995 the Forestry Service issued a forestry land register with number

29 signed by the Governor of East Nusa Tenggara and contained in the State Boundary Gazette

which included the Pubabu-Besipae customary forest area in the state forest area with a

protected forest function of 2900 Ha.

8. During this program, the South Central Timor Forestry Service reportedly cleared and burned

the 1050 hectares of Pubabu-Besipae customary forest, which resulted in this forest becoming

deforested from 2003 to 2008.

9. In 2008, indigenous people took action to reject the extension of the HGU for the GERHAN

program. Natural forest clearing activities have resulted in the drying up of wells around forest

areas that have been the community's water source.

10. The rejection of the indigenous people was fruitless. There was a clearing of Besipae forests in

Pollo Village and Linamnutu Village by a group of people formed by the South Central Timor

Forestry Service with the excuse of rehabilitating forests through GERHAN. The forest clearing

was reported by the indigenous Pubabu community to the National Commission on Human

Rights (Komnas HAM) in 2009.

11. In 2011 the Pubabu-Besipae Indigenous people who are members of the Association of

Indigenous Leaders Seeking Truth and Justice made a letter canceling the contract extension of

the East Nusa Tenggara Provincial Livestock Office at the Besipae installation with letter number:

03/ITAPKK/II/2011.

12. In the same year, Komnas HAM issued letter number 873/K/PMT/IV/2011 regarding the forest

problem of the Pubabu-Besipae indigenous people. With the contents of the letter, among other

things, keep the situation safe and conducive in the community and avoid intimidation until there

is a solution to solve the problem.

e-ISSN: 2723-6692  p-ISSN: 2723-6695

Journal of Indonesian Social Sciences, Vol. 5, No. 6, June 2024 1335

13. Then Komnas HAM also emphasized, keeping forest areas sustainable, temporarily suspending

the activities of the East Nusa Tenggara Provincial Livestock Service and the South Middle East

District Forestry Service on problematic lands until there is a settlement. Finally, Komnas HAM

will follow up on complaints from the indigenous people of Pubabu by monitoring the location

and/or mediation efforts.

14. However, in October 2012 there was a criminalization of 17 indigenous peoples. 4 of them were

women but were later released due to insufficient evidence. In addition to women, there are also

2 underage boys who are also criminalized. 1 citizen was detained for 2 months and 10 others

were detained for 4 months.

15. In November 2012, the National Commission on Human Rights Indonesia (Komnas HAM) again

issued a letter, number 2,720/K/PMT/XI/2012 regarding the forest problems of the Pubabu-

Besipae indigenous people. The contents of the letter are returning agricultural land borrowed

by the Livestock Office of East Nusa Tenggara Province which ended in 2012 to residents and

evaluating the Regional Technical Implementation Unit (UPTD) of East Nusa Tenggara Province.

16. On March 19, 2013, the Government issued a Certificate of Right to Use with Number

00001/2013-BP.794953 with an area of 3,780 Ha, on behalf of the Provincial Government of East

Nusa Tenggara. The certificate is the basis for ownership of the Pubabu customary forest. This is

what then triggers conflict. Because in 2011, indigenous peoples through the Association of

Indigenous Leaders, Enforcers, Truth and Justice had sent a letter canceling the contract

extension with the East Nusa Tenggara Provincial Livestock Office.

17. In October 2017, the conflict escalated because the East Nusa Tenggara Provincial Government

intimidated the indigenous Pubabu-Besiape community. At that time, the Livestock Office of East

Nusa Tenggara Province together with the Civil Service Police Unit came to the community and

requested that the indigenous people of Pubabu-Besipae immediately vacate the land. On the

grounds that the land belongs to the East Nusa Tenggara Provincial Government on the basis of

the Right to Use Certificate issued in 2013.

18. The peak of the conflict occurred in 2020, where a joint team consisting of Brimob, the Civil

Service Police Unit, and The Indonesian National Armed Forces, evicted 3 heads of families and

in the eviction, there was physical violence that resulted in homelessness.

19. On May 12, 2020, the Governor of East Nusa Tenggara (Viktor Laiksodat) visited the location of

the Pubabu-Besipae customary forest walked to the community hut, and asked the community

to dismantle the fence around the house, but the community responded with a topless action

carried out by Pubabu-Besipae mothers.

20. On August 18, 2020, a joint team of officials evicted and destroyed houses belonging to 29

households in Besipae. This action was accompanied by firing several firearms. These repressive

acts leave trauma for women and children.

21. On August 21, 2020, the East Nusa Tenggara Provincial Government together with Besipae

traditional leaders, made an agreement to end the issue of customary land conflicts. There are

several points in the agreement, namely; Pubabu-Besipae land covering an area of 3780 ha

remains owned by the East Nusa Tenggara Provincial Government, 37 Pubabu-Besipae families

acquired 800 square meters of caveling land.

e-ISSN: 2723-6692  p-ISSN: 2723-6695

Journal of Indonesian Social Sciences, Vol. 5, No. 6, June 2024 1336

22. However, the agreement received negative reactions from a number of indigenous Pubabu

people. Some indigenous peoples still remain in the eviction site and reject dispute resolution

agreements. The reason is that the agreement was carried out and made without involving the

Pubabu community who are fighting to defend Pubabu customary land and forests.

Legal Protection of the Customary Rights of the Pubabu-Besipae Indigenous Peoples According

to Applicable Legal Regulations.

According to Satjipto Raharjo, legitimate protection is to supply protection for human rights

(HAM) harmed by others which security is given to the community in arrange to appreciate all the

rights given by law. The law is utilized to realize assurance that's not as it were versatile and adaptable

but too contains a prescient and expectant nature. Laws are given to those who are frail and not

however solid socially, financially, and politically in arrange to get social equity (Raharjo, 2002, p. 58).

Legal protection of the customary rights of indigenous peoples is part of the human rights of

indigenous peoples. This is recognized not only at the national level but also recognized at the

international level, as stipulated in Article 17 paragraph (1) of The Universal Declaration of Human

Rights, which states: "Everyone has the right to own property alone as well as in association with

others." In the article, it is said that everyone has the right to own property either alone or with other

parties. This is very important in relation to the rights of indigenous peoples because indigenous

peoples have the characteristics of communal rights. This international provision was adopted into

Law Number 39 of 1999 concerning Human Rights (Indonesia, 1999). The realization of the

recognition of indigenous peoples' rights to their land as part of human rights is contained in Article

6 paragraph (1), which states that "In order to uphold human rights, differences and needs within

customary law communities must be considered and protected by law, the community, and the

Government." Furthermore, Article 2 states that "The cultural identity of indigenous peoples,

including customary land rights, is protected, in line with the times." The provisions in Article 6

clearly mention customary rights, which mandate that customary rights that are part of cultural

identity must be protected. When looking at these provisions, it can be said that the existence of

customary rights of Indigenous peoples is not only recognized but must also be protected and this is

a manifestation of the responsibility of the State, in this case, the Government to the community

(Widowati et al., 2014).

Recognition of customary rights is contained in various other statutory provisions even in the

Constitution of the Republic of Indonesia Year 1945 Second Amendment (hereinafter referred to as

UUD NR 1945) and TAP MPR No. IX Year 2001 (Muchsin & Soimin, 2010). In addition, there are several

other provisions that will explain in detail regarding the recognition and legal protection of

Indigenous peoples, as follows: (Dwiyatmi, 2020, p. 29)

1. Article 18B paragraph (2) of the 1945 NR Constitution, which states that "The State recognizes

and respects the unity of indigenous peoples and their traditional rights as long as they are alive

and in accordance with the development of society and the principles of the Unitary State of the

Republic of Indonesia, which are stipulated in the Law.”

2. TAP MPR No. IX / MPR / 2001 concerning Agrarian Reform and Natural Resources Management,

regulated in Article 4, which states that "One of the principles that must be upheld in the

implementation of agrarian reform and natural resource management is the recognition, respect,

e-ISSN: 2723-6692  p-ISSN: 2723-6695

Journal of Indonesian Social Sciences, Vol. 5, No. 6, June 2024 1337

and protection of the rights of customary law communities and the nation's cultural religion or

agrarian resources / natural resources.”

3. Law Number 39 of 1999 concerning Human Rights, regulated in Article 6 paragraph (2), which

states that "The cultural identity of customary law communities, including customary land rights

is protected in line with the times.”

4. Law Number 41 of 1999 concerning Forestry, which is regulated in several articles;

- Article 1 point (6), which states that "Customary forests are State forests that are within the

territory of customary law communities.”

- Article 4 paragraph (3), which states that "Forest tenure by the State shall continue to take

into account the rights of indigenous peoples, as long as they exist and are recognized for their

existence, and do not conflict with national interests.

- Article 5 paragraph (1), which states that "forests by virtue of their status consist of (a) State

forests, and (b) rights forests." Furthermore, Article 5 paragraph (2), states that "State forests

as referred to in paragraph (1) letter (a) can be customary forests.”

5. Constitutional Court Decision No. 35/PUU/PUU-X/2012, which granted the petition of the

Petitioners, among the decisions granted as follows: (Tobroni, 2016)

- The word "state" in Article 1 number 6 of the Forestry Law is contrary to the 1945 NR

Constitution. The word "state" in Article 1 number 6 has no binding legal force, so it must be

understood to mean "customary forest is a forest that is within the territory of customary law

communities.”

- Article 4 paragraph (3) of the Forestry Law is contrary to the 1945 NR Constitution. Therefore,

the article must be interpreted as "Forest control by the state continues to pay attention to

the rights of customary law communities, as long as they are alive and in accordance with the

development of society and the principles of the Unitary State of the Republic of Indonesia as

stipulated in law.”

- Article 5 paragraph (1) of the Forestry Law is contrary to the 1945 NR Constitution. Therefore,

although Article 5 paragraph (1) of the Forestry Law reads "Forests based on their status

consist of; a. State forests, and; b. forest rights; It must still be interpreted as "State forests as

referred to in paragraph (1) letter a, excluding customary forests.”

- Article 5 Paragraph (2) of the Forestry Law is contrary to the 1945 NR Constitution so that it

has no binding legal force.

- The phrase "and paragraph (2)" in Article 5 paragraph (3) of the Forestry Law is contrary to

the 1945 NR Constitution. The phrase "and paragraph (2)" in Article 5 paragraph (3) must be

declared missing so that it must read "The government determines the status of forests as

referred to in paragraph (1); and customary forests are established as long as in reality the

peoples concerned still exist and are recognized for their existence.”

As the Constitutional Court Decision has been described in detail above, the State should not be

able to control land arbitrarily according to its own will, but there are restrictions on carrying out

actions and legal relations to be carried out. Land tenure by the State must pay attention to the

prosperity of the community. So even though the state is given the right to exercise land tenure, but

as a result of the land tenure does not create prosperity for the community, the land tenure is contrary

to what is mandated in the applicable laws and regulations. This is often ignored where indigenous

e-ISSN: 2723-6692  p-ISSN: 2723-6695

Journal of Indonesian Social Sciences, Vol. 5, No. 6, June 2024 1338

peoples are often excluded when the State/Government with its control rights, overrides the rights

of indigenous peoples in natural resource management for reasons of national interest. Indigenous

peoples are often labeled as backward, ancient groups and various negative sitgmas associated with

their daily life activities. Indigenous peoples are also often seen as an obstacle to development when

they seek to fight for their land rights (Pratama et al., 2022). As happened in the Pubabu-Besipae

indigenous community, where the Government ignored the rights of indigenous peoples, the

Government carried out evictions and acts of violence that were contrary to the prevailing laws and

regulations.

Based on the description above, it is clear that there have been regulations on indigenous

peoples and their customary law, but in this case, the Provincial Government of East Nusa Tenggara

does not obey the applicable law. Instead of being a recognition and legal protection for indigenous

peoples, in reality, it is inversely proportional to the applicable legal regulations. The Provincial

Government of East Nusa Tenggara takes actions where Indigenous peoples experience eviction to

acts of violence which are violations of the human rights of Indigenous peoples if the Provincial

Government of East Nusa Tenggara controls customary land from the Indigenous people of Pubabu-

Besipae a rightful approach should be taken to indigenous peoples, not only some but all parts of

indigenous peoples are listened to regarding their wishes, Joint deliberation is one of the best ways

to reach mutual agreement and must still pay attention to the prosperity of the community in

accordance with the mandate of the laws and regulations. Then the Government should encourage

interaction in efforts to prevent and fight all forms of deprivation of rights from indigenous peoples

in accordance with applicable legal regulations.

4. Conclusion

Based on the above analysis, it is concluded that the recognition of the existence of indigenous

peoples has been regulated in laws and regulations, such as in the 1945 Constitution of the Republic

of Indonesia, the TAP MPR No. IX of 2001, the UUPA, the Forestry Law and the Constitutional Court

Decision Number 35/PUU/PUU-X/2012. Likewise, regarding legal protection for indigenous peoples,

legal protection for indigenous peoples is recognized nationally and internationally and is part of

human rights regulated in Law Number 39 of 1999 concerning Human Rights. Regulations related to

the legal recognition and protection of indigenous peoples have been very clear, so the Government

should not be able to arbitrarily control land from indigenous peoples because such actions are illegal

acts of applicable law.

Thus, the actions taken by the East Nusa Tenggara Provincial Government against the Pubabu-

Besipae indigenous people are unlawful acts, the taking of customary land accompanied by acts of

violence and evictions is an act that violates the human rights of indigenous peoples, as mandated in

Law Number 39 of 1999 concerning Human Rights..

5. References

Bere, M. S. P., & Lay, B. P. (2023). Sengketa Tanah antara Masyarakat Pubabu-Esipae dengan

Pemerintah Provinsi NTT. Jikma: Jurnal Ilmiah Dan Karya Mahasiswa, 1(4), 36–53.

Dwiyatmi, S. H. (2020). Hukum Agraria. Griya Media.

e-ISSN: 2723-6692  p-ISSN: 2723-6695

Journal of Indonesian Social Sciences, Vol. 5, No. 6, June 2024 1339

Ikatan Tokoh Adat Pencari Kebenaran dan Keadilan. (2020). Kronologi Konflik Masyarakat Adat

Pubabu dengan Pemerintah Provinsi Nusa Tenggara Timur. Solidaritas Perempuan.

https://www.solidaritasperempuan.org/kronologi-konflik-masyrakat-adat-pubabu-dengan-

pemerintah-provinsi-nusa-tenggara-timur/

Indonesia, P. P. (1960). Undang-Undang Nomor 5 Tahun 1960 tentang Peraturan Dasar Pokok-Pokok

Agraria (5). Pemerintah Pusat RI; LN. 1960/No. 104, TLN No. 2043, LL SETNEG : 17 HLM.

Indonesia, P. P. (1999). Undang-undang (UU) Nomor 39 Tahun 1999 tentang Hak Asasi Manusia.

Pemerintah Pusat. https://peraturan.bpk.go.id/Details/45361/uu-no-39-tahun-1999

Marizal, M., Indrianingrum, A. P., & Nugroho, H. R. (2022). Dinamika Pemanfaatan Tanah Ulayat

Masyarakat Hukum Adat Untuk Kepentingan Umum di Indonesia. Widya Pranata Hukum: Jurnal

Kajian Dan Penelitian Hukum, 4(2), 191–205.

Marzuki, P. M. (2007). Penelitian Hukum. Kencana Prenada Group.

Muchsin, I. K., & Soimin, S. (2010). Hukum Agraria Indonesia: Dalam Perspektif Sejarah. PT. Refika

Aditama.

Pemerintah Pusat. (1999). Undang-undang (UU) Nomor 41 Tahun 1999 tentang Kehutanan.

Pemerintah Pusat Indonesia.

Pratama, M. R. S., Lestari, A. A., & Katari, R. I. (2022). Pemenuhan Hak Bagi Masyarakat Adat Oleh

Negara Di Bidang Hutan Adat. Jurnal Hukum Ius Quia Iustum, 29(1), 189–210.

https://doi.org/10.20885/iustum.vol29.iss1.art9

Raharjo, S. (2002). Ilmu Hukum. PT. Citra Aditya Bakti.

Tobroni, F. (2016). Menguatkan Hak Masyarakat Adat Atas Hutan Adat (Studi Putusan MK Nomor 35/

PUU-X/2012). Jurnal Konstitusi, 10(3), 461. https://doi.org/10.31078/jk1035

Wangi, N. K. P. S. S., Dantes, K. F., & Sudiatmaka, K. (2023). Analisis Yudiris Hak Ulayat terhadap

Kepemilikan Tanah Adat Berdasarkan Undang-undang Nomor 5 Tahun 1960 tentang Peraturan

Dasar Pokok-pokok Agraria. Jurnal Ilmu HukumSui Generis, 3(3), 112–121.

Wicaksono, R. A. (2020, August 26). Konflik Panjang Masyarakat Adat Pubabu-Besipae dan Pemerintah

NTT. Betahita. https://betahita.id/news/detail/5563/konflik-panjang-masyarakat-adat-

pubabu-besipae-dan-pemerintah-ntt.html.html

Widowati, D. A., Luthfi, A. N., & Guntur, I. G. N. (2014). Pengakuan dan Perlindungan Hak Atas Tanah

Masyarakat Hukum Adat Di Kawasan Hutan. Pusat Penelitian dan Pengabdian kepada

Masyarakat, Sekolah Tinggi Pertanahan Nasional.