Agrarian Law

1
Agrarian Law

• Lecturer Dra.Hery Listyawati, SH, LLM

2
A.INTRODUCTION

• Meaning Agrarian and Agrarian Law. Its content
  and Scope
• Ager------- Agrarian land, land, rural land
• Agrarius---------? about agriculture
  about paddy field, about farm
• Lex Agraria ------?Agrarian Act.
• At Roman Law------? Agrarian Laws laws
  for the distribution among people, by public
  authority, of the lands constituting the public
  domain, usually territory conquered from the
  enemy. In common parlance the term is frequently
  applied to laws which have for their object the
  more equal division or distribution of landed
  property laws for distributing large properties
  and increasing the number of landholders.
  (Black, 1991).

3

• In other words, its more related to land reform
  problems at narrow understanding, that is land
  tenure and land ownership reform, so that could
  achieve fair land tenure and land ownership. In
  some west countries, they still use that
  understanding of agrarian law .
• but in more narrow scope like in the literal
  meaning, which is only related to agriculture
  land or rural land. It could conclude from
  uses term of agrarian land law. (Grossman and
  Brussaard (ed.), 1992).
• At BAL -------? Basic Agrarian Law uses the
  very wide scope BARAK
• Earth consists of the surface of earth which is
  called soil, underneath and that concludes under
  water.
• Water consists of hinterland waters and
  Indonesian sea
• Natural Resources everything which is
  contained on the earth, also something which is
  contained in the water in hinterland waters,
  Indonesian sea as well as Indonesia's Economic
  Exclusive Zone.

4
2. Scope

• Agrarian Law is a bundle of many groups of law
• Land Law, which regulates the possession of
  land rights , that is rights of the surface of
  earth (Act No.5 /1960)
• Water Law, which regulates rights of the
  possession of water (Act No.7/ 2004)
• Mining Law ,which regulates rights of the
  possession of mining goods, like that stated by
  Mining Act (Act No.11/1967) also oil and Gas Act
  (Act No.22/2001)
• Forestry Law ,that regulates rights of the
  possession of forest resources (regulated on Act
  No.41/1999, which replace the Act before that is
  Act No.5/1967)
• Fishery Law, which regulates rights of the
  possession of natural resources which contained
  everything in the water, even hinterland waters
  or sea waters (regulated on Act No 9 year 1985
  about Fishery).

5

• 3. Agrarian Law Domain
• Agrarian Law has two aspects public and private
• Stipulation which has public aspect covering
  legislative, executive/administrative and
  judicative, in which activity is done by the
  state as the ruling body
• Legislative has duty/authority to make acts
  regulation at agrarian law. Judicative has
  duty/authority to do justice/to solve agrarian
  conflicts.
• Administrative Agrarian Law was made to provide
  the basis for executive authorities to
  implement agrarian policy. Agrarian policy in
  principle answers these questions What should to
  do with existing agrarian resources and what
  would be achieved. Also, what facilities will be
  used?

6

• Certain Agrarian Law which has juridical
  administrative aspect is called Administrative
  Agrarian Law.
• Netherland Hindie Administrative Agrarian Law,
  for example, giving support for the
  implementation of agrarian colonizer politics
  which stated on Agrarische Wet 1870,which had
  final purpose to exploit agrarian resources in
  Indonesia for the interest of Dutch. On the
  other hand, administrative agrarian law of
  Indonesia is directed to the achievement the
  Indonesian agrarian politics of which formed in
  the Article 33 clause 3 constitution 45, and
  further elaborated at BAL.
• certain Agrarian Law which has private aspect
  regulates the possessive rights of agrarian
  resources, which subjects are individuals and
  civil institution and government bodies that
  possess agrarian resources for leverage related
  natural resources to fulfill the needs and / or
  perform their respective duties. This Agrarian
  Law is called the Private Agrarian Law.

7

• Related specifically to land, for example, rights
  to possess land which is regulated by private
  agrarian law, gives the holder the right to
  possess the physical rights of land owned, to use
  and to perform certain legal actions to the land
  (the right of possession, the right of enjoyment
  and disposition). Its what is called land
  rights, which is called genootsrechten in Dutch.
• There is also a possession rights of land that
  has private aspect, which is giving authority for
  creditor to sell auction to the land that being
  guaranteed , in case of a certain defaulted debt
  covenant debtor. Creditor has a power to take all
  or a half of the auction to pay for his claim,
  with right of advance compare with the other
  creditors. This right is called security right of
  land, which is called zekerheidsrechten in Dutch
  (Boedi Harsono, 1999).

8
The Indonesian Agrarian Law A Brief History

• 1. Pre- Colonial Period
• Before the Dutch colonialist arrived and
  imposed colonial legal system in Indonesia,
  Indonesia was a nation that already known and
  have its own law, including laws related to
  natural resources. The Indonesian people, in
  particular, Adat Law communities in Indonesia had
  the Adat Legal norms that governed their own
  land tenure and land use within their territory,
  including the possession and the use of other
  agrarian resources, such as fish, forests, and
  minerals.
• Those Legal norms were assembled in what experts
  called the Law of Indigenous Land. Despite its
  name Adat Land Law, but the scope is broad, not
  only limited to the surface of land, but also
  everything around the environment (Soesangobeng,
  2003)

9

• From various studies done by experts, it can be
  concluded that the characteristics of Adat land
  law, are
• Unwritten
• plural, in the sense that the legal norms that
  differ according to customary law community. At
  least, according to the classification made by
  Van Vollenhoven, there are 19 Adat Law
  environment (adatrechtskringen) existed in
  Indonesia
• has a conception of communal religious
• In some extend also contains feudal nature,
  because of the system of native kingdoms in some
  regions
• The land rights at that time according Adat Land
  Law, can be classified into 2 groups /
  categories, namely the nature of communal
  rights, called ulayat rights (right of disposal),
  and individual rights. Ulayat rights are the
  communal rights of people within the Adat
  territory upon the land and everything in the
  environment. The authority is on practice of the
  Adat Law community leaders, could be a tribal
  chief, or the Adat community leaders appointed by
  a special authority in the field of agrarian
• It is not familiar with security rights
  institution / burden on land rights/ mortgage
• It applies to the indigenous group.

10

• Individual rights including various types of
  rights such as rights of forest picks, fishing
  rights, individual rights over land which varies
  its strength, from the most vulnerable, such as
  the right to open the forest to be a field, until
  the most powerful form of property rights over
  land. In relation to adat rights, if individuals
  rights is stronger, the force of adat rights over
  land / agrarian resources will weaker.
  Conversely, weakening the individual rights make
  the ulayat rights upon parcels of land/ agrarian
  resources stronger.
• Also, keep in mind also, that the Adat law
  principle of horizontal separation in force which
  essentially states that there is a separation
  between land rights with the rights of buildings
  or plants that grow above ground. However, as
  stated in Ter Haar, the separation is not
  absolute . Because Ter Haar said that "the
  ownership of houses and crops in principle
  separate from the rights over land where the
  establishment or growth of house / plant. Thus,
  it is possible to unite the ownership of rights
  to land with rights to the building / plant upon
  the land.

11

• In connection with this, Ter Haar suggests two
  possibilities or realities, namely First,
  (....when transferring a residential compound,
  houses and trees on the compound usually go with
  it). Unity of ownership is valid for permanent
  homes. In contrast, if the houses are not
  permanent (made of bamboo or wood), it is
  possible to treat the house and the plants on it
  as something separate from the land. Secondly,
  the owner of houses and crops also owns the land.
  This happens when the trees are planted so close
  that does not allow for the growth of other trees
  / other plants. The owners of these trees have
  the land as well .So, in this case, the rights on
  land follows the rights on the live long plants
  it. (Ter Haar, 1962 141-142)
• Therefore, the common practice of legal actions
  concerning land also includes buildings and
  plants are upon it, as long as

12

• a. Physically ,buildings and plant is one of
  unity with the land. It applies for permanent
  buildings and perennials plants
• b. buildings and plant owned by the owner of
  land
• c. such intention is expressly stated in the
  deed that proves the relevant legal action.
  (Seminar on Customary Law and National Law
  Development, Yogyakarta, 1975, as quoted by Boedi
  Harsono, 1999 254).
• 2. Age of Colonialism
• In the field of land
• In the field of land, the most important law is
  Agrarische Wet 1870. The Wet (The Act) was
  enacted in Statblaad 1870-55, consisted of 5
  verses, which added to Article 62 Regerings
  Reglement 1854, so that the RR Article 62 which
  was made up of 3 verses, became 8 verses (Note
  Article 62 RR and then in 1925 became Article 51
  Indische Staatsregeling) Agrarische Wet includes
  colonial agrarian policy.

13

• This Act contains several provisions as follows
• 1. Governor General is forbidden to sell land
• 2. Excluded from the ban is not broad land,
  which is used for expansion of cities and
  villages and for handicraft business
  development
• 3. Governor General may give leasing about the
  land to other parties under the provisions of
  ordinance. But not for Adat land, public pasture
  land.
• 4. Based on the provisions of the ordinance, the
  Government gave the land with the erfpacht right
  within a maximum period of 75 years
• 5. In giving land to big businessmen, it must not
  violate the rights of indigenous people
• 6. Land acquisition toward indigenous land
  should only for the public interest, through land
  rights revocation within just/fair compensation
• 7. Adat land ownership of indigenous people, at
  the request of the owner can be given to him an
  eigendom right with the limitations and specific
  requirements listed in the letter of eigendom,
  namely the obligations to the State and to the
  village concerned, as well as the authority to
  sell them to non-indigenous
• 8. Leasing of land by non-indigenous natives is
  done according to the provisions of the
  ordinance.

14

• Agrarische Wet was born at the insistence of
  private entrepreneurs. Before 1870, cultuur
  stelsel where imposed,. the state applied
  monopoly system and forced labor that made large
  entrepreneurs got difficult to grow. The only way
  for entrepreneurs who do not have large land with
  the eigendom right, is to lease land from the
  Government, whereas lease term is only 20 years.
  This is not suitable for them to run plantation
  of tree crops. Moreover, land lease rights can
  not be used as mortgage. Rented land from
  indigenous people was also not possible because
  the indigenous people are prohibited to sell or
  lease land to non-indigenous people. In line with
  the spirit of liberalism that began to grow,
  including in the Netherlands at the time, then
  the demand for change was born cultuur stelsel
  and state monopoly system with a system of free
  competition based on a conception of liberal
  capitalism. Included in these demands is to set
  regulations that support the agrarian system of
  free competition.
• The purpose of Agrarische Wet is to open
  possibilities and provide legal guarantees for
  private entrepreneurs to develop in the Dutch
  East Indies. For that

15

• Private entrepreneurs can obtain from the
  Government land for large plantations with
  erfpacht rights, the term to 75 years. According
  to article 720 and 721 BW, erfpacht rights is the
  right material that provides the most extensive
  powers to the holder the right to enjoy full use
  of the land belongs to other parties. Erfpacht
  right holders may use all the powers contained in
  eigendom rights over land. Rights may also be
  burdened erfpacht mortgage, so that entrepreneurs
  can get loans with land collateralize.
• Entrepreneur (especially sugar and tobacco
  businesses) can also use the land belongs to the
  people on the basis of the rent
• Providing land with all the rights stipulated by
  erfpacht ordinance, thus was born the ordinance
  on erfpacht entitlements, applicable both in
  Java-Madura and in Java Madura outside (Note
  before there was an ordinance about this erfpacht
  right outside Java-Madura, land acquisition for
  the company's large garden with not erfpacht
  right, but with the concession rights, the rights
  granted by the Autonomous Government for
  companies large garden, and listed in the
  Resident's office)

16

• Renting community land by big plantation company
  is regulated by ordinances, i.e.
• Grondhuurordonantie (S. 1918-88), which is valid
  in Java, Madura, except Surakarta and Yogyakarta.
  
• Vorstenlands Grondhuur Reglement (S. 1918-20)
  which is valid in Surakarta and Yogyakarta.
• To conduct Agrarische Wet, thus it is enacted
  various regulations and decisions, i.e. Agrarisch
  Besluit (S. 1870-118). Article 1 of Agrarisch
  Besluit contains Domein Verklaring (Domain
  Statement) comprises of
• Without decreasing the validation of regulations
  on Article 2 and 3 of AW, it should be maintained
  the principles that all land , which other
  parties are incapable to prove them as their
  eigendom rights, are the domain (property) of
  state.
• The functions of Domein Verklaring are as
  follows
• As the legal foundation of the government to
  represent the state as the land owner, to give
  land with western rights which are regulated in
  Civil Code, such as erfpacht, opstahl rights, etc.

17

• 2. As the basic of verification ownership.
  (If someone or corporation has any case with the
  state concerning with the land ownership, thus,
  those who should prove that the land being
  disputed is his own).
• Notification
• At that time there is a perception that only the
  eigennar or the land owner who has rights to
  give erfpacht rights, opstal rights and other
  rights. Thus to conduct the command of AW (in
  particularly the Article 4 of AW) in giving
  erfpacht rights to the businessmen, it is
  considered as necessary to state whether the
  concerned land is eigendom or domain or the
  states property. Thus in the giving of these
  rights, the state doesnt behave as the
  government, however as the civil owner. In
  addition if it is asked any eigendom rights, the
  state doesnt give eigendom rigts, however
  eigendom rights of state is moved (sold) to the
  other parts who demanded by the payment of price
  to the state.
• The principle of domain is different from that
  in modern state. The feudal conception from the
  middle age, such as those that based on the land
  law in England and its colonial countries, land
  was the kings property and anyone was only
  permitted to use the kings or lords land as his
  tenant. It was called as the doctrine of tenure.

18

• Domein Verklaring violates the communitys land
  rights, because colonial government at that time
  used the very wide interpretation toward domain
  verklaring, thus practically all of community
  lands were claimed as states land (domain).
• Notification
• There are three interpretations concerning with
  Domein Verklaring (State Domain)
• 1. State domain land is those which are not the
  eigendom rights land regulated in the Article
  570 of BW
• 2. State domain land is not the eigendom land
  rights, the agrarisch eigendom rigts and either
  not only the community land of which had been
  released from the jurisdiction of community
  rights
• 3. State domain land is not the eigendom land
  rights, agrarisch riegendom rights nor community
  land, either that had or had not been released
  from the jurisdiction of community land.

19

• The narrow interpretation were used to protect
  the rights of indigenous people as had been
  commanded by the paragraphs 4 and 5 of the
  article 51 IS (or Article 2 and 3 of AW)
• However the government of Netherland Hindie
  always uses the wider interpretation on domain
  verklaring (i.e. the interpretation of point 1),
  thus the state land domain also includes the
  community land under Adat property rights, as
  well as the ulayat land. Such interpretation
  means to extinguish the existence of community
  land rights.

20

• The Characteristics of West Agrarian Law
• In writing forms
• The subject of rights are European and Foreign
  Orientals.
• Sourced on BW/Civil Code, in colonial era there
  is AW.
• Has individualist and liberalist characteristic.
• Recognize on the existence of institution of
  mortgages (hypotheek, CV, and Fiduciary)

21

• The Characteristics of Modern Agrarian Law
• The existence of unification
• The existence of codification
• Ad1.In the state area it is only valid one system
  of national agrarian law
• Ad2. All regulations (although there is only the
  principles) are written in code

22
AGRARIAN LAW In the Independence Era Before the
enactment of BAL

• Adjustment efforts
• a. Politics, Policy, and new interpretation
• b. Abolition of some colonial and feudal
  institutions, and change or complement the old
  regulations, i.e.
• 1) Abolition of freed village
• 2) Abolition of conversion rights (by
  Acts Number 13/1948 jo Acts Number 5/1950)
• 3) Elimination of private estates by the
  Acts Number 1/1958.
• c. Change the regulation on land lease of
  community land.
• d. Supervisory of rights transfer
• e. Regulation and actions concerning with land
  plantation
• f. Regulations concerning with canon and cijns
• g. Illegal occupation
• h. Agreement of sharecrop

23

• Independence era before the establishment of BAL
• For 15 years in Indonesia prevails
• Adat law
• Western law
• Regulations of the Government of The Republic of
  Indonesia
• Thus, the characteristics of Old Agrarian Law
  are
• Dualism/pluralism land law
• no legal certainty
• Compiled based on the points of colonial
  government.
• Does not guarantee the prosperity
• Replied by the established of BAL which has
  purposes that BAL
• As the basic for building the national agrarian
  law
• As the basic for building legal unification and
  simplicity of land law
• Guarantee legal certainty
• Guarantee the prosperity and justice

24

• Ad.1
• In its consideration, it states that we need
  National Agrarian law as the description of the
  politics of national agrarian law. Thus, there
  were revocation of the old agrarian law, i.e
• 1 AW 1870 Number 55
• 2. a. Domein Verklaring (Article 1 AB)
• b. Algemene Domein Verklaring
• c. Domein Verklaring for Sumatra
• d. Domein Verklaring for Manado
• e. Domein Verklaring for Borneo
• 3 Koninlijk Besluit (Stb 1872 Number 117)
• 4. Book II of Civil Code, as long as regulates
  land (, thus the determination of hypotheek is
  eliminated by the Acts Number 4 of 1996 on
  mortgage right)

25

• Its Nationalism characteristic can be seen on its
  formal perspective and material.
• Formal ? Its made and established by
  Constitutions, and compiled in Indonesian.
• Material
• 1. Based on Adat law
• 2. Simple
• 3. Guarantee the legal certainty
• 4. Does not neglect to the principles in
  religious substance
• 5. Reflects the principles of the Pancasila
• For more details, please look at articles,
  respectively.
• Nationalism principle is reflected in the Article
  1, paragraph 1, 2, 3
• ? The highest rights on the Land, Water and Air
  own by Indonesian people, besides other
  principles in BAL.

26

• Ad2. Unification and Simplicity
• By BAL, it is hopefully there only one legal
  system of land, thus BAL makes the Adat law as
  the basic of its compilation (consideration of
  BAL)
• Agrarian law based on Adat Law means that Adat
  law is the main sources of BAL its conception,
  principles, purpose, institution.
• Ad 3. Guarantee Legal Certainty
• Reflected on Land registration Article 19,
  23, 32, 38
• Ad4. Guarantee the Prosperity and Justice
• - Appropriate to the general explanation of UUPA
  that the purpose of UUPA is to build the
  prosperous and fair society.
• - Program of Agrarian Reform.

27
Principles of control, Use and Availability of
Agrarian Sources according to BAL

1. State principle (nationalism) Article 1
   paragraph 1, 2, 3
2. Principle of right to control from the state
   Article 2
3. Principle of confession towards the Rights of
   disposal Article 3
4. Principle that all of land rights have social
   function Article 6
5. Principle of prioritizing to Indonesian citizen
   Article 9 paragraph 1, Article 21
6. Principle of rights (non-discrimination) towards
   the people in gaining land rights and also in
   gaining the function and results of the land
   Article 9 paragraph 2.
7. Principle of protection to the margin people
   towards the stronger people on their economic
   condition Article 11.
8. Principle of Land reform, i.e. that agricultural
   land is purposed for the peasants Article 7, 10,
   17
9. Principle of planned outsourcing of agrarian
   sources Article 14

28

• b. In mining field
• Various policy, e.g. concerning to the following
  of abreacting of private capital in the mining
  activities in Indonesia currently, the basic
  pattern of consideration can be examined in legal
  products in Nederland colonial era.
• Up to 1030s, the Government of Hindi-Nederland
  had the sufficiently opened policy in the field
  of mining development. The law of which relates
  it is Indische Mijnwet 1899 of which then was
  added and revised in 1910 and 1919, as well
  Mijnordonantie of 1905. According to this
  regulation, Central Government regulated the
  license on petroleum or refinery affairs and
  mining of mining materials, metal, coal, precious
  stone, and various other important mining
  materials. The mining materials of which are
  considered as less important likes limestone,
  sand and clay, its license is regulated by
  regional government, such as resident or the
  authorized officials.
• Private part who strive on mining business in
  Hindi-Nederland mostly conducted their activities
  based on the license of mining contention, of
  which brings bigger space to businessmen.

29

• c. In fishery field
• In fishery field, it had been established
  Visscherijordonantie (Stb. 1920 Number. 396), of
  which in addition it regulates on exploitation
  (catchments) of fish, also had specific
  determination concerning on the protection of
  fish sources, i.e. Article 2 of which ban any
  fishery catchments by using poised compounds,
  anesthesia, or explosive compounds. According to
  the Ordinance, fish includes the fish eggs, fish
  descent, and all kinds of shells.
• d. In forestry field

30
RIGHTS ON FOREST MASTERY (The Acts Number 41 of
1999)
A. State Rights consider a) Forest as the
gift and the mandate from One Mighty God of
which is given to Indonesia state, is the
property owned by state, et cetera.
b) States Rights of Mastery (Article
4) 1. All of forests in the area of Republic of
Indonesia includes as the natural property
owned inside it is mastered by the state for
mostly social prosperity. 2. The forest
mastery by state gives authority to the
government to a. Rule and manage all
affairs relating to forest, the forest area,
and forest crop b. Identify the status of
certain area as the forest area or vice
versa and c. Regulate and determine the
legal correlations between people and forest,
as well regulate any legal actions concerning
to forest.
31

• 3. Forest mastery by state always considers on
  the rights of custom law society, as long as in
  fact it still exists and confessed on its
  existence, and also it does not trespass to
  national interest.
• The forest management meant in the Article 4
  paragraph (2),
• includes the activities of conduction (Article 10
  paragraph 2)
• Forest planning
• Forest management
• Research and development, education and training,
  and also the elucidation of forest, and
• Supervisory.
• Forest management (Article 11-20), comprises
• Forest inventory
• The consolidation of forest area
• The use of forest area
• The establishment of area of forest management,
  and
• The establishment of forest planning

32

• Forest management (Article 21-51) comprises the
  activities as follow
• Forest management and compilation of plans on
  forest management.
• The use of forest and the use of forest area.
• The use of forest purposes to gain optimal
  function to the prosperity of entire society
  fairly by keep maintaining its eternality.
• Forest use can be conducted in all areas
  exceptionally in conservative forest and also
  main zone and forest zone in national park.
• The use of conservative forest (by license),
  could be
• Area use
• The function of environmental service and
• Harvest of non-timber forest crop.
• The use of forest crop (by license) could be
• Area use
• Use of environmental service
• Use of Timber forest crop
• Use of non-timber forest crop
• Harvest of timber forest crop
• Harvest of non-timber forest crop

33

• The efforts of forest use, comprises of
• Planting
• Maintenance
• Harvesting
• Cultivation and marketing of forest crop
• Rehabilitation and reclamation of forest
• Protection of forest and natural conservation
• Research and development, education and training
  as well as Forest Elucidation (Article 52-58),
  this activity is purposed to increase the quality
  of human resources that manage the forest.
• Supervisory (Article 59-65)
• Supervisory of forestry is purposed to observe,
  explore, and evaluate the implementation of
  forest management, thus the purpose can be
  maximally achieved and also behaves as feedback
  and/or the further finishing of forest
  management.

34

• This supervisory is obliged to conducted by
  government, either central or regional
  government. The society and/or individual can
  take the role in this supervisory, such had been
  ruled in Governmental Regulation.
• C.RIGHTS OF CUSTOM LAW SOCIETY, e.g.,
• Use custom forest, conducted by society of custom
  law appropriate to its function.
• D. INDIVIDUAL RIGHTS, e.g.
• The use of state forest by license
• The use of rights forest, appropriate to its
  function
• E. TYPE AND FUNCTION OF FOREST (Article 5)
• Type of forest based on its status (Article
  5)
• 1. State forest (could be custom forest)
• 2. Rights forest
• Function of forest (Article 6)
• 1. Conservative forest
• 2. Reservoir forest
• 3. Productive forest

35

• Conservative forest (Article 7), comprises of
• Natural reservoir forest area
• Natural reservoir area
• Hunting park
• The government can state the area of forest by
  specific purpose
• needed to general interest, likes (Article 8)
• Research and Development
• Education and Training
• Religious and Cultural

36
Rights on Water Sources Mastery (Acts Number 7
of 2004)

• States Rights of mastery and Community Rights
  are regulated in the Article 6
• Water source is mastered by the state and used
  mostly for the societys prosperity.
• The use of water source as had been regulated in
  the Article (1) is conducted by Government
  and/Regional Government by keep confessing on
  community rights of local custom law and the
  similar rights by it, as long as not trespass to
  the national interest and regulations.
• Other conditions of custom law society rights, as
  long as in fact there is still and had been
  consolidated by local Regional Regulation.
• Based on the state mastery, it is determined
  water use (rights for gaining and use or strive
  water for various necessities). This rights is
  furthermore regulated in Regional Regulation.
• Water Rights to use, could be (article 7 and 8).

37

• 1. Water rights to use (rights to gain and use
  water)
• It can not be rented or transferred partly or
  entirely.
• It is gained without any license to fulfill the
  daily main needs to individual and to the
  agriculture of society of which is in irrigation
  system. Includes in this rights is irrigating
  water from or into the land through other
  persons land of which have limitations with his
  land.
• It needs license in the case of
• The way for using is conducted by changing the
  natural condition of water source.
• It is purposed for the necessities of group of
  which need water in great amount or
• It is used for community agriculture outside of
  any given irrigation system.
• License if given by the government or regional
  government appropriately to its authority.

38

• 2. Rights of Water Use (rights to gain and strive
  the water), Article 9
• a. It can be given into individual or
  corporation by license from the government or
  regional government appropriately to its
  authority.
• b. The holder of rights of water use can
  irrigate water on the land of other person based
  on mutual agreement.
• The authority and responsibility of government,
  includes (Article 14).
• State the national policy of water source
• b-l
• Authority and responsibility of provincial
  government, comprises
• (Article15)
• a-l
• Authority and responsibility of regency/municipal
  government, comprises (Article 16)

39
The rights and responsibility of rural government
or those which is mentioned by other name,
comprises (Article 17) a-d Management of water
source is the efforts of planning, conducting,
observing, and evaluating the implementation.
1.Conservation of water source is conducted
through activities - protection and
maintenance of water source - water
preservation - management of water quality
and pollution control 2. Outsourcing of water
source is conducted through (Article 26-25) -
Outsourcing - Supplying - Using -
Development - Use of water source
40
3. Control of water destructiveness (Article
51-58) It is conducted thoroughly of which
comprises the efforts of prevention,
overwhelming, and relieving.
41
Rights of Mining Mastery (Act Number 11 of 1967)

• Type of mastery rights
• Rights of Indonesian state
• State rights of mastery
• Article 33 paragraph 3 Constitution of 1945
• Article 1 of the Act Number of 1967 all of
  mining materials given in mining legal area in
  Indonesia of which is the natural sediments as
  the gifts of One Mighty God, is the national
  property of Indonesian state and thus mastered
  and used for the state for mostly prosperity of
  society.
• State Rights of Mastery consists of authority
  for managing, directing, and observing the
  cultivation or the outsourcing of mining
  materials, and also consists of the obligation
  for using mostly to the prosperity of society
  (Abror Saleng 2004, 31-32, in Salim HS, 2006,
  Hukum Pertambangan di Indonesia, PT. Raja
  Grafindo Persada, Jakarta).

42

• B. Management and Implementation of Outsourcing
  of Mining Materials.
• Mining materials are differentiated based on
  (Article 3 of the Act Number 11 of 1967 junction
  Article 1 Government Regulation Number 27 of
  1980).
• Strategic mining materials, are usually mentioned
  as Mining Material A (i.e. mining materials for
  the necessities of maintaining the security and
  also state economy), comprises of six clusters,
  as follow
• a. oil, liquid bitumen, earth wax,
  natural gas
• b. solid bitumen, asphalt,
• c. anthracite, coal, pale coal
• d. uranium, radium, thorium, and other
  radioactive
• e. nickel, cobalt, and
• f. tin.

43
2. Vital mining materials, are usually mentioned
as Mining Material B (is the mining material of
which can guarantee the peoples life need),
includes six clusters, as follow a. Iron,
manganese, molybdenum, chrome, wolfram, vanadium,
titan b. bauxite, copper, lead, zinc c.
gold, platinum, silver, mercury, diamond d.
arsine, antimony, bismuth e. yttrium,
titanium, cerium, and other rare metals f.
beryllium, corundum, zircon, quartz stone g.
kryolite, floupar, barite h. Iodine, brome,
chloride, sulfur. 3. Mining materials of which
are not included in both clusters aforementioned
above called as mining materials C, consists of
six clusters, as follow
44

1. Nitrates (mineral salt from compounds acid are
   used for the mix of manure HNO3, phosphate,
   halite
2. Asbestos, talc, mica, graphite magnetite
3. Yarosit, leusit, alum, ochre
4. Jewel, half precious stone
5. Quartz sand, kaolin, feldspar, gypsum, benthonic
6. Pumice, trash, obsidian, perlit, diatom soil,
   absorptive soil,
7. Marble block, dull
8. Lime stone, dolomite, calcite
9. Granite, andesite, basal, trachite, clay, as long
   as doesnt have mineral compound group a or b in
   significant amount.

45

• The implementation of State Mastery and the
  Management of Mining Efforts.
• Strategic and vital mining material is conducted
  by Minister (Article 4 paragraph 1)
• By considering the needs of regional development
  in particularly and state in generally, minister
  can delegate the management of mining efforts of
  certain vital mining material to I Grade Regional
  Government wherein there is mining materials.
  (Article 4 paragraph 3)
• 2. Mining materials of which are not strategic
  and vital is conducted by I Grade Regional
  Government wherein there is the mining material
  (Article 4 paragraph 2).
• C. The Shape and Organization of Mining Company
• Mining business can be conducted by (Article
  5)
• 1. Governmental Institution assigned by
  Minister
• 2. State own corporation

46

• 3. Regional company
• 4. Company by collective capital among state and
  region
• 5. Cooperation
• 6. Private corporation or individual of which
  fulfilled the determined conditions (Article 12
  paragraph 1)
• 7. Company by collective capital among the state
  and/or region and cooperation and/or private
  individual/corporation of which fulfilled the
  determined conditions (Article 12 paragraph 1)
• 8. Community Mining
• The efforts of mining of strategic mining
  materials is conducted by (Article 6)
• Governmental institution assigned by minister
• State own corporation
• Private of which fulfilled any conditions, in the
  case of appropriate to the ministerial opinion
  based on considerations of economical perspective
  and mining development brings more advantage to
  the state in the case of it is conducted by
  private parties (Article 7).
• Community mining, in the case of sediment of
  strategic mining materials are very small thus
  according to the ministerial opinion will be more
  advantageous if it is conducted simply or in
  small amount (Article 8).
• The efforts of vital mining materials is
  conducted by (Article 9 paragraph 1)
• State and Region
• Private institution or individual of which
  fulfilled conditions (Article 12 paragraph 1).

47
The mining efforts of vital mining materials is
conducted by the State or Region, can be
conducted by (Article 9 paragraph 2) 1.
Governmental institution assigned by Minister 2.
State-owned corporation 3. Regional company 4.
Corporation by collective capital between the
state/company of state in one part with the I
Grade Region and/or II Grade Region or Regional
Company in other part. 5. The company should be
incorporated by collective capital between the
state/ State-owned corporation and/or
Region/Regional Company in one part with the
private company/or individual in other part. The
minister can assign the contractor in the case of
it needs to conduct any works of which has not
been or can not be conducted individually by the
governmental institution or concerned state owned
corporation as the holder of mining authority.
48
D. Mining efforts of mining materials, includes
(Article 14) 1. Public investigation 2.
Exploration 3. Exploitation 4.
Management and purification 5. Transportation
and 6. Trading This mining efforts can
merely be conducted by the company or individual
(Article 6-9) in the case of it had been given
authority of mine (Article 15).