Customary Land (Tanah Ulayat) in West Sumatra

The ulayat rights of indigenous peoples in Indonesia still exist, such as in the West Sumatra region. This can be seen in the General Elucidation of the Regional Regulation (Perda) of West Sumatra Province Number 16 of 2008 concerning Ulayat Land and Its Utilization that:

"In West Sumatra Province, in reality, lands within the customary law community are still recognized whose management, control and use are based on the provisions of local customary law and are recognized by the members of the customary law community concerned as their ulayat land, so that it is known as the Nagari ulayat land. tribal ulayat lands, tribal ulayat lands and Rajo ulayat lands which are regulated according to the prevailing custom in every Nagari in West Sumatra".

The application of West Sumatran customary law (ulayat land) in the National Land Law has been implicitly stated in Article 3 of Law Number 5 of 1960 concerning Basic Regulations on Agrarian Principles which reads "With regard to the provisions in Articles 1 and 2 the implementation of customary rights and similar rights of customary law communities, as long as in reality they still exist, must be such that they are in accordance with the national and state interests, which are based on national unity and may not conflict with other laws and regulations higher."

At the level of implementing regulations, Government Regulation Number 24 of 1997 concerning Land Registration has been ratified which is an amendment to Government Regulation Number 10 of 1961, but in this Government Regulation ulayat land is not included in the object of land registration, this is related to Article 9 paragraph (1) and (2) This Government Regulation is paragraph (1) that the object of land registration includes:

1. Plots of land owned with ownership rights, cultivation rights, building use rights and use rights;
2. Land management rights;
3. Waqf land;
4. Ownership of the apartment unit;
5. Mortgage rights;
6. State land. 

Paragraph (2) that in the case of state land as the object of land registration as referred to in paragraph (1) letter f, the registration is carried out by recording a parcel of land which is state land in the land register.

Here it can be seen that there is no legal certainty for customary land in land registration. The process of recognizing their rights is respected but at the implementation level in the form of certificate evidence as the land registration process is not recognized.

So that the customary land of indigenous peoples is between life and death.

This is of course very unfortunate because there are still many customary lands of indigenous peoples in various regions in Indonesia, especially in the area of West Sumatra Province.

Two years later, on June 24, 1999, Regulation of the Minister of Agrarian Affairs/Head of the National Land Agency No. 5/1999 on Guidelines for the Settlement of Indigenous Law Community Rights Issues was passed. In Article 1 paragraph (2) it is stated that ulayat land is a parcel of land on which there are ulayat rights of a certain customary law community.

Meanwhile, what is meant by customary law communities according to article 1 paragraph (3) is a group of people who are bound by their customary law order as joint citizens of a legal alliance because of the similarity of residence or on the basis of descent.

As explained above, that ulayat land is not an object of land registration, but based on the provisions of the State Minister of Agrarian Affairs/Head of the National Land Agency Number 5 of 1999 in Article 4 paragraphs (1) and (2) it states that communal land can be controlled by individuals and entities by way of being registered as land rights if desired by the rights holder, namely members of the customary law community according to the provisions of the applicable customary law.

Then by government agencies, legal entities or individuals who are not members of the customary law community concerned, they can control the customary land after the land is released by the customary law community or by its citizens in accordance with the provisions and procedures of the applicable customary law.

Thus, it can be clearly seen that ulayat land can be controlled by individuals and legal entities, even though ulayat land is the ulayat right of customary law communities that cannot be divided and must be respected for the sake of national unity and beloved homeland in accordance with the mandate of the UUPA Article 3.

Confuse customary law communities with the absence of legal certainty for the protection of their rights.

Furthermore, the West Sumatra Regional Government has ratified Regional Regulation No. 6 of 2008 concerning Communal Land and its Utilization.

As an area that still has a lot of ulayat land, of course, a regional regulation is needed so that there is no conflict between communities regarding this ulayat land.

(RM)