Indigenous /Aboriginal Lands Rights: Comparative Study between Australia and Indonesia By Arie Setyaningrum Pamungkas**

Background

Public discussion of Aboriginal issues has undergone changes over two decades which resulted in the recognition of traditional lands as can be seen in the Mabo decision (1992) which rejected the previous assumption about the doctrine of “terra nullius”(land of nobody) which applies to the acquisition of Australian lands under the commonwealth government.

The recognition for the Aboriginal lands becomes a very important issue in the international perspective which recognizes three ways of gaining sovereignty over new land, as identified by Justice Brennan (Mugambwa, 1993.p20); by conquest; by voluntary cession; and by the discovery and occupation of uninhabited lands through colonial power.

Although there are some disputes raised from the decision about recognition, particularly from the industries which fear that all of its property titles will be in jeopardy, the decision has left unsolved problems. These problems are particularly evident in the conflict between the status of traditional lands with cultural preservation as its main consideration and the legal system, which ascertains the appropriate common law to apply to the territories.

Despite the fact that the Australian government has dealt with the Aborigines who seek reconciliation by applying a diverse range of land compensation methods, problems continue. For example, these continue to be problems concerning how to secure the preservation of lands from damages due to the land-use system and exploitation, and also with regard to Aboriginal claims over the land based on preserving traditional cultural beliefs.

The case of native title in Australia has resulted in various ramifications related to some issues about the need for indigenous entitlements, such as the legal and political framework for practicing indigenous claims over traditional lands; appropriate methods of mediating between conflicts of interest of different parties caused by the implementation of native title; ethical and political problems due to methods of compensation; and the issue of justice and equity that embodied indigenous sovereignty and cultural respect towards their uniqueness.

These problems will be briefly discussed in this essay and will be further explored. As comparison, Indonesia also has the similar problems with the status of indigenous lands. This concern in particular the case of Timika, in West Papua gold mines as one of the biggest gold mining industry in the World which has resulted in disputes among tribes who live surrounding the mines.

In other words it can be said that the lands problems due to the environmental and cultural destruction has dislocated pyramidal conflicts between the state (the Government of Indonesia), the mining industries (capitalists) and local indigenous into local disputes among tribes. In this case, the Indonesian law policy has contradictory views over the status of the indigenous lands.

The Indonesian government has recognized the “status of hukum adat” or “the status of indigenous-traditional land rights” as enacted in the Indonesian Agrarian Act (UUPA) No.5/1960, Article No.3; however this notion does not apply to the methods of recognition and media of reconciliations caused by conflict of interests over the lands.

This is because the Indonesian Agrarian Act is subordinated under the Indonesian constitution 1945 article 33. The constitution mandates absolute authority of the state to extinguish private land ownership (as ruled in the Agrarian Act, 1960) in attempt to utilise benefits taken from the lands, including the sea (water) and the sky.

This includes centralized authority to govern it, for the shake of public purposes; for instance in the case of indigenous land acquisition in the oil mining production by the PERTAMINA (The Indonesian Government Oil Company). PERTAMINA has monopoly rights in both oil production and distribution. In response to the case of Timika, the Indonesian government and the Freeport Mining Company tried to reconcile with the local people by addressing the compensation system as a solution.

The compensation system includes the new settlements for the indigenous communities in Timika, West Papua. In fact, this policy can only be accepted by some tribes and some others have rejected this policy due to the cultural belief which precludes them to engage with the modern civilization.

A Brief History of the Native Title in Australia

The federal political decision to recognise Aboriginal lands rights was first announced under the legislation of Mabo as enacted in the Native Title Act in 1993. Under this legislation, the High Court of Australia “recognized the existence of native title to lands hitherto annexed under Imperial Authority” (Mugambwa, 1993. p.1).

This means that the Court rejected the assumption of “terra nullius” and recognised native title where there is evidence of occupying particular land including the use for traditional lifestyle. Prior to the Mabo decision, the Hawke government in 1983 introduced “the initiative to leave lands rights to the state” (Goot and Rowse, 1994.p.2).

In this stage, Hawke’s government enunciated 5 principles in attempt to governing its land rights policy:

1. inalienable freehold title

2. veto rights over mining, or else to the power to set conditions on mining

3. fair mining royalties for the use and benefit of Aborigines

4. when traditional lands are inalienable, the negotiation of compensation

5. Protection of sacred sites (Goot and Rowse, 1994. pp 3-4).

Despite this clear statement, Hawke already approved the Burke’s government in Western Australia to legislate on the weak powers for Aboriginal title holders to meet the mining proposal; this was reinforced with the statement that the federal government would not override Western Australia’s land rights legislation. Hawke further stated that:“The vital matter of land rights use for Aboriginal people is currently the subject of extensive consultations by the Government. We are well on the way to a just, equitable and enduring solution which assures that the interests of all parties are adequately protected.”(p.2).

In Hawke’s era, when the native title holders refused to give their consent for the miners’ proposal, they had to meet the Tribunal arbitrary. However, this proposal would result in loss of rights among Aborigines in Northern Territory.

Critics addressed to the Hawke government in the abandonment of the inquiries for a legislative framework whereas the Aboriginal group was conceived as an incapable group who were unsure to agree about anything. (Goot and Rowse, 1994).

Meanwhile according to Paul Keating (the former Prime Minister of Australia), the acknowledgement of Native Title Act in 1993 was aimed to reach four aspects:

1.ungrudging and unambiguous recognition and protection of native title

2.provision for clear and certain validation of past acts including grants and laws if they have been invalidated because of the existence of native title

3.a just and practical regime governing future grants and acts affecting native title4. Rigorous, specialized and accessible tribunal and court processes for determining claims to native title and for negotiation and decisions on proposed grants over native title land. (Brennan, in Stephenson, 1995. pp2).

Since the Mabo decision, there have been both positive and negative reactions to the implications of the native title at both the national and local-domestic level. The positive response is that the recognition provides for flexibility in respect of indigenous lifestyle, as can be seen in the introduction of native land tenure system (Brennan, 1995).

Some of proponents suggest that native title may include the possibility of a constitutional referendum to assure the permanency of the Mabo ruling and for a land rights tribunal to assist with settling land claims (Mugambwa, 1993).

By contrast, some opponents have said that this policy have resulted in a politic separation which will shatter the Australian nation (Patton, as cited in Patton and Austin-Broos, 1997). The post Mabo debate is currently more focused on the uncertainty dimension of practicing the Native title, due to its different application in different states or territory or under different sites and different circumstances.

These debates involve political, legal and ethical arguments about the exclusion of indigenous groups and interests outside the policy mainstream and its decision making processes. These concerns can be observed in the case of the Pitjantjara in Northern Territory, South Australia and Western Australia. Maureen Tehan (1994) argues that Aboriginal participation and influence on resource development on their land is “a complex and multidimensional process which cannot be distorted into a simple technical legal framework”.

Tehan found that in the Northern Territory, the Aboriginal Land Rights Act 1976 provides for grants of inalienable freehold title to Land Trusts which comprised of traditional Aboriginal owners or Aboriginal people who live in the granted land. The Land Trusts therefore exercise formal powers over the land with assistance of the Land Council. They mediate indigenous interests and provide consultations to ensure the ‘consent’ of land usage.

The recognition of Aboriginal ownership and interests over the lands in the case of the Pitjantjara in South Australia, is similarly practiced by a body corporate called Anangu Pitjantjara. This body exercises the adjudicating Aboriginal claims to land. South Australia completely defines the traditional owners as Aboriginal persons whose heritage includes Aboriginal traditions, including their obligation and spiritual affiliations with the lands (Tehan, 1994. pp 36-37).

In contrast, Western Australia does not have such provision for grants or freehold title to Aboriginal people. Western Australia only refers to the rights of Aboriginal people related to the Aboriginal reserve land to which part III of the Aboriginal Affairs Planning Authority Act 1972 (WA) applies (ibid, p.37).

In Western Australia, compensations for the damage to lands are paid to persons who have authority among Aboriginal groups.

The Implications of the Native Title in the Legal and Cultural Framework in Australia

As implicitly mentioned earlier, the practice of native title varies among the different sites, different states regimes, different circumstances that influence practices, and the diversity of Aboriginal tribes. This necessitates a complexity in understanding the cultural content and spiritual affiliations based on lands.

This has resulted in a diverse range of legal implications in relation to the entitlement where there is evidence of a land’s occupation. This legal procedure leads to the question of:“whether particular Aboriginal and Torres Strait Islander peoples were the native title holders over particular areas of lands at the time that non-Aboriginal sovereignty was first asserted; or whether current claimants are the rightful inheritors of the native title; and, if they are, whether they still maintain sufficient traditional connections to the land to support the continuance of native title” (Nettheim, 1994. p.55).

The High Court considers the nature of native title to be entirely based on the laws of indigenous peoples themselves, with the accommodation of a range of interests in its relation to the land. This statement could mean the rejection of the idea that recognition could be given to indigenous relationships to land only where they adequately resemble similar proprietary interests to English law (ibid.p.56).

In other words, it means that while the doctrine of native law may exist, it still requires proof that Aboriginal interests were of a proprietary nature recognizable in common law. This raises a problem of how evidence may be compatible with the legal conceptions embodied within European (English) law.

Justice Brennan simply stated that, in an attempt to establish a common law native title, a community need only to prove that none but its members have a right to use or occupy a particular land (Mugambwa, 1993). This is supported by Justice Toohey, who asserts the relevant evidence could be gained from connecting the use of land with the cultural or religious meanings or purposes, in accordance with indigenous people’s lifestyles (ibid). From this explanation, it can be said that the title of land under the common law relies on the land’s occupation following possession of the land.

However, the Aborigines either do not conceive of land as something that can be possessed and may refer to other concepts of possession that are not based on material ownership. This contradictory view is in conflict with those of other parties. Such conflicts are sometimes expressed in the case of compensation for damaging the land or the misuse of sacred sites. Therefore, the need for cultural awareness of the Aboriginal conception of their sacred lands or sites should be considered as significant factors when dealing with the development process.

For instance, in the Northern Territory, the Aboriginal Sacred Sites Act 1989 (NT), has resulted in a delicate balance between protecting Aboriginal sites of cultural significance and the economic development process (McWilliams, 1998). However, it is very difficult to determine the methods for measuring compensation when there is a conceptual gap between the Aboriginal reference of ownership and the Common law which emphasizes material subjugation. The various methods of compensation, for instance an amount of money have raised ethical and political questions among the Aboriginal communities themselves.It is not difficult to see that the consequent implications of native title on the determination of lands’ possession and lands’ compensation are in part at least, due to the inappropriate western constructions of cultural heritage.

A cultural framework is necessary to comprehend the nature of indigenous knowledge and their ways of life. Meanwhile, “the western construction of cultural heritage refers on the material culture and subjective judgments about what is historically, artistically and archeologically significant” (Smallacombe, in Patton and Sanders, 2000. p.156).

Sonia Smallacombe adds that the concept of Aboriginal and Torres Strait Islander cultural heritage is fundamentally located on the political and economic autonomy of the superiority of European colonization. On the other hand, for many Australian (non-Aboriginal societies), the spiritual and cultural belief of the Aborigines are difficult to comprehend due to its exclusion of the economic and political realms of colonisation. It appears that the Aboriginal system of belief is perceived as a “fairytales”.

However, to certain extent, the methods of compensation could be fairly accepted by some Aboriginal Communities. In this case, for example, the roles of The Aboriginal Areas Protection Authority (AAPA), which is established in Northern Territory, have been supporting the efforts of reconciliation in the damaged lands and in supervising companies or government in the clearance process for the sacred sites (McWilliams, 1998). The AAPA comprises of several senior Aboriginal custodians both female and male, who were appointed from several Aboriginal councils. This board could be an example of how policy could be directed toward indigenous interests, as the AAPA have documented 8,000 of sacred sites (ibid). Such a board could also provide a cultural “bridge” to transform an appropriate legal policy.

WEST PAPUA CASE
In the developing countries, the extension of the development process may harm the indigenous people due to disputes in land-use system and environmental destruction. In this particular case, the gold mines in Timika, West Papua have polluted ‘the Wanagon’ lake, the major river ‘Ajkwa’ and several streams surrounding, which is deadly for human life. The water was contaminated by tailings which affected the quality of Sago trees as the main resource of food for the locals.

It also has an impact on sedimentation along the watershed, which lead to the decreasing number of fish which was their additional food. There are various responses to this situation, but most of the locals who live nearby the mines tend to locate this problem as land conflict between the locals and the government who give privilege to the investor such as Freeport Int’l Company. In response to the local demands, both the Indonesian government and the company seek to find the appropriate solutions which may satisfy the locals. After facing some critics, Freeport Company offered the recognition by establishing new settlements for the indigenous people.

There are four tribes surrounding the mine as the target of this program, namely; Komoro, Tipuka, Nawaripi, and Amungme. Despite the fact that most tribes surrounding the mines have accepted this program; the Amungme, rejected the offered program. The argument of this was because the other tribes (Nawaripi, Tipuka, and Komoro) can easily adjust to the new settlement because they have no boundaries in adjusting to modern life (Hutomo, 1999). This argument is supported by the fact that they rely on agriculture as their civilizations whereby the modern life found its basic form. Hutomo argues that, the Amungme face maladjustment because their unique custom is dysfunctional to the modern World. The Amungme has a system of belief (in the similar ways like the Aborigines perceived their belief), that ‘land’ is their mother therefore they don’t want to hurt the land by building or cropping anything on it.

Basically, they only rely on the river (fishing) and the watershed (collecting Sago). The Amungme live in the vessels and they do not want to move out from their place. Moreover, the Amungme has a practical belief which is based on the activities on the river. The activities of fishing and gathering, for instance, have religious meanings on how they should teach their children to survive and to get mature by learning from the nature without harming the nature itself. A new settlement has caused dispute among the Amungme, because some of them thought that they do not have other choice, while the others still insisted to keep their heritage. This was because some of Amungmes are still bound with their duties from God to save the river and His gift (Sago) along the watershed. Some Amungmes believe that if they move away from the river or from the watershed, God would no longer protect them and demolish their existence.

Up to now, there’s no legal action to protect the life conditions of the Amungme, although the Indonesian Community for Better Environment (Wahana Lingkungan Hidup Indonesia / WALHI), a national NGO, has reported that almost 1000 Amungme died because of the contaminated water and poisonous Sago. The government seems to ignore this problem and dislocate the problems by putting military army on the conflicted sacred sites. Meanwhile, the advocacy process is going on through the struggle of NGO like the Indonesian Community for Better Environment.

In the legal stage, there is no fundamental change on reviewing the recognition of indigenous lands. The recognition program which was introduced is merely establishing new settlements which does not represent the indigenous interests and seems to disgrace their cultural beliefs by simply assuming that their culture is dysfunctional to the modern lives.

FURTHER DISCUSSION: Aboriginal Lands in Australia and West Papua, Indonesia

AUSTRALIA: . The Influence of Aboriginal Cultural Values in Land Ownership

The main component of Australian indigenous people’s world view lies on the classificatory kinship system that shapes and orders behavior. The whole community is classified into a specific relationship with each member (Sutton, 1998). For instance, the Yolngu of the Northern Territory are known to assign position within the kinship to non-Aboriginal people with whom they have personal and deep contact (Greer and Patel, 2000, as quoted from Williams, 1986). In this sense, kin position constitutes the basic datum of social identity. Kinship rules dictates what should be done and what should not in relation to matters of marriages, food gathering and sharing, trading within community and educational roles (Sutton, 1998, p.62).

Those activities are counted as an obligation which arises from the principle of reciprocity and it is embodied in the notion of “sharing”, as can be seen from this statement:“Individual were expected to share food in certain ways, show respect to certain people, marry within a section, perform a ritual, avoid speaking to certain people, instruct another person, punish someone, or paint particular design because the pattern laid down in ‘The Dreaming’ dictated that it should be done” (Chase and Sutton, 1987, p.75).

The core value for most Aborigines is ‘relatedness’ in which the cooperation of a society is valued over competition; this is because competition among individuals is perceived as discouragement. Thus, maintaining personal relationship and agreement are put as priority rather than handling of quantities. In other words, to fulfill the act of reciprocity becomes the significance of this exchange where value is lies in the quality of personal interaction, not in the object of exchange or in the contractual process (Lawlor, 1991, as cited in Greer and Patel, 2000). From this feature, it is very obvious that the basis of interpreting the world lies on the kin relationship which refers to forms of sharing and relatedness, which is contrast with western cultural values. Furthermore, the indigenous values of sharing and reciprocity permeate and determine the Aboriginal world-view which affects their conception over the land.The basic values of sharing and relatedness can be found when dealing with indigenous land and heritage claims. However, requirement of providing evidence which refers to the Australian modern legal system makes the Aboriginal claims difficult to be presented due to the different notions of property (land) ownership. The Common law phenomenon of property is mainly characterised by private ownership which refers to individual as private owners. This concept of property refers to where land and other resources are held by all members of the community in which each member is entitled to use it to gain subsistence or to contribute to communal productivity (Dwyer et.al., 1997, pp. 1-3).

Meanwhile, communal rights of property in Anglo Law tend to be synonymous with rights of private property rather than group or communal property (ibid). This communal property implies generally to equal access to property subject to various standards and accepted norms. In the International public discussion, the indigenous conception of land has been expressed in ‘the United Nations Working Party on the Draft Declaration on the Rights of Indigenous Peoples’, which says:“Indigenous peoples have a unique and spiritual relationship to their land which is different from the Western concept of land ownership. Indigenous peoples hold their land collectively, not as individuals; it is an intimate part of their life, culture, personality, religion, sovereignty, autonomy and self-determination of indigenous people.” (Depicted from the UN Document E/CN 4/sub 2/1984/20, annex 111, as cited in Greer and Patel, 2000. p. 9).

This statement is strengthened by the Article 25 of the UN Drafts Declaration on the Rights of Indigenous Peoples which consider the spiritual attachment of indigenous peoples to land:“Indigenous peoples have the right to maintain and strengthen their distinctive spiritual and material relationship with the lands, territories, waters and coastal seas and other resources which they have traditionally owned or otherwise occupied or used, and to uphold their responsibilities to future generations in this regards” (ibid, p.10).

This sense of cultural values over land is also acknowledged in the national level, for example, by the Aboriginal Land Rights Act 1976 (NT), which defines the Aboriginal owners as:“ a local descent group of Aboriginals who have common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land; and they are entitled by Aboriginal tradition to forage as of right over that land.” (ibid)For most Aboriginal groups, their relationship to land is an integral part of their relationship with other groups and the cosmic system (Sharp, 1996, p. 84).

This conception of land, as found in the Mabo case, is articulated by the Meriam people of the Murray Island. They refer to a notion of the unique spiritual and economic relationship to land as “a two-way” of relationship with the land both spiritual and material (ibid). When a gardener helps the land to grow something, it also means that the land will in turn renewing his life and his family’s life. The Meriam hold an attachment to their land, which is in nature of a dialogue between offering and harvesting in which the land is giving back the life for them. For them, land is treated as alive and spirited, not an object that can be manipulated or can be exploited (ibid, p.137).

In relationship to the earth, Aboriginal people perceived that maintaining their relationship with the earth is their responsibility whereby they gain their identities. This obviously found in “the Dreaming Law” which tells the Aborigines that they come from the land and therefore when they died, they will return to the land (Maybury-Lewis, 1992, p.9). Since the land is the source of all life, the obligation to keep the land becomes very important in almost Aboriginal culture in Australia. Thus, their identities are bound with their duties as land’s keepers where struggle for native title is considered as a symbolic matter of life and death (ibid). Ceremony, songs and other ritual activities are integral parts of maintaining the land whereas their ancestors walked through the land and sang the land into existence.

These songs of their ancestors are part of continuing creation of the land which is embodied in their reality. From this description, it becomes very clear that the land is the source of “the Dreaming” and the source of their identities. This implies that the basic foundation of land ownership in indigenous culture is not an individual proprietary rights, it is more a relationship among all members of kin (Swain, 1993, as cited in Greer and Patel, 2000, pp.10). As a consequence, kin relationship and the custodianship of the land are in the top priority over economic interests. When native title acknowledged claim process over the land, it constitutes practical methods including compensation method. Later, this has raised a further question about how to determine the legal status of the land due to different perception between common law and Aboriginal reference where land is embedded in genealogy and therefore cannot be traded (ibid, p. 10).

Australia: The Policy of Aboriginal land Rights in Dealing with Cultural Recognition

Since native title is an inalienable right which refers to particular tradition or customs, it is aimed only to the indigenous community which practise those tradition and customs. Thus, native title does not equate with the “estates rights” or interests in land which form the law of real property at common law. This indigenous land right is more regarded as “sui-generis” or unique (Dwyer et.all, 1997, p.30).

However, as mentioned earlier in this essay, the Native Title Act (1993) is in conflict because its review on the practical reconciliation over the conflicted land between native holders and other parties more focuses on the Common legal notion of land as private property rather than communal property. Within this act, the legal status of land is valued as individual property rights that can be bought, sold and utilised for other purposes.

The notion of land as individual property, for instance, is implied in the Land Acquisition Act (1955-1973), sub section 5 (1) which defines “an interest of land as a right, power or privilege over or in connection with the land”; hence land is conceived as form of property (ibid, pp. 40-41).

In Western tradition, land is valued as tangible property which includes individual rights of exclusion, possession and protection from the State. This began from the history of the Crown annexation since 1788 where the colony of Australia was ruled by colonial systems including in the conditions of land system (ibid, p.31).

This means that the doctrine of tenure becomes the inseparable part of the Australian law in which citizens are granted for the land and consequently becomes the subject to conditions contained in Crown grants. Recently, the Federal government has acknowledged the “Indigenous Land Use Agreement (ILUA)” in 2001, as a follow-up response to the Native Title Act (1993) and the Wik (1996) which provides further agreements in legal practice and other unresolved inquiries from the previous legislations and Aboriginal land policies. Previously, the Wik decision in 1996 confirmed that native title rights could coexist with pastoral and other leasehold tenures, but that in cases of conflict, native title rights must yield to those of the leaseholders.

Prior to the Wik were the Mabo Decision and the Native Title Act, as mentioned earlier. The Mabo decision established the continuance of indigenous native title with exception in which it had not been extinguished by Crown grants. Both prior to and after the Mabo decision on 3 June 1992, agreement between the common law and the native holders is difficult to be negotiated. Subsequently, the commencement of the Native Title Act in 1993 has resulted in land use agreements that could be negotiated with the native holders (Brennan, 1998, p.21).

According to the National Native Title Tribunal (NNTT), an indigenous land use agreement or ILUA is an agreement made between people who hold or claim to hold native title over a particular area and other people, organisations or government about the use of land and water in that area.Indeed, the ILUA was negotiated with indigenous people and other stakeholders. The ILUA has allowed indigenous people to submit claims to a limited number of crown tenures to which they have a continuing traditional attachment and established a right to negotiate over development on some land tenures, including leasehold land, so they might set up processes to administer their claims.

The ILUA report indicates that there were 3 main types of agreements that could be negotiated for the use of native title land (ILUA, 2001, pp.7-8):

1.Common law agreements;

2.Native title determinations pursuant to the Act; and

3.Agreements pursuant to the Act’s “future acts” regime.According to ILUA, “Common Law Agreements” refers to: (ibid, pp.7)

Situations where parties have negotiated and reached agreements on a range of issues governing land use and access, it has also been possible to formalise the agreement by the normal legal method of contract or deed.

For native title holders, this could always be done without reference to any of the provisions or requirements of the Act. Such formal agreements function like any other deed or contract under the law.

A contract is a legally binding agreement two or more parties. To be binding, the provisions of the agreement must be clearly ascertainable, and there must be valuable consideration (that is, a payment or benefit). The agreement may be in writing, but need not be3. A deed is a written agreement between two or more parties that transfers a right or creates an obligation. Unlike a contract, there is no requirement for consideration, but the document must comply with certain formalities (it must be “signed, sealed and delivered”).

Meanwhile, ILUA notes that “Native Title Determinations” refer to: (ibid, pp.8). The act that always allows for the negotiation of agreements concerning land use. Under the original Act, where the National Native Title Tribunal (the Tribunal) had been advised that agreement had been reached, where such agreement was in writing, and where the Tribunal was required to make a determination in, or consistent with, the terms of agreement (s.73 of the original Act).

Thus, native title that incorporated land use provisions, were possible pursuant to the statute from the commencement of the original Act.In defining “the Future Act Regime”, the ILUA identifies that a ‘future act’ is any act which significantly affects native title rights.

These future acts have always been permitted by the Act in specified circumstances. The ILUA also mentions about ‘the right to negotiate’ among parties which refers to some conditions “where agreement has not been reached within six months, any of the parties may refer the matter for arbitration; or where negotiations are successful the agreement can be formalised” (ibid p.8).

Those negotiations conducted under ‘the right to negotiate’ provisions which differ in several important respects from other negotiations. This includes time limitations in which negotiations should be conducted in good faith and only registered native title claimants and bodies corporate may be counted as parties.

In regard with the method of compensation, the ILUA still considers the methods of negotiated payment, as can be seen from its statement; “Where native title claimants or holders can be given for any consideration, including payment of compensation”. Those ‘negotiated’ compensation payments are taken to constitute a final settlement of compensation for the future acts involved.

Moreover, according to ILUA, compensation for future acts is generally limited to what is in the agreement. However, native title holders who were not entitled to compensation under the agreement (for example, a person who is later found to hold native title, but was not entitled to any benefits under the earlier registered agreement) may apply for compensation.

This exception does not apply to persons represented by the registered body corporate under a body corporate agreement, or those persons whose authority was obtained for an area agreement (ibid, p.15).

However, the ILUA Committee also pays concern on other method of compensation. The Western Australian Aboriginal Native Title Working Group, for instance has outlined other options than monetary payment to the ILUA Committee, which mainly says that:“ ..it is not just about money; it is about the return of lands to people and their control and management over those lands and their responsibilities in relation to it..” (ibid, p.29).

Due to compensation settlement, it is very important to regard the roles of the Native Title Representative Bodies which functions to synchronise the requirements of Indigenous and non-Indigenous law in relation to native title applications.

The Federal Court has identified the Native Title Representative Bodies basically function to facilitate the researching and making of applications for determinations of native title by individuals or groups from among Aboriginal peoples or Torres Strait Islanders and to assist to such individuals or groups in connection with negotiating indigenous land use agreements (ibid, p. 34).

The lessons taken from the AAPA (the Aboriginal Areas Protection Authority) in Northern Territory have direct relevance to these matters. Over a period of twenty years, land councils in the Northern Territory have had to undertake substantial field research to identify all traditional owners for inclusion in land claims and resource development negotiations under the Aboriginal Land Rights (Northern Territory) Act 1976.

Nevertheless, the practice of compensating Aboriginal communities of damage to lands of cultural or mythological significance based on statutory law is a recent phenomenon in Australia. This issue consists of debates over heritage conservation and forms of compensation for property interests which are affected by existing legislations.

Despite pro and contra debates over this sensitive issue, according to Justice Evatt, the monetary compensation for desecration or injury of the land is only a viable alternative means of enforcing the relevant law (McWilliams, 1998, p. 10). Therefore, by empowering the roles of Native Title Representatives Bodies like the AAPA is demanding to resolve further queries which emerge from the implications of the existing Aboriginal land policy.

WEST PAPUA: Problems with Land Recognition

The persistent socio-political problems in the Province of West Papua under the Indonesian regime cannot be separated from the fact that the rights of its indigenous peoples over natural resources have been systematically abandoned. This was followed by other problems such as violation of human rights and unequal distribution of wealth which caused the demand for independence from Indonesia as a possible solution for the West Papua.

As highlighted earlier, the implementation of Article No. 33 of the Indonesian Constitution has been used by the Indonesian Government to disregard the rights of the indigenous peoples over resources in several parts of Indonesia, particularly in West Papua. After the overturned of Soeharto’s regime in 1998 the current political situation in Indonesia demand democracy to be implemented in whole aspects. This resulted in some political changes, particularly changing the patterns from centralised governance into more decentralised governance, as can be found in the Regional Autonomy policy since 1999.

In regard to this new challenge, many Indonesian social and political scientists argue that protection and empowerment of the indigenous rights might be conducted under the Law of Special Autonomy of Papua, From a legal point of view, the main source of injustice for indigenous peoples of Papua with regard to the exploitation of their natural resources has been found in the Article 33 of the Indonesian Constitution, particularly in clauses 2 and 3, which say:

1. Clause 2: “Branches of the production which are important for the state and which affect the life of most of the people shall be controlled by the state”.

2. Clause 3: “Land and water, and the natural resources found therein, shall be controlled by the state and shall be exploited for the maximum benefit of the people”.

Based on these clauses, the impacts for indigenous Papuans refer to the terms ’state’ and ’maximum benefit of the people’ which are defined by a corrupt regime (Sumule, 2002, p.4).

In fact, Papuans, are a minority group, and have been last to receive the benefits of the exploitation of natural resources despite the fact that those resources are found in their own land. This is because their population is much smaller than the Indonesian population in general; therefore, their political influence is almost non-existent. The Papuans are also considered to be backward and undeveloped, so the State considers it has every reason to exploit those resources without having any compulsion to discuss with the Papuans (ibid, pp.5).

Thus, unsurprisingly when Mubyarto (2000) found that Papua was ranked only above West Kalimantan in terms of poverty levels by province in Indonesia, although Papua has been popularly recognised as one of the main contributors to the Indonesian economy through the exploitation of its rich natural resources (besides East Kalimantan, Aceh and Riau provinces). Clauses 2 and 3 of Article 33 of the Indonesian Constitution have manifested themselves in various Indonesian laws which pay little consideration of minority groups such as the indigenous peoples of Papua.

These are investigated by Agus Sumule (2002) as follows:

1. Law No. 5 of the year 1960 on the Principles of Agrarian Matters;

2. Law No. 11 of the year 1967 on the Principles of Mining;

3. Law No. 9 of the year 1985;

4. Law No. 15 of the year 1997 on the subject of Transmigration;

5. Law No. 41 of the year 1999 on Forestry; and

6. Law No. 22 of the year 2001 on Oil and Gas.

However, after the “reformasi era” (in English: the reform era) in 1998 when some laws were reviewed and changed, none of the above mentioned laws consider the customary rights of the indigenous peoples over natural resources (ibid, p.6).

Besides the lack of protection for indigenous rights which is constituted in the laws, there are 3 indicated factors which contribute to the violation of indigenous community in West Papua, namely: mass transmigration; exploitation of Papuan forestry resources; and exploitation from mining production.

Transmigration in Indonesia, including in West Papua, has occurred on a massive scale and has attracted lots criticism. Firstly, transmigration is conducted without respecting and compensating the rights of indigenous peoples over their customary land. Due to the fact that transmigration is of national interest, the native community of the land have no choice but to surrender, with very little compensation, if an area of land is considered an appropriate settlement for transmigration (Aditjondro, 1985). Consequently, transmigration programs were seen as one of the main reasons for a massive exodus of West Papuans to the Papua New Guinea in the 1980s (Colchester, 1986).

Secondly, transmigration is accused of being a form of Javanisation or colonization of the outer islands; whereas the culture of indigenous community in West Papua has been diluted by the placement of Javanese transmigrants in their area (Sumule, 2002, pp. 9-10).

Thirdly, it is evident that transmigration causes environmental deterioration which involves clear felling of the forest area on a massive scale using heavy machinery (ibid). Transmigration also creates social jealousy among the local people and is clearly a type of injustice imposed by the Central Government.

The World Bank has calculated that the resettlement cost for each family of transmigrants is US $7,000 – almost all of which is funded as a loan from international donor institutions; by contrast, according to Agus Sumule, there has never been a single socio-economic project managed by the Central Government directly aimed to increase the wellbeing of the people of West Papua which spends that much per family (ibid, p.15).

Meanwhile, the Papuan forestry sector has contributed to the economy of Indonesia. The Indonesian Association of Forest Concessionaires (Asosiasi Pengusaha Hutan Indonesia – APHI) has released claimed in 2 March 2000 that for the last five years, the contribution of the Papuan logging industry, through the payment of various taxes and non-taxes, was as much as Rp.553,363,136,849.92, or approximately 0.5 trillion rupiah per year.

Of that figure, approximately 45 percent was distributed by the Central Government to the treasury of the Government of Papua Province (ibid, p.20). In stark contrast, the socio-economic situation of the indigenous population inside and around the forest concession areas is considered as one of the lowest poverty in West Papua due to the fact that the significant financial contribution of the logging industry has very little impact on their lives.

In other words, the customary community in Papua has not properly benefited from the forest management during the 37 years of centralised administration by the Indonesian regimes. Regarding the forestry preservation, the West Papuan customary community seen that the involvement of non-indigenous parties has apparently not adopted sustainability as the underpinning principle in managing forest resources (ibid, p.22).

As mentioned earlier, the most reported violations of human rights by extractive industries in West Papua have been associated with the copper and gold mining activities of PT Freeport Indonesia, a subsidiary of the US based company Freeport MacMoRan. The Central Government considers this to be one of the most strategic industries in Indonesia, and has deployed more than 1,000 military and police troops to protect this world class mine (Davies, 2001).

The West Papuan Indigenous Rights Under Special Autonomy

The Indonesian Law No. 21 of the year 2001, on the Special Autonomy for the Province of West Papua, was based substantially on a draft Bill submitted by the Province of Papua. “The Bill of Special Autonomy was developed in Papua by Papuans, which is significantly different to the practice of law development in Indonesia”(Sumule,2002, p. 26).

Prior to the reform era, in almost every law in Indonesia, the Central Government has taken the leading role in drafting the Bill, before submission of the Bill to the National Parliament for deliberation. The legal basis for the drafting of the Bill of Special Autonomy for Papua was Decree Number 4 of the People’s Consultative Assembly (Majelis Permusyawaratan Rakyat or MPR) in 1999 on the Basic Guidelines for the State Policy; and the Decree Number 4 of MPR in 2000 on the Policy Recommendation for the Execution of the Regional Autonomy. One of the key themes of the MPR’s Decree No.4 of the year 1999 was the policy to maintain the integration of Indonesia in the Provinces of Aceh, Irian Jaya and Maluku (ibid).

In the case of Papua, the Decree states that “the nation’s integration shall be maintained under the umbrella of the Unitary State of the Republic of Indonesia by respecting equality and diversity in the social cultural life of Irian Jaya people by designating special autonomy regulated by the law …” (ibid, p.27).

It also stated that the human rights violation in Papua should be solved through “ a fair and dignified judicial process …” (ibid).

Regarding the protection for the rights of customary community, the Law of West Papuan Special Autonomy defines that the customary community as the indigenous Papuans who live in a specific region in West Papua who attach a specific custom with a significant sense of solidarity among its members.

The notion of “masyarakat adat” (in English: customary community) in Indonesia refers to groups of people who inherit ancestral origins to a specific geographical region, as well as inheriting specific values, ideologies, economies, politics, culture, and social systems (Heroepoetri, 1997).

Indeed, the Article 43 of the Law of Special Autonomy has specified the responsibility of the local government of West Papua Province to acknowledge, respect, protect, empower, and develop the rights of the customary community (Sumule, 2002, p.27).

More specifically, clause 3 of the Article stipulates that any use of the customary land should be based on a permit granted by the affected customary community through an appropriate consultation process. The use of customary community land in this sense includes appropriate compensation in the form of a cash payment, land substitution, resettlement, shareholding, or other form of compensation agreed to by mutual consent of the relevant parties (ibid).

Another important aspect of the Special Autonomy Law is the reintroduction of the “peradilan adat” (in English: customary court). According to the Law, the customary court can be used to reconcile the disputing parties of the customary communities, and has the authority to hear civil and criminal cases among its members. The decisions made by the customary court are final and cannot be taken to the State Court unless one of the parties involved rejects the decision (ibid, p.29).

The formal position of the West Papuan customary court in the Indonesian judicial system hence is seen as a historic achievement, based on two reasons:

1. The dispute over resources by different clans in Papua can be legally processed through a customary mechanism; and

2. A precedent has been set for customary communities in other regions of Indonesia to have their indigenous legal systems recognised by the State. (ibid)Since reformasi, there has been considerable effort to formalise the customary system of governance through the creation of various Lembaga Masyarakat Adat (Customary Community Institutes or LMA).

Besides to challenge the pro-government LMA established during the new order regime, the reformed LMAs were very much affiliated with the pro-independence movements organized by the Presidium of the Papuan Council. The current development in customary systems in West Papua was the undertaking of the Grand Assembly of the Papuan Customary Communities in February 2002, organised by the Presidium of Papuan Council (ibid, p.25).

This Assembly produced a declaration acknowledging the Papuan customary communities as owners of the rich natural resources of Papua, as well as a group to be respected by the government and private sectors with regards to exploitation of those resources. The Assembly also established two bodies: the Papuan Customary Council (Dewan Adat Papua) and the Papuan Customary Government (Pemerintah Adat Papua).

There are two important issues from the Assembly as outlined by Sumule (2000, pp.24-27):

1. For the customary community in Papua to be successful in dealing with outsiders, and to gain as much benefit from the legal opportunities as possible as outlined in the Special Autonomy Law, they must organise themselves into an effective institution which is respected both by the members of the customary community and outsiders; and

2. In attempt to achieve a highly regarded institution such as this, some forms of training and institutional strengthening will be required.

Those main challenges for West Papua is by functioning the Institute for Strengthening the Customary Community (in Indonesian: Lembaga Penguatan dan Pemberdayaan Masyarakat Adat / LPPMA), which consists of few individuals or groups who capable to empower the institutions of the customary community.

Many NGOs are working with local communities, but very few of them concentrate on facilitating the community to establish their own autonomous and professional institutions. Thus, this new hope lies on the ability of customary community to utilise the socio-political and economic opportunities available in the Special Autonomy Law.

CONCLUSION

Although it is not easy to conclude the case of Indigenous land rights in regard with their cultural values attached to land, it is very obvious that learning from both cases in Australia and Indonesia, there is a good future for the protection of indigenous interest over the land.

In the Australian case, this issue has been moving from the recognition of Native Title based on Western conception of private property into a new path of concerning cultural recognition which is attached to the land. Despite the fact that most Aborigines have experienced difficulties in ascertaining their land rights in the legal framework, efforts have been done to facilitate their interests by incorporating the roles of the Native Title Representative Bodies which mediates the process of land entitlements based on cultural recognition.

In West Papua, Indonesia, the situation is also moving to a new path of democracy which requires changes in legal and political framework particularly in dealing with the minority group in which West Papuans were excluded from benefiting their land for many years.

These trends in both countries bring a new expectation in the future that someday the existence of Indigenous (Aboriginal) communities including their knowledge system and beliefs (which were previously perceived as undeveloped and dysfunctional to the modern World) would be respected equally with the modern civilisation.

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**Paper presented at The Australian Centre University of Melbourne, Friday, 5 December 2003