Customary Community’s Rights in Coastal and Small Island Areas

A Court officer confirming the attendance of the parties in the hearing on the Law on the Management of Coastal Zones and Small Islands, Thursday (10/5/2023). Photo by MKRI/Ilham W. M.

JAKARTA (MKRI) — The judicial review hearing of Article 23 paragraph (2) and Article 35 letter k of Law No. 1 of 2014 on the Amendment to Law No. 27 of 2007 on the Management of Coastal Zones and Small Islands (Coastal Management/PWP-PPK Law) continued in the Constitutional Court (MK) on Thursday, October 5, 2023 in the plenary courtroom. The petition No. 35/PUU-XXI/2023 was filed by PT Gema Kreasi Perdana, represented by executive director Rasnius Pasaribu.

The hearing, presided over by Chief Justice Anwar Usman (panel chair) and the other eight constitutional justices, presented the testimony of Abdul Latief and colleagues as a Relevant Party.

At the on-site hearing, the Relevant Party’s legal counsel Judianto Simanjuntak conveyed that The state’s obligations in economic, social, and cultural matters are set out in Article 33 paragraph (3) of the 1945 Constitution, which states that the land, water, and natural resources contained therein shall be under the control of the state and shall be used for the greatest prosperity of the people. The state’s obligation is also affirmed in the fourth paragraph of the Preamble to the 1945 Constitution, which is to protect the entire Indonesia’s nation and homeland and to promote public welfare.

“This obligation is further passed down in the form of laws and regulations as legal instruments that not only function for enforcement but also prevention and protection and respect for the rights of customary law communities, traditional communities, and local wisdom,” he said.

He asserted that coastal areas and small islands contain the rights of customary law and traditional communities along with local wisdom and noble values that still apply those communities as confirmed in Article 61 paragraphs (1) and (2) of Law No. 27 of 2007, which states that the Government recognizes, protects, and respects the rights of customary law communities, traditional communities, and local wisdom in coastal areas and small islands that have been used for many generations.

“The utilization of coastal resources shall not sacrifice the quality and quantity of coastal resources that future generations need. The utilization of resources with unknown impacts must be done carefully and supported by proper scientific research,” he explained.

He further explained that the principle of equity is aimed at the economic benefits of coastal resources and small islands that can be used by the community. In addition, the principle of community participation is intended so that coastal communities and small islands have a role in planning, implementation, supervision, and control stages.

He also emphasized that mining practices by mining companies could potentially exacerbate damage to resource ecosystems, such as the dependence of island communities on plant diversity or flora and the potential elimination of ecotourism that can provide benefits to people’s lives and livelihoods.

Also read:

Provisions on Ban on Mineral Mining in Coasts and Isles Challenged

PT Gema Kreasi Perdana Revises Petition on Mineral Mining in Coasts and Isles

Provisions on Management of Small Islands Serve to Protect and Conserve

The Petitioner is a limited liability company (PT) with a mining business permit for small islands. It feels its constitutional rights had been violated by the enactment of Article 23 paragraph (2) and Article 35 letter k of the Coastal Management Law, which the Supreme Court interpreted as an unconditional ban on mining activities in small islands, while the Petitioner has a valid permit by the mining authority to mine nickel in the area. Its permit has undergone changes from the initial permit No. 26 of 2007, issued prior to the enactment of Law No. 27 of 2007.

The Petitioner asserted that if Article 23 paragraph (2) and Article 35 letter k of Law No. 1 of 2014 be interpreted as an unconditional ban on mining activities, all spatial planning for coastal areas and small islands regulated in regional regulations would conflict with the a quo Law and must be revised. As a consequence, all activities by mining companies in those areas must be ceased. This would be detrimental to those companies, including the Petitioner, who had paid their dues to the state. 

Author       : Utami Argawati
Editor        : Nur R.
PR            : Tiara Agustina
Translator  : Tahlitha Laela/Yuniar Widiastuti (NL)

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.

Thursday, October 05, 2023 | 17:59 WIB 286
  • Budi Wibowo Halim (Pemohon) menyampaikan pokok-pokok perbaikan atas permohonan Perkara Nomor 117/PUU-XXI/2023. Foto Humas/Ifa

    Image 1
  • Majelis Sidang Panel yang di ketuai oleh Hakim Konstitusi Enny Nurbaningsih. Foto Humas/Fauzan

    Image 2