The definiton of Agrarian Law is a set of laws governing the right to control over the natural resources which include earth, water and natural resources contained therein, even within the limits set also includes space.

In the principles of positive law, namely Law No. 5 of 1960 concerning the Basic Regulations on Agrarian Principles or

better known as the Basic Agrarian Law (BAL), stated that

Agrarian elements include:

Earth (Article 1 paragraph 4 BAL) that includes:

- the surface of the earth (land);

- the earth’s part located beneath the ground and

under water.

Water (Article 1, paragraph 5 and Article 47 BAL) including inland waters such as rivers, lakes, swamps and sea territory/territorial sea of Indonesia.

Natural resources contained in the earth and water (Article 1, paragraph 2 of the BAL), such as mining materials/minerals, fish, pearls and other marine products.

The elements in space (Section 48 BAL).

Natural resources there in which is called extractive includes chemical element, mineral and so on, Law Number 11 of 1967 as amended by Law number 4 of 2009 regarding General Mining and Coal. And Law Number 22 of 2001 regarding Oil and Gas.

National resources which contained in the water which are fishes and other resources in the water and sea within the territorial of Indonesia (Law Number 31 0f 2004 as amended by Law Number 45 of 2009 regarding Fishery).

The definition of Agrarian in BAL principally is similar to the definition of space in the Law Number 26 of 2007 regarding Spatial Planning.

In Article 1 para 1 reads :

“Space is place that includes space of land, space of sea and space of air, including space on the earth as one area where humans and other living creatures, do the activity, and maintain its survival".

In the Statement of Indonesian People Consultative Assembly Number IX/MPR/2001 dated 9th November, 2001 regarding Agrarian Reform and The Management of Natural Resource, it is stated that "The resources of agrarian/natural resources including land, water, space and natural resources contained therein as grace of God Almighty to the Indonesian people is a national wealth that must be grateful. Therefore, it must be managed and used optimally for present and future generations in framework of achieving just and prosperous society".

Earth, water, space and natural resource contained therein in the BAL are covered by the definition of “Agraria”, as stated in People’s Consultative Assembly Decree No. IX/MPR/2001 above.

Agrarian Law in a under since includes group of law which either position right upon natural resources which cover in

the definition of agrarian. Those group includes :

a. Land Law (Agrarian Law in the narrow sense), is regulated in BAL;

b. Water Rights Law, as stipulated in Law No. 11 of 1994 as amanded by Law No. 7 of 2004 concerning Water Resources;

c. Mining Law, as stipulated in Law No. 11 of 1967 as amended by Law No. 4 of 2009 regarding General Mining and Coal and Law No. 22 of 2001 on Oil and Gas, successor of Law No. 44/Prp/1960;

d. Fisheries Law, as stipulated in Law No. 31 of 2004 as amended by Law No. 45 of 2009;

e. Forestry Law, as stipulated in Law No. 41 of 1999; f. The laws governing the rights of control over the elements

in space.

AGRARIAN LAW

WIDE NARROW

Definition A set of laws governing the right to control over the natural resources

A set of laws governing the right to control over the land

Object

The right to control over the natural resources

The land tenure

Scope - Land Law

- Water Right Law

- Fishery Law

- Forest Law

- Mining Law

- Law Upon frond and particle in air space (but not space Law)

Land Law

1. In Article 4 state that “On the basis of the State’s right of control referred to in Article 2, it is necessary to determine the types of rights to the surface of earth, which is called tanah (land), that can be granted to, and held by, persons, either individually, jointly with others as well as bodies corporate”

Therefore it is obvious, that land legally depend as

surface of earth and rights of land is right of particular (article 1) part of surface of land which has two boarder and two dimension with measured length and width.

Definition of Land and Land Title/Land Right

2. a. Which is covered by land right/land right is land in the sense of particular part of the air.

b. The authority to use the land in question as well

as the mess of the earth and the water existing under its surface and the space above it.

c. The limitation state in Article 4 para 2 is read

“to a point which is essentially required to allow for the fulfillment of the interests that are directly related to the use of the land in question, such a point being within the limits imposed by this Act and by other legislation of higher levels”.

3. a. In Article 8 : “On the basis of the State’s right of control referred to in Article 2, the acquisition of the natural resources which are contained in the earth, water, and airspace is to be regulated”.

b. Elucidation of article 8 stated that : “since….land rights entitle the holder only to the surface of the soil/earth, the powers generated from land rights do not affect the natural resources found inside the earth, water, and airspace. Hence, the taking of such natural resources requires separate regulations. The said provision serves as a basis for mining and other legislation”.

c. The taking of natural resources requires a particular

eight called mining rights with stipulated in Mining Law.

4. a. In the countries which follow the principle of “Accessie” or “Accessories”, construction and plain

upon the land regarded as a spatial and in separable part of the land.

b. Any legal acts concerning the land stall automatically

by law includes plants and construction upon the

land . c. Our Natural Land Law use the principle of

Adat/Customary Law, horizontale severance (In Dutch it is called “horizontale scheiding”).

Construction and plants do non include or part of the land , therefore land right/title automatically does not include the ownership of construction or plans there on.

5. The legal actions undertaken may include simply land. or simply include the buildings and/or plants only, which is then disassembled (“adol bedol") or remain on the land in question (" adol ngebregi"). Any legal action could also include the following land buildings and/or perennials that are on it, in which case what is meant required explicitly stated.

6. Definition of “land” in other country

a. Land Code Malaysia (1965) Article 5 land includes : i. that surface of the earth and all substances

forming that surface; ii. the earth below the surface and all substances

therein; iii. all vegetation and other natural products,

whether or not requiring the periodical application of labor to their production, and whether on or below the surface;

iv. all things attached to the earth or permanently fastened to anything attached to the earth, whether on or below the surface; and

v. land covered by water.

b. Land Titles Act Singapore (1993) Article 4 land is defined as :

The surface of any defined parcel of the earth, and all

substances there under, and so much of the column of air above the surface as is reasonably necessary for the proprietor’s use and enjoyment, and includes any estate or interest in land all vegetation growing thereon and structures affixed thereon or any parcel of airspace or sub-terranean pace held apart form the surface of the land as shown in an approved plan Subject to any provisions to the contrary the proprietorship of land includes natural rights to air, light, water, and support and the right of access to any highway on which the land abuts.

There are essential similarities with the definition of "land" in the juridical sense as described in the BAL, namely which is meant by "land" is also "the surface of the earth". However, it is extended to include also the right to the earth’s body under and the air space above it, within the bounds of reasonable needed.

Another difference is the ownership of buildings and plants that exist on the land. Malaysia and Singapore, like other countries in general, using the accessie principle. There are also differences regarding the ownership of natural resources in the earth’s body under which is owned. legal provisions in various countries is not uniform.

7. In several states in USA such as Arkansas, Kansas, Mississippi, Ohio, Pennsylvania, Texas and West Virginia), which is called ownership of the states, petroleum and gas, like coal and other minerals in the earth’s body under the land own by the land owner.

8. In the Law of the State of New South Wales, Australia, all petroleum and helium are owned by Crown, the mastery is in the State. Gold and Silver also owned by Crown.

DUALISTIC LAND LAW

Western Land Law

Instrument

Customary Land Law

Instruments

The Principles The Principles

Written Unwritten Written Unwritten

Book II BW

Book III BW Book IV BW

Customary Law

(Ancient Dutch)

Agr. Wet 1870

(Agr. Law 1870)

Agr. Besluit 1870

(Agr. Decree 1870)

Prior to BW (before 1848)

Administrative

Land Law

Created by :

-HB Gov

-Swapraja Gov.

As the

prevailing law for the native

Indonesian

(Bumiputera)

Swapraja Land

Law

THE PRINCIPLE PROVISIONS OF LAND LAW BEFORE 24/9/1960

PLURALISM

Principle Provision

Additional Provision

Customary Land Law

Western Land Law

DUALISTIC

Inter –Group Land Law

Administration Land Law

Swapraja Land Law

Land in Indonesia prior to BAL

Indonesia Right of Land

Western Right of Land

Regulated by the Adat Law has not been registered

Has been registered regulated by Western Law

Basically, the Indonesian right of land covered all of the lands which were not regulated by the Western Land Law. a. Unwritten provisions, prevailed in Indonesia for the

native people from the early year;

b. Written provisions which created by:

1. Swapraja Government, such as regulations about land in Kesultanan Yogyakarta, Surakarta, or East

Sumatera area.

2. Dutch East Indies Government, such as :

(1) Agrarisch Eigendom Right, State Gezattes 1872-117 (Koninklijk Besluit = Royal Decree) and State

Gezattes 1873-38;

(2) Grond Vervreemdings Verbod ( prohibition of land alienation), State Gezattes 1875-179.

The Ancient Netherland Law

Written

Unwritten

e.g. Overschrijving Ord. State Gezattes 1834-27

Regulations about private land lease, for the example in the VOC periode, some lands in Jakarta were owned by a private which was rented to built buildings. This (institution) is regulated according to the customary law and known as “Bataviasche Gronsdhuur”

After Year 1848

BUKU II of BW, regulates this following land titles :

-Eigendom (pasal 571) -Opstal (pasal 711)

-Erfpacht (pasal 720)

-Gebruik (pasal 818)

BUKU III of BW, regulates :

1. Land sale matter which consist of two articles (article 1457 & 1458):

- Agreement Stage, that doesn’t mean the land tenure is

transferred; - Juridische Levering Stage, the stage in which the transfer

of land tenure to the other party, that is (change of land title’s holder) in the cadaster office.

2. The case of land lease (Article 1588-1600) . The condition

of this lease is not applied anymore since the enactment of Basic Agrarian Law.

BUKU IV of BW, regulates acquisitive verfaring as the remedy

to become land owner (Article 610-1955 jo 1963). The event is called “eigendom-uitwjjzing” (Article 621, 622 and 623).

Besides, the eigendom right can be get through the adverse

possession (Article 584).

STATE DOMAIN LAND

Vacant Land

Customary Law

Other Western Right of Land

Land with Eigendom Right

Swapraja Land

WESTERN RIGHT OF LAND

As owner As authority

Individual Rights: - Eigendom Right

- Erfpacht Right - Opstal Right - Gebruik Right - Right to Lease

Indonesia’s Rights:

Customary Property Rights

Opstal

Right

Erfpacht

Right

Right to

Lease

Gebruik

Right

Agree

ment

Land with Eigendom

right

State Domein

Land

Agree

ment

Opstal

Right

Erfpacht

Right

Right to

Lease

Gebruik

Right

Through buying and selling

Eigendom Right

CUSTOMARY LAND LAW

Right of Communal Land

Elements of Ownership Elements of Authority

Chief of Adat

Individual Right : (Rights of Land)

Primary: - Customary Property Right - Right of Use Secondary: - Right of Pledge - Right of share Cropping - Lodging, Lease

NATIONAL LAND LAW

The Right of the National (Article 1)

Elements of Ownership

Elements of Authority

Right of the State (Article 2)

Individual Right (Right of Land

Primary : - Right of Ownership

- Right of Use - Right of Exploitation

- Right of building

Secondary : - Right of building - Right of Use

- Right of Pledge

- Right of share cropping - Lodging, Lease

Prior to the BAL until September

23th, 1960

After the BAL (after

September 24th, 1960)

Legal Position Dispersed in various law:

- Civil Administrative of Western

Right of Land

- Civil Administrative of

Customary Land Law

- Administrative Land Law

- Swapraja Land Law

- Inter-group Land Law

One object

A systematic

State Position Owner/Agency of Civil Law Ruling Agencies

Right Position - Western Rights

- Customary Rights

- Swapraja Rights

Unification in terms of

rights through

conversion.