The legal framework for Hak Ulayat (customary land rights) is rooted in the recognition of Masyarakat Hukum Adat (Customary Law Communities) as the primary subjects of these rights. Under Article 18B paragraph (2) of the 1945 Constitution of the Republic of Indonesia (Undang-Undang Dasar Negara Republik Indonesia Tahun 1945), the state recognizes and respects customary law community units and their traditional rights as long as they remain active and align with societal development and the principles of the Unitary State of the Republic of Indonesia. This constitutional mandate is operationalized through Article 3 of Law No. 5 of 1960 on Basic Agrarian Principles (Undang-Undang Pokok Agraria or UUPA), which stipulates:

“Dengan mengingat ketentuan-ketentuan dalam pasal 1 dan 2 pelaksanaan hak ulayat dan hak-hak yang serupa itu dari masyarakat-masyarakat hukum adat, sepanjang menurut kenyataannya masih ada, harus sedemikian rupa sehingga sesuai dengan kepentingan nasional dan Negara, yang berdasarkan atas persatuan bangsa serta tidak boleh bertentangan dengan Undang-undang dan peraturan-peraturan lain yang lebih tinggi.” (With due regard to the provisions in Articles 1 and 2, the implementation of hak ulayat and similar rights of customary law communities, insofar as they still exist in reality, must be such that it is consistent with national and State interests, based on national unity, and shall not contradict laws and other higher regulations.)

The determination of whether a customary right “still exists in reality” is governed by specific criteria established in administrative law. According to Minister of Agrarian Affairs and Spatial Planning/Head of the National Land Agency (ATR/BPN) Regulation No. 14 of 2024 on the Administration and Registration of Customary Land (Peraturan Menteri Agraria dan Tata Ruang/Kepala Badan Pertanahan Nasional Nomor 14 Tahun 2024 tentang Tata Cara Penatausahaan dan Pendaftaran Tanah Ulayat), the existence of Hak Ulayat is verified based on the following cumulative elements:

  1. The existence of a community that still feels bound by its customary legal order as a cohesive group;
  2. The existence of a specific territory which is the living space (ruang hidup) of said community; and
  3. The existence of a customary authority figure or institution that performs the governance of customary law and manages the utilization of the land.

The legal status of Hak Ulayat underwent a significant shift following the Constitutional Court Decision No. 35/PUU-X/2012. This ruling clarified that “Customary Forests” (Hutan Adat) are not part of “State Forests” (Hutan Negara). The Court redefined Article 1 point 6 of Law No. 41 of 1999 on Forestry, establishing that customary forests are forests located within the territory of customary law communities. This decision effectively separated customary land from the general classification of state land, provided the community’s status is formally recognized by the local government.

The formal recognition process for Hak Ulayat requires a two-tiered validation. First, the Masyarakat Hukum Adat must be recognized through a regional legal product, typically a Regional Regulation (Peraturan Daerah or Perda) or a Decree of the Regional Head (Surat Keputusan Kepala Daerah). Second, the land itself must be identified and mapped. Under ATR/BPN Regulation No. 14/2024, the administration of customary land follows these procedural steps:

  1. Identification and Verification: A task force (Satuan Tugas) formed by the Regional Office of the BPN conducts field research to verify the community’s existence and the boundaries of the land.
  2. Technical Mapping: The land is measured and mapped to produce a Cadastral Map.
  3. Issuance of a Land Certificate: The land is registered at the Land Office (Kantor Pertanahan) and issued a Sertipikat Hak Pengelolaan (Right to Manage Certificate) or a specific Hak Ulayat registration, depending on the community’s governance structure.

The legal nature of Hak Ulayat is communal and collective. Unlike Hak Milik (Right of Ownership), Hak Ulayat cannot be sold or transferred to external parties as a whole, as it is considered an ancestral heritage held in perpetuity for the community. However, the community may grant temporary utilization rights to third parties. Under the framework of the Job Creation Law (Law No. 6 of 2023), customary land can be utilized for investment purposes through the mechanism of Hak Guna Usaha (HGU) or Hak Guna Bangunan (HGB) granted over the Hak Pengelolaan of the customary community. In such instances, the community is entitled to compensation or profit-sharing arrangements, and the land must revert to the customary community upon the expiration of the commercial right.

The administration of Hak Ulayat is further categorized by the land’s current use. ATR/BPN Regulation No. 14/2024 distinguishes between:

  1. Tanah Ulayat Masyarakat Hukum Adat: Customary land that is still managed collectively according to local customs.
  2. Tanah Ulayat yang Berada di Kawasan Hutan: Customary land located within forest zones, which requires coordination with the Ministry of Environment and Forestry for release or recognition as Hutan Adat.

In terms of institutional oversight, the Ministry of Agrarian Affairs and Spatial Planning (ATR/BPN) maintains the “Ulayat Land Registry.” This registry serves to prevent the overlapping of state-issued land titles (such as HGU for plantations) with existing customary territories. If a dispute arises regarding the existence of Hak Ulayat during a land registration process, the BPN is mandated to mediate or suspend the issuance of titles until the customary status is clarified by the local government or a court of law.

The conversion of Hak Ulayat into individual Hak Milik titles is permitted only in specific circumstances where the customary community agrees to the redistribution of the land to its individual members. This process, known as Pelepasan Hak (Relinquishment of Rights), requires a formal statement of relinquishment signed by the customary elders or the recognized community leadership, after which the land loses its Ulayat status and enters the state administrative system as individual property.

Sources