Doctrinal Review on The Legality of Ulayat Rights Release Agreements in Papua Province

In Papua Province, land conflicts between MHA and entrepreneurs often occur and lead to social conflicts. One of the common practices used in the transfer of ulayat land is the Ulayat Rights Release Agreement. In this article, the author will discuss the legal aspects of the Ulayat Rights Release Agreement that need to be considered to protect the seller and the buyer. This study is a normative or doctrinal research that uses primary data in the form of observations and the author's experience as a legal analyst involved in the Papua Province licensing review process, as well as secondary data derived from statutory regulations and other literature. The results showed that Ulayat Rights Release Agreement requires three important conditions, namely: 1) Subjects that need to be legally identified and ratified (Ulayat Rights Holder); 2) Objects that need to be mapped (Ulayat Rights Limits); and 3) Relationship between Subjects and Objects about how Ulayat Rights are used, regulated, and managed by Ulayat Rights Holder (Ulayat Rights Control). These three points need to be legally ratified based on applicable regulations, which is through a Regional Head Decree or Regency Regulations.


Ulayats rights are recognized through Article 3 of Law Number 5 of 1960 on the Basic
Regulations on Agrarian Principles ("UUPA") which states that "...the implementation of ulayat rights and similar rights of customary law communities, as long as in reality they still exist, must be in such a way that it is in accordance with the national interest and State, which is based on national unity and must not conflict with higher laws and regulations." The recognition of this ulayat right is inseparable from the spirit of customary law as the applicable agrarian law in Indonesia based on the provisions of article 5 of the UUPA. Prior to the UUPA, there was a dualism of land law in Indonesia, which are western law and customary law.
Although it has been acknowledged, the UUPA does not explain further about the definition of ulayat rights. Boedi Harsono defines ulayat rights as "the rights of an indigenous legal community over its territorial land environment that authorizes certain indigenous rulers to regulate and lead the use of the territorial land of the legal community" (B. Harsono, 2008). In addition, ulayat rights are also defined as jointly owned land which 54 BHUMI: Jurnal Agraria dan Pertanahan, 8 (1), May 2022 is believed to be a gift of supernatural power or inheritance from an ancestor to a group or customary law community (B. Harsono, 2008). Article 1 paragraph (2)  ", as a positive law governing the administration of ulayat land, defines ulayat rights as "the right of communal Unity of Customary Law Communities to control, manage and/ or utilize, and preserve its customary territory in accordance with the values and applicable customary law." The existence of ulayat rights in a certain Customary Law Communities can be seen from the daily activities of community leaders and community elders, which in reality are still recognized as the task of regulating mastery and leading the use of ulayat land (Harsono, 2008). One of the areas that is still bound with the dynamics of indigenous peoples and ulayat land is Papua Province (Muzizat et al., 2021). The customary law community in Papua is divided into seven customary areas, namely the Tabi/Mamta (Mamberamo river plain to Tami river), Saireri (Saireri bay), Doberay (bird head area), Bomberai (Bintuni-Mimika Bay), Ha-Anim (Asmat-Merauke), La Pago (east Central mountain) and Me Pago (west Central mountain) (Deda & Mofu, 2014). Papua Province became the land for five indigenous territories, namely Tabi/Mamta, Saireri, Ha-Anim, La Pago and Me Pago, while West Papua Province included the Doberay and Bomberai indigenous territories (Deda & Mofu, 2014). Papua Province has special autonomy stipulated through Law Number 2 of 2021 concerning the Second Amendment to Law Number 21 of 2021 concerning Special Autonomy for Papua Province ("Otsus Law") which provides flexibility for the Papua Province government to regulate and manage the interests of the local community according to its own initiative based on the aspirations and fundamental rights of the Papuan(Auriga Nusantara et al., 2018). In Article 1 number 21 of the Otsus Law, Ulayat Rights is defined as "the alliance rights owned by certain customary law communities over a certain area which is the environment of their citizens, which includes the right to utilize land, forests, and water and their contents in accordance with laws and regulations".
Conflicts that occur in Papua related to land are still frequent, especially conflicts between oil palm plantation companies and indigenous peoples. Based on data from the Consortium for Agrarian Reform (kPa), the highest agrarian conflict occurred in the plantation sector (Fadli, 2021). The Corruption Eradication Commission (KPK) is coordinating the evaluation of oil palm plantation licensing in Papua and found violations of oil palm plantation permits that caused environmental damage and agrarian conflicts with local indigenous peoples (Zuhad, 2021). Agrarian conflicts themselves often take lives, such as the death of Marius Betera, a farmer in Boven Digoel Regency, Papua Province who visited the location of a palm oil company permit (Sucahyo, 2020).

One of the company's efforts to control indigenous peoples' lands (ulayat lands) in
Papua is buy their lands. The transfer of ulayat land is legally possible because based on the General Explanation of section II of the UUPA which stated that, "it is not justifiable, if in today's state conditions the legal community still maintains the content and exercise of its recurring rights absolutely, as if it is detached from its relationship with the legal communities and other areas within the State as a unit". In addition, ulayat rights are not only encompassing public dimension but also a private dimension (civil) so that the transfer of ulayat rights is possible based on the principle of freedom to contract or make agreements with other parties/subjects.
In practice, the purchase of ulayat land is carried out through an agreement that is set forth in a written agreement that forms the basis of the release of ulayat rights over ulayat land by indigenous peoples. In the form of an agreement, the term "Ulayat Rights Release Agreement" is born, which is made by the representatives of indigenous peoples and the company. In addition, there are similar practices, such as the sale and purchase of customary land of the Moi tribe in the city of Sorong using a land release certificate (Gafilem, 2013). The release of land rights is carried out through deliberation based on an agreement between the land owner and the party who needs the land (Rubaie, 2007). Based on the characteristics of ulayat rights over land as joint ownership rights of indigenous peoples as described above, the author would like to further examine the main causes of the agrarian conflict by discussing two issues related to the legal aspects of the Customary Rights Release Agreement which is the basis for the transfer of customary land from the community to other parties (companies). First, how to ensure that the subject who agreed the agreement is a party who has the right to represent indigenous peoples considering that the main characteristics of ulayat land are as communal property. Second, how to ensure the legality of the ulayat land objects that are sold to provide legal certainty for the seller and the buyer.
Many researchers have discussed the legal aspects of customary land rights release in Papua. For example, (Cindy Fatika Sari et al., 2021) have discussed the release of land by the Papuan Customary Law Communities through a court decision approach. In addition, the research by (Eka Yunita, 2018) also discussed the process of land registration for the release of customary rights of the Moi tribe in Sorong, West Papua. This article uses a different approach, which is a doctrinal approach, so that the discussion will be more emphasized on normative rules, such as agreement law, UU Otsus, and several Special Regional Regulation (Perdasus) that apply in Papua Province. The results of both studies have not shown the use of Special Regional Regulation as a legal basis for court decisionmaking and the process of land registration for customary releases, thus indicating the need for doctrinal analysis to enrich the knowledge of legal academics. The contents of this article will be divided into four sections. After the introduction, the Second chapter will describe the research methods used in this article. The third chapter will discuss the legality of ulayat rights agreements based on the subjective and objective terms of agreements regulated in article 1320 of the Civil Code, as well as the relationship between the practice of ulayat land release agreements and the overlap of land claims in Papua Province. Finally, the Fourth Chapter will contain the conclusions of this article.

METHODS
This research used normative or doctrinal legal research methods. Doctrinal research deals with a legal doctrine, its development and application, and is directed at finding a specific statement of law, and an in-depth analysis of legal reasoning(Ahmad Zuhdi, 2012). The data was primary data, which was collected by observation techniques based on the experience of the Second author as a legal analyst involved in the land-based licensing review process in Papua Province. At the time when the second author was actively involved as a legal analyst, a review of the licensing of oil palm companies had been conducted on 54 companies in Papua Province, where these companies obtained land from indigenous peoples through declaration and agreement of ulayat rights release, made between community leaders and companies. The author argues that the statement letter and agreement on ulayat rights release have not taken into account the provisions of the Law and Special Regional Regulations in force in Papua Province, so that it has the potential to cause land conflicts. Secondary data collected in the form of laws and regulations, books, articles, journals, and online research. The results of the study was elaborated using qualitative analysis.

Legality of Ulayat Land Release Agreement based on Article 1320 of the Civil Code
The release of land rights leads to the termination of the legal relationship between the holder of the land and their land, which is accompanied by the provision of compensation whose form and agreement are determined by deliberation (Santoso, 2010). The release usually occurs in the case of the purchase of freehold land by a private company or other legal entity. This is because a legal entity cannot become a holder of property rights under the UUPA, so the legal entity must apply for new rights other than property rights, such as Right to Build (HGB) and Right to Cultivate (HGU) on land whose rights have been released. In the release of rights, initially, the released land object will become state land, which is then submitted a new application for rights by the party who provides compensation on the basis of an agreement on the release of land rights or a statement letter on the release of land rights (Santoso, 2010).
The process of releasing land rights as regulated in the UUPA is also applied in the process of releasing ulayat rights as set forth in the Ulayat Rights Release Agreement. This agreement becomes an administrative requirement that must be fulfilled in Papua Province before the Provincial National Land Agency and/or the Regency Land Office carries out the further process of issuing land rights to individuals and companies. If the release of ulayat land is stipulated in a written agreement, then the legality of the agreement is subject to Article 1320 of the Civil Code regarding the terms of the agreement, namely: 1) The agreement of those who bind themselves; 2) The ability to make an agreement; 3) a certain subject matter; and 4) an unforbidden cause.
The first condition stated that the agreement is the manifestation of the will of two or more parties in the agreement regarding what they want to do, which usually begins with an offer by one party which is then accepted by the other party (Muljadi & Widjaja, 2014).
The second requirement stated that the ability to act independently, is related to the issue of authority to act in law (K. Muljadi & G. Widjaja, 2014). The third condition stated that all types of agreements inevitably involve the existence of a certain object, whether it is an agreement to give something, to do something or not to do something (Muljadi & Widjaja, 2014). The fourth condition stated that an agreement does not have the power if it is contrary to the Law, decency, or public order (Muljadi & Widjaja, 2014). In addition, it is also known that the four conditions for the validity of the agreement are divided into two groups, namely subjective conditions (agreement and skills) and objective conditions (a certain thing and a cause that is not forbidden). The non-fulfillment of a subjective condition in an agreement has the consequence that the agreement can be canceled while the nonfulfillment of an objective condition causes the agreement to be null and void. This provision means that in the event that the subjective conditions are not met, one of the parties who have not yet given an agreement or a capable party can still change their mind to continue the agreement that has been made. On the one hand, the agreement is automatically considered null and void if the objective conditions are not met, which raises serious consequences. As an agreement, the legality of the agreement to release ulayat rights can be examined from the subjective and objective requirements. To assess the legality of the ulayat land release agreement, the author also examines specific rules related to MHA in Papua Province.

Subjective Conditions of Ulayat Rights Release Agreement
Regarding ulayat land rights, the criteria for determining whether ulayat rights are still present must be seen from three points, namely: 1) the existence of customary law communities that meet certain characteristics of the subject of ulayat rights, 2) the existence of land/areas with certain boundaries as Lebensraum which is an object of ulayat rights and 3) the existence of the authority of the customary law community to take certain actions(Sri Wulan Sumardjono, 2007). These criterias are closely related to the subjective and objective conditions of the ulayat rights release agreement. Subjective terms emphasize legality on the subject aspect of the agreement maker, which is the existence of an agreement and the capacity to make an agreement from the parties who are obligated. Indigenous Law Society (MHA) is the subject of the holder of ulayat rights and the existence of MHA has been regulated in a number of laws and regulations. In Indonesian law, the existence of MHA requires formal proof, for example based on Regional Regulations (Perda) or Decree (SK) of Regents or Mayors (Firmansyah, 2016)

Objective Conditions of Ulayat Rights Release Agreement
Second, regarding the objective requirements of the agreement on the release of ulayat land, the legality aspect studied emphasizes the legality of the ulayat land object. Regional regulations or decrees from the regional head should also contain a system for regulating and using ulayat land, usually contained in a decree or regional regulation on the recognition 2) Keret-Individual Communal Land Rights: customary territory that has been divided by the eldest/first came clan to other clans. Then the land is divided into families to be utilized. Customary law has unique characteristics so that the release of ulayat land must follow the procedures for the transfer of land rights regulated in customary law. Sometimes customary land cannot be transferred to parties outside the MHA directly. For example, it is known that the concept of "priority right" in customary law is the right to cultivate land from an indigenous community member to take precedence over other community members (Sembiring, 2016). In the case of the transfer of ownership rights to land, the right to purchase authority is sequentially owned by the immediate family of the land owner, individual rights holders to the land with ownership rights (eg liens and profit sharing rights), land owners bordering the transferred land, village residents, and outsiders (Sembiring, 2016). In addition, customary law practice in Aceh shows that if the transfer of rights is not carried out according to the order of bidding based on the prior rights, the aggrieved party can sue the cancellation of the validity of the sale and purchase to the Gampong Judiciary and the Mukim or the District Court (Sembiring, 2016). Given the diverse character of customary law in Indonesia, the making of agreements for the release of ulayat rights needs to pay attention to the substance of customary law land that applies in the area. Therefore, the agreement on the transfer of rights to customary land cannot be carried out by only following the formal provisions of a written agreement and proof of communal rights certificates because the elements of the legality of the agreement regulated by the Civil Code must pay attention to the material provisions regarding customary land regulated in local customary law.
In customary law, it is also possible to have individual ownership of ulayat land.
There are four main bases for the birth of civil rights to land: 1) because of the legal position of people as citizens of the legal community, 2) because they have received approval in the form of permission and with the knowledge of the head of the indigenous community, 3) because the purpose of its use is to be managed directly so that it can be utilized; and 4) there is no purpose of land administration to be used as an object of trade for own benefit (Sembiring, 2016). However, individual owners, who are usually part of the MHA, still need to follow customary provisions and procedures when transferring the rights to the ulayat land. Article 1868 of the Civil Code defines an authentic deed as a deed made in a form determined by law by or before public officials who have the power to do so, at the place where the deed was made. One of the employees or public officials referred to in article 1868 of the Civil Code is a notary, who provides legal services in the field of civil law, including making agreements. Authentic deeds made by a notary must follow the formal provisions stipulated in the Notary Position Law so that it has perfect proof power compared to other types of written evidence (Arman, 2011). As a service provider in the field of law, a Notary must understand the concept of customary law for MHA who will release ulayat land to ensure that the subjective and objective requirements have been properly fulfilled. Without a regional regulation or decree recognizing MHA, the provisions in Article 8 paragraph (5) of Special Regional Regulations Number 23 of 2008 is not ideal to be implemented because the Notary does not have a legal basis or reference to understand the customary structure or land regulation system of MHA as a party to the agreement.

Problems in the Use of the Ulayat Rights Release Agreement as a basis for rights
The practice of Ulayat Rights Release Agreement or Indigenous Land Release Letter accompanied by compensation has been recognized as a legal mechanism to transfer land rights based on court decisions. Consideration of Judges in the Jayapura District Court Decision No/115/Pdt.G/2016/ PN Jap., for example, states that "The law that lives and develops in the community regarding ulayat land with ulayat rights there is a customary law order regarding the management, control, and use of ulayat land that are valid and obeyed by the members of the alliance, namely by the release of customary land rights with compensation such as a Declaration Letter of Customary Land Release which is known by the village head and the Head of the District or the Head of the Sub-district to be registered with the Office of the National Land Agency which in the end If there are no problems or objections from parties who object or have rights that are addressed to the Head of the Land Agency Office or through a lawsuit to the Court, a certificate of proof of rights will be issued in the form of a certificate". The decision shows that the Release of Rights to Customary Land or ulayat accompanied by compensation and witnesses is sufficient evidence of the transfer of land rights. In accordance with the principle of land registration publicity, the Land Office will subsequently announce the land registration so that the interested party can submit an objection before the issuance of the certificate. Declaration of release of customary land rights varies in legitimacy and validation, where sometimes the judge requires that the letter must be known by the head of the village and the head of the district, authorized by the head of the sub-district and legitimized by the customary authority (Cindy Fatika Sari et al., 2021).
However, the author argues that the acceleration of the process of acknowledging ulayat land through regional regulations mandated by laws and regulations, both at the national level and the Special Regional Regulation in Papua Province, must still be implemented. This is because the practice of the Agreement or the Ulayat Land Release territories and customary rights in Papua Province are the same, almost all areas in Papua province are controlled by customary communities, but there is no legal proof for these claims. So far, the release of ulayat rights has been carried out sporadically and does not consider anthropological and cultural aspects, and ignores procedural aspects in the process of customary acknowledgment. The release of ulayat rights in indigenous territories is carried out on land objects that do not meet the legality aspects of ulayat rights in accordance with applicable regulations. In addition, there are still many MHA subjects who have not been legally recognized through the Regional Regulation or Regional Head Decree. This creates legal uncertainty of the release of ulayat rights, especially from the subjective and objective conditions stipulated in Article 1320 of the Civil Code.
In some indigenous territories releases in papua, such as in Boven Digoel Regency and Merauke Regency, none of the regional regulations or regional head decrees have been issued regarding the recognition of MHA subjects to date (Discussion with Papua Licensing Review team, September 12, 2021). This led to a conflict between MHA and the company when carrying out plantation operations in the province of Papua based on the Papua Province licensing review verification process (Discussion with the Papua Licensing Review team, September 12, 2021). The release of Ulayat Rights without the recognition of MHA and indigenous territories creates legal uncertainty for the community. This is the main of the problem of the conflict between MHA and the company because the land released has not been clean & clear. In this case, the authority of the subject who release ulayat land is still questionable and the mechanism for providing compensation as outlined in the ulayat rights release agreement has not been accepted by the parties who feel they have the right to relinquish the ulayat rights. Many ulayat land disputes occur because the buyer ignores customary law arrangements, in this case to obtain HGU so that the determination of subjects and objects is carried out incidentally without looking at the aspects and requirements of the recognition of MHA and indigenous territories.
Overall, the problems regarding the legality of the Ulayat Rights Release Agreement are: 1) Subjects that need to be legally identified and ratified (Ulayat Rights Holder); 2) Objects that need to be mapped (Ulayat Rights Limits); and 3) Relationship between Subjects and Objects about how Ulayat Rights are used, regulated, and managed by Ulayat Rights Holder (Ulayat Rights Control). These three points need to be legally ratified based on applicable regulations, which is through a Regional Head Decree or Regency Regulations. Then the agreement can be held by the legitimate parties because the subject and object of the ulayat land have been clear.

CONCLUSIONS
The legality of the ulayat land release agreement consists of two conditions based on Article 1320 of the Civil Code, which are subjective and objective. Clarity regarding the fulfillment Cetera & Utama. Doctrinal Review on The Legality… 65 of these two conditions is highly dependent on the issuance of a Regional Regulation or Decree of the Regional Head regarding the existence of MHA and Indigenous Territories.
Ideally, the Regional Regulation or Decree of the Regional Head will explain the customary structure of MHA, so that the subject representing MHA in the release agreement will be clearer. Ulayat land as the object being released also needs to be mapped on the area of the land and the pattern of regulation of land tenure based on the customary law system to be further recorded in the land register of the local land office. In addition, based on Special Regional Regulation Number 23 of 2008, the agreement on the release of ulayat land should be made in the form of an authentic deed, which can be made by a notary. However, the making of an authentic deed is not ideal to be carried out without a Regional Regulation or Regional Head Decree concerning the existence of MHA. Without regional regulations or decrees, notaries do not have a strong legal basis to understand the customary structure and system of using MHA's ulayat land as a condition for the legality of the agreement.
This article does not intend to state that the Agreement on the Release of Ulayat Rights as a mechanism for transferring land rights is not valid because it does not fulfill the subjective and objective elements of Article 1320 of the Civil Code. Based on the court decision, the Ulayat Rights Release Agreement has been recognized as a legal mechanism for the transfer of land rights but this practice needs to be supported by the establishment of ulayat land recognition regulations to avoid overlapping land rights claims in Papua Province. Currently, consideration in determining the existence of subjects of ulayat rights holders is only carried out based on the physical control of land by respecting the rights of indigenous peoples which are not outlined in the form of government decisions. This is due to the lack of recognition of the government for the existence of MHA and ulayat land in Papua which is in accordance with the provisions of the laws and regulations. To ensure there is protection for customary law communities and certainty in investment, the subjective and objective requirements of the agreement on the release of rights ulayat need to be fulfilled. Local governments, assisted by NGOs and indigenous experts, need to act actively to map indigenous peoples in accordance with the mandate of Article 2 and Article 3 of Special Regional Regulation Number 23/ 2008 which requires the recognition of ulayat rights based on the results of multiparty research.