Background

Existence of community who possesses a land in the forest territoryrequires separate attention on its legal certainty aspect by the government. To settle and give legal protection to community who possesses a land in the forest territory, the Government of Republic Indonesian enacted Presidential Regulation Number 88 of 2017 on Settlement over Possession of Land in the Forest Territory (“PR 88/2017”).

The Forest Territory

The forest territory is certain territory established by the government to preserve the existence of forest. The establishment of a forest territory, under Minister of Forestry Regulation Number P.44/MENHUT-II/2012 and P.62/MENHUT-II/2013 on Gazettement of Forest Territory and its amendments (“MR”), is performed by doing inauguration of forest territory.

Inauguration of the forest territory is a series of activities of designating, border planning and establishment of a forest territory. Under MR, designating the forest territory is performed with decree of minister of forestry. The designation of forest territory is a basis to do a border planning and establishment of the forest territory.

Government performs a settlement possession of land in a forest territory that is controlled and utilized by parties. The said forest territory is a forest territory in the stage of the designation of forest territory. The designation of forest territory is an earlier determination over certain area as a forest territory.

Settlement for Possession of Land

The government carries the settlement for a land possessed by party in the forest territory. However, PR 88/2017 emphasizes that the settlement possession of the forest territory is only for the forest territory in the stage of designation.

Settlement possession of the land in PR 88/2017 is performed for the parties, as follows (“the Party”)::

  1. individuals;
  2. institution;
  3. social or religion institution;
  4. community of customary law.

The government establishes the Acceleration of Settlement Possession of Land in the Forest territory Team (“Tim P3KTH”), to settle a possession of the land in the Forest territory.

The team P3KTH is domiciled in the Ministerial of Coordinator in the Field of Economic, and consists of:

Chairman

:

Minister of Coordinator in the Field of Economic

  1. Minister of Environment and Forestry (“Minister LHK”);
  2. Minister of Agrarian and Spatial Zone/Head of National Land Agency;
  3. Minister of Home Affairs;
  4. Secretary of Cabinet;
  5. Head of Presidential Staff.

Criteria of Land

The land shall meet the criteria in order to do settlement possession, namely as long as the possession of the land:

  1. is controlled physically with good faith and transparently;
  2. is not being disputed; and
  3. is admitted by the community of customary law or head of village and validated with a testimony from a trusted person.

The land performed for its settlement is a land in the Forest territory that utilized by the Party for:

  1. residential;
  2. public facility;
  3. social facility;
  4. cultivated land; and/or
  5. customary forest.

Settlement Possession Scheme of the Forest Territory Land

The settlement possession scheme of a land in the forest territory is divided into two categories, namely: (i) after the stages of designation of forest territory; or (ii) prior the stage of a designation of forest territory.

Settlement Scheme Prior to the Stage of Designating the Forest Territory

Settlement scheme possession of the land prior to the designation of the land as forest territory for:

  1. the land that is possessed and utilized; and/or
  2. has been granted rights of land,

is performed by excluding the land from the forest territory through amendment of the border of the forest territory.

Settlement Scheme After the Stage of Designating the Forest Territory

The settlement schemes for a possession land after the stage of designating the forest territory, are:

  1. excluding the land from the forest territory through alteration of the border of the forest territory;
  2. exchanging the forest territory;
  3. giving an access to a management forest through the social forestry program; or
  4. Re-settlement, which is by moving out the residence from the forest territory to outside of the forest territory.
Sources  Final Income Tax for Transfer of Right of Land and/or Building

The settlement schemes for a possessed land after the stage of designating the forest territory shall take into consideration:

  1. a minimum preserved area of the forest territory which is 30% of total area of river stream, island and/or province; and
  2. main function of the forest territory.

Settlement Scheme For The Forest Territory Function as Protected Forest in a Province with a Total Area of the Forest is Less or Equal than 30%

Applicable provisions:

  1. in terms of: (a) such plot of land utilized for residential, public facility, and/or social facility; and (b) the forest territory satisfies the criteria as a protected forest, then a resettlement will be conducted;
  2. in terms of: (a) such plot of land utilized for residential, public facility, and/or social facility; and (b) the forest territory dissatisfies the criteria as a protected forest, then the exchange of forest territory will be conducted according to the laws and regulations;
  3. in terms of such plot of land utilized as cultivated land then the settlement will be performed by granting access to forest through a social forest program.

Settlement Scheme For The Forest Territory Function as Protected Forest in a Province with Total Area of the Forest Territory is More than 30%

Applicable provisions:

  1. for a plot of land utilized as residential, public facility, and/or social facility, and the forest territory satisfies the criteria as a protected forest, then a resettlement will be conducted;
  2. for a plot of land utilized as residential, public facility, and/or social facility, and the forest territory dissatisfies the criteria as a protected forest, then the settlement will be performed by excluding the plot of land outside the forest territory;
  3. for a plot of land utilized as cultivated land, and has been possessed more than 20 years consecutively, then the settlement will be performed by excluding that plot of land outside of the forest territory through the alteration of the border of the forest territory;
  4. for a plot of land utilized as cultivated land, and has been possessed less than 20 years consecutively, then its settlement will be performed by granting access right of access through a social forestry program.

Settlement Scheme For the Forest Territory Function as Productive Forest in a Province with Total of the Forest Territory is Equal or Less than 30%

Applicable provisions:

  1. for a plot of land utilized as residential, public and/or social facility, the settlement is performed by exchanging the forest area in accordance with the prevailing laws and regulation or resettlement;
  2. for a plot of land utilized as cultivated land, then its settlement is performed by granting management access of forest through the social forestry program.

Settlement Scheme For the Forest Territory Function as Productive Forest in a Province with Total Area of the Forest Territory is more than 30%

Applicable provisions:

  1. for a plot land utilized as residential, public and/or social facility, then its settlement is performed by excluding the plot of land outside of the forest territory through the alteration of the forest territory border;
  2. for a plot of land utilized as cultivated land and has been possessed more than 20% consecutively, its settlement is performed by excluding the land outside the forest territory through the alteration of the forest territory border;
  3. for a plot of land utilized as cultivated land and has been possessed less than 20 years consecutively, then its settlement is performed by granting an access of the forest management through the social forestry program.

Procedure Settlement of the Land of the Forest Territory

The settlement of the possession land in forest area procedure is performed by:

  1. inventerizingthe possession of land in forest area;
  2. verification of the possession of land and delivery the recommendation;
  3. declaration of the possession and utilization settlement model;
  4. issuance of the possession and utilization land in forest area settlement decision;
  5. issuance of the land rights certificate.
Sources  Principles of Agrarian Law

During the settlement procedure is ongoing, it is prohibited:

  1. for people not to possess the new land and/or perform an action which may disturb the progress of the settlement possession of land in the forest territory;
  2. for government agency not to act such expulsion, seizure or shutting the access toward the land and/or an action which may disturb the progress of the settlement possession of land in the forest territory.

Procedure of the Settlement Possession of the Land in the Forest Territory:

  1. The party who possesses the land in the forest territory is applying for the inventory and verification of the land through the regent/mayor (“Applicant“);
  2. In order to carry out an inventory and verification of land possession within a forest territory, the governor shall establish an Inventory and Verification Team (“Team Inver“);
  3. Team Inver performs land possession verification. Implementation of inventory and land ownership verification, is to be completed within a period of 6 (six) months since the application is declared complete;
  4. Teamm Inver submits a recommendation to settle land possession within the forest area to the governor (“Recommendation“);
  5. At the latest 7 days after the governor receives Recommendation, the governor submits the Recommendation to the Chairman of the P3TKH Team, with a copy to the Minister LHK;
  6. The Chief of P3KTH coordinates and synchronizes the implementation of the Recommendation, which results to the consideration of the settlement of land possession within the forest area (“Consideration“);
  7. The Chief of P3KTH submits Consideration to the Minister LHK;
  8. The Minister LHK decides the schemes of settlement or a rejection, based on Consideration, (“Decision“);
  9. If the Decision, namely by trading of forest territory or resettlement, then the cost of its implementation becomes the responsibility of local government;
  10. If the Decision decides to exclude the land outside the forest territory by the alteration of the forest area border, the Minister LHK shall issue a decree on the change of forest territory boundary after organization of boundary of the forest area (“Alteration Border Decision“);
  11. Based on the Decision, the regent/mayor shall announce to the Applicant no later than 14 working days since the regent/mayor accepts the Decision or the Alteration Border Decision (“Announcement“);
  12. The applicant may file an objection over the Decision or Alteration Border Decision through the regent / mayor, no later than 30 days from the Announcement;
  13. The Minister LHK decides whether to accept or reject the Applicant’s objection;
  14. In terms of that the Minister LHK accepts the Applicant objection, then the Minister LHK shall deliver it to the governor to do re-verification;
  15. Border Alteration Decision becomes the basis for the issuance of a land title certificate on the land under the name of the Applicant.

Provision for the Receiver of the Land Rights in Forest Area

Applicant who receives the land rights is prohibited to:

  1. abandon the land;
  2. transfer the rights of the land in period time of 10 years; and/or
  3. transfer the function of the land.

The transfer of land before a period time of 10 years and/or transfer the function of land shall only be performed for the national strategic development, such as:

  1. infrastructure;
  2. energy;
  3. food; and
  4. security defense.

In terms of the receiver of the land rights passes away, the land may be transferred to heirs subject to that the land right cannot be divided.

Alam Setya Muchtar, S.H.