Provisions and Procedures on Determination of Right to Cultivate

Senoioren Pärchen mit Architekt und Assistentin bei Besprechung auf Baugrund, München, DeutschlandBackground

On 3 May 2017, the Minister of Agrarian and Spatial Planning/Head of National Land Agency enacted the Minister Regulation No. 7 of 2017 on Provisions and Procedures on Determination of Right to Cultivate (“Minister Regulation No. 7/2017”). In its closing provisions, the Minister Regulation No. 7/2017 states that the other Minister of Agrarian regulations which also regulate the granting of right to cultivate shall remain valid as long they are not contradictory to this Minister Regulation No. 7/2017.

General Provisions on Land Acquisition

The applicant must acquire and control the land before submitting the application of right to cultivate, which is evidenced by the juridical and physical data. If the applicant is a legal entity, the applicant shall have a location license before acquiring and controlling the land that will be applied. The location license shall be granted based on the land technical consideration. In the event that the area of land has been granted with business license on utilization of natural resources, the applicant must obtain approval from the holder of business license prior submitting the application of right to cultivate.

Land Acquisition by Applicant

The right to cultivate can be originated from (i) state land, (ii) land rights (land with rights of land), (iii) customary land, (iv) state forest area, and (v) transmigration management right.

State Land

If the state land is free from any control by other parties, the applicant must submit the application equipped with statement letter on land physical control that is witnessed by community leaders and also known by urban village head (lurah) or head of village (kepala desa). The applicant shall give compensation to the other parties that previously controlled the land. The compensation must be given towards control, plants and other goods on the land, based on agreement between the parties.

Land Rights

The land acquisition from land with rights of land must be conducted by a relinquishment of right to the state land. For this type of land acquisition, the head of land office will request the evidence of land right. If the owner of land does not have the evidence of land right, the head of land office may request other valid ownership evidences.

Customary Land

If the land that will be applied is a customary land, prior submitting the application of right, the applicant shall obtain written approval from the customary law community (masyarakat hukum adat) in order to relinquish the customary land as a state land. If after the relinquishment, it occurs that there is an area of socio-cultural and magical-religious for the customary law community, that area of land must be removed from the right to cultivate land.

State Forest Area

The land acquisition from state forest area can be conducted by firstly releasing its status as state forest area. The applicant must also settle the right of other parties, if there is a right of other parties on the land. The area of land that is reserved as buffer zone (daerah penyangga) including conservation zone can be granted with right to cultivate based on condition that the holder of right to cultivate is responsible to manage, maintain, and supervise the buffer zone and conservation zone by maintaining their function.

Transmigration Management Right

If the land that will be applied with right to cultivate is originated from right of transmigration management, the applicant shall obtain a transfer from the Minister of Manpower and Transmigration, on condition that the land has not been issued with right of ownership certificate. For the land that has been issued with a decision letter of land reservation for transmigration, but not yet been used, the applicant needs to obtain an approval of land use from the Minister of Manpower and Transmigration.

Other Important Provisions

Other than provisions as mentioned above, below are pointers of other important provisions in the Minister Regulation No. 7 of 2017:

  1. If the applicant acquires more than 1 plot of land, the applicant shall make the recapitulation of land acquisition and its recapitulation map, by coordinating with the local land office.
  2. The right to cultivate is granted for the business activities of agriculture, farms, and fishery.
  3. The business activities of crop plants for rice can only be conducted for new paddy fields on the land that is less or not productive.
  4. In the event of change of spatial planning, the right to cultivate must be adjusted (adjustment of right) and/or transferred at the latest 3 years from the change of spatial planning. The adjustment and transfer of right will be conducted with a release of land title by the right holder in order to be reapplied or transferred to other parties.
  5. A coastal line (sempadan pantai) or flood plain (bantaran sungai) cannot be granted with right to cultivate. The coastal line or flood plain must be described in the plot map (peta bidang tanah) and measurement letter (surat ukur) that will be attached in the right to cultivate certificate.
  6. The right to cultivate is granted through several stages, such as measurement of land, application of right, examination of land, determination of right and registration of right.
  7. If there is objection by the third parties towards the decision on granting of right to cultivate, that objection must be settled amicably at the latest 60 working days from the submission of application. In case there is no settlement, the party that objects the decision may submit a state administrative claim at the latest 30 days from the expiry date of settlement period. If there is no state administrative claim, the Ministry of Agrarian and Spatial Planning can proceed the registration of right.
  8. Any other parties that believe they have rights towards the land can no longer claim their rights if within 10 years following the issuance of right to cultivate certificate, they never raised their objections in writing to the holder of certificate or head of land office, or never filed a claim to the court. The period of objection and claim as stipulated in this Minister Regulation No. 7/2017 is longer than the period as stipulated in Government Regulation No. 24 of 1997 on Land Registration.
  9. The applicant that applies the right to cultivate for the first time for 250 hectare is obligated to facilitate the surrounding community farms minimum 20% from the land that has been applied with right to cultivate in the form of partnership (plasma).
  10. The transfer of right to cultivate land must obtain permit from the officer that issues the decision on granting of right. The transfer permit is only valid for 3 months.
  11. The Minister Regulation No. 7/2017 also attaches form of application by applicant, decision on granting of right to cultivate, decision on rejection of application, and transfer permit.

Ivor Pasaribu

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