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INTRODUCTION
Biodiversity is one of the potential wealth of natural resources which is
currently becoming a very interesting problem. This is because the potential
of biodiversity is one of the stimulants for the development of biotechnology.
Indonesia is known as one of the tropical forests that have the highest
biodiversity in the world. This biodiversity is related to the extent of forest
area in Indonesia which two-thirds of the land (131.28 million hectares) as
the forest area which is certainly rich in natural resources. Unfortunately, we
are not able to preserve it because of the rapid rate of forest degradation
and deforestation. Based on data from State of the World's Forests 2007 of
the Food and Agriculture Organization (FAO) in the period 2000-2005, the
rate of deforestation in Indonesia is 1.8 million hectares per year. Even the
Guinness Book of Records referring to Indonesia as the country's fastest
forest destruction in the world. According to Greenpeace, the greater loss
with an average of 2.31 million hectares per year is due to illegal logging and
conversion of forests in 2004-2009.4
VILLAGE
GUARDIAN
Customary Forest term in positive law was introduced for the first time in
Law 41 of 1999 on Forestry (Forestry Law). Previous legislation such as Law 5
of 1960 on UUPA only recognizes Indigenous Community and communal
land. The introduction of the term customary forest in the Forestry Law
leaves the normative consequences which customary forests constructed as
part of the state forest. Based on the status, the forest is divided into two,
namely the state forest and private forest, where customary forest is a state
forest located in the region of Indigenous Community.
Law 41 of 1999 on forestry does not recognize customary forest as forest
that are fully controlled by the community so that it is not always the right
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we see the definition and existence of customary forest just see where Law
41 of 1999 on only Forestry. In forestry legislation, customary forest is a part
of our state forests. The crux and neglect of the existence of customary
forests are reduced with mastery by the State led to the marginalization of
customary community in its own territory.
Since it happened, the neglect and marginalization of forest control toward
the territory and living space of customary community by the state. During
the 14 years of implementation of the law cause Indigenous Community in
various regions lose the rights of customary territories taken over by other
parties using excuse of being given permission by the state. The
determination which are not pro Indigenous Community is encouraging the
various parties to the Judicial Review in the Forestry Act which violates the
constitutional rights of Indigenous Community.
Judicial Review was proposed by Aliansi Masyarakat hukum adat Nusantara
(AMAN), Kesatuan Masyarakat Hukum Adat Kenegerian Kuntu Kampar
regency Riau province and Kasepuhan Cisitu Lebak district Banten province.
In essence, the applicant argued on two points, the first related to the status
of customary forest which immediately included in the state forest. Second
petitioners complained of conditional recognition of Indigenous Community
particularly phrase "so far as reality is still there and acknowledged its
existence". In its decision the Court granted regarding forests into state
forests which is contrary to the 1945 Constitution, while the conditional
recognition of Indigenous Community is considered constitutional.
There are three matters decided by constitutional court related to customary
forest. First Constitutional Court deleted the phrase "state" in Article 1, item
6, so that the article 1 number 6 become "customary forest is a forest
located in the area of Indigenous Community." Second the Court
conditionally interpreted the Article 5, paragraph (1) to the extent not
interpreted as "State Forest referred to in paragraph (1) letter a, not
including customary forest" and delete the phrase "and paragraph (2)" in
Article 5 paragraph (3), so that further strengthen customary forest not state
forest. The three constitutional Court stated Article 4 paragraph (3) of the
Forestry Law contradicts to the 1945 Constitution and does not have binding
legal force throughout it does not mean 'forest tenure by country taking into
account the rights of Indigenous Community, all still alive and in accordance
with the development of community and the principles of the Republic of
Indonesia regulated by law.
The Constitutional Court decision implies that the customary forest areas
should be set by the government. It means that the Constitutional Court's
decision does not necessarily make the indigenous community declare an
area as customary forest. Inauguration of the indigenous community and
Species
Family
Strobilanthes involucrata
Acanthaceae
Strobilanthes paniculata
Acanthaceae
Mangifera foetida
Anacardiaceae
Orophea sp.
Annonaceae
Arisaema cf. barbatum
Araceae
Amorphophallus sp.
Araceae
Caladium bicolor
Araceae
Arisaema cf. barbatum
Araceae
Balanophora elongata
Balanophoraceae
Impatiens elephanticeps
Balsaminaceae
Impatiens pseudoperezii
Balsaminaceae
Impatiens platypetala
Balsaminaceae
Gigantochloa apus
Bambusaceae
Bambusa vulgaris
Bambusaceae
Begonia spp.
Begoniaceae
Spathodea campanulata
Bignoniaceae
Durio zibethinus
Bombacaceae
Ananas comosus
Bromeliaceae
Canarium vulgare
Burseraceae
Costus speciosus
Costaceae
Cucurbita moschata
Cucurbitaceae
Trichosanthes sp.
Cucurbitaceae
Agave angustifolia
Dracaenaceae
Equisetum sp.
Equisetaceae
Aleurites moluccana
Euphorbiaceae
Baccaurea motleyana
Euphorbiaceae
Codiaeum variegatum
Euphorbiaceae
Croton sp.
Euphorbiaceae
Erythrina variegata
Euphorbiaceae
Euphorbia pulcherrima
Euphorbiaceae
Euphorbia tirucalli
Euphorbiaceae
Sauropus androgynus
Euphorbiaceae
Lithocarpus sp.
Fagaceae
Quercus sp.
Fagaceae
Flacourtia rukam
Flacourtiaceae
Cyrtandra pendula
Gesneriaceae
Cyrtandra sandei
Gesneriaceae
Oryza sativa
Gramineae
Oryza sativa
Gramineae
Callophyllum inophyllum
Guttiferae
Cinnamomum burmanni
Lauraceae
Barringtonia sp.
Lecythidaceae
Parkia javanica
Leguminosae
Parkia speciosa
Leguminosae
Phaseolus vulgaris
Leguminosae
Pithecelobium confertum
Leguminosae
Vigna sinensis
Leguminosae
Lycopodium serratum
Lycopodiaceae
Hibiscus rosa-sinensis
Malvaceae
Hibiscus cf. tiliaceaus Urena Malvaceae
Lobata
Malvaceae
Sida sp.
Malvaceae
Biodiversity in the
territory
of
indigenous
community,
especially
in
customary
forest
should be protected
and respected for
storing a wide range
of
potential
and
benefits
both
for
society
and
indigenous
community or for the
outsiders
and
science
especially
related to treatment
and food products.
Biodiversity
contained
in
customary
Forest
Rantau
Kermas
village
traditionally
used for daily life
such as medicine,
decoration,
food
needs,
seasonings,
preservatives and so
forth where existing
varieties is still wellpreserved. With the
decree of Regent of
merangin
regency
concerning
affirmation
of
customary
forest
Rantau
Kermas
village
and
local
regulation No. 8 Year
2016
on
the
Recognition
and
Protection
of
Indigenous
10
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In 1990, the government ratified Law No. 5 year 1990 on the conservation of
natural resources and ecosystems as the legal provision which is expected to
move operationally in protecting the biological condition of natural resources
in Indonesia.
In considering the chart preamble the letter c Law No. 5 year 1990 on
Conservation of Biological Resources explained that the elements of natural
resources and ecosystems are essentially interdependent and influence each
other so that the destruction and extinction of one element will result in
disruption of the ecosystem. In Article 28 of Law No. 5 year 1990 explained
that the use of plants and wildlife is done by observing the survival potential,
capacity, and the diversity of plants and wildlife. Germplasm as the basic
material biotechnology engineering process is a source of genetic wealth
with a very high value. The high value of germplasm will harm Indonesia with
the theft that occurred in the tropical forests of Indonesia.
Then some legislation is also presented in providing protection to biodiversity
such as Law 5 year 1994 on the Convention of Biological Diversity
(ratification of United Nations Convention on Biological Diversity), and the
enactment of Law No. 32 year 2009 on the Protection and Management of
the Environment and the issuance of Law NO. 31 year 2004 on Fisheries.
Likewise, on May 8th, 2013 Indonesia ratified the Nagoya Protocol which was
held on May 11th, 2011 in Japan as Law No. 11 Year 2013 on the Ratification
of the Nagoya Protocol on Access to Genetic Resources and the equitable
sharing of benefits and balanced arising from the use of biodiversity. This is
certainly a call for the government to preserve and protect biodiversity in
Indonesia, which the State has neglected and less likely to involve the local
community or indigenous community in preserving biodiversity through
customary forest schemes as stated in the Constitutional Court decree No.
35/PUU-X/2012 regarding customary forest which is forest within a territory
of customary community is no longer necessarily included into the state
forest.
CONCLUSION
The existence of Indigenous Community existed long before the country the
Republic of Indonesia is formed. Based on the legislation in Indonesia
recognizes the existence of Indigenous Community and their traditional
rights including the management and protection of biodiversity found in
customary territory of Indigenous Community.
In the development of Indigenous Community tend to receive discrimination,
in marginalization, there is criminalization so the rights of Indigenous
Community being lost and amputated both with the policies and actions of
government officials and the private parties so that protection and
recognition of rights of indigenous community is necessary in managing
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DAFTAR PUSTAKA
Buku
Agus, 2013, Perlindungan Hukum terhadap Hak-Hak Atas Tanah dan Hutan
Adat yang Dikuasai Oleh Masyarakat Adat di Propinsi Jambi (Studi di
Desa Renah Kemumu dan Desa Tanjung Kasri Kecamatan Jangkat
Kabupaten Merangin), Disertasi program Pasca Sarjana Universitas
Phariyangan, Bandung.
Bambang Hariadi, 2013, Orang Serampas : Tradisi, Pengetahuan lokal dan
Pelestarian Alam, IPB Pres, Bogor.
JurnalTransformasi Sosial 33/XVI/2014, Insist Press, Yogyakarta.
Laporan Riset KKI WARSI, Kesiapan Masyarakat Adat dalam Implementasi
Hutan Adat Pasca Putusan MK Nomor 35/PUU-X/2012 dan Peraturan
Menteri Kehutanan Nomor : P.62/Menhut-II/2013 Tentang Perubahan
Atas Peraturan Menteri Kehutanan Nomor P.44/Menhut-II/2012 Tentang
Pengukuhan Kawasan Hutan, 2015, Jambi.
Mia Siscawati, 2014, Masyarakat adat dan system-sistem penguasan dan
pengelolaan hutan.
Muchtar Agus Cholif, 2009, Timbul Tenggelam Persatuan Wilayah Luak XVI
Tukap Khunut Di Bumi Undang Tambang Teliti, Jambi.
William Marsden, 1783, Sejarah Sumatera, Penerjemah : Tim Komunitas
Bambu,, Jakarta.
Yando Zakaria, 2014, Kriteria Masyarakat (hukum) adat dan potensi
implementasi terhadap perebutan sumber daya hutan pasca-Putusan
MK Nomor 35/PUU-X/2012 studi kasus kabupaten kutai Barat,
Kalimantan Timur, Jurnal Tranformasi Sosial Nomor 33 tahun XVI, 2014
Insist, Jogjakarta.
Peraturan Perundang-Undangan
Undang-Undang Dasar Negara Republik Indonesia Tahun 1945.
Undang-Undang Nomor 5 Tahun 1960 Tentang Pokok-Pokok Agraria.
Undang-Undang Nomor 5 tahun 1990 tentang konservasi sumber daya alam
hayati dan ekosistemnya.
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