Customary land and community consent in Kalimantan

A lot of rural Kalimantan is held under customary (adat) law, by Dayak communities and others whose rights appear on no certificate. Indonesian law recognises those rights, but only through a formal process that many communities haven’t finished.

So land can carry a valid title or licence and still be claimed by the people around it. How the community sees the land is part of what the land is worth.

What customary land is

A customary law community (masyarakat hukum adat) holds land collectively under its own law, a communal right called hak ulayat. It can take in fields, fallow land, forest, rivers, graves and sacred sites, while members hold their own plots under customary rules. Dayak is a collective name for many groups in Borneo’s interior, each with its own language and customs, so practice varies.

Article 18B of the 1945 Constitution recognises customary law communities and their traditional rights as long as they’re still living. The Basic Agrarian Law (Law 5 of 1960) recognises hak ulayat where it still exists in fact and fits the national interest.

Land that looks empty often isn’t. Many communities farm in rotation, planting a field for a season or two and then leaving it fallow for years, so scrub and young forest can belong to someone’s farm. Customary claims also overlap with the village land letters covered in unregistered land.

The 2013 ruling and regional recognition

The Forestry Law (Law 41 of 1999) defined customary forest as state forest inside a community’s territory. In 2013, in decision 35/PUU-X/2012, the Constitutional Court struck the word “state” from that definition, so customary forest is no longer state forest.

The ruling returned no forest by itself. The forestry ministry still has to designate each customary forest, and only for a community already recognised. Until then the forest stays state forest on the official maps, which is one reason customary claims and forest area status often collide.

Recognition runs through the regions. Article 67 of the Forestry Law calls for a regional regulation (peraturan daerah, Perda), and the forestry ministry’s rules (Minister of Environment and Forestry Regulation 9 of 2021) accept a regional regulation or a decree of the regional head. Under Home Affairs Minister Regulation 52 of 2014, a district committee checks the community’s history, territory, customary law and institutions, and the regent or mayor then recognises it by decree. A national law on customary communities has been on parliament’s list for years, and the government’s draft, sent to the House in February 2026, was still under discussion in mid-2026.

The land office has a route too. Under Land Ministry Regulation 14 of 2024, customary land is recorded in a register, and a community can have it registered as a right of management (Hak Pengelolaan, HPL) in its own name. Few have: the ministry reported 57 such certificates for 18 communities between 2023 and September 2025.

Where conflicts start

On plantations, disputes usually go back to how the land was acquired:

• The licence or the right to cultivate (Hak Guna Usaha, HGU) covered land the community farms, because official maps showed state land.
• The company dealt with the village head or a few families, not with the customary institution.
• The payment covered crops but not the land, or the community saw it as rent while the papers recorded a surrender.
• Promised smallholder plots or jobs never came (see smallholders and plasma).
• Graves or sacred sites were damaged, which customary law punishes with fines.

Mines carry a related risk. The Mining Law makes an exploration licence holder get the consent of whoever holds rights to the land, and a production licence holder settle land rights before mining, which it can do in stages. A pit that grows every year means a new round of land deals each time. The same law makes it an offence to obstruct a licensed mine that has settled its land rights, so a dispute can become a criminal case against residents. In 2026 a deputy chair of parliament’s legislation body cited such cases as a reason to pass the national bill.

Consent and compensation in practice

The Plantation Law (Law 39 of 2014) says that when a plantation needs customary land, the company must hold a deliberation (musyawarah) with the community and agree on handing over the land and on what the community gets in return. Officials may not license a plantation on customary land without that agreement.

Buyers and certifiers expect more. RSPO certification requires the free, prior and informed consent (FPIC) of people whose legal, customary or user rights a plantation affects. The EU deforestation regulation treats community consent as part of legal production, as the EU deforestation rules explains.

Consent that holds up comes from the customary institution and the rights holders, not only the village government. It’s given before the licence and before any clearing, by people who have seen the map, the terms and what happens when the HGU ends. It’s written down: who was paid, how much and for which plot, witnessed by the village and sub-district heads. Compensation can cover the land, the crops and buildings on it (ganti rugi tanam tumbuh), smallholder plots and community programmes. Paying the wrong person usually means paying twice.

Why it belongs in the valuation

An open claim has a cost even when the title is clean. A blockade can stop the harvest or close a haul road. Objections can slow an HGU renewal. A complaint to a certification body can put a certificate at risk, and buyers who check their supply chains may walk away. Settling takes mapping, negotiation and money, and sometimes land goes back to the community.

Price unresolved claims in as a liability, with an estimate of the area, the cost and the time. A seller’s word that relations are good isn’t evidence.

Before you buy or sign

• Ask for every land release, map and compensation receipt, and match them to the planted or mined blocks.
• Ask the district government whether it has recognised a customary community in or near the area, and the land office about customary land registers.
• Visit the villages without the seller, and talk to the customary head, the village head and the families along the boundary.
• Look for court cases, police reports and certification complaints involving the land, and check whether past promises were kept.
• Hold back part of the price until open claims are settled, with a deadline in the contract.