Comparative Recognition of Customary Land Rights Based on Legal Systems in Indonesia and Australia: Codification and Jurisprudence

Abstract

This article examines the law systems that recognize indigenous land rights within the legal frameworks of Indonesia and Australia by comparing the civil law model based on codified legislation with the common law system grounded in jurisprudence. Indonesia, which adheres to the civil law tradition, recognizes indigenous land rights through written regulations such as the Basic Agrarian Law (UUPA) and the Constitution. However, its implementation is hindered by structural, administrative, and procedural challenges. In contrast, Australia recognizes indigenous land through the Native Title Act 1993, utilizing a case law-based approach that allows for judicial recognition and legal adaptation over time. This study employs a normative legal research method with a descriptive-analytical approach, drawing on Friedman’s theory of legal systems, the theory of collective rights, and legal pluralism. The findings reveal that differences in legal systems significantly influence the recognition and protection of indigenous land rights. Indonesia’s reliance on rigid codification may obstruct the recognition of untitled communal lands, whereas Australia’s jurisprudential model enables more flexible responses through precedent (setting court rulings) despite facing tensions between indigenous claims and economic development interests. The study recommends enhancing Indonesia’s administrative recognition system and adopting a more pluralistic legal approach to ensure substantive justice and cultural preservation for indigenous communities.