Page 24 - Konstitusionalisme Agraria

control over land and other natural resources that are different from
the conception of HMN. In the decisions of the Constitutional Court,
the term HMN is becoming obsolete. The Constitutional Conception
of the State Control (Konsepsi Konstitusional Penguasaan Negara) is
a new conception of state control that conducted through regulatory
authority, makes policy, maintenance, management and supervision.
This conception is also provides benchmarks and limits of state
control that should not be carried out in violation of the rights of
citizens. State control over land and other natural resources shall
be used for public welfare (usefulness, equity, participation and
recognition of the rights of indigenous peoples) (Chapter VI, VII
and VIII).
It is inevitable that colonialism has inf luenced the
conceptualization of state authority over land and natural resources
and it’s still give impression in the practice of contemporary state
policy. Through Domein Verklaring principle that was introduced
in colonial policy through Agrarische Wet 1870, the colonial rulers
control of land and other natural resources (Chapter IX). The
colonial rulers started their intervention through spice trade, then a
monopoly on agricultural products, mastering marine transportation,
mastering strategic ports, built cities, then went further into the
mainland to develop business plantation and forestry. In the mid-
nineteenth century they began to look mining sector. Domein
Verklaring principle contained in the Agrarische Wet 1870 that had
revoked by the BAL 1960, but strangely still applied in contemporary
Indonesian policies and practices, especially in forestry sector.
This book discussed the three conceptions of state control over
land and other natural resources, namely (1) Domein Verklaring
Principle; (2) the State’s Rights of Control; and (3) the Constitutional
Conception of State Control (Chapter IX). Domein Verklaring principle
introduced by Agrarische Wet 1870 and a number of Ordinances in
the forestry sector. Meanwhile, the State’s Rights of Control (HMN)
was first introduced in BAL 1960 and has been following by a number
of subsequent legislation. While the Constitutional Conception of
State Control is a new conception that evolved from judicial activism

Executive Summary xxiii