RJOAS March 2025
by
Poetra Rizal Akbar Maya, Doctoral Candidate
Nurjaya I Nyoman, Koeswahyono Imam, Permadi Iwan, Professors
Faculty of Law, University of Brawijaya, Malang, Indonesia
This research is motivated by the fact in the field that the interests of customary law communities have not been accommodated and implemented optimally in tourism development in Indonesia even though the recognition of these rights has been outlined in Article 18B paragraph (2) of the 1945 Constitution of the Republic of Indonesia. In this regard, it is necessary to regulate policies regarding tourism which are also inseparable from his attention to the use of legal language so that it can be understood by the public. This study aims to find out and analyze the comparison of legal language to the recognition of customary law communities in Tourism Development by conducting a comparative study between Indonesia and New Zealand. This research is a type of normative legal research using a socio-legal approach, a statute approach, a conceptual approach, and a comparative approach. Clear, precise, and inclusive legal language is essential in tourism arrangements. It helps create legal certainty, protects the rights and obligations of all parties, sets quality standards, supports conservation and sustainability, ensures local community participation, facilitates oversight and law enforcement, supports transparency and accountability, and encourages innovation and adaptation. With effective legal language, the tourism sector can develop in a way that is sustainable, fair, and beneficial to all parties involved.
Indonesia has an abundance of natural resources, both biological and non-biological. Its natural potential includes the sea, land, earth, and various other riches. Although some of them have been utilized, there is still a lot of potential that has not been exploited due to various obstacles such as technology and economy. However, if managed properly, this great natural potential can make a great contribution to the development of the country and the welfare of the people. This includes the agriculture, forestry, marine, fisheries, livestock, plantation, mining, and energy sectors. In utilizing natural resources, the government as the holder of control over these resources has the main responsibility to manage the existing potential and fully utilize it for the benefit and welfare of the community. Therefore, to manage and utilize natural resources, the participation of various parties is needed.
One example of the need for the participation of various parties is in tourism development. Setiawan said that with the large amount of natural resources Indonesia will be able to provide great benefits for the country if managed properly by the government, one example of the effort is by utilizing areas in Indonesia to become tourist destinations (Iwan Setiawan, 2019). The utilization of the region as a tourist destination can make a great contribution to increasing the country's source of revenue through its exotic natural wealth. This is also in line with the concept of regional autonomy which is expected to run well by the Government, where each region is given the authority and ability to explore financial resources, manage and use its own finances that are adequate enough to finance the administration of its government.
In addition to having beautiful natural wealth, Indonesia also has a diversity of arts and cultures that make each region have unique characteristics that can be explored both from the national to international scenes (Ristini & Citra, 2022). The diversity of arts and culture can be collaborated with Indonesia's natural wealth in order to develop tourism in each region. As stated by Waani, one of the important aspects in tourism development is the cultural aspect (Waani, 2016). This is supported by Anugrah's opinion in his article, that Indonesia has placed regional cultures spread throughout Indonesia as the branding or mainstay of its products (Anugrah, 2023). Thus, it can be said that Indonesia's cultural diversity can be used as basic capital to strengthen Indonesia's image which is manifested in the form of regional tourism destination development.
The importance of cultural values in tourism development is maintained by the existence of a national tourism policy that has clearly and explicitly determined that cultural diversity is made one of the focuses of tourism development (Anugrah, 2023). This is emphasized in the General Explanation of Law of the Republic of Indonesia Number 10 of 2009 concerning Tourism, that culture and other wealth in the form of strategic geographical location, diversity of languages and ethnicities, art, natural conditions, and others are resources and capital to increase the prosperity and welfare of the Indonesian nation as contained in Pancasila and aspired in the Preamble to the Constitution of the Republic of Indonesia in 1945. Furthermore, it is also explained in the Law that these resources and capital need to be utilized optimally through the implementation of tourism aimed at increasing national income, expanding and equalizing business opportunities and employment, encouraging regional development, introducing and utilizing tourist attractions and destinations in Indonesia, as well as fostering a sense of love for the homeland and strengthening friendship between nations.
By being integrated with cultural values, tourism development is not only to increase economic activities, but also to strengthen the sense of nationality and love for the homeland, as well as to inspire the spirit of national unity and unity (Rinda & Hasbi, 2018). The preservation of cultural values is beneficial for the community to maintain the authenticity and traditions that have existed since the decline. Ahmad stated that culture is a complex that includes knowledge, beliefs, art, morals, laws, customs, and other abilities and habits that are acquired by humans as members of society (Ahmad, 2021). The existence of customary law communities as one of the communities in the social system is an inseparable part of the ability to universalize wider culture (Nuranisa et al., 2023), Especially its empowerment in regional tourism development.
The protection of customary law communities with all their cultural wealth needs to be accommodated in a law and regulation so that their rights are not violated. In the preparation of these laws and regulations, the government should pay attention to the use of legal language so that it can be easily understood by the public, so that the goal of regulation is achieved. Clear, precise, and inclusive legal language is essential in tourism arrangements. It helps create legal certainty, protects the rights and obligations of all parties, sets quality standards, supports conservation and sustainability, ensures local community participation, facilitates oversight and law enforcement, supports transparency and accountability, and encourages innovation and adaptation. With effective legal language, the tourism sector can develop in a way that is sustainable, fair, and beneficial to all parties involved.
This type of research is a normative legal research to critically examine legal language in laws and regulations that reflect alignment with the regulation of the interests of protecting the rights of local communities over cultural traditions and preserving the local wisdom of local communities. Normative law research is normative law research is legal research that lays the law as a building of a norm system. The norm system in question is about the principles, norms, rules of laws and regulations, court decisions, agreements and doctrines (teachings) (Nugroho et al., 2020). Meanwhile, the research approach used is a socio-legal approach, a statute approach, a conceptual approach, and a comparative approach. The socio-legal approach is a research approach that identifies not only the text, but also the deepening of the context, which includes all processes, for example from 'law making' to 'implementation of law'. The study label of socio-legal studies has gradually become a general term that includes a group of disciplines that apply a social science perspective to the study of law, including legal sociology, legal anthropology, legal history, psychology and law, judicial political science studies, and comparative science (P.Wiratraman, 2018).
The statute approach is to examine the products of legislation related to national tourism development policies and tourism development in the regions, while the conceptual approach is to examine the legal concepts used in the laws and regulations on tourism. The statute approach is carried out by examining all laws and regulations related to the legal issues being discussed (researched) (Muhaimin, 2020), Meanwhile, the conceptual approach proceeds from the views and doctrines that have developed in legal science (Marzuki, 2017). The research approach was chosen in order to find answers to legal issues in a legal research. Therefore, the suitability of the approach with legal issues is the main consideration in conducting the election. In addition, another approach is to use a comparative approach, which is an approach taken to compare the laws of one country with the laws of other countries (Hutagulung, 1967). This study also compares the use of legal language on the concept of recognition of customary law communities between Indonesia and New Zealand, so that it can be used as an example in terms of increasing policy attention to the interests of customary law communities.
The legal materials used and collected in The legal materials collected in the study consist of primary legal materials, secondary materials, and tertiary legal materials. Primary legal materials include laws and regulations, international conventions, and regional regulations that regulate national and regional tourism development policies. Secondary legal materials include books, journals, previous research results, papers in seminar proceedings, and relevant documents obtained from official sources. Meanwhile, tertiary legal materials are materials that provide clues and explanations to primary and secondary legal materials which include legal dictionaries, Indonesian dictionaries, and encyclopedias.
The collection of legal materials is carried out by visiting libraries, documentation and information centers, tourism study centers, which are in various universities as well as in official agencies and institutions as well as the Ministry of Tourism and Creative Economy as well as local governments that are included in the national strategic tourism development policy, such as Bali (Batur-Kintamani Geopark), West Sumatra (Toba), NTT (Labuan Bajo), North Sulawesi (Bunaken), East Java (Bromo-Tengger-Semeru), Papua (Raja Ampat), and West Java (Baduy).
Primary, secondary, and tertiary legal materials collected from various official sources are then categorized, classified, interpreted, and analyzed using an analytical-prescriptive model, by describing the results of the research and then analyzing quantitatively so that conclusions and recommendations that are useful for improving government policies and the government in building national tourism development policies and regional tourism development policies are obtained. sustainable and equitable for efforts to protect and preserve the cultural traditions and wisdom of local customary law communities in the context of sustainable national development.
The development of the tourism sector in Indonesia has been outlined in various government policies, ranging from laws, presidential decrees, to in the form of regional regulations. The importance of policies in the development of the tourism sector is because tourism is one of the sectors that is expected to be reliable in the development of the economic sector (Rahmi, 2016). Therefore, tourism development is carried out through a complete, integrated, and participatory system approach using economic, technical, socio-cultural, energy-saving, nature and environmental conservation criteria.
Every time formulating a policy, the Government must pay attention to various things, including the lives of the local community. By looking at the lives of the local community, especially those who are still thick with customary law, it greatly affects the implementation of the law that has been set by the Government. Geographically, Indonesia is a country with a large territory with unique natural and cultural wealth, in the form of tourism assets spread throughout the archipelago. The existence of all assets is a tourism potential that can bring foreign exchange to the State, especially the local community. Seeing its constructive function for the nation and local community, tourism needs to have a clear concept and definition (Rahmi, 2016).
In connection with the above, tourism development should involve customary law communities with maximum empowerment of their roles. Customary law communities that are identical to their cultural wealth also play a very important role in the development of regional tourism, with the form of cultural tourism development. Cultural tourism provides opportunities for tourists to have direct contact with local communities as well as with individuals who have special knowledge about a cultural object. Constitutionally, the 1945 Constitution of the Republic of Indonesia has actually recognized the existence of customary law communities and their traditional rights, including the rights of cultural traditions and local wisdom, as stipulated in Article 18B paragraph (2) of the 1945 Constitution of the Republic of Indonesia which states: "The state recognizes and respects the units of customary law communities and their traditional rights as long as they are alive and in accordance with the development of society and the principles of the Unitary State of the Republic of Indonesia, which are regulated in the law". These provisions provide a constitutional position for customary law communities in relation to state administrators, how customary law communities should be enforced as well as constitutional mandates that must be obeyed by state administrators, to regulate the recognition and respect for the existence of customary law communities and their traditional rights in laws and regulations.
If carefully studied in the relationship between national tourism development and efforts to protect the cultural existence of customary law communities, Law of the Republic of Indonesia Number 10 of 2009 concerning Tourism (hereinafter referred to as the Tourism Law) does not explicitly recognize and protect the cultural traditions of local communities because it prioritizes the tourism industry as a resource for economic growth and increasing state income and foreign exchange. As stated in Article 1 number 5 of the Tourism Law that "Tourist attractions are everything that has uniqueness, beauty, and value in the form of a diversity of natural resources, culture, and man-made products that are the target or purpose of tourist visits." In this case, the mention of "culture" which is only equated with other tourist attractions shows how local culture has not yet become an important subject in national tourism arrangements.
Although political and legal policy changes to the recognition of customary law communities have been made and accommodated in the 1994 Constitution of the Republic of Indonesia, it turns out that the fate of customary law communities has not undergone significant changes until now. This has also been stated by Thontowi in his article, that the absence of these changes is due to several factors, including the following:
- The recognition and respect for customary law communities as stipulated in Article 18B paragraph (2) and 28I paragraph (3) of the 1945 Constitution has not been implemented, and therefore customary law communities have not received real benefits. The position of customary law communities who are not legal subjects (legal standing) not only does not have the authority to control a property right, but also they cannot litigate in court. In fact, Law No. 24 of 2003 provides opportunities for customary law communities to be able to litigate at the Constitutional Court of the Republic of Indonesia;
- The unclear legal position of MHA results in legal uncertainty and legal justice cannot be obtained. The constitutional rights of customary law communities that should be able to be utilized by community members. Their conditions in the fields of education, culture, health services, and socio-economic fields are generally underdeveloped. When MHAs fight for their constitutional rights as a result of national economic policies such as their customary lands being controlled by domestic and foreign capital owners cannot be prevented. National development policies held in various regions, whether due to the mining of gas, oil and other coal minerals, or due to the overlap of regulations between customary lands and forestry, MHA is defeated. In fact, the recognition and respect for MHA, textually, has been clearly regulated in the sectoral law (Thontowi, 2013).
In connection with the facts stated by Thontowi mentioned above, the author also has the same opinion on the lack of maximum recognition of the existence of customary law communities in several regulations in Indonesia, especially in regional regulations governing tourism, which can be identified in the following areas.
- Recognition of Customary Law Communities in the Development of Tourism in Bali.
The culture of the Balinese customary law community is mainly a source of foreign exchange for regional and national economic growth, but the Balinese people are relatively unable to enjoy these economic benefits optimally for the welfare of the local community. This is because the conditions that have been developing in Bali show how culture is one of the important assets in the implementation of tourism service businesses, but what is prioritized is the interest of national economic growth. In connection with the development of tourism in the region, the Regional Government of Bali Province regulates in Regional Regulations, such as (1) Bali Provincial Regulation Number 4 of 2019 concerning Bali Traditional Villages; (2) Bali Provincial Regulation Number 4 of 2020 concerning the Strengthening and Promotion of Balinese Culture; and (3) Bali Provincial Regulation Number 5 of 2020 concerning Standards for the Implementation of Balinese Cultural Tourism. Nevertheless, when critically observed, there is a lack of clarity regarding the role and protection of the interests of the Balinese customary law community in tourism governance in Bali, which should be directed to the sustainable development of regional tourism based on the protection of customary law communities and the preservation of culture and local wisdom of the Balinese people. This is as stated in the Regional Regulation of the Province of Bali Number 4 of 2020 concerning the Strengthening and Promotion of Balinese Culture, which in its consideration does not use the legal basis of Law Number 10 of 2009 concerning Tourism, and is not synergistic in relation to other Regional Regulations of the Province of Bali in regulating the development of tourism and efforts to protect the customary law community and the preservation of the culture and wisdom of the Balinese people.
- Recognition of Customary Law Communities in Tourism Development in the Toba Region.
The development of tourism in Lake Toba also threatens the sustainability of the livelihoods of indigenous peoples who depend on their livelihoods from agriculture, fisheries, and handicrafts carried out around the lake. As a result, there are conflicts between indigenous peoples and tourism entrepreneurs, as well as with the government that seems to not pay attention to the rights of indigenous peoples in tourism development. Several cases of demonstrations and demands for the rights of indigenous peoples have occurred in the Lake Toba area. In Article 42 of the Regional Regulation on the Tourism Development Master Plan of North Sumatra Province for 2017-2025, it is stated that the policy direction of local community empowerment through tourism includes one of them as stated in letter g, namely by increasing the motivation and ability of the community in recognizing the characteristics, language, culture, and other psychological aspects of tourists who visit each tourist destination. From this clause, it can be assessed that the Regional Regulation on the North Sumatra Province Tourism Development Master Plan for 2017-2025 only prioritizes one side of tourists, without providing a reciprocal policy direction that tourists also need to pay attention to every aspect of the local community, in this case the indigenous people in North Sumatra. This proves that there is a gap in interests in the Regional Regulation on the Tourism Development Master Plan of North Sumatra Province Year 2017-2025.
- Recognition of Customary Law Communities in Tourism Development in Labuan Bajo Region.
Local communities, who often still carry out cultural traditions and apply customary law in their daily lives, feel marginalized in the rapid process of tourism development. Local communities often do not have equal access to the economic opportunities generated by the tourism industry and this gives rise to feelings of social injustice. In the context of West Manggarai Regency Regional Regulation Number 2 of 2017 concerning the Regional Tourism System, Presidential Regulation of the Republic of Indonesia Number 32 of 2018 concerning the Labuhan Bajo Tourism Area Management Authority Agency, and Ngada Regency Regional Regulation Number 2 of 2017 concerning the Regional Tourism Development Master Plan for 2017-2032, has an impact on the residence of the local community because there must be a population relocation, especially on Komodo Island. The idea of relocating the residents of Komodo Island is very strange because it will break and disrupt the bonds that have been inherent in the life of the Komodo dragon's natural ecosystem with the people who live there.
- Recognition of Customary Law Communities in Tourism Development in Bitung and Bunaken Regions.
The great influence of tourism can threaten the preservation of cultural traditions and the identity of customary law communities in Bitung and Bunaken. When tourism destinations become too commercial, local cultural values may be marginalized or even distorted by the influence of foreign cultures brought by tourists. This can lead to the erosion of local cultural identity and a decrease in pride in cultural heritage and customary legal wisdom. In the context of Bitung Mayor Regulation Number 34 of 2017 concerning the Tourism Village Area, although this regulation can open up new business opportunities for the local community, if not properly regulated, it can have a negative impact on the preservation of local culture. The emergence of businesses that are not in accordance with local cultural values can reduce the cultural values contained in the tourist village area.
- Recognition of Customary Law Communities in the Development of Tourism in the Tengger Region.
Traditional practices that have long been preserved and preserved can begin to be abandoned or significantly altered due to the adoption of new values and norms introduced by massive tourism, which can result in vulnerability to cultural exploitation by external parties seeking to profit from the tourism industry, without paying attention to or respecting local values and wisdom that should be respected and preserved. In the context of Probolinggo Regency Regional Regulation Number 4 of 2020 concerning the Probolinggo Regency Tourism Development Master Plan for 2019-2034, it can also have a negative impact, he said, with an increase in the number of tourists can also have a negative impact on the environment if it is not balanced with conservation and good management efforts. This can cause environmental damage such as water and air pollution, damage to natural habitats, and so on.
- Recognition of Customary Law Communities in the Development of Tourism in the Raja Ampat Region.
Raja Ampat still has limited access and is often expensive for tourists due to the lack of adequate airports and limited transportation networks. This lack of infrastructure not only hinders the growth of the tourism industry, but also limits the potential for local economic development and the welfare of local communities. In the context of West Papua Provincial Regulation Number 13 of 2013 concerning Tourism and Raja Ampat Regency Regional Regulation Number 16 of 2006 concerning Community-Based Integrated Management of Coastal and Marine Areas. Walaupun hak-hak masyarakat asli Papua has been specifically regulated in Law No. 21 of 2001 concerning Special Autonomy for Papua Province and has also formed an institution for cultural representation of indigenous Papuans which specifically regulates and protects these rights, but it is felt that it has not been properly touched, because the protection provided is still limited to recognition at the legal level.
- Recognition of Customary Law Communities in the Development of Tourism in the Baduy Region.
There is a rejection of tourism development in Baduy by indigenous peoples because it interferes with their cultural values and local wisdom. The Baduy people have concerns that the penetration of tourism will result in unwanted changes in their traditional lives, including lifestyles, beliefs, and customs that have been passed down from generation to generation. In the context of the implementation of West Java Provincial Regulation Number 15 of 2015 concerning the West Java Provincial Tourism Development Master Plan for 2015-2025, it can pose several challenges, such as implementation costs, limited resources, and the ability to supervise and enforce the law. Therefore, cooperation is needed between the government, local customary law communities, and tourism industry players to ensure that the implementation of this regulation can run well and have an optimal positive impact.
Based on the description of the explanation mentioned above, it can be said that tourism development in Indonesia which is outlined in the form of regional law products, there are still some neglects of indigenous peoples' rights related to customary lands and natural resources. In many cases, tourism development is carried out without considering the rights to indigenous lands and natural resources of indigenous peoples, which has an impact on the loss of these rights and ongoing injustices. The lack of legal protection for indigenous peoples is related to their traditional knowledge, such as knowledge of medicinal plants and the practice of local wisdom. The loss of this right to knowledge can have a negative impact on indigenous peoples and their unique knowledge.
The state recognition desired by customary law communities is holistic recognition, meaning recognition that does not divide the totality of customary law communities, namely recognition of rights, especially customary rights, customary law communities, customs, customary institutions, and customary law (Sukirno, 2011). This recognition has the consequence that government projects in the customary area, one of which is related to the development of regional tourism, must obtain permission from the customary law community, with various forms of policies and attention such as providing compensation, not threatening the cultural preservation of the customary law community, and also recognition as a legal entity and legal personality of the customary law community.
As explained in the previous sub-chapter, the practice of legal recognition and protection of indigenous peoples in Indonesia seems to lag far behind other countries. For example, in the country of New Zealand, Canada, several countries in Latin America are countries that can be considered the most advanced today in issuing policies for the recognition and protection of indigenous peoples. New Zealand provides full protection for the living space and cultural heritage of indigenous peoples. They also provide a special portion (a kind of affirmation policy) for representatives of indigenous communities to occupy a special portion in parliament, considering that many of the government and industrial policies are intersecting with indigenous peoples. This condition is the opposite of in Indonesia, where the agenda of political and legal recognition of the existence of indigenous peoples is actually running in place. The heritage of values, teachings, and knowledge inherited by his ancestors continues to erode. The circulation of knowledge in higher education institutions today is still relatively dominated by the acceleration of the industrial world, capitalism, and certain religious political interests (Ridha, 2022).
Another comparative study can illustrate the recognition of indigenous peoples in Australian territory. As explained by Thontowi in his article, there are examples of experience in 2 (two) countries that recognize the existence of customary law communities, such as the Maori Tribe in New Zealand. Thontowi pointed out that there is a writer named Erich who in his work mentions that the policy of recognition and promotion of the indigenous rights of both the Aboriginal people in Australia and the Maori tribe in New Zealand was first by recognition of an ethnic and cultural partnership of equal, and the recognition of customary law around the tenure of land and its rights is based on a past agreement. such as the Treaty of Waitangi. The form of recognition of customary law and their beliefs is manifested in the legal system or laws and regulations, among others (Thontowi, 2013).
The presence of Europeans in the 18th century had a great influence on the life of the Maori people. Maori society adopted a lot of culture and cultural and European influences. The relationship between the Maori indigenous people and European immigrants, especially the British Empire at that time, was poured into an agreement known as The Treaty of Waitangi (in Maori called Te Tiriti). This agreement was signed by and between 500 (five hundred) Maori chieftains and the Queen of England, although there were still some chiefs who refused to sign this agreement. This agreement was also recognized as the founding of the state of New Zealand. This agreement is considered to confer legal status on the Maori indigenous peoples of New Zealand. The substance of this agreement clearly recognizes the existence of the Maori community. The rights of the Maori as a customary law society are formalized in this agreement. The position between the Maori as a customary law society is aligned with the Kingdom as a party to the agreement between the Maori and the government to jointly build cooperation in the formation of a harmonious state that has lasted to this day (Wijaya, 2018).
Furthermore, in Wijaya's writing, it is explained in more detail about The Treaty of Waitangi or called Perjanjan Waitangi. The Treaty of Waitangi contained three articles, namely: article 1 contained about the Maori Traditional Chief handing over his sovereignty to the British government. Article 2 of the treaty provides the British Government with guarantees to the Maori community on "full, exclusive, and inalienable ownership" of land whether collectively or individually owned. Article 3 of this treaty contains guarantees from the British Government to the Maori customary law community of equality before the law. There are differences in translation between the English and Maori agreements. Article 1 of the Maori Waitangi treaty has a different meaning from the English treaty that only its government (kawanatanga) is handed over to the British. Then in article 2 when translated from a Maori agreement, the right to land ownership is absolute (te tino rangatiratanga). While article 3 of this treaty has the same meaning in both Maori and English. The difference in the use of this word shows that in this agreement the British Government has full power over the existence of these indigenous Maori peoples (Wijaya, 2018).
According to Paul Mc Hugh, one of the experts in constitutional law, it is stated that the recognition of rangatiratanga in the agreement provides the right to self-determination in terms of sovereign rights to assets (property), culture, and social systems. The Waitangi Agreement, although not yet adopted in positive law, is a very important document for New Zealand. Although the status of this agreement is still in doubt internationally, the agreement between the Maori and the government can be understood as a partnership. This cooperation is outlined by prioritizing the consent of the indigenous Maori people first if the government will establish laws and regulations that have direct implications for their rights (Wijaya, 2018).
The following is an example of how the legal language in New Zealand is used in tourism policies that pay attention to its cultural values:
Objective: To ensure that the development and management of tourism in New Zealand pays attention to and respects cultural values, in particular Māori cultural values, in accordance with the principles of Te Tiriti o Waitangi.
Policies:
- Consultation with Indigenous Communities: Any tourism project or activity that has the potential to impact Māori cultural heritage should be developed and implemented after thorough consultation with the relevant iwi and hapū communities;
- Use of Māori Language: The use of Māori terms and place names should be done correctly and respectfully in all official tourism communications;
- Protection of Cultural Sites: Sites of cultural or historical value to the Māori must be protected from damage or disturbance, and tourist access to such sites must be regulated in accordance with the directives of indigenous communities;
- Respect for Traditional Intellectual Property Rights: Any use of traditional knowledge, cultural practices, or works of art in the context of tourism must be done with proper permission and recognition to the owner of such right;
- Education and Awareness: Educational programs should be developed to raise awareness among tour operators and tourists about the importance of respecting Māori cultural values.
With a careful and respectful approach to cultural values, New Zealand can develop its tourism sector in a sustainable and inclusive way, while preserving its rich and diverse cultural heritage.
Based on the above, the concept of recognition of customary law communities applied in New Zealand can be used as a pilot in Indonesia, with the concept that in terms of regional tourism development, the government can collaborate with customary law communities or indigenous community leaders so that in its implementation it can accommodate modern tourism development but do not override cultural values that have been previously maintained by legal communities local customs. In the cooperation agreement, an agreement can be contained to continue to prioritize the consent of customary law communities in carrying out regional tourism development. One of the things that can be agreed upon is to improve the quality of customary law community resources with various trainings and socialization, so that customary law communities can develop and adapt to regional tourism development so that customary law communities can also take part in the development process. The legal community can have a role in supporting environmental conservation through local wisdom so that it needs to get appropriate rewards in the form of empowerment programs so that they can live more prosperously.
Constitutionally, the 1945 Constitution of the Republic of Indonesia has actually recognized the existence of customary law communities and their traditional rights, including the rights of cultural traditions and local wisdom, as stipulated in Article 18B Paragraph (2) of the 1945 Constitution of the Republic of Indonesia. However, in reality there are still public interests that are not protected. In some cases, indigenous peoples and farmer groups have even had to be evicted from their own customary lands. They are currently experiencing a lot of marginalization and discrimination in various things. In fact, currently indigenous groups and peoples around the world are experiencing the release and individuation of ancestral lands and customary lands. In terms of tourism, the condition of national tourism development shows that not all laws and regulations regarding tourism in Indonesia pay attention to and accommodate the protection of the interests and cultural protection of local indigenous peoples. There are still tourism development policies in the regions that are designed without paying attention to and considering the importance of providing a real role and involvement of customary law communities and their traditional rights, starting from planning, implementing, monitoring and evaluating regional tourism development which can be observed from regional law products, namely regional regulations that regulate regional tourism development.
In terms of efforts to optimize the recognition of customary law communities in Indonesia, at least Indonesia can take steps by reflecting on existing policies abroad, where positive things that are in accordance with the characteristics of Indonesian society can be implemented in Indonesia, one of which is the Waitangi Agreement in New Zealand. The government can collaborate with customary law communities or indigenous community leaders so that in its implementation it can accommodate modern tourism development but does not override cultural values that have been previously maintained by local customary law communities. By modeling New Zealand's legal language and approach, Indonesia can develop a tourism policy that not only promotes the tourism industry but also protects and celebrates its cultural richness.
Original paper, i.e. Figures, Tables, References, and Authors' Contacts available at http://rjoas.com/issue-2025-03/article_01.pdf