Addressing Regulatory Overlapping In Recognizing And Protecting Customary Communities: Study On The Sorong Regency Regulation Regarding The Acknowledgement And The Protection Of Moi Customary Community

Abstract

Customary communities’ recognition and protection are still at a standstill. Various regulations were developed, but they contradicted one another, not only at the higher level of the regulatory hierarchy but also at the lower ones including at the sectoral level. This situation increases legal uncertainty for customary communities, who are constantly overshadowed by the inclusion of external interests, particularly businesses, in their customary lands. On the one hand, indigenous communities are open to the entry of outsiders, but they also want to be recognized and protected first and foremost for their existence as well as their land. As a result, they have wiggle room and an offer to negotiate. One legal instrument that appears is the Sorong Regency Regulation (Perda) No. 10/2017 which attempts to regulate and establish recognition as well as protection for the Moi Community in the Sorong Regency. These two regulations are regarded as a significant step forward in the protection of the community. This article attempts to study the extent to which the regulation is sufficient to protect or not by taking a qualitative and juridical normative approach to the applicable regulations and relevant conceptions. As a result, the Sorong regulation still adopts central level regulations that require administrative and substantive recognition of one customary community by the local government through a long and costly process of local legislation. Supposedly, the government must be consistent in implementing the arrangement of the delegation of customary community acknowledgment to local governments. The central government can establish guidelines for the recognition, while the local government has more autonomy to determine further arrangements.