Pertambangan, Hak Menguasai Negara, dan Hak Ulayat: Model Rekonsiliasi di Negeri Tamilouw

Abstract

Mining activities place the state’s authority to manage natural resources in direct interaction with customary rights. This article examines the legal status of customary rights within the State’s Right of Control (Hak Menguasai Negara/HMN), analyzes the legal context of gold mining in Tamilouw, Central Maluku, and proposes a reconciliation model among the state, business actors, and indigenous communities. The study uses normative legal research with statutory, conceptual, and case approaches. Primary materials include the 1945 Constitution, the Basic Agrarian Law, the mineral and coal mining regime, environmental regulations, Minister of Agrarian Affairs and Spatial Planning/Head of the National Land Agency Regulation No. 14 of 2024, and Constitutional Court Decision No. 35/PUU-X/2012. Secondary materials include recent scholarly studies on mining, customary rights, Tamilouw, and Free, Prior and Informed Consent (FPIC). The findings show that the main problem is not an inherent conflict between HMN and customary rights, but rather the weak integration of customary territory recognition, meaningful participation, environmental protection, and benefit-sharing. The article proposes five stages: recognition and mapping of customary territories; meaningful participation and FPIC; a binding tripartite agreement; benefit sharing and environmental safeguards; and collaborative monitoring