Protection of the Constitutional Rights of Indigenous Peoples in Mining Management: A Comparative Study of Indonesia and the Philippines

Abstract

As an archipelagic nation with widely distributed natural resources, Indonesia faces the challenge of balancing mining management with the protection of the rights of customary law communities. This study aims to analyze and compare the constitutional protection of customary law communities' rights regarding mining management in Indonesia and the Philippines, identifying their similarities and differences. The research employs a normative legal method utilizing statutory, conceptual, and comparative approaches based on a literature review of primary, secondary, and tertiary legal materials. The study's novelty lies in its comparative analysis linking constitutional foundations, mining regulations, institutional frameworks, consent and participation mechanisms, implementation, and the effectiveness of protection. The findings reveal similarities between Indonesia and the Philippines regarding the rights customary law communities hold over their territories. Both nations integrate these rights within a framework of state control over mineral resources, albeit through differing methodological approaches. In Indonesia, recognition under Article 18B, Paragraph (2) of the 1945 Constitution is conditional, requiring further implementation through sectoral legislation. Consequently, existing protection mechanisms operate reactively and currently lack specific legislation or comprehensive institutional support. In contrast, the Philippines has achieved comprehensive consolidation of this recognition through the Indigenous Peoples' Rights Act of 1997 and the establishment of the National Commission on Indigenous Peoples. Furthermore, the Philippines implements a legally binding Free, Prior, and Informed Consent (FPIC) mechanism as a prerequisite for mining operations in indigenous community areas. This Philippine model is anticipatory and considered more effective than the Indonesian model, although challenges regarding the oversight of its implementation in the field remain. Based on these findings, the author proposes three recommendations: strengthening the recognition of the constitutional rights of customary law communities; systematically harmonizing sectoral regulations concerning customary territories; and ensuring legal certainty and substantive justice.