Saturday, January 30, 2010

Headlines Observation on Coal Mining Activities Founded in Kompas Jan 26, 2010

It appears that Kompas Newspaper had made serious observations on the Coal Mining Activities in Kalimantan these last days from 25, 26, 28 30 January 2010. As a Business Lawyer who is advising Clients concerning Coal Mining activities in Indonesia, I really am interested in reading  such observation especially from the legal aspects. We are aware that there is the New Law No. 4 Year 2009 on Mineral and Coal Mining which was legalized on 12th January 2009. 

According to Kompas Newspaper dated 26th January, 2010,  The Minister of Forestry, Zulfikli said that 169 holders of the Mining Permit are naughty. They had mined in the Forestry Conservation Area. Each Provincial must owned Forestry Area with the area of 30%. If the Forestry Area is damaged according to Zulfikli quoted in the Kompas Newspaper,  they will face law.

Relating to the indication that the envirornmental damage is geered   by the Overlapping Permits issued by the Forestry Department and the Local Government, the Head of the Forestry Centre Information Masyhud MM  according to Kompas explained 3 matters:  
  • Firstly, The Minister of Forestry pursuant to the rules had never issued the pinjam pakai (Lending use) of the Forestry Area to the Conservation Forestry Area. 
  • Secondly, the lending use permit forestry area for the mining activities is granted to the extent  it is complying with the applicable rules. Therefore, not every Mining Authority which is issued by the Bupati shall obtain ithe zin pinjam pakai ( lend use permit).  
  • Thirdly, the Mining Activities which is outside the forestry area is not the authority of the Minister of Forestry.      

Controlling Team 

According to Kompas the Controlling Team from the Environmental Department  is sent to South Kalimantan to solve the damaged terain/land resulted from the Coal Mining activities.  Eventhough major part of the Mining Authority Permit is granted by the Local Government, the Central Government can impose sanctions according to such Kompas news. Besides the Control Team sent by the Central Government, the Regional Control Team shall also be sent to clarify the damage of the enviromental resulted by the Mining is East Kalimantan.

Kompas quoted that Hermien as the Deputy Minister of Environmental   said that based on the Law No 32 Year 2009 concerning the Protection and Environmental Management (Perlindungan dan Pengelolaan Lingkungan) Article 77, the Minister of Environmental can impose  administrative sanction to the serious violators against the environmental protection and management.

The Coal Mining operation in South Kalimantan and East Kalimantan had left giant holes. These Giant Holes according to Kompas Newspaper dated 26 January 2010, is not only left by the Mining who owns the Mining Authrity Permit, but also by the holder of the  PKP2B  (Work Agreement For Coal Mining Enterprises).

According to Kompas, the data which are collected from Badan Lingkungan Hidup Daerah ( BLHD) (Regional Environmental Body of South Kalimantan) shows that the Mining Reclamation  Activities in South Kalimantan until October 2009 reached 3.132 Hectare from 20.000 Hectare opening Mine. The Reclamation is done by 16 Mining Companies holder of the  PKP2B  ( Work Agreement For Coal Mining Enterprises).  This means that there still exists 16.868 Hectares which Reclamation is not yet done. 





Kompas said as shown in page 15 of its Newspaper dated 26th January,  that acccording to the Head of  Badan Lingkungan Hidup Daerah ( BLHD) there are 2 Mining Holders of PKP2B  ( Work Agreement For Coal Mining Enterprises) who cannot afford to do the Reclamation, where Kompas mentioned PT Adaro Indonesia and PT Arutmin Indonesia.  The Head of  Badan Lingkungan Hidup Daerah ( BLHD) will restrain granting the AMDAL (Analisa Mengenai Dampak Lingkungan - Analysis concerning the Environmental Impact ) for increasing its coal  production of such company, if  there are no serious efforts to close such Mining Holes.  Kompas said that the Public Relation from PT Arutmin Indonesia had not yet received the explanation from its management relating to the non-performance of the Reclamation of the 17 Mining Holes. However, Kompas said that Arutmin as the Partner of the Government shall take notice of the guidance from Badan Lingkungan Hidup Daerah ( BLHD) (Regional Environmental Body of South Kalimantan).

According to Kompas  the Badan Lingkungan Hidup Daerah ( BLHD) (Regional Environmental Body of South Kalimantan) faced difficulties in getting the concrete data on the how much hoiles are left, since the Kabuoaten Government which issued such permit does not report to the Provincial Level. The manpower for controlling is limited upon the mining in such area.

There is also an indication that ther are Coal Mining Contractor in Kutai Kartanegara,  who does not provide  Reclamation Bond in the Mining Activities to the Local Government. However, the Company is still obligated to perform the reclamation upon the holes  which are finished being digged.


   

Analysis





Based on the above Kompas Oberservation, we can see that  there are sevral Siginifacant Issues that emerged :

 A. Overlapping Issues

a) The Overlaping implementation of granting  the  Lending Use of the Forestry  Area to the Mining Contractors, where there appears to be different of  policy between the Regional Government and the Central Government.
 b) Kalimatan seems to be rich of Coal Deposit and Coal Resources, for which for economic reasons Deleping and Mining such Coal Resources seems to be more attractive than keeping the place as a Forestry Conservation and Protection.
c) Thus there maybe a dilema situation faced by the Regional Government where they feel that Revenue for developing the Region is also considered important where the Resources of such Revenue are taken from developing and Mining The Coal Resources.

d) RECLAMATION 

  • Relating to the  Reclamation, it appears that from the business side, Reclamation absorb Costs and expenses, and the Coal Mining Companies seems to avoid adding/ allocating the Costs /Expenses for Reclamation such Huges Mining Holes left after they completed their Coal Mining in such Area.   
  •  We have to observe the Reclamation Rulings under the New Mineral and Coal  Mining Law No. 4  Year 2009 and we must also observed the Other Laws which are ruling such Reclamation issues which are associated to Mining Activities and Environmental Impacts due to the Coal Mining Operations, particularly relating to the Sanctions which may be imposed against the Coal Mining Companies if they fail to conduct such Reclamation Obligation..    

Wednesday, January 27, 2010

Observing Kompas news Concerning Coal Mining Activities in Kalimantan

I read in the Kompas Newspapers, the Indonesian Daily Newspaper 25 January 2010, Kompas had made some observations on the Coal Mining in East Kalimantan which according to Kompas is  annoying,   since the Mining Practice is not conducted properly. Kompas had made such observation in East Kalimantan and West Kalimantan, where according to such news paper the Massive Mining activities are  not -controlled.

According to Kompas Newspaper, the Taman Hutan Raya Bukit Soeharto (TAHURA - Forestry Park Mount Suharto) at Kaltim (East Kalimantan) and Forestry Protection Mount Meratus at East Kalimantan which is suppossed to be protected is not avoided from Coal Mining Operations.    

Kompas further said that at TAHURA, the land which are developed is actually part of the Center Research Tropical Forest University Mulawarman, Samarinda having the area of 40 Hectare.  The Developer /Management of PPHT according to Kompas Newspaper,  has no power since the Mining Permit is issued by  The Forestry Minister, with the reason that before the Decision of determining the border of the TAHURA by the Minister Decision No. 577 Year 2009, such location is located outside such Forestry Protection/ Conservation Area.    

One interesting news, shown in Kompas Newspaper is that 2 Contractors who are  supposed to develop House Glass Laboratorium at Telukdalam, Kecamatan Tenggarong  with the Area of 51,000 hectare, had developed Coal Mining after they realized and noticed  that Coal Deposit in such Area is plenty enough and good, without owning the Mining Authority.  

Furthermore in such Kompas Newspaper,  it indicates that on the Protection Forest not only there are plenty of owners of Mining Authority but there are plenty of big holes where the Coal had been completely mined. In such Location according to Kompas there exists 299 Mining Authorities, with the understanding that there are 299 Parties who are granted Permits To Mine Coal  at the Hutan Lindung Pegunungan Meratus      (Forestry Protection Meratus Mountain). Furthermore in such Newspaper it says that only few of those mining which request permit pinjam pakai ( borrowing use permit) of such forestry from the Minister of Forestry.

The other permit are being granted by the Local Bupati since they do not know that such location is within the Forestry Protection Area. According to the records of Kompas, during the last 6 Years (until 2009)  at 4 Provincial Area in Kalimantan there exists 2.047 Mining Authority. East Kalimantan according to Kompas  Newspaper is having the First Rank which issued Mining Authroity, that is 1.180 Mining Authority, followed by  Kalimantan Selatan (400-578), Center Kalimantan (427) and South Kalimantan (40).

According to Kompas, if one Mining Authority covers the area of 2.000 hectare, the location which had been dedicated for mining reached 4.09 million Hectare, which is more than the Area of  Kalimatan Selatan (3,75) hectare.     

Kompas says that the Governor of East Kalimantan cannot do much considering that the Minister of Forestry and Head Area Level II ( Bupati/Wali Kota) has the authority to issue the Mining Authority. It indicates that at the present moment in Samarinda around 70% of its Area (71.823 Hactare) is dedicated for Mining Area.

Kompas got the information from the Head of the RT, Kelurahan Sempaja Selatan , that the location of the living area is around 25 meter from the mining hole, resulting their  houses are frequently flooded. 


Farmers at Desa Separi (Village Separi) and Bangunrejo, Kecamatan Tenggarong  appears also to be affected since they failed to harvest their products due to the coal mining waste water  which entered into their rice field. This causes the farmer to sell their rice filed to the Mining Authority. The Sale price is high says several farmers according to Kompas Newspaper.

Several Rice Fields are sold by the Farmers to the Mining Authority holders and  converted to become Mining Area.

There are also many village roads which are curved - cut out  and developed to become Mining Area.  
Examples of such happening is at Kecamatan Siani, Kabupaten Tapin, where the inhabitants can no longer walk since part o the road had been changed into mining area. According to Kompas several of the inhabitants must be cautious upon the Project Vehicles,  where the inhabitants has to ask for permit to go across such location.

According to Kompas the changes of the Forestry had destroyed 7 - 12 ton of Carbon organic every Year. This Carbon is need by microorganisme for the continuation of the ecosystem. One of the sources being interviewed by Kompas said that the Coal Mining does not contribute much for improving the growth of such region. From the production value of Coal production Kalsel which reached 22 trilliun ( for production of 80-100 ton per year), the genuine revenue of the Region ( Pendapat Asli Daerah) does not reach Rp 1 trilliun.

According to Kompas despite the above, The Business of Coal Mining still said that what they had conducted provides positive effects. Mining absorb manpower and moved the inhabitant economy such as the emerging of warung (small shops) and living places. according to Maskur Achmad project Manager of PT Satria Bahana Sarana, a Coal Ming Contractor at Kecamatan Sangasanga, Kabupaten Kutai Kartanegara as quoted by Kompas Newspaper.              

         Analysis.

  • Based on the above Kompas observation.,  we have to observe whether this Coal Mining Activities are in accordance with the proper standard operational mining procedures, to avoid disturbances felt by the people surrounding the area of such Coal Mining. 
  • It also indicates that there are several overlapping mappings of activities between the Forestry Protection Area and such Coal Mining activities. 
  •  Coordination between the Mining Directorate and the Minister of Forestry, the Bupati  and Governor have  to be intensified seriously. 
  •  Socialization with the Local People are significant to be made by the Local Authority in coordination with several Departments concerned such as the Department of Directorate of Coal Mining,  Department of Forestry  and its subdivisions officers including Newspapers including the Coal Mining Rights and Authority pursuant to the Mineral and Coal Law No. 4 Year 2009

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