Mining in protected forests legalized

Mining in protected forests legalized

Muninggar Sri Saraswati, The Jakarta Post, Jakarta

The Constitutional Court has cleared the way for 13 mining
companies to resume mining in protected forests, citing the
government's need to improve the investment climate in the
country.

Departing from common practice, the nine-strong panel of
judges voted unanimously on Thursday for the enactment of Law No.
19/2004 to revise Law No. 41/1999 on forestry that banned open
pit mining in protected forests, saying it did not violate the
Constitution.

A Constitutional Court verdict cannot be contested.

The ruling put an end to efforts by a group of non-
governmental organizations and environmentalists to demand the
revocation of the 2004 law, which they said was passed for the
benefit of the 13 companies. The new forestry law took effect
after the House approved the government regulation in lieu of law
which justified the operation of the mining companies.

"We can understand the government's argument that the
regulation should be issued otherwise it would face difficulties
in developing a favorable investment climate," Constitutional
Court president Jimly Asshidiqie said while reading the verdict.

"The request to annul the new forestry law lacks justification
and therefore must be rejected."

The judges rejected the plaintiffs' argument about the
issuance of the government regulation in lieu of law, which they
said did not meet the criteria for an emergency.

"The President has the discretion to define emergency
conditions for the issuance a government regulation in lieu of
law, and the House will decide whether it can be passed into law
or not," Jimly said.

A government regulation in lieu of law is as powerful as a
law, although its enactment does not require the House's approval
due to its emergency nature. The government must notify the House
of the regulation, and the lawmakers must respond within one
month.

The government claimed that the controversial regulation was
issued to prevent legal repercussions if Indonesia failed to
honor mining contracts. It said the 13 mining firms were allowed
to resume their operations in protected forests because they had
proven reserves and were economically viable.

The 1999 Forestry Law had caused uproar in the international
mining community for banning open pit mining.

The 13 firms are PT Freeport Indonesia, PT Karimun Granite, PT
INCO, PT Indominco Mandiri, PT Aneka Tambang (Bahubulu), PT Aneka
Tambang (Buli), PT Natarang Mining, PT Nusa Halmahera Mineral, PT
Pelsart Tambang Kencana, PT Interex Sacra Raya, PT Weda Bay
Nickel, PT Gag Nikel, and PT Sorikmas Mining.

Law No. 19/2004 bans open pit mining, excluding all mining
licenses and contracts in forests made before the enactment of
the 1999 Forestry Law.

Responding to the verdict, Siti Maemunah, the coordinator for
the Network for Mining Advocacy (Jatam), one of the plaintiffs,
said the ruling proved the government's failure to protect the
people.

"The government has failed to prevent corporations from
controlling the environment at the expense of the people," Siti
said.

She expressed the fear that the court ruling would lead to
deforestation and other environmental destruction causing the
Indonesian people to suffer.

Siti regretted the fact that the judges failed to take into
account the testimony of former environment minister Emil Salim
and the people who bore the brunt of open mining activities.

Executive director of the Indonesian Forum for the Environment
(Walhi) Chalid Muhammad shared Siti's concern, saying the ruling
would encourage the government to issue more controversial
regulations in lieu of law under the guise of a state of
emergency.