The Petitioner’s experts taking oath to testify at the judicial review hearing of the Law on the Management of Coastal Zones and Small Islands, Wednesday (10/18/2023). Photo by MKRI/Ifa

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JAKARTA (MKRI) — The government system controlling mining activities, including that in small islands, has been running well. So, as long as a mining company receives no warning or even order of termination of activity, it cannot be said to have engaged in any abnormally dangerous activity, as per a verdict of the Supreme Court. This statement was made by mining engineering and environmental protection expert Witoro Soelarno at another judicial review hearing for case No. 35/PUU-XXI/2023 on Wednesday, October 18, 2023 in the plenary courtroom.

He explained that, specifically for mining, if the provisions in Law No. 1 of 2014 on the Amendment to Law No. 27 of 2007 on the Management of Coastal Zones and Small Islands (Coastal Management/PWP3K Law) was interpreted as prohibition against mining in small islands, it would negatively impact the use of mining and energy resources in those islands.

“Especially for mining, if the policy in this Law is interpreted as a ban on mining activities in small islands, it would negatively impact the use of God-given mining and energy resources in small islands, especially nickel, which will be the backbone toward Indonesia Maji 2045 (Indonesia Onward 2045). Data on nickel reserve and resources are only available in several provinces. There is strong belief that the potential mostly in small islands in central and east Indonesia is great,” he said before Chief Justice Anwar Usman and the other constitutional justices.

Witoro, who was presented by PT Gema Kreasi Perdana (Petitioner), explained that mining carries a great risk of issues, both environmentally and socially. Therefore, strict government policy on mining is imperative, since the Dutch colonial era until today. This aims at keeping mining viable and maintaining its contribution to development.

“Therefore, Article 23 paragraph (2) and Article 35 letter k of Law No. 27 of 2007 on the Management of Coastal Zones and Small Islands still allows for mining activities as long as all statutory regulations aimed at preserving the environment of small islands are still [in line with] the 1945 Constitution,” he stressed.

Priority Interests

Meanwhile, I Nyoman Nurjaya, another expert for the Petitioner, explained that the norm in Article 23 paragraph (2) and Article 35 letter k of the PWP3K Law are not against Article 28D paragraph (2) and Article 28I paragraph (2) of the 1945 Constitution if not interpreted as an absolute, definitive, and unconditional prohibition, but as a norm that allows (toestemming) activities outside of priority interests, especially for mineral mining, on the condition that technically and/or ecologically and/or socially and/or culturally they not lead to damage to and/or pollution of the environment and/or harm the surrounding communities.

Also read:

Provisions on Ban on Mineral Mining in Coasts and Isles Challenged

PT Gema Kreasi Perdana Revises Petition on Mineral Mining in Coasts and Isles

Provisions on Management of Small Islands Serve to Protect and Conserve

Customary Community’s Rights in Coastal and Small Island Areas

The Petitioner is a limited liability company (PT) with a mining business permit for small islands. It feels its constitutional rights had been violated by the enactment of Article 23 paragraph (2) and Article 35 letter k of the Coastal Management Law, which the Supreme Court interpreted as an unconditional ban on mining activities in small islands, while the Petitioner has a valid permit by the mining authority to mine nickel in the area. Its permit has undergone changes from the initial permit No. 26 of 2007, issued prior to the enactment of Law No. 27 of 2007.

The Petitioner asserted that if Article 23 paragraph (2) and Article 35 letter k of Law No. 1 of 2014 be interpreted as an unconditional ban on mining activities, all spatial planning for coastal areas and small islands regulated in regional regulations would conflict with the a quo Law and must be revised. As a consequence, all activities by mining companies in those areas must be ceased. This would be detrimental to those companies, including the Petitioner, who had paid their dues to the state. 

Author       : Utami Argawati
Editor        : Lulu Anjarsari P.
PR            : Fitri Yuliana
Translator  : Tahlitha Laela/Yuniar Widiastuti (NL)

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.

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