Constitutional Court rules six mining companies still prohibited from open pit mining in protected f

Constitutional Court rules six mining companies still prohibited from open pit mining in protected forests

Press Release 8 July 2005: NGO Forum for Protected Forests (JATAM, WALHI, ICEL, HuMA, ELSAM, YLBHI, LBH Jakarta Pokja PA PSDA, AMAN, TAPAL, MPI)

Jakarta – According to yesterday’s Constitutional Court ruling, of the 13 companies listed in the Presidential decree on mining in protected forests, the six companies which are only at the stage of exploration or feasibility study are still required to adhere to clause 38 (4) of the Forestry Law. The ruling means that these 6 companies (listed below) are still prohibited from open pit mining in protected areas. However, the Constitutional Court declined an Indonesian NGO request to annul the entire Presidential Decree and subsequent amendment to the Forestry Law, ruling that the remaining 7 companies which have already entered the exploitation phase in protected forests may continue with open pit mining.

"This Court concurs with the opinion of expert witness Prof. Dr. Emil Salim ... that the six companies which are still at the stage of exploration or feasability studies, at such time as they enter the exploitation stage must comply with the requirements in Clause 38 (4) of the Forestry Law (41/1999) [which prohibits open pit mining in protected forests] as long as their licences for exploration and exploitation are not a combined licence" (quoted from the conclusions at pp 414-415 of the Judgement of the Constitutional Court).

Under the Indonesian mining law framework, a Contract of Work (CoW) is granted to a mining company to exclude others from mining in a certain area, however a CoW holder only gains a licence for exploitation once their mining plan and Environment Impact Assessment recieves government approval. The practical outcome is that the six companies prohibited from open pit mining in protected forests are those which have not had reached that exploitation stage through submitting a plan and having their EIS approved:

Weda Bay Nickel (Canada), Gag Nickel (BHP Billiton from UK/Australia), Pelsart Tambang Kencana (Australia), Aneka Tambang (Indonesia), Sorikmas Mining (Aberfoyle from Australia), and Interex Sacra Raya (Indonesia).

"Transnational mining companies such as BHP Billiton have nothing to celebrate. The Constitutional Court ruling stresses to the government, especially the Minerals and Energy Department, that open pit mining in protected forests is still prohibited for all but the seven companies that have already begun exploitation" said Siti Maimunah, National Coordianator of the Mining Advocacy Network, JATAM.

The Constitional Court decision handed down on 7 July 2005 on the one hand recognises the huge impact on communities and the environment of open pit mining, but on the other hand makes an exception for seven companies to continue with such mining in protected forests. To be consistent with the evidence brought by the appellants, the Court should have annulled the Presidential Decree (and ratification) because it endangers the livelihoods of many and thus contravenes clause 33 (3) of the Indonesian Constitution. Nevertheless, the Court chose the road of compromise:

"Although this Court shares the opinion of all the experts brought by the appellants regarding the dangerousness and negative impacts of open pit mining in protected forests, nevertheless this Court also understands the reasoning for the need for a transitional regulation which continues the rights or legal status gained by mining companies before the advent of the Forestry Law (1999)." (quoted from the conclusions at pp 413-414 of the Judgement of the Constitutional Court).

The Indonesian Constitution requires that Presidential Decrees only be issued in conditions of pressing national crisis, "kegentingan yang memaksa", but the judges concluded that this is a subjective test at the discretion of the President, whilst recommending that in future, the President must consider more objective conditions before issuing further Decrees.

"This is a dangerous precedent. The impact is that the President may in future often use the Presidential Decree mechanism to steamroll forward with developments having large impacts on many people's livelihoods," said Chalid Muhammad, Director of WALHI, Indonesian Forum for Environment.

Indro Sugianto, Director of the Indonesian Center for Environmental Law concluded “Remember, with this Constitional ruling, no other companies outside the seven which have already begun may conduct open pit mining in protected forests. The government and mining industry must respect and comply with this judgement" [ends]

Contact:

Chalid Muhammad (WALHI) : +62 811 847 163
Siti Maimunah (JATAM) : +62 811 920 462
Indro Sugianto (ICEL) : +62 815 943 4228