Activists have filed suit to revoke what they say are problematic articles from a controversial mining law that has been criticized as pandering to mining companies at the expense of the environment and local communities.
Among the stipulations the plaintiffs are seeking to have annulled are the centralization of the mining authority with the national government rather than local authorities; and criminal charges for disruptive protests against mining activity.
Another controversial issue in the law is guaranteed contract renewals for coal miners, along with bigger concessions and reduced environmental obligations.
The plaintiffs say they’re not optimistic about the court approving their lawsuit, citing the government’s recent gifting of civilian honors, longer terms and an extended retirement age for the six Constitutional Court justices hearing the case.
JAKARTA — Activists in Indonesia have filed a legal challenge to controversial mining legislation passed last year and widely seen as undermining environmental protections to the advantage of mining companies.
The Indonesian Forum for the Environment (Walhi) and the East Kalimantan provincial chapter of the Mining Advocacy Network (Jatam) filed the application for a judicial review with the Constitutional Court in Jakarta on June 21. Two other plaintiffs in the suit are identified as victims of mining activity. The suit seeks what’s known as a judicial review of nine articles in the amended mining law.
It alleges that these nine articles contain stipulations that could lead to unbridled exploitation by a mining industry that already operates with impunity toward environmental and social rules.
Nurul Aini, a 46-year-old farmer from Sumberagung village in Banyuwangi district, East Java province, is one of the plaintiffs. She and her fellow villagers have for years fought against gold mining activity on Mount Tumpang Pitu, where they live.
She said the mining activity had destroyed the environment and harmed the locals in the process, with dust from the detonations carried out in the operations forcing the villagers to wear masks, even when they sleep. The most harmful impact is the destruction of Mount Tumpang Pitu, Nurul said. She added that water resources, which spring from the mountain, have been depleted since the mining began.
“I’m responsible for the future generation. I have to protect the environment no matter what,” she said. “We can live without gold, but we can’t live without water.”
In 2019, she and other villagers blocked mining trucks from passing through their village, leading to clashes between the community and the police officers escorting the trucks.
Nurul was reportedly dragged into one of the police cars, but she and other villagers fought back and she was freed. She said she’s used to being intimidated whenever she fights against the gold mining operation.
“Sometimes thugs [try to intimidate me],” Nurul said. “Once my house was about to be burned.”
She said the new mining law only protected mining interests, and called for it to be revoked to prevent further criminalization of mining critics.
Among those critics facing imprisonment under the new law is Yaman, a fisherman from the Bangka-Belitung Islands who is also a plaintiff in the judicial review.
Yaman and fellow fishers staged a peaceful protest on Nov. 10 last year to thwart tin mining vessels operating in their area. They accused the vessels of dumping tailings into the ocean, covering coral reefs with mud and causing fish to move out of the area.
Following the protest, police summoned 13 of the fishers for boarding the vessels, according to Yaman. Police then charged them under Article 162 of the mining law, which says that anyone found disturbing the mining activities of licensed miners can face up to a year in prison and 100 million rupiah ($6,900) in fines.
“The mining law limits the space of fishers to reject and block mining activities here,” Yaman said. “The mining law means we can’t look for food in the land of our own birth.”
The filing of a judicial review comes after the parliament, widely panned for passing the law last year despite widespread popular criticism, said that anyone not happy with the new law should challenge it in court after. It’s also a litmus test for President Joko Widodo, better known as Jokowi, whose administration authored the new law as well as a slate of other controversial legislation criticized for sidelining environmental and human rights for the sake of business interests.
“We know there have been so many policies issued that harm people,” said Ahmad Ashov Birry, program director at the NGO Trend Asia. “So the judicial review of the mining law is the last test. We want to know, where is Jokowi? Is he with the people, protecting them? Or just [there] for the interests of oligarchs in the extractive and coal [industries]?”
Coal on a barge near Tanjung Redeb, Indonesia. Image by Rhett A. Butler/Mongabay.
The plaintiffs in the mining law judicial review have highlighted four articles that they say are particularly problematic.
One is the granting of bigger concessions and longer contracts for miners, while at the same time reducing their environmental obligations. In practical terms, this effectively guarantees the continued operations of seven major coal miners, whose contracts would have otherwise expired between 2020 and 2025.
Aryanto Nugroho, the Indonesia advocacy manager for transparency group Publish What You Pay (PWYP), said one of these miners, Arutmin, had its contract renewed in November 2020 under the terms of the new law — despite the fact that the derivative regulations for those particular terms has still not been issued by the government.
Derivative regulations, which detail the technical aspects of articles in a law and how they are meant to be implemented, must be issued by the relevant government ministry within six months of a law being passed. But in the more than one year since the May 2020 passage of the mining law, the derivative regulations for contract renewals are nowhere in sight. “Yet without it, Arutmin’s [contract] was still renewed and we don’t know what the contract says and what the evaluation [of the previous contract] was like,” Aryanto said.
The plaintiffs have also raised concerns that the law furthers Indonesia’s backslide into a more authoritarian form of government by stripping the public’s right to reject mining activity and threatening prosecution for individuals who defend their land rights against mining companies.
“In the old [mining] law, the public’s veto rights still existed. Now it’s not there [in the new law],” said Muhammad Isnur, the head of advocacy at the Indonesian Legal Aid Institute (YLBHI). “If there’s something that’s not guaranteed to be safe for the environment, then legally speaking, the process should be halted first, because once [the environment is] damaged, the recovery is difficult. And the public had the rights to veto [that].”
Another issue flagged in the judicial review is that the law gives the central government the sole authority over mining, including the authority to issue permits, effectively undermining the authority of local governments. The plaintiffs say this makes it even more difficult for local communities affected by mining operations to hold the government to account and seek remedies.
“This law is very clearly made to meet mining interests and sideline people’s rights that are guaranteed by the Constitution,” Isnur said. “We hope the Constitutional Court is courageous in delivering a verdict that approves the people’s plea, just like in previous rulings related to natural resources.”
Activists from the Clean Up Indonesia coalition stage a theatrical act as a part of a greater effort to amend the 2020 mining law in Jakarta, Indonesia. Image courtesy of Melvinas Priananda/Bersihkan Indonesia.
Despite the heavy public opposition to the new mining law, there’s little chance the court will rule in favor of the plaintiffs, Isnur said, citing concerns over the court’s impartiality.
In November last year, President Widodo conferred civilian honors on all six Constitutional Court justices, even as his administration remains a respondent in dozens of cases still pending before the court. The move came two months after the ruling-coalition-dominated parliament fast-tracked new legislation that increased the justices’ maximum term to 15 years from the previous five, and allowed them to serve until the age of 70, up from 60 before.
One of the most prominent judicial reviews being heard by the court centers on the so-called omnibus law on job creation, a sweeping slate of deregulation passed last year that amends 75 existing laws. Like the new mining law, the omnibus law faced near-universal opposition outside parliament, with critics saying it slashes labor rights and environmental safeguards in a misguided bid to boost investment in a country hit hard by COVID-19.
Shortly after the law was passed, tens of thousands of workers went on strike over it. They were met with tear gas and water cannons deployed by the security forces, who arrested some 6,000 protesters amid widespread complaints of police brutality.
Responding to the protests, the president echoed parliament and said anyone dissatisfied with the omnibus law should take it to court.
Activists duly followed through. Yet in that review, to which the president last month sent 10 of his cabinet ministers to represent the administration in an online hearing, the government called for the plaintiffs’ case to be thrown out on the grounds that a judicial review of the omnibus law is unjustified.
The omnibus law review is still before the court, but the government’s attitude, and its pandering to the justices last year, point to a high probability that the court will reject the mining law judicial review, Isnur said.
“There’s already a prediction that it’s going to be a bitter end,” he said. “But there’s pressure from friends [activists] at the local level and mandates from victims [of mining activities]. We can’t give up. What’s important is that we fight, even if the end is bitter.”
The filing of the judicial review coincided with the president’s 60th birthday, said Lasma Natalia, director of the Bandung Legal Aid Institute (LBH Bandung) and a lawyer for the plaintiffs. She said her birthday prayer for Widodo was that he would open his eyes to the impact that the mining industry has had on the environment and on communities across Indonesia.
“Jokowi has the responsibility, not only as the head of the state, but also as a father and a grandfather, to create a future that’s safer for the next generation,” she said. “The easiest way to do that is by revoking the mining law. This law will only legitimize the robbing of people’s livelihoods and the destruction of the environment in the upstream and downstream of the mining industry.”
Banner image: Activists from the Clean Up Indonesia coalition stage a theatrical act as a part of a greater effort to amend the 2020 mining law in Jakarta, Indonesia. Image courtesy of Melvinas Priananda/Bersihkan Indonesia.
Article published by Hans Nicholas Jong