Every person has the right to a good and healthy environment1 as stated in Article 65 of Law No. 32 of 2009 on Environment Protection and Management as amended by Government Regulation in Lieu of Law No. 2 of 2022 on Job Creation (“Environmental Law”). In addition, the protection and management of the environment is the responsibility of the state based on State Responsibility Principle.2
In maintaining the sustainability and preservation of the environment, everyone participates in protecting the environment as explained in one of the environmental principles, namely the principle of preservation and sustainability, as follows:3
“everyone bears obligations and responsibilities towards future generations and towards each other in one generation by making efforts to preserve the carrying capacity of the ecosystem and improve the quality of the environment.”
The Environmental Law defines environmental damage as a direct and/or indirect change to the physical, chemical, and/or biological characteristics that exceeds the standard criteria for environmental damage.4
This article will discuss the importance of post-mining reclamation and unlawful acts caused by unfulfillment of reclamations by company carrying out mining activities and the negligence of relevant state and/or government agencies.
In various environmental disputes caused by mining activities, environmental damages often occur, usually resulting from the lack of reclamation conducted by the companies doing mining activities. Reclamation, as defined under the Law No. 3 of 2020 on the changes of Law No. 4 of 2009 on Mineral and Coal Mining (“Mining Law”), states:5
“an activity carried out throughout the Mining Business stages to organize, restore, and improve the quality of the environment and ecosystem so that they can function again according to their designation.”
Reclamation Guarantee Fund
Reclamation Guarantee Fund is a fund provided by holders of IUP (mining business license) or IUPK (special mining business license) as a collateral for carrying out reclamation activities.6
Article 100 of the Mining Law stipulates as follows:7
“(1) IUP or IUPK holders is required to provide and place reclamation guarantee funds; (2) The Minister may appoint a third party to carry out the reclamation with a guarantee fund; (3) The provisions referred to in paragraph (4) apply if the holder of an IUP or an IUPK does not carry out reclamation according to an approved plan.”
Thus, the reclamation guarantee fund that had been paid by the business actors before obtaining the mining business licenses is for the implementation of reclamation post mining activities in order to prevent further environmental damage.
Obligations of Mining Business License Holders in the Implementation of Reclamation
In the implementation of reclamation throughout mining activities, the IUP and the IUPK holders are required to:8
“(1) Meet the balance between the land to be cleared and the land that has been reclaimed; (2) Manage the final ex-mining pits with the widest boundaries; (3)the IUP and IUPK holders are required to hand over land that has been reclaimed and/or post-mining to the rightful party through the Minister.”
There are several stages in carrying out mining reclamation, as follows:
- Reclamation during exploration; and
- Reclamation at the time of operation.
Reclamation During Exploration
The technical implementation of reclamation at the exploration stage is as follows:9
- convey the reclamation plan for the exploration stage in accordance with the environmental documents;
- placing a reclamation guarantee for the exploration stage in accordance with the stipulation of the Minister or Governor in accordance with their authority;
- carrying out the reclamation of the exploration phase;
- report on the implementation of Reclamation during the production operation stage when applying for an increase in the production operation IUP or production operation IUPK.
Reclamation at the time of Production Operation
The technical implementation of reclamation at the operation production stage is as follows:10
- place a reclamation guarantee for production operations in accordance with the Minister’s or Governor’s stipulation in accordance with their authority;
- periodically submit reclamation plans for the production operation stage;
- carrying out the reclamation of the production operation stage; and
- report on the implementation of the reclamation stage of production operations.
Sanctions as a result of not carrying out Reclamation and Community Rights
If the mining business actor does not carry out his obligation, which is to place a reclamation guarantee fund, he can be punished with a maximum imprisonment of 5 years and a maximum fine of Rp. 100,000,000,000.00 (one hundred billion rupiah) and an additional violation, namely the payment of funds for reclamation.11
The rights of people who are negatively affected by mining business activities can ask for commensurate compensation for the damage suffered by the victims and file a lawsuit against the responsible parties.12
Case Discussion: Unlawful Act by the Company Doing Mining Activities and the related state and/or government agencies.
Case discussion will examine Rangat District Court’s Decision No. 22/Pdt.G-LH/2016/PN Rgt, including the related decision in the appeal and cassation level.
The Claimant is a legal entity established with an aim to increasing community participation in an effort to preserve forest functions and environmental functions. Defendant I is a legal entity that conducts coal mining activities in a Limited Production Forest area (“LPF”).
The other Defendants are the rulers of the Republic of Indonesia, which are: Ministry of Environment and Forestry (Defendant II), Ministry of Energy and Mineral Resources (Defendant III), and Ministry of Internal Affairs (Defendant IV).
The Claimant argued that the Defendant I had left the coal mining area in a state of severe damage without being reclaimed, and the other Defendants had been negligent in carrying out their duties or mandates as authorities in the coal mining activities, which results losses causing damages to the forest.13
Panel of Judges Considerations
In this case, Panel of Judges asked two main issues:14
- Whether the Defendant I did not carry out reclamation after carrying out the coal mining activities in the LPF and had left the area in a severe damage condition?
- Whether the action of other Defendants have been negligent in carrying out their supervisory duties towards the coal mining activities performed by Defendant I is categorized as unlawful act?
Article 1365 of the Civil Code became the basis of the lawsuit, thus elements of Article 1365 shall be taken into consideration. These elements are: (1) the act is unlawful; (2) fault; (3) damage/loss; (4) causal relationship (causality) between unlawful act and the loss.15
This part discusses about panel of judges consideration towards unlawful act in this case:
Panel of Judges set out considerations for each Defendant regarding assessing the responsibilities of the Defendants considering they have different duties and obligations under the laws and regulations.
- Defendant I
The forest is in serious despair, with five large holes from former coal excavations and it was filled with water, and the surrounding area is bare without trees, which is considered as environmental damage.16
Defendant I had left the area without conducting a reclamation, which is its obligation as stipulated in Ministry of Energy and Mineral Resource Regulation No. 18 of 2008 on Reclamation and Mining Closing, and then the panel of judges concluded that the unfulfillment of reclamation by Defendant I as a company doing mining activities was an unlawful act.17
Whether the Defendant II, III, and IV actions as state institution have been negligent in carrying out their supervisory duties in coal mining activities by Defendant I is an unlawful act.18
- Defendant II (Ministry of Environment and Forestry)
As the party granting a borrow-to-use forest area permit for coal mining purposes over the disputed object and the fact that it carries out the supervision duty towards coal mining activities performed by Defendant I is not under the authority of Defendant II, which is not an unlawful act. Therefore, the Panel of Judges concludes that Defendant II did not conduct an unlawful act. 19
- Defendant III (Ministry of Energy and Mineral Resource)
As the party which gave the coal mining business licenses and conducted a coal mining agreement with Defendant I, therefore, Defendant III was obliged to supervise Defendant I’s coal mining activities.20
Furthermore, according to Ministry of Energy and Mineral Resource Regulation No. 18 of 2008 on Reclamation and Mining Closing, which stipulated if the business actor fails to perform reclamation, that obligation can be performed by a third party appointed by the Ministry of Energy and Mineral Resources using a reclamation deposit.
Based on the facts mentioned above, the Panel of Judges concluded that by not immediately appointing a third party as the reclamation executor to conduct a reclamation to the ex-mining area using the reclamation deposit paid by Defendant I, it is proven that Defendant III is negligent in carrying out its duty to supervise the coal mining activities, and therefore the panel of judges concludes that Defendant III’s actions are an unlawful act.21
- Defendant IV (Ministry of Internal Affairs)
As the party that recommended approval for the coal mining activities, based on the Panel of Judges’ consideration, the act conducted by Defendant IV, which was simply making a recommendation, could not be considered an unlawful act.22
District Court’s Decision
Panel of Judges granted part of the claims made by the Claimants. The decision stated that Defendant I and Defendant III (Ministry of Energy and Mineral Resource) committed an unlawful act, and Defendant III was condemned for reclamation and reforestation towards the disputed object, not in the form of compensation.23
High Court’s Decision for appeal
Defendant III subsequently filed an appeal to Pekanbaru High Court. The High Court’s Decision No. 5/PDT/2018/PT PBR upheld the Rangat District Court’s Decision No. 22/Pdt.G-LH/2016/PN Rg. Panel of Judges considered that the Rangat District Court’s Decisions were proper and correct in accordance with the legal provisions and there were no novel issues to be considered.24
Supreme Court’s Decision for cassation
Panel of Judges’ considerations in the Supreme Court’s Decision No. 58 K/Pdt/2019 states that the judex facti does not violate the laws and regulations. However, the Panel of Judges rectified the decisions of the District Court and High Court in order to also convict Defendant I and Defendant III to carry out reclamation and reforestation on the object of dispute.25 Because the acts conducted by both defendants are intertwined with each other and are in fact unlawful act, based on the in dubio pro natura principle and ex aquo et bono both defendants are obligated to conduct reclamation in the ex-mining area.26
In carrying out business activities in various sectors that are directly or indirectly related to the environment, all aspects of maintaining the environment from damage are crucial, and therefore all efforts need to be taken more seriously.
In the mining industry, performing reclamation after doing such mining activities is a must. This is crucial in order to maintain the preservation and sustainability of the environment so that ex-mining land can be used as intended, with this, environmental damage due to mining can be minimized, and the principles of environmental preservation and sustainability are maintained.
The negligence to carry out reclamation can lead to an unlawful act, which is governed under Article 1365 of the Civil Code. Thus, as long as the elements of unlawful act are met and the performances of business actor and/or state and/or government agencies are not optimal in relation to the occurrence of an environmental case, therefore judges are able to determine that the business actor and institution have committed an unlawful act and may be held accountable.
Aji Kadhasnah Putera
- Article 2 of Environmental Law
- Article 2 of Environmental Law
- Explanation of Article 2 of the Environmental Law
- Article 1 point 17 of Environmental Law
- Article 1 point 26 of Mining Law
- Article 1 point 16 Minister of Energy and Mineral Resource Regulations No. 7 of 2014
- Article 100 Mining Law
- Article 99 Mining Law
- Article 22 point 1 of Minister of Energy and Mineral Resources Regulation No. 26 of 2018
- Article 22 point 2 of Minister of Energy and Mineral Resources Regulation No. 26 of 2018
- Article 161B Mining Law
- Article 145 Mining Law
- Rengat District Court’s Decision No. 22/Pdt.G-LH/2016/PN Rgt, page 4-7
- Rengat District Court’s Decision No. 22/Pdt.G-LH/2016/PN Rgt, page 46
- Rengat District Court’s Decision No. 22/Pdt.G-LH/2016/PN Rgt, page 47
- Rengat District Court’s Decision No. 22/Pdt.G-LH/2016/PN Rgt, page 49
- Rengat District Court’s Decision No. 22/Pdt.G-LH/2016/PN Rgt, page 48-50
- Rengat District Court’s Decision No. 22/Pdt.G-LH/2016/PN Rgt, page 49
- Rengat District Court’s Decision No. 22/Pdt.G-LH/2016/PN Rgt, page 50-51
- Rengat District Court’s Decision No. 22/Pdt.G-LH/2016/PN Rgt, page 52
- Rengat District Court’s Decision No. 22/Pdt.G-LH/2016/PN Rgt, page 54
- Rengat District Court’s Decision No. 22/Pdt.G-LH/2016/PN Rgt. Page 54
- Rengat District Court’s Decision No. 22/Pdt.G-LH/2016/PN Rgt, page 55
- Pekanbaru High Court’s Decision No. 5/PDT/2018/PT PBR, page 14
- Supreme Court’s Decision No. 58 K/Pdt/2019, page 6
- Supreme Court’s Decision No. 58 K/Pdt/2019, page 5