Regulatory rules and Legal Problems of coastal resources use in Mahakam Delta
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Transcript of Regulatory rules and Legal Problems of coastal resources use in Mahakam Delta
Epistema Working Paper Number 01/2011
Regulatory rules and legal problems of
coastal resources use in the Mahakam Delta of
East Kalimantan, Indonesia
Rikardo Simarmata
About Epistema Working Paper
Papers in this series are mainly preliminary documents of research as carried out by
EPISTEMA’s staffs, research fellows and partners. This series contain papers that
discuss legal philosophy and theories, legal framework and socio‐legal studies on
indigenous peoples and other communities’ rights on land and natural resources
including in the context of climate chage policy and projects.
Suggested citation:
Simarmata, Rikardo 2011. Regulatory Rules and Legal Problems of Coastal Resources
Use in the Mahakam Delta of East Kalimantan, Indonesia, Epistema Working Paper
number 01/2011, Jakarta: Epistema Institute
(http://epistema.or.id/publikasi/working‐paper/172‐regulatory‐rules‐and‐legal‐
problems.html)
EPISTEMA Institute holds the copyright of this working paper series. Dissemination
and duplication for the purposes of education and supporting social movements are
allowable as long as not commercially used.
Papers in this series reflect personal opinions of their authors, not the views and
policies of EPISTEMA Institute. Authors are responsible to the content of their
papers. Comments for this paper can be sent to [email protected] or
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ii
REGULATORY RULES AND LEGAL PROBLEMS OF COASTAL RESOURCES USE
IN THE MAHAKAM DELTA OF EAST KALIMANTAN, INDONESIA
Rikardo Simarmata
I. INTRODUCTION
On September 2, 2010, around twenty officers comprising of mostly Kutai Kartane‐
gara district civilian police officers (polisi pamong praja), accompanied by the district
agency officers, number of local police and military officers and the officials of Total
E&P Indonesie, a joint France‐Japan oil and gas company, went to Sepatin village in
the Mahakam Delta of East Kalimantan Indonesia.1 They went there to enforce law
stating that the installment of a gear on a public navigation route or in the vicinity of
a well installation of an oil and gas company is prohibited. Ten fishermen had
installed a local gear fish trap called julu net next to Gathering and Testing Satellite
(GTS) G‐TN G19 of the company. A week before, the company reported to provincial
policy office to ask them to enforce the provision upon those fishermen. At the day
of the enforcement took place, two fishermen uninstalled their own julus net
because they finally received a low amount of compensation the company offered.
While eight of them kept refusing to uninstall their julus net as the amount of the
compensation was only a half of they had proposed to the company. Interestingly,
the government and legal officers carried out the enforcement even though at the
same time, according to fishery legislations, the fishermen have a right to install the
julus net there because they were located within a traditional fishing ground (0‐3
miles).
The julu case told us several things concerning the use of natural resources in the
Mahakam Delta. First, that there are various resource uses existing there alongside
with the existence of various formal regulatory rules that govern them. Second, the
various resource uses take place in a same place. Third, there is an incompatibility
between the existing various formal regulatory rules. The julu case specifically
1 Total E&P Indonesie was founded in 1968; a member of Total group, a worldwide France company operating in 130 countries. The Japan’s company is Inpex corporation. This joint operation is presently the biggest gas producer in Indonesia, yielding 30% of Indonesian gas production. See Risjanto 2009.
pictures a tense between a territorial‐based use rights and a non‐territorial‐based
use rights. In that case, the company’s rights over oil and gas resources is a
territorial‐based while the fishermen’ rights over the fishery resources is a non‐
territorial base. This article perceives a territorial‐based use rights as an exclusive
right over certain natural resources in a specific boundary (Christy, 1982; Christy,
1997:42). While a non‐territorial‐based use right is rights over natural resources for
not a specific boundary.
This article is going to make a comprehensive description and analysis of the formal
regulatory rules over natural resources in the Mahakam Delta. It will describe the
account of the various formal regulatory rules, and most importantly it will analyze
the compatibility as well as the incompatibility amongst the various formal regulato‐
ry rules. Lastly, it will analyze the extent to the compatibility and the incompatibility
affect to legal certainty the users could gain.
This article perceives the ‘formal regulatory rules’ as rules created by either central
government or local government. The local government itself comprises of several
levels which are province, district (kabupaten), sub‐district (kecamatan) and village
(desa). As this article deals with natural resource issue then it will discuss about
formal regulatory rules on natural resource use. It then leads this article to the use of
the concept of ‘resource tenure’ or property rights’. This article will deliberately use
a legal point of view in applying the concept.2 Therefore, this article perceives
resource tenure or property rights as a bundle of rights and duties governing access
to and control over resources (Bruce, 1993:1; Hanna et al., 1999; Ciriancy‐Wantrup,
Bishop, 1975:715; Schlager and Ostrom 1992), or as the terms and conditions on
which resources are held, used and transacted.3
After introduction section, the next will be an overview of Indonesian coastal legisla‐
tions. Afterwards, this article goes to a section describing the account of the various
regulatory rules over natural resource in the Mahakam Delta. In doing so, this article 2 Broader than legal a point of view, social scientists define resource tenure as institutional arrangements of rules, principles, procedures, and practices whereby society defines control over, access to, management of, exploitation of, and use of means of existence and production (Dekker, 2001:15). It also perceived as patterns of behavior that specifically serve to control society’s use of environmental resources (Crocombe, 1971). 3 The definition of the resource tenure actually refers to term land tenure (Adams, Sibanda, Turner, 1999:2). This article uses the definition to a broader scope, rather than only land. One definition describes resource tenure as rights to land, water, tress, and other resources (Bruce, 1999:1).
2
basically divides them into three. First, territorial‐based regulatory rules. Second,
non territorial‐based regulatory rules. Third, related regulatory rules. The third one
comprises regulatory rules on spatial planning and environment. The next section is
the analyses of the compatibilities and incompatibilities of amongst the various regu‐
latory rules, and the extent they provided legal certainty and legal uncertainty to the
various resource users or rights owners. This article will end with some concluding
remarks.
3
II. OVERVIEW OF INDONESIAN COASTAL LEGISLATIONS
When we discuss about legislations governing Indonesian coastal resources, we may
divide it into two periods. The periods are before and after the promulgation of Law
No. 27/2007 concerning Coastal Resources and Small Island Management. At the
period before the Law promulgated we could not find a codified definition of coastal
zone or coastal resources (Natabaya, 1998:6). It occurred because there is no one
statute or organic law that specifically addresses the use of coastal resources
(Dirhamsyah, 2006:69). Instead, the statues or organic laws deeply fall into sectoral
manner which subsequently resulted a series of gaps, overlaps, redundancies and
conflicts amongst them (Patlis et al., 2001:28; Patlis, 2005:451‐52). In term of
number, there were around 20 laws that are related to the governance of the coastal
resources use (Saad, 2001; Putra as quoted in Patlis et al., 2001:28). Therefore, in
order to know how Indonesian legislations rule the coastal resources use we are
supposed to read each of them. Some of the twenty laws were Law No. 5/1960 on
Basic Agrarian Law, Law No. 41/1999 on Forestry, Law No. 11/1967 concerning
Mining, Law No. 9/1985 as superseded by Law 31/2004 on Fishery, Law No. 24/1992
as superseded by Law 26/2007 concerning Spatial Use Management, Law No. 21/
1992 as superseded by Law 17/2008 concerning Sailing, Law No. 23/1997 as super‐
seded by Law No. 32/2009 concerning Environmental Protection and Management,
Law No. 21/2001 on Oil and Gas, and Law No. 22/1999 as superseded by Law No.
32/2004 concerning Regional Autonomy.
There are some incompatibilities amongst the twenty laws. For instance, mangrove
forest management has been a sensitive issue between the Ministry of Forestry and
the Ministry of Marine Affairs and Fisheries for more than two decades. The Forestry
Law allows a harvest in a coastal mangrove forest like the Mahakam Delta, while the
Fishery Law 2004 prohibits all activities that are damaging to fish habitat and
fisheries resources. An excessive and illegal logging of mangroves and other land
forests could result in the destruction of fishing ecosystems. It ultimately leads to the
destruction of the ecosystem’s function as a nursery ground for some fish and
marine species, a buffer zone or ‘‘filter area’’ for coral reef ecosystems, as well as to
reduce pollution, abrasion and sedimentation from land‐based activities (Dirham‐
syah, 2006:73 and 79). Another instance is that the Fishery Law 2004 defines ‘fish’
broadly so that it includes some fishes which is according Law No. 5/1990 concerning
Conservation of Biological Resources and their Ecosystem are endangered species
(Patlis et al., 2001:29; Dirhamsyah, 2006:80).
The sectoral manner remains existing despite some of the enacted laws did not have
sectoral manner such as the Law concerning Environmental Management, and Law
concerning Spatial Planning. Meanwhile due to its ambiguities, the enactment of Law
1999 on Regional Autonomy had generated regional euphoria. In fishery sector, one
of the articulation of the euphoria is the fact that number of districts prohibited any
traditional fishermen coming from outside to enter their district water. They did it
despite the districts did not yet formally declare their maritime boundaries (Patlis,
2005:454). Law No. 32/2004 then later reduced the ambiguities.
Meanwhile, the enactment of Fishery Law 2004 did not give any change to the
sectoral manner as this Law does not specifically address coastal fishery resources in
any meaningful way (Patlis, 2005:452).
Legally speaking, the above sectoral manner then came to an end at the time the
Law No. 27/2007 enacted in July 2007. Not only does the Law aim at eradicating the
sectoral manner but also aim at ending the conflict of authority and use, and provi‐
ding a legal certainty for the resource users.4 To avoid the sectoral manner the Law
necessitates ahead the making of planning before other activities such as rights
issuance and surveillance and control on the coastal resource uses take place. To
make the planning are compatible with the planning of other agencies, the Law
strictly requires the making of the planning of the coastal resource use to refer to
other agencies’ planning. On top of that, the Law for the first time ever in the history
of Indonesian legislation makes a definition of ‘coastal zone’ and ‘coastal resource’.
Not only does it aim at eliminating the sectoral manner, the Law No. 27/2007 also
intends to eliminate the open access character of the coastal resource use especially
for the fishery resources.5 Like the way they perceived other countries, most
4 A testimony of General Secretary for Ministry of Marine Affairs and Fisheries in Constitutional Court session. See in the minutes of the Constitutional Court session dated 8 April 2010, p. 8. See also elucidation of Law No. 27/2007 section General. 5 See in the minutes of Constitutional Court session dated 8 June 2010, p. 30‐31.
5
scholars also perceive that the use of Indonesian fishery resources operate through a
common property and an open access regime (Saad, 2003:95 and 105; Bailey, 1997:
234). Their basic argument to arrive at the conclusion that even it is legally under a
state management, but in reality exploitation over fishery resources has been lasting
with insufficient control by government offices or legal enforcers (Damayanti, 2004:
4).6 Therefore, few scholars have pointed out that despite the fishery resource use is
common and open access but at the same time it centralistic as well. As a result it is
only opened in de facto, but in de jure it is a state property indeed (Satria, Matsuda,
2004).7 Another scholar refers to Article 33 (3) of the Indonesian constitution to
argue that the fishery resource use is under state management. The article says:
‘Land and water and the natural riches therein shall be controlled by the State and shall be utilized for the greatest welfare of the people’.
According to the scholar the article gives authority to the central government to
develop and manage the resources (Patlis, 2007:205).
Apart from the above discussion, the Law No. 22/2007 is believed has introduced a
new tradition to the Indonesian coastal resource management because it introduces
an exclusive rights so‐called Coastal Resources Utilization Rights (Hak Pengusahaan
Perairan Pesisir or HP3). This is a breakthrough because by introducing the HP3 the
Law releases the coastal resource use from the shadow of open access doctrine.8
Conceptually, the HP3 is actually kind of territorial use rights in fisheries (abbrev
TURFs). It could be defined as an exclusive right of a person or community to the use
of fishery resources within a certain boundary (Christy, 1982; Christy, 1997:42). The
Minister of Marine Affairs and Fisheries, a governor and a district head could grant
the HP3 to an Indonesian citizen, an Indonesian company or indigenous peoples (art
18). The government officers grant the HP3 over a certain boundary. Upon a granted
boundary, a HP3 holder could utilize any coastal resources existing on the water sur‐
face, body water and the water land (art 16 sec 2). The HP3 is also transferable. Its 6 For an account in other countries see Ostrom 1999. 7 Satria and Matsuda (2004) argue that the fishery resources are regulated by state with the introduction of control mechanism. The state controls the use through license and zone restriction. In making the argument, they quoted Charle’s model mentioning that Indonesian fishery law applies input model to control the fishery resource use, by mixing it with measure such as gear restriction, closed area, and closed season (Satria 2006:9). Actually apart from as means to exercise state control over fishery resources, they are also as means to overcome overfishing. Quota, closed seasons, gear restriction, taxes or licenses have become alternative means for the sole ownership on fishery resource use in overcoming over fishing. See Smith and Panayotou:351. 8 Saad at http://lautmenyapa.blogspot.com/2008/11/hak‐pengusahaan‐perairan‐pesisir.html (downloaded on 15 July 2010).
6
time duration is twenty years and could be renewed for another forty years (art 19).
7
III. FORMAL REGULATORY RULES IN THE MAHAKAM DELTA
As mentioned earlier this article divides the various formal regulatory rules into
territorial‐based and non territorial‐based. The territorial‐based encompasses oil and
gas, forest and land regulatory rules. Whereas the non territorial‐based is only fishe‐
ry regulatory rules. Apart from two classified regulatory rules, this article will also
describe regulatory rules on spatial planning and environment. This section will des‐
cribe those regulatory rules and most importantly will analyze the extent to which
they are compatible and incompatible once to another.
A. Territorial‐based
Oil and gas regulatory rules
In the second half of 1960s, the Ministry of Mining of Indonesian government
designated an oil and gas block, named Mahakam‐Bunyu in East Kalimantan, Indo‐
nesia. The block covered area of 34,125 km2 (Idham, 1974:125; Janvry, Loiret, 1992).
The biggest part of the area was located in the Mahakam Delta while the rest was in
Bunyu Island, north part of East Kalimantan province. According to Law No. 44/1960
concerning Oil and Gas, as superseded by Law No. 22/2001, and Law No. 11/1967
concerning Basic Mining Principle, the designation implied that the block then
became a state mining zone (wilayah kuasa pertambangan). Further, the designation
brought a legal consequence that mining and oil and gas regulatory rules would be
enacted upon the block.
According to the Oil and Gas Law 1960 and the Law on Basic Mining Principle the
state has a right to control (kuasa pertambangan) the use of any oil and gas resour‐
ces in the block. According to Oil and Gas Law 1960 and Law No 8/1971 concerning
Perusahaan Pertambangan Minyak dan Gas Bumi Negara (Pertamina) the state
delegated the rights to Pertamina, as state‐owned oil and gas company.9 Some scho‐
lars point out that the delegation of the rights did not mean that Pertamina replaced
the state position as the owner of the rights. Instead, the state had only granted the
Pertamina a mineral rights (Simamora, 2000:78; Hasan, 2009:72‐3). Whatever the
level of rights Pertamina had obtained from the state, the designation and later the
9 Pertamina actually originates from a merger between PN Pertamin and PN Permina, two former other state‐owned oil and gas companies. The merger was stated in Government Decree No. 27/1968 ( Simamora, 2000:30, and Hasan, 2009:73).
delegation have made Pertamina to be a new player of the resource use in the
Mahakam Delta.
The first exercise of the state control over the block was a granting of a right of
exploration and exploitation over the block to the Japan Petroleum Exploration
(abbrev Japex) by the Ministry of Mining in 1967. The right granting was carried out
through a contract called contract of work.10 According to Oil and Gas Law 1960, Law
on Basic Mining Principle and to the contract of work itself, Japex acted as a contrac‐
tor of Pertamina, not as a co‐owner (Simamora, 2000:91). In 1970, Japex, which later
became Inpex, made an agreement with Total E&P Indonesie to run the oil and gas
extraction in the block. In that agreement, Total E&P Indonesie would act as contrac‐
tor, and they both get a share division of fifty‐fifty. Since 1970 until presently, Minis‐
try of Mining has granted four contracts called production sharing contract (PSC)11 to
Total E&P Indonesie12. In accordance with Law No. 1/1967 as superseded by Law No.
25/2007 concerning foreign investment, the valid period of the rights is for 30 years
and could be renewed for another 20 years.
After the designation and delegation had made Pertamina as new player, later the
rights granting have made Japex and Total E&P Indonesie as new resource users in
the Mahakam Delta. Yet as there had been other natural resource users in the
Mahakam Delta before the rights granting, admittedly it then raises a question, what
would be its legal impact to the prior use rights? As the rights granting is governed
by the oil and gas regulatory rules it then raises another question, to what extent do
the regulatory rules make themselves are compatible to the prior fishery and land
regulatory rules?
It is a fact that before the rights granting to the company, the rights granting and the
use activities to the fish and land resource have been occurred before. When a group
of Bajonese fishermen inhabited a place called Pemangkaran in the Mahakam Delta
in 18th century, the Sultan of Kutai (16th century‐1945), through his local represen‐ 10 Contract of work was created to replace a concession system which was introduced during the Dutch colonial period. Two raising issues that accompanied the introduction of the contract of work were state sovereignty and state revenue. See Oon 1986, Fabrikant 1975a:308‐9, and Fabrikant 1975b. 11 The PSC is the replacer of the contract of work as the latter was regarded as a disguised concession. PSC is actually another type of a contract. It is an adopted concept originally emanating from adat law (Simamora, 2000:59; Hasan, 2009:54). 12 The four PSC are Mahakam PSC (1970), Tengah JOB PSC (1988), Saliki PSC (1997) and Southeast Mahakam PSC (1998). The four PSCs covers area of 5,926 km.
9
tative (Demang), granted settlement permits to them. Later on, in early 20th century,
the Sultan granted several plantation concessions to Buginese and Banjarnese
(Levang, 2002:4‐5).13 After the Indonesian independence in 1945, the fishermen
rights to catch the fish and the farmer rights to use the land were revitalized. It
occurred through a passage of a Governor Decree of East Kalimantan No. DPRGR‐
Prov./8/PD/67 concerning fishery permit, and a Governor Decree in 1975 concerning
the utilization of state land (Simarmata, Dharmawan, 2003:22).
To encounter the situation like in the Mahakam Delta where there is an oil and gas
resource use amidst the fish resource use, the central government apparently
formed a policy favoring the oil and gas resource use. The legal instrument to the
policy is a circular letter of Directorate General for Fishery of the Ministry of
Agriculture No. E.V/2/4/15/1975. The letter stipulates that in radius 500 meters form
the company installation is a forbidden area while in radius 1 mile from the installa‐
tion is a restricted area. The letter totally prohibits ship or boat to enter the for‐
bidden area, but in the restricted area passing across ship or boat is still allowed as
long as they do not install an anchor. Due to the flourishing of conflict between Total
E&P Indonesie and the fishermen, the Kutai district head then revitalize the 1975
letter by passing another circular letter No. 1000/287/Pem.A/VI/2004. Thus, the
Ministry of Mining and the Kutai district government barely needed the circular
letters to restrict the fishermen rights to pass across and catch the fishes in the
forbidden and restricted area. Interestingly, the two letters are opposite to some
fishery legislations which will be described later.
The policy favoring the oil and gas resource use occurs too to the land use. According
to Oil and Gas Law 1960, the exploration and exploitation rights that Total E&P
Indonesie owns does not include land use rights. Therefore, in order to be able to
use the land which is located above the block, Pertamina through Total E&P
Indonesie, should obtain the land by purchasing the land or compensating the land
owners. A Presidential Directive No. 1/1976 concerning the synchronization of land
issue to forestry, mining, transmigration and public work issue, reasserted the above
13 Concerning the types of rights over natural resources in the course of the sultanate period see Peluso 1983a, 1983b, Peluso 1987, Magenda 1991, Pemprov Kaltim 1992, Obidzinski 2003, Linblad 1985 and Linblad 1988.
10
provision. According to the directive a mining or oil and gas company should
appropriate the land of local residents or indigenous peoples if the resident and
peoples have an official right. Going further, it states that if the company is going to
close certain area that will avoid the local residents to exercise their rights, the
company then should compensate them.
According to oil and gas regulations, Pertamina would purchase and compensate as
long as the land owners could prove their entitlement to the land by showing owner‐
ship documents. The ownership documents could be a certificate issued by a land
agency or a land letter signed by the village and sub‐district authorities.14 In
addition, in practice, the company also requires an identity card (kartu tanda
penduduk) and family card (kartu keluarga). Nevertheless, as long as the company
can show their PSC official documents to the land owners the land owners are not
allowed to refuse to sell the land or to get compensated.
Apparently, the granting of the exploration and exploitation rights did not only imply
to the resources users existing earlier, but it also implied to resource use coming
later. In 1980s a private company intended to develop an intensive large‐scale
shrimp pond in two islands in Muara Badak sub‐district. Yet, the company got
difficult to step further as Pertamina was objected. Pertamina argued that the two
islands were included in the state mining zone. Therefore to be able to use the land
Pertamina only allowed the company to utilize the land with a condition that the
company should hand back the land to Pertamina if Pertamina would use it. The
company eventually refused the offer and canceled their plan to develop the shrimp
pond. This case is more like a power demonstration rather than a legal action be‐
cause, as mentioned earlier, that the rights of Pertamina and its contractors did not
include rights to land. It was a fact that by having the delegated rights to control, for
a long time (1971‐2000) Pertamina had become a powerful institution as it was not
mere a company, but also a regulatory body (Oon, 1986:163).
14 They are head of hamlet (ketua RT), village head (kepala desa) and head of sub‐district (camat). For the explanation of the letter and its formality see Simarmata 2010 and Simarmata forthcoming.
11
Forest regulatory rule
In early 1983, the central government introduced another territorial‐based re‐
gulatory rule in the Mahakam Delta; it is a forest regulatory rule. The Minister of
Agriculture enacted decree No. 024/Kpts/Um/1/1983 which endorsed the so‐called
Consensus Forest Use Planning of the East Kalimantan or TGHK. The endorsement of
TGHK also constituted as a state forest declaration. The decree stated that the size of
state forest in East Kalimantan was 21,144,000 ha, a size that is as large as the pro‐
vince width itself. Therefore, the declaration has made the province totally became
as state forest.15 According to the 1983 decree, the entire mangrove forest of the
Mahakam Delta was production forest. It brought an implication that now both the
block and the agricultural land are at the same place with the production forest.
They simultaneously exist in a same place. In other words, the agricultural land was
now part of the forest land, and above the block there is a forest. What would be the
impact of the declaration to the fishery, land and mineral use rights? Before come to
the answer of that question, an account of the legal rules over the production forest
will come first.
In accordance with Law No. 1/1967 concerning Forestry as superseded by Law No.
41/1999, and a decree of Minister of Agriculture No. 683/Kpts/Um/8/1981
concerning Criteria and Procedures to Demarcate Production Forest, after the
declaration a team comprising of the officers of the Ministry of Agriculture and other
related ministries, should carry out a demarcation. According to Chhatre (2003:152)
and Soewerwine (2004:99) a demarcation is to draw and delineate the boundaries of
certain areas by using some scientific mechanism such as survey and map. Three
main activities of the delineation are measurement, mapping and installing physical
border marks. The demarcation is expected to help the forestry officers to easier
carry out a forest protection over the production forest from harmful activities.
Unfortunately, due to lack of budget, personnel and above of all a timber orient‐
tation, the provincial forestry government carried out the demarcation after 18 years
of the declaration. It started 2001 and came to an end in 2005.
15 Interestingly, at the time of making the so‐called Consensus Forest Use Planning, the whole East Kalimantan area had been actually plotted into timber concessions (Vargas 1985:61). Therefore, the so‐called Consensus Forest Use Planning was not more than copying the timber concession areas.
12
According to Forestry Law 1967 and Government Regulation No. 21/1970 concerning
forest concession, any utilization and occupation of the production forest of the
Mahakam Delta should be conducted through a right or license which is granted by
the Minister of Forestry, governor or district head. Without the right or license, the
utilization or occupation will be definitely categorized as illegal. The illegal users
could be threatened to have to pay sum amount of fines or to be sent in jail.
Unfortunately since its declaration until presently, the Minister of Forestry, the
governor or the Kutai district head have not granted any rights or license in the
production forest. Therefore, the production forest of the Mahakam delta is the only
production forest in the East Kalimantan that the government has never granted a
right or a license on it.16
Apart from the late demarcation and the absence of timber rights granting in the
production forest, but the forest regulatory rules remain prevailing in the production
forest. Yet, as the declaration came later, then how does it take into account the
prior oil, gas, and land users? How do the forest regulatory rules make themselves
are compatible to the prior land and oil and gas regulatory rules?
Upon the oil and gas recourse use, the forest regulatory rules are clear. According to
Government Regulation No. 28/1985 as superseded by Government Regulation No.
45/2004 concerning Forest Protection, as the rights granting to the Total E&P
Indonesie took place prior to the passage of the Government Regulation then the
company could keep carrying out the oil and gas use. Nevertheless, the regulation
requires the company to adjust its self to the provision of the regulation. Later, the
Ministry of Forestry ruled that the adjustment is that Total E&P Indonesie should
have a forest use permit (izin pinjam pakai kawasan hutan) which is issued by the
Minister of Forestry. By having that permit the Total would be able to use the
production forest land, as well as to cut trees over it. The time duration of the permit
will automatically follow the duration of a PSC contract the company has.
16 The central government had granted mangrove forest areas which were located in north part of East Kalimantan to four timber companies as of early 1970s. There were Karyasa Kencana, Bina Lestari, Inhutani, and Jamaker. In total, the areas of the four companies were approximately 213,040 hectares (Soetrisno 2007:12). Prior to it, the grant of mangrove concession in East Kalimantan had been actually commenced in Dutch colonial period where the Dutch colonial government and the Kutai sultan granted a forest concession to a Phillipines company in the first half of 20th century (Lindblad, 1988; Obidzinski, 2003).
13
Pursuant to a decree of Minister of Forestry No P.14/Menhut‐II/2006 and
Government Regulation No. 24/2004 concerning Forest Use Permit, to be able
obtain the permit the regulations require the company to provide some require‐
ments and to do some obligations. One of the requirements is that the company
should provide a compensation to the Ministry of Forestry either through tax paying
and watershed rehabilitation or providing an exchange forested area in other places.
While the instances of the obligation are paying for any tree they cut, demarcating,
carrying out forest protection, and doing replanting and reclamation to any piece of
forest area they utilized. At the time of writing, Total E&P Indonesie is still arranging
the forest use permit to the Ministry of Forestry after they have been operating in
the Mahakam Delta for 40 years and after 25 years of the passage of the Govern‐
ment Regulation 28/1985. Therefore, until recently there is no any official report
released by either the company or the Ministry of Forestry about the size of forest
land and number of the tress the company has utilized and cut. The company only
said that they have successfully replanted 13,000 ha with mangrove tress (rhizo‐
pora). The Kutai district government said that the company has used land 2,834 ha
(Paparan Bupati Kukar, 2005:9). Yet none of the two figures exactly leads to a precise
size of the utilized forest land and cut trees.
Apparently, the forest regulatory rules only allow some specific non forestry re‐
source uses that can be carried out within the production forest. The specific non
forestry resource uses mentioned by the regulatory rules are kind of uses that have a
strategic purpose. The regulatory rules then make a list of the allowed uses where
mining is included on the list. Yet, the list does not include agriculture land and
aquaculture land. In line with the provision, for the aquaculture land which at the
time of the declaration had flourished as an impact of trawl ban regulation in 1980,
there is already a joint decree of Minister of Agriculture and Minister of Forestry No
KB.550/246/Kpts/4/1984 which prohibits aquaculture within a forest production.17
Thus, in accordance with the logic of the above regulations, the land users in the
17 Several studies conclude that the trawl ban policy then generated the fish pond opening in the Mahakam Delta. See for example Bappedalda Kukar&PKSPL IPB 2002:III‐66, and Hidayati et al 2005. For the impact of the policy in other parts of Indonesia see Bailey 1988, 1997 and Jhamtani 2003.
14
Mahakam Delta are illegal at the time the declaration took place. The regulations
actually perceive them as illegal occupants.
However apart from their illegal status, the declaration does not totally neglect the
land users. According to regulations concerning forest plan and demarcation, in
carrying out the demarcation of a declared forest, a committee established by a dis‐
trict head, should take care rights claim from third parties.18 The rights claim of the
third parties could be concerning rights to land or rights to crops and buildings above
the land. Only if the rights claim is taken care then the declared forest can be
subsequently mapped and declared as a definite state forest land.
The mentioned 1976 Presidential Directive also has such above provisions. As similar
as obligations imposed to a mining and oil gas company, the Directive also obliges a
timber company to appropriate the land of the local residents or indigenous people
if the thay have an official rights over the land. The Directive also obliges the com‐
pany to compensate the local residents or indigenous peoples if the company is
going to close an area which will avoid the local residents to exercise their rights.
Yet a provincial forest unit, called UPTD Planologi Kehutanan which demarcated the
production forest of the Mahakam Delta in the course of 2001‐2005, hardly complied
with the above provisions. Instead of inventorying rights over the land, tress and
crops existing near by and within the production forest, the service unit tended to
cover the demarcation they were carrying out in order to avoid a clash with the pond
owners or pond workers. In doing so, they even managed to convince the pond ow‐
ners or pond workers that the demarcation would not bring any effect to the
existence of their fish ponds (Simarmata, forthcoming). As a result, the demarcation
itself missed thousand of pond owners who some of them even have had land letter
issued by village head and head of sub‐district.
Despite the demarcation finally resulting an exact size of the production forest after
for 22 years was unclear, but it still left number of questions.19 The fact that it did
18 The member of the committee comprises district agencies dealing with issue on development planning, land and forest, the service units of the Ministry of Forestry, head of sub‐district, village head and local elder. 19 The demarcation noted that the fixed size of the production forest is 103,682 ha. It also noted that the size of the rest land that does not include into the production forest is 6,787 ha. Thus, the total size of the land of the Mahakam Delta is 110,683 ha.
15
not inventory the rights over land, trees and crops, does it mean that the land
ownership is automatically legal so that they are allowed to occupy and keep utilizing
the forest land? If the land ownership is legal does it mean that they do not need to
propose a license from the Minister of Forestry, governor or the Kutai head district
any longer? The answer to the questions will come later.
The above descriptions inform us that apart from the land and fish resource use, in
the Mahakam Delta the central government imposed oil and gas, and forest regula‐
tory rules that are territorial‐based. Upon the designated and demarcated areas, the
central government enacted the regulatory rules which basically aim at arranging
how and by whom the two resources can be accessed and used (Vandergeest,
Peluso, 1995). From a legal point of view, the description told us how the two terri‐
torial‐based regulatory rules dealt with the former resources uses such as fish and
land resource use. It also said how the later territorial‐based regulatory rules made
themselves compatible to the former one.
B. Non territorial‐based
As has pointed out that fishing is the first resource use in the Mahakam Delta before
the agriculture, rattan collection, aquaculture and oil and gas come later (Levang,
2002:4) Like in nationwide level, the fishing resource use in the Mahakam Delta has
been also open access in de facto but under state management in de jure. Legally
speaking, the central and the local government control the fishing use by requiring
the modern fishermen to have the so‐called fishery enterprise permit (izin usaha
perikanan). While for the traditional fishermen, they only require them to register
their fishing activities to the district fishery agency. Other means to control the
resource use are gear and zone restriction, and closed area. Yet, according to the
fishery regulatory rules, the permit holders freely catch fish everywhere as long as in
the mentioned zone (Saad, 2003). They do not have to exercise their rights to fish in
only a certain exclusive boundaries.
The East Kalimantan government has exercise their control over the fish resource
use since 1967 when they enacted the governor decree concerning the fishery
permit. In Kutai district to implement the decree of Minister of Agriculture No. 607/
16
1976 concerning fishing zone, the district government enacted a local regulation No.
19/1978 concerning fishing.20 Later, the local regulation was superseded by the Kutai
district regulation No. 3/1999 in order to make an adjustment to Fishery Law No. 9/
1985.
The 1999 Kutai district regulation stipulates that catch fishing in the Kutai district
shall be undertaken through a permit or recommendation from a village head or a
head of sub district. The Kutai district head authorizes to grant the permit. Only
Indonesian citizen and company entitle to obtain the permit. Time duration of the
permit is 30 years and could be renewed for another 20 years. The 1999 Kutai regu‐
lation reasserts that the use of gear should be in accordance with the fishing zone as
stipulated in the 1976 ministry decree. According to 1976 ministry decree there are
four fishing zones. Zone I (0‐3) is only for traditional fishermen who do not use
engine boat, and it is strictly forbidden for trawl.21 The use of the gears shall not ruin
the fishery resources and environment. With regard to the closed area, the
regulation prevail a total ban for fishing in some listed reservoir areas. Unfortunately
none of an area of the Mahakam delta is included on the list.
Interestingly either the 1976 and 1999 Kutai district regulation does not relate itself
to the 1975 circular letter of the Directorate General for the Minister of Agriculture
concerning the prohibition to the fishermen to pass cross and fish in the forbidden
and restricted areas. The two regulations neither reaffirm nor neglect the circular
letter. With regard to that matter, the regulations only stipulate the prohibition to
the fishermen to disturb public interest and public navigation route (jalur pelayaran
umum). As mentioned before that it is the 2004 circular letter of the Kutai district
head that include the forbidden and restrictive area to a list at where the fishing and
passing across are forbidden and restricted.
In the course of 2000, the Kutai district government strengthened its control over
the fish resource use as they enacted four local regulations. The control is not only to
20 The 1976 decree has been superseded by a decree of Minister of Marine Affairs and Fisheries No. 392/1999. 21 The enactment of the 1976 ministry decree aimed to protect the traditional fishermen from modern fishermen who have big boats. By specifically allocating only for the traditional fishermen, the decree intended to avoid the modern fishermen who used trawl and who have engine boat sizing more than 10 horse power, to not enter the Zone I (Bailey ,1988&1997; Tribawono, 2002; Jhamtani, 2003).
17
fishing and aquaculture as mentioned in the regulation No. 27/2000 concerning
authorities of Kutai district and in the regulation No. 36/2000 concerning fish
enterprise, but also to the quality of manufactured‐fish products and the quality of
seeds as mentioned in regulation No. 37/2000 and 34/2000 respectively.
There is no any provision in the 2000 regulations that could specifically relate to the
situation of the Mahakam Delta. Like the 1999 regulation, the 2000 regulations do
not also concern with the issue of area division between fishing ground and the oil
and gas extraction. Interestingly, even though regulations were enacted at the peak
period of the fish pond opening (1997‐2000), they do not have any provision stating
that any proposal for the fishery permit (aquaculture) will not be processed if the
pond is located within the production forest. Or to have provisions stating that any
fish harvesting from aquaculture which is located within the production forest are
illegal fish.
The only local regulation that manage to link between the fish pond and the forest
production is a circular letter of Kutai district head No. 100/75/Pem.A/IV/2003. On
his preamble the letter deliver its concern about the importance of environmental
sustainability in the Mahakam Delta. With such concern the letter asked people who
reside in or outside the Mahakam Delta to stop opening new fish pond for it violates
Forestry Law 1999 and Environmental Management Law 1982 (it should mean No.
23/1997). In addition, the letter asked the district related agencies, particularly
Forestry Agency to implement and enforce the provisions of the Forestry and Envi‐
ronmental Management Law. Nevertheless, as a circular letter it could only make a
call or invitation to the land users without power to ask them to stop opening the
new fish ponds or to sustainably manage the existing ones. According to Law No.
10/2004 concerning the Establishment of Law, a circular letter is not a legal rule. It
evolves in public administration practices used as a legal instrument in order to
implement administrative duties. Therefore, a circular letter is mainly addressed to
public administrators and will merely bind the public in indirect way. Most
importantly that it is not allowed to undermine the legal rules (Ridwan, 2003:130‐
142).
18
C. Related regulatory rules
The spatial planning regulatory rules have apparently provided a legal certainty for a
few land users of the Mahakam Delta. In addition, the spatial and environment
regulatory rules have also collaboratively regulates how the resource uses in the Ma‐
hakam Delta should be so it leads to an environmental protection.
As of 1993, the land use activities in the Mahakam Delta were not totally ruled any
longer by the two territorial‐based regulatory rules. In order to implement Law No.
24/1992 concerning Spatial Planning as superseded by Law No. 26/2007, the pro‐
vinceal government issued a Provincial Regulation No. 12/1993 concerning Spatial
Planning of the East Kalimantan Province. It was intended to valid for 15 years. In a
map attached to the provincial regulation, it was said that five locations in the
Mahakam Delta were excluded from the production forest area. The five locations
are Letung Island, Lerong Island, Tanjung Aju Island, Terantang Island, and Paranga‐
tan Island. The provincial government did the exclusion as they used data provided
by provincial land agency telling that in the five locations there were existing
residences, coconut plantations and fish ponds. Meanwhile, the provincial land
agency got the data trough a survey that the agency carried out in the course of
1970s and 1980s. The survey was named Land Use Systematic Survey. At the time of
the provincial spatial planning was endorsed, there was not an official figure men‐
tioned about the fixed size of the five locations. It is the demarcation of the pro‐
duction forest in 2005 that count the size is 6,787 ha. It is 6,14% of the total size of
the land of the Mahakam Delta. Prior to the figure, in 1987 and 1991, National Land
Agency (Badan Pertanahan Nasional‐BPN) had had another figure telling that around
891 ha of the excluded areas had been certified.22 The official name of the excluded
locations is the so‐called Non Forestry Zone (Kawasan Budi Daya Non Kehutanan).
The exclusion then brought a legal consequence that upon the area the forest
regulatory rules did not prevailed any longer and it was replaced by the land re‐
gulatory rules. According Basic Agrarian Law 1960 (art 21) upon the 891 ha. of the
certified land, as they are ownership land, the owners could use and transfer their
22 The land certification was part of a collaborative program between BPN and Ministry of Agriculture aims to help farmers who planted coconuts, cloves, rubbers to be able to easily a credit from banks.
19
land to other people. While for the rest of the Non Forestry Zone, the land regulatory
rules allow land utilization as long as be carried out through a rights entitlement by
the land agency. According to Basic Agrarian Law and Government Regulation No
8/1953 concerning State Land Use, the rest of the Non Forest Zone is state land
because there is no any land title upon them, neither state‐based land title nor adat‐
based land title (Harsono, 2005:272; Ilyas, 2005:100). Some land regulations classi‐
fied them as cultivated land (tanah garapan). A letter of Head of National Land
Agency No. 110‐2111 of 2003 defines the cultivated land as state land or private land
that is being used by someone with or without permit and with or without a certain
time period. In accordance to the letter, Presidential Decree No. 34/2003 and a dec‐
ree of the Head of National Land Agency No. 2/2003, the Kutai district head could
grant land reclamation permit upon the land.23 The maximum size of the land could
be granted is 2 hectares with 3 years time duration.
When the provincial government revised the 1993 spatial planning in 1999, the ex‐
clusion remained. The Minister of Forestry took the similar policy when the 1983 so‐
called Consensus Forest Use Planning was revised in 2001. Therefore as of 2001, the
mangrove forest of the Mahakam Delta was not entirely as a state forest any longer
as it was before.24
Unfortunately, the law makers did not intend to also link the regulations concerning
the exclusion to regulations concerning protected area management. According to
criteria devised by a Presidential Decree No. 32/1990 concerning Protected Area, the
mangrove forest of the Mahakam Delta is a protected area as it is a coast that has a
mangrove forest (art 6 (3). Moreover, it also has green belts (article 5(1&2). The
Presidential Decree is an organic regulation of Law No. 4/1982 concerning Environ‐
mental Management as superseded by Law No. 23/1997 and currently by Law No.
32/2009. The Presidential Decree orders any provincial government to declare pro‐
tected areas in their respective province and post them in their respective spatial
planning. The East Kalimantan government has implemented the order and included
the mangrove forest of the Mahakam Delta as one of the protected areas in its 1999
23 From 1972 till 1984, the authority to grant the land reclamation permit was under head of sub‐district. Yet, in 1984, Minister of Home Affair dissolved the authority and later granted it to a district head ( Simarmata, 2010:10). 24 The minister revised it through a ministry decree No. 79/Kpts‐II/2001.
20
and 2004 spatial planning (Bappeda Kukar, PT. Sarana Bagja Bumi, 2006:6). Unfortu‐
nately, the Kutai government has not yet proceed the provincial spatial planning by
posting the Mahakam Delta mangrove forest into their district spatial planning as the
district does not have yet a district spatial planning since its establishment in 1959.
As the exclusion does not link to the status of the Mahakam Delta as a protected
area then the legal enforcement did not take place. According to the Presidential
Decree No. 32/1990, any cultivation within a protective zone which potentially
changes the ecological function of the protected area is prohibited. Therefore, the
authorities should not issue a particular land rights use if it will ruin the ecological
function of the mangrove forest of the Mahakam Delta. Governor Decree No. 31/
1995 concerning the registration of cultivated state land has unintentionally linked
the exclusion to the regulations concerning the protected area. The decree asks
every village head to not sign a land letter if the land is located within a protected
area (art 10a).
Yet in the Mahakam Delta due to the officers’ lack of knowledge of the regulations,
and their understanding to the economic demand of the villagers, the village heads
and heads of sub‐district signed the land letter without examining whether they
were located or not located within the production forest and the protected area. The
employees of Total E&P Indonesie and the officers of Executive Agency for Upstream
Oil and Gas Activities (henceforth Executive Agency) which replaced the position of
Pertamina, have the similar perception. As mentioned before that in compensating
the land owners they just needed to assure that the land owners have ownership
documents. They did not examine if the land were located within or outside the pro‐
tection forest or the protected area. They did so because oil and gas regulations did
not make any difference of it.
21
IV. EMERGING LEGAL ISSUES
Previous descriptions have figured out the compatibility and incompatibility of those
regulatory rules existing in the Mahakam Delta. This section is going to analyze the
effect of the compatibility and incompatibility to the resource users. To what extent
do they provide and do not provide a legal certainty for the resource users. The way
this section organizes the analysis is by focusing to each user. Yet, before going to
the analysis, the section is going to paraphrase the compatibility and incompatibility
in advance.
Compatible and incompatible
Law on Oil and Gas and its organic regulations do not have any provision ruling how
should an off shore oil and gas extraction deals with the fish regulatory rules. The
mere regulation concerning that matter is Government Regulation No. 17/1974 con‐
cerning the Implementation of Monitoring Upon Off Shore Oil and Gas Exploration
and Exploitation. This regulation has only an article that is related to the fishery
resources telling that an oil and gas resource use can not be carried out in an area
which functions as a nursery ground and which has coral reefs. A result, to resolve
conflict between the oil and gas and fishery resource use, the Ministry of Agriculture
and the Kutai district government preferred to launch an accommodative policy to
the oil and gas resource use. The 1975 circular letter is a concrete example of the
accommodation. Through the letter, the fish regulatory rules restrict the fishery
resource use when encountering an oil and gas resource use. The restriction is
apparently against the fish regulatory rules which have introduced a free boundary
principle that saying once some one obtained the fishery permit; he or she can catch
fish in any Indonesian maritime (Saad, 2003). In addition, in 1976 the Ministry of
Agriculture passed a decree that allows any traditional fishermen to fishing in all the
four fishing zones and totally protected the 0‐3 miles for only the traditional
fishermen.
Unfortunately, none of fishery legislation that coming after the 1975 circular letter
states anything about the restriction mentioned in the 1975 and 2004 circular let‐
ters, even the most recent Fishery Law No. 31/2004. They do not have any provision
stipulating that in the forbidden and restricted area mentioned, the fishing is
forbidden or restricted. As most of the Kutai district regulations originated from the
implementation of delegated authority rather than the implementation of attributed
authority, they are as similar as to the regulatory rules made by the central govern‐
ment (Simarmata, 2005). Therefore, the 1976, 1999 and 2000 Kutai regulations do
not have any provision that uphold the 1975 circular letter. Despite the Kutai district
head made the 2004 circular letter to uphold the 1975 circular letter but it still left a
question, why the Kutai district government does not state it in the Kutai regulations
or in a decree of the Kutai head instead of regulating it in a circular letter which is
according to Indonesian law can not be publicly bind?
Meanwhile, the oil and gas regulatory rules are compatible with the land regulatory
rules since the beginning as they oblige any oil and gas company to purchase the
land from the owners or compensate them. More than it, the oil and gas regulatory
rules are even compatible to informal land rules who acknowledge the land letter as
an evidence of land ownership.
The forest regulatory rules, the second territorial‐based regulatory rules, are compa‐
tible to the oil and gas regulatory rules. In a case like in the Mahakam Delta where
there had been a declaration of state mining zone earlier as well as the granting of
the rights to explore and exploit the oil and gas resources, the forest regulatory rules
allow the resource use keep operating with a condition that the resource user had to
have the forest permit use. Unfortunately, the oil and gas regulatory rules do not
make themselves are compatible to the forest regulatory rules as they compensated
the land owners even though their land and fish ponds were located within the
production forest.
The 2000 Kutai regulations are not compatible to forest regulatory rules as they do
not have any provision that could be applied to avoid the emerging number of fish
pond opening in the Mahakam Delta. There is no any provision that discourage the
existence of the ponds as well as the sale of the fish products originating from the
area. Nevertheless, now days the Kutai district government has been arranging to
make the fish regulatory rules are compatible to the forest regulatory rules by draft‐
ing new regulations which has been running as of 2007. Two draft regulations con‐
23
cerning the Management of Marine and Fishery in the Mahakam Delta and
Traditional Standardized Fish Pond have provision stating that the Kutai district go‐
vernment will issue a permit for the aquaculture as long as they are located outside a
state forest.
The spatial planning regulatory rules that have excluded the five locations from the
production forest do not intend to make them to be compatible to the environment
regulatory rule which strictly prohibits any activities that could potentially change
the ecological function of the protected area. Yet, the 1995 Governor Decree con‐
cerning the registration of cultivated state land is compatible to the environment
regulatory rule as it prohibits every village head to sign a land letter if the land is
located within a protected area.
Legal certainty for the Users
The julu case mentioned above reflects the effect of the presence of the oil and gas
resource use to the fish resource users. Apart from the fishermen’s motive to install
the julu, the incompatibility between the 1975 and 2004 circular letter and the natio‐
nal and local fishery regulations has clearly affected the fishermen’s fishing rights.25
Their rights to catch fishing in the radius mentioned, which is located within the
traditional fishing zone, is violated. It is still so even though the fishermen got paid
US$4 for each trunk of the julu construction. According to Law No. 10/2004 on the
Establishment of Laws, the fishermen legal position should have been stronger than
the company legal position as the prohibition to install the julu in the vicinity of the
company’s installation is only regulated by a circular letter. In their official complain
on 26 August 2009 to the provincial police office, Total E&P Indonesie only
mentioned that the fishermen had violated the 2004 circular letter.
Yet, in the julu case, due to the position of the oil and gas resource use as a national
vital object, the fishing rights should be undermined. According to the decree of
Minister of Energy and Mineral Resources No. 1762/K/07/MEM/2007 concerning the
security of national vital objects within the ministry of energy and mineral resources,
25 Most of the Kutai district agency officers and even the officers of sub‐district and village officers suspected that the fishermen’s motive to install the julus was for getting compensated by the company. Therefore, they called the julus as a trap rather than a real gear. The suspect was getting reasonable as some of the fishermen had installed the julus two days after the company and the local officers inform the villagers about the plan to enforce law upon the julus.
24
the PSC areas of Total E&P Indonesia is one of nine national vital objects that are
located in East Kalimantan. Presidential Decree No. 63/2004 concerning the Security
of National Vital Object defines national vital object as:
‘Area/location, building/installation or enterprise that area related to the people livelihood and national interest, or a strategic state source of re‐venue’.
Total E&P Indonesie should secure their installations from any threat and
disturbance that can jeopardize the installations. In carrying out the security, Total
E&P Indonesie could ask a back from the local police and military officers. In
September 2007, the company officially asked the help of the sub‐district police
officers to handle a case in Tani Baru village where some pond owners ceased the
company’s sea trucks. They ceased the sea trucks as the company refused to pay a
compensation for their broken pond dikes. Eight police officers then went to the
village and succeeded to force the fishermen to sign a statement telling that they
would not do such cessation anymore.
The fishing rights of the fishermen were even more uncertain as in several meetings
of the julu case, the officers of the Kutai Fisheries and Marine Affairs Agency stated
that the julus were illegal as the owners had not had any permit issued by the local
authorities.26 According to the Kutai regulation No.36/2000, each small subsistence
fishermen is not obliged to have the fishery permit. Instead the regulation requires
them to have a registration certification issued by the agency. Indeed, the regulation
threats a sanction for the fishermen if they do not register. In doing so, the regu‐
lation refers to the Fishery Law. Interestingly, the Fishery Law itself obviously states
that the registration for the small subsistence fishermen is only for the purpose of
making statistical record and carrying out empowerment program. Thus, the Kutai
district regulation No/ 36/2000 its self has also restricts the fishermen’s rights to
fishing because they can only exercise their rights if they obtain the registration
certification from the agency.
Other oil and gas uses that also restrict the fishermen fishing rights are seismic and
drilling activity. Unlike the restriction to not fish in the vicinity of the installation
26 The minutes of meeting on 24 August 2009,
25
which permanently restrict the fishing rights, the seismic and drilling activity will only
temporarily restrict the rights in the course of the activity take places. Interestingly,
the reasons the company has been used to do the forbiddance are not really legal
argument. They usually used two arguments. First, for the sake of security reason.
Second, because the oil and gas use belongs to the state or a state project. Thus,
there is no any clear legal provision yet saying that for seismic and drilling activities
the company could forbid the fishermen to not fish during the activities take place.
As the fishermen will not be able to fish during that time, then the company and
Executive Agency will compensate the fishermen for their installed gears that should
be taken away from the area, and for loss of opportunity to get income from fishing
in that area. Yet, the second compensation is not a real compensation as the
fishermen should work for the company as security officers during the seismic ope‐
ration. For that work they were paid for US$5 per day. In other cases, the way the
company to compensate the fishermen was by rented the fishermen boats.
Meanwhile due to the compatibility between the oil and gas, and the land regulatory
rules, the land owners right is rather certain. As mentioned before that even though
they can not refuse to sell or to not receive the compensation, they company could
not arbitrarily appropriate their land. Their land rights are also saved from the
demarcation activity as the forest regulatory rules oblige the government to also
provide the compensation. Despite the exclusion along side with the declaration of
the Mahakam Delta as a protected area in the provincial spatial planning prohibit the
uses that can possibly ruin the ecological function of the Mahakam Delta, the land
owners right are still secured as they can have the land letter. Their land rights
became stronger as in practice almost all the officers of the provincial and Kutai
agency officers and even the company employees acknowledged the formality of the
land letter. A retired officer of the provincial forestry agency, who used to work for
the production forest of the Mahakam Delta, even perceived that the land letter as
equal as the oil company rights to explore and exploit.
It is not only did the government officers acknowledge the formality of the land
letter, but also judges. The judges took the decision when examined a land case H.
26
Maming vs H.Onggeng and H. Latif.27 The dispute object was a 500 hectares land
that was located in Muara Pantuan village. In their verdict, the judges won the H.
Onggeng and H. Latif because the defenders delivered some convincing written
documents that proved their ownership over the disputed land.28 Some of the 131
written evidences delivered by the defenders are the land letter issued in January 1st
1998. Village head and head of sub‐district signed all the land letters. Meanwhile,
the plaintiff delivered a written document called forest reclamation letter which was
only signed by retired village head. After also carried out a field visit to where the
disputed land was located the judges decided that the official owner of the disputed
land was the defenders. The appealed court of Samarinda upheld the district court
decision in 2007.29
However, despite the land letter is an official document, they were not asked by the
forestry officers during and after the demarcation, and most officers acknowledged
its formality, but as far as the forest regulatory concerned their land rights are still
uncertain. The land use is still illegal as the forest regulatory rules do not include the
agriculture and aquaculture as use having strategic purpose. Moreover, the land is
also located in a protected area as the 1993 Governor Decree prohibits any village
head to sign the land letter if the land is located within a protected area. Therefore,
in providing the compensation, Total E&P Indonesie made a difference between the
land that is located inside and outside the production forest.30 For the land located
outside the production forest, the compensation included the value of the land.
While for the land located inside the production forest, the compensation did not
include the value of the land. It is so as the land located inside the production forest
was regarded as state land, while the land located outside was regarded as private
land.
27 H. Maming and H. Onggeng are two big land lords in the Mahakan delta. As they had political and economic power, the conflict then involved local higher policy and military officers. H. Onggeng who had close relation to former Kutai regent and the provincial parliament members was closely connected to the local military officers, while H. Maming was closely connected to the local police officers. Besides, the two land lords also mobilized civilian paramilitary from Samarinda city. The conflict even forced Kutai regent to issue a circular letter in 2003. One of the six points of the circular letter specifically ask the two land lords to control themselves and not to continue their activities above the disputed land. 28 No. 44/Pdt.G/2003/PN Tgr. The case was officially registered in the Kutai district court in November 2003 and be settled in December 2004. Yet, the same case has been previously examinee in the same court in August 2003, but the plaintiff refilled the case as he loose. 29 Verdict no. 132/PDT/2006/PT.KT.SMDA. 30 To provide the compensation the company refers to the Kutai district regulation No. 180.188/HK‐630/2008 concerning the standard of compensation.
27
Another government officersbehavior that generates the insecurity is the refusal of
district land agency to issue land certificates in the Mahakam Delta if the land is
located inside the production forest. From 1997 up to 2002, there were some vil‐
lagers of the Mahakam Delta tried to apply for land certificates to the district land
agency. The reason the land agency explained is because the land forest is under the
forestry ministry authority. The land agency officers kept refusing to receive the
application even though the applicants brought the land letter with them.
Meanwhile, even though the fish, forest and environment regulatory rules favor the
oil and gas resource use, yet Total E&P Indonesie still has been encountering several
uncertainties. First, apart from their act to compensate the land located inside the
production forest, they still worry about the legality of the act. A decree of Minister
of Energy and Mineral Resources No. 22/2008 concerning the kinds of expenditures
that can not be reimbursed by the production sharing contractors does not include
the compensation as spending that can not be reimbursed by the company. It means
that the expenditure of the compensation could be reimbursed as a recovery cost.
Yet, the company still worries about being charged to have compensated the illegal
occupants. The fact that the oil and gas regulatory rules does not make any distinc‐
tion concerning the location of the land does not completely guarantee the legality
of the compensation as the forest regulatory rules classifies the fish pond as illegal
use. Therefore, for safety reason, the company did not include the value of the land
if it is located inside the production forest.
Furthermore, the compensation spending could be also questioned from the envi‐
ronment and spatial planning regulatory rule point of view if the company compen‐
sated for the fish ponds which are located in the green belt. There are some cases
that the company paid for such compensation because the company wanted to use
the land or because the company’s sea trucks resulted waves that allegedly caused
the dikes of the pond owners were broken. In 2008, the company compensated
some fishermen of Muara Pantuan village who accused that the waves of the com‐
pany’s sea trucks have generated abrasion. The abrasion then broke their pond dikes
28
and it ultimately made their shrimps died. Their fish ponds were exactly located
within the green belt as they were 10‐25 meters from the river line.
The fact that the company only referred to the circular letters in making complain to
the policy officers and the Kutai district government officers concerning the gear
installation tells that the company has been facing another legal insecurity. In that
legal situation, there is always a possibility for the fishermen to question the legal
binding of the circular letter as the legal rules grant the fishermen to fish in the vici‐
nity of the company installation. There is no doubt that the company has been hiding
behind the argument saying that the oil and gas use belongs to the state, to conceal
their lack of legal base.
The legal insecurity that the company has been encountering does not barely
emanate from the incompatibility of the legal rules, but also from actors that the
fishermen or pond owners engaged in the cases. Intending to strengthen their bar‐
gaining position in the dispute settlement, some of the fishermen and pond owners
engaged their relatives or reported their cases to ethnic‐based local organization.
Both their relatives and the local organization have influential political pressure and
have access to political decision. In 2008, a retired police officer who is a member of
a Dayak ethnic group reported to Gerakan Pemuda Asli Kalimantan (Gepak), an eth‐
nic‐based local organization, that the the company’s canal has caused fishes and
shrimps within his pond died. The retired police officer lived in Samarinda city, a
capital of East Kalimantan province, and also a member of the Gepak. In February
2010, an immigrant Buginese coming from South Sulawesi, called one of his relative
who lives in the Kutai district city to come to the Mahakam Delta. He needed his
relative to come as he had been failed so far to ask the company to compensate him
for he accused the company’s rig operation has made his pond dike broken. His
relative is a secretary of a nation wide nationalist organization who has a close
political relation to a most potential candidate for the District head election. A fisher‐
man reported to his brother in law who became the Kutai parliament member during
2004‐2009 that he had failed to force the company to compensate his and other
fishermen julu‐julu with amount they wanted.
29
In the lattest case, the company was even confused as the Executive Agency refused
to approved that the amount the fishermen proposed as qualified as cost recovery.
To come out from the unwanted situation, the company then asked the parliament
member to sign a statement telling that he endorsed the amount and by that he
then would be responsible for any legal allegation coming later.
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V. CONCLUDING REMARKS
In the Mahakam Delta, the compatibility and incompatibility amongst the regulatory
rules simultaneously exist. Yet it is unfortunate that the compatibility is not a part of
legal framework made to support an integrated and sustainable coastal mana‐
gement. Therefore it is not a product of legal principle that in order to be able to
achieve the sustainability all the regulatory rules should strictly refer to each other.
Rather the compatibility emanated from implementing a particular legal concept
such as that the mineral rights do not include the land rights. The more influential
driving force generating the incompatibility is favoring the oil and gas resource use.
As the compatibility does not emanate from a by design legal framework it did not
occur through a systematic mechanism. The regulatory rules coming later did not
automatically make themselves are compatible to the previous regulatory rules. In
term of the cause, those regulatory rules do not automatically adjust themselves to
each other because each agency making them champions their own regulatory rules.
Therefore, rather then serving a common goal, they are developed to serve the
administrative bureaucracy (Patlis, 2005:452‐453; ADB, 2002).
In the Mahakam Delta, the way the central and the local government resolve
disputes emanating from the incompatibilities was to create the organic regulation
and even policy rules like the circular letters. In practice, it is very often that the
circular letters become an administrative solution as well as legal and social solution.
The organic regulation like the decree of the Kutai district head becomes a bridge
that cements the incompatibility between the spatial planning, environment and the
land regulatory rules. However, as the organic regulation and the circular letter are
not a fundamental solution then they still left many legal questions that need to
answer.
Few of the users have gained legal certainty from the incompatibilities but all of
them have been encountering legal uncertainties generated by the incompatibilities.
The level of the legal certainties or legal uncertainties the resource users have been
encountering is influenced by the way the bureaucrats and the company employees
perceived the regulatory rules, and by the number other actors involved. To de‐
crease the effect scale of the incompatibilities to themselves, the fishermen and the
pond owners or pond workers engaged the third influential parties. In other way
around, the engagement made the legal certainties the company gained was
decreased.
32
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EPISTEMA Working Papers
Working Paper Number 01/2010 : Konsep hak‐hak atas karbon, Feby Ivalerina
Working Paper Number 02/2010 : Forest tenure security and it’s dynamics: A
conceptual framework, Myrna A. Safitri
Working Paper Number 03/2010 : Perubahan Iklim, REDD dan perdebatan hak: Dari
Bali sampai Kopenhagen, Bernadinus Steni
Working Paper Number 04/2010 : Negara hukum bernurani: Gagasan Satjipto
Rahardjo tentang negara hukum Indonesia, Yance Arizona
Working Paper Number 05/2010 : Kuasa dan hukum: Realitas pengakuan hukum
terhadap hak masyarakat adat atas sumber daya alam di Indonesia, Herlambang Perdana
Wiratraman, dkk.
Working Paper Number 06/2010 : Bersiap tanpa rencana: Tinjauan tanggapan
kebijakan pemerintah terhadap perubahan iklim/REDD di Kalimantan Tengah, Mumu
Muhajir
Working Paper Number 07/2010 : Satu dekade legislasi masyarakat adat: Trend
legislasi nasional tentang keberadaan dan hak‐hak masyarakat adat atas sumberdaya alam di
Indonesia (1999‐2000), Yance Arizona
Working Paper Number 08/2010 : Kesiapan dan kerentanan sosial dalam skema
kebijakan perubahan iklim/REDD di Indonesia, Semiarto Aji Purwanto, Iwi Sartika dan Rano
Rahman
Kertas Kerja Nomor 09/2010 : Indah kabar dari rupa: Studi mengenai pemenuhan hak‐hak
masyarakat adat dalam kerangka hukum dan kelembagaan pelaksanaan demonstration
activities REDD di Indonesia di Kabupaten Kapuas Hulu Kalimantan Barat, Laurensius Gawing
Kertas Kerja Nomor 10/2010 : Tanggapan Kebijakan Perubahan Iklim di Indonesia:
Mekanisme Reducing Emissions from Deforestation and Forest Degradation [REDD] sebagai
Kasus, Mumu Muhajir
Kertas Kerja Nomor 01/2011 : Regulatory Rules and Legal Problems of Coastal Resources
Use in the Mahakam Delta of East Kalimantan, Indonesia, Rikardo Simarmata
34
EPISTEMA INSTITUTE is a research and knowledge management institute on law, society and environment that is established by Epistema Foundation in September 2010.
Vision of Epistema: To set up learning circles on law, society and environment as a support to social movements promoting the establishment of Indonesian national legal system which is based on the values of democracy, social and environmental justice and cultural pluralism.
P rograms and activities 2011‐2014: 1. Learning Circles for Social and Environmental Justice (LeSSON‐JUSTICE)
Activities: o Learning circles on various thoughts in the study of law; o Learning circles on the rule of law formation and indigenous peoples; o Learning circles on law, natural resource management and climate change.
2. Interdisciplinary Research on Community Rights on Better Livelihood, Just Social
Tradition and Sustainable Environment (IN‐CREASE) Activities:
o Models of legalization of communities rights on land and natural resources in national and regional legislation: Recognition, integration or incorporation?;
o A comparative research on state’s recognition on indigenous peoples and their rights on land and natural resources in Southeast Asia;
o Local knowledge to promote low‐carbon development in state and community legal/normative system;
o Policy, institutional and communities’ preparedness to implement REDD 2010‐2012 at national and regional levels;
o National and regional policy and institutional frameworks post‐Kyoto Protocol;
o Measuring formal and substantive elements of the rule of law in Indonesian judicial decisions pertaining to communities rights on land and natural resources.
3. Resource Centre for Social and Environmental Justice (RE‐SOURCE)
Activities: o Database, publication series (Indonesian socio‐legal; law and climate justice;
law and society; Indonesian legal scholars), working papers; e‐journal, on‐line and networking library;
o Film making and interactive CDs production on law, environment and society.
35
Structure of organization and personnels:
Epistema Foundation
Founders:
Prof. Soetandyo Wignjosoebroto, MPA
Sandra Yati Moniaga, SH
Myrna A. Safitri, SH., Msi
Board of Trustees:
Chaiman : Prof. Dr. Muchammad Zaidun, SH., M.Si
Members : Prof. Soetandyo Wignyosoebroto, MPA
Prof. Dr. Bernard Arief Sidharta, SH
Sandra Yati Moniaga, SH
Ifdhal Kasim, SH
Ir. Abdi Suryaningati
Board of Supervisors:
Chaiman : Geni Flori Bunda Achnas
Members : Dr. Kurnia Warman, SH., MH
Yuniyanti Chuzaifah, PhD
R. Herlambang Perdana Wiratraman, SH., MA.
Asep Yunan Firdaus, SH
Board of Management:
Chairman : Rival G. Ahmad, SH., LL.M
Secretary : Dr. Shidarta, SH., MH
Treasurer : Julia Kalmirah, SH
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Epistema Institute:
Executive Director:
Myrna A. Safitri, SH., Msi
Program manager on law and environmental justice:
Mumu Muhajir, SH
Program manager on law and society:
Yance Arizona, SH
Media development and information management Assistant:
Andi Sandhi
Publication and learning circles management Assistant:
Alexander Juanda Saputra, SH
Finance:
Sri Sudarsih
Administrative assistant:
Wiwin Widayanti
Office:
Jalan Jati Mulya IV No.23
Jakarta 12540
Telepon : 021‐78832167
Faksimile : 021‐7823957
E‐mail : [email protected]
Website : www.epistema.or.id
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