Strengthening Reclamation Obligation through Mining Law Reform: Indonesian Experience

Round 1

Reviewer 1 Report

-- General Comments --

I'll preface my comments by stating that I don't have a law/legal background, so it's difficult for me to provide judgement regarding how grounded or fundamental some of the arguments and interpretations are. Particularly regarding some of the political theory relating government actors to authority and power, and how this relates to the intent inherently embedded in the Indonesian legal system.

I do believe though that the article clearly explains a weakness where multiple Indonesian laws are in conflict and so there are multiple possible interpretations as to whether mining reclamation activities can be transferred to third-parties or not. Lack of clarity on this issue potentially has quite significant financial governance and risk implications for investors and companies operating in these regions, not to mention the consequential impacts for the environment and mine affected communities. So it seems like a significant finding that should be reported and published.

The suggested reformulation of the relevant clauses in the Mining Act that is presented in the final paragraph of section 3.1 and Figure 6 appear to be an elegant possible solution for addressing this issue. My understanding is that this is in-line with policy developments in other nations, which are increasingly seeking to limit the transferability of mine reclamation and rehabilitation requirements and obligations to third-parties.

My main suggestion would be to extend the abstract by a sentence or two so that it is more clearly described upfront that the current laws are in conflict regarding whether transferability of post-mining reclamation obligations is permissible. On my initial read through, this didn't become apparent to me until getting to the latter half of the article.

Overall, the article is very direct and concise in its examination of this issue, which is refreshing.


-- Comments on Specific Lines / Sections --

[Line 33] "It is undeniable that the irresponsible practice of surface mining in Indonesia is resulting in deforestation and forest degradation which creates damages to forests and ecosystems while became a major factor of greenhouse gas emissions." This is quite emotive language. Is there any research showing how much of a contributor surface mining is to Indonesian deforestation compared to other activities/sectors (e.g. agriculture, forestry, etc.)? Also is all surface mining in Indonesia "irresponsible" or does it vary by context and company?

- I am wondering whether Indonesian law draws any distinction between mine reclamation and mine rehabilitation?

[Lines 63-82] Give the low level of obedience / compliance with the regulations, is further reform of regulations actually a viable approach to addressing this? Or is there a need for stronger enforcement of existing regulations?

[Line 343-349] "There is an issue of disharmony regarding the obligation to implement reclamation and post-mining by the holders of IUP and IUPK holder can transfer their reclamation obligation to a third party appointed by the Minister, Governor, or Regent/Mayor. Whereas Reclamation and Post-Mining Regulation expressly stipulates that reclamation and post-mining must be performed directly by IUP and IUPK holders without exception."
- This seems to be quite a significant discordance, particularly as you note later in Line 363-366 that the Gov Reg No. 78/2010 (to paraphrase) may be more effective in its implementation. Are there any examples of what has actually been occurring in practice?

References 1, 3, 9, 10, 11, 17, 20, 21, 25, 26, 32, 34, 35 and 36 are statements. I would suggest checking the journal author guidelines, as probably these should be presented in footnotes separate to the main reference list.


Language / Grammar Issues:
[Line 9] "The reclamation can..." doesn't quite make sense in this sentence. Better phrasing would be "The reclamation process can...", "Mining reclamation can...", or something similar.
[Line 12] "disobedient" should be "disobedience"
- A good proof-read of the entire article focused on clarity could be useful. Generally, it's well written but there is the occasional odd phrasing.

Author Response

Dear Reviewer 1,

Thank you for your constructive review. We have made several changes in accordance with your suggestion.

Also to clarify,

In response to your comments for line 33

[Line 33]: "It is undeniable that the irresponsible practice of surface mining in Indonesia is resulting in deforestation and forest degradation which creates damages to forests and ecosystems while became a major factor of greenhouse gas emissions."

Comment: This is quite emotive language. Is there any research showing how much of a contributor surface mining is to Indonesian deforestation compared to other activities/sectors (e.g. agriculture, forestry, etc.)? Also is all surface mining in Indonesia "irresponsible" or does it vary by context and company?

Response:

There were 9.721 Mining Business Permits with an open-pit coal mining system recorded in Indonesia (https://www.atlantis-press.com/proceedings/jsts-19/125955338). According to WALHI mining permits in Indonesia have now reached 11 million hectares, of which 4.5 million hectares are in forest areas. Recently Indonesia experienced the highest damage to tropical forests due to the mining industry, contributing 58.2 percent of deforestation (2022 PNAS Study). https://www.pnas.org/doi/10.1073/pnas.2118273119

While it is true that the "irresponsible" practice is vary by context and company. We noted that because most, if not all the legal and illegal mining practice in indonesia is using open-pit mining system, for expansion the company often convert forest to mining site. Compare with the low compliance of reclamation obligation, this is often the cause of deforestation and degradation. Additionally, it also brings consequences to the emergence of mining pits in many places. These coal pits (void) become an issue for the people who live in the mining area. For example in East Kalimantan, since the 2010-2018 year, 28 people drowned in coal pits that were not reclaimed; most are children.

Response to [Lines 63-82] Give the low level of obedience / compliance with the regulations, is further reform of regulations actually a viable approach to addressing this? Or is there a need for stronger enforcement of existing regulations?

We believe the reform is the first step toward stronger law enforcement. In the current state, the Mining Act allows the company to transfer the responsibility of reclamation to the third party as long as they place the fund. However what if the third party also failed to conduct reclamation? Who will be responsible?  The reform of the law will force the company or permit holders to be liabel for reclamation. Therefore if they not comply with the regulations, there will be no question about the burden of liability, and the sanction can be impose properly.

We offer two major reform in formulation to strengthen the reclamation obligation.

The first key formulation that needs to change in the Mining Act is to reinforce the essence of “obligation” for IUP and IUPK holders to perform reclamation and post-mining with the supervision as in the Environmental Act. With this reform, in essence, the placement of the reclamation fund by the company does not eliminate the company’s obligation to carry out reclamation and post-mining activities.

The second key formulation is to put a mandatory condition of placing the reclamation guaratees fund as a requirement for approval of the mining plans and budgets (the RKAB) and Clean and Clear (CnC) Certification. Nearly half of mining companies not paying into mandatory reclamation and post-mining funds managed by the government due to a series of blind spots in the Indonesia regulatory framework. Among these leeway is a mandatory deposit that companies must make to the government for reclamation and post-mining guarantees fund in order to obtain a mining permits. But the deposit is not a prerequisite for approval of their mining plans and budgets (the RKAB). And it is the RKAB, rather than the Mining Permits, that allows mining company to begin operating. Only six percent, have deposited both reclamation and post-mining funds with the government, according to the state auditing agency (BPK) and only twenty one percent have deposited the reclamation fund.  Furthermore, while the government mandates a “clean and clear” certification for mining companies to confirm that they meet all legal requirements. However carrying out reclamation obligations is not a requirement for obtaining CnC certification. As the consequences many mining permit holders had secured CnC certification without deposited reclamation and post-mining funds. It enabled mining companies to continue to operate without having to rehabilitate their concessions, with no disincentives for non-compliance.

Kind regards,

Author

Author Response File: Author Response.docx

Reviewer 2 Report

Dear Authors 

Thank you for your paper. The topic of reclamation by mining is of global interest and is a concern for civil society and governments. The topic is certainly of relevance to current debates on the subject. There are however some comments to improve the quality and soundness of the paper. 

- Please add references for all statements made. For example, there is no reference for some statements (i.e. Deforestation and forest degradation are one of the major leading causes of global warming, responsible for around 15% of global greenhouse gas emissions, which makes the loss of forests a major issue for climate change. In some countries, for example, Indonesia and Brazil, deforestation and forest degradation together are by far the main source of national greenhouse gas emissions...ALSO...It is undeniable that the irresponsible practice of surface mining in Indonesia is resulting in deforestation and forest degradation which creates damages to forests and ecosystems while became a major factor of greenhouse gas emissions). Please check the entire document.

- A statement is made that...'Recent studies and analyses estimate that stopping deforestation, restoring forests, and improving forestry practices is the most cost-effective way to reduce 7 billion metric tons of carbon dioxide per year...' but isn't this obvious? What about the alternative argument to present that is - to stop mining operations and explore other green industrial practices that do not result in the exploitation of the earth? It seems that the authors are tied to the narrative on shallow ecology and not going to the root cause of the debate on sustainability and sustainable practices. Please could these alternative views be presented and then mention why you to look at reclamation. As the authors further note...' reclamation can produce more value to the environment and create a far better situation than post-mining conditions'. However would it not be best to avoid mining and hence reclamation entirely? 

- The word 'reclamation' is used, but no definition is provided for this paper and the reader. Please can the authors add some definitions and then highlight their understanding of this term is here. 

- It is noted that the paper is analyzing the post-mining law reform in Indonesia. However, can we have a section on regulatory history and governance to give the reader a better contextual understanding of the before and after picture and the build-up to the Mining Law Reform 2020? In addition, this is a new law about 2 years old and so context to how this new law has been received and implemented would be good. In addition, can the authors provide some information about the Mining Act, its contents, and how it is an improvement from previous laws? Finally, the reader needs to understand how the research issue has come about and why this is important to study for this paper.

- It is not easy to follow the argument of the doctrinal legal research method applied. Please explain how each of the characteristics of the normative research point’s a-e each add to analyzing the post-mining law reform. The doctrinal legal research is divided into 3 parts. No link is made to the research aim or to explain its relevance to the study.

- It is noted that 'Using the action plan, it is aimed that this research can produce a common perception that reclamation is an essential instrument in the exploitation of natural resources which aims to restore land’s function.' Again is it not obvious that reclamation aims to restore land function? I suggest the authors explore the academic literature and situate their argument on how this paper fills in knowledge gaps in existing academic literature broadly and then regarding mining law and reform in Indonesia.

- Please justify the selection of the 'primary legal material' such as Act 32/2009 on Environmental Protection and Management, Act 4/2009 on Mineral and Coal Mining, etc...lease justify selection 'primary legal material' such as the Act 32/2009 on Environmental Protection and Management, Act 4/2009 on Mineral and Coal Mining, etc. 

- Also please list the secondary material used for this work.

- How did the authors decide what primary legal material and secondary legal materials were relevant to the research? What were the criteria used for this filtration?  

- What were the steps involved in conducting a qualitative juridical analysis?

- A diagram to show the steps involving the methodology processes and how one area led to another would be useful. It is difficult to follow the methods section in its current form, which needs to be user-friendly. It is unclear how the analysis was applied to come up with the themes presented under the results. 

- The authors simply note that they use prescriptive analysis but do not explain what this means or its importance. It is unclear how the results are presented based on the analysis. 

- Please cite the relevant literature that highlights the importance of the research methodology and techniques used.  

- The results are informative but not clear based on not explaining the data analysis in detail as above comment. A diagram that summaries the results would be useful to give indicate overall findings. 

- Editing is needed for the document (For example, 'the Mining Act Revision also does not addressing continous conflicts...')

- Tables and figures in the results do not have either the year or source - please include them.

- The conclusion is not comprehensive and too brief. First, highlight the key findings. Then provide a clear indication of how the paper contributes to academic debates and contributions to scholarly literature beyond just noting empirical findings. The conclusions need a set of recommendations for improvement and assignment of responsibilities to address challenges.  

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I hope these comments are useful

 

Thank you. 

Author Response

Dear Reviewer 2,

Thank you for your constructive review. We have made several changes in accordance to your suggestion.

Also to clarify,

There were 9.721 Mining Business Permits with an open-pit coal mining system recorded in Indonesia (https://www.atlantis-press.com/proceedings/jsts-19/125955338). According to WALHI mining permits in Indonesia have now reached 11 million hectares, of which 4.5 million hectares are in forest areas. Recently Indonesia experienced the highest damage to tropical forests due to the mining industry, contributing 58.2 percent of deforestation (2022 PNAS Study). https://www.pnas.org/doi/10.1073/pnas.2118273119

Despite the 2020 Mining Act Revision, Indonesia still facing the previous legal issue due to the blind spots in the regulatory framework. Ranging from the continuous conflicts between the mining company and local community to the issue of non-compliance on reclamation policy resulted in the excavation holes that left untreated and abandoned that create casualties over the years. Because most, if not all the legal and illegal mining practice in indonesia is using open-pit mining system, for expansion the company often convert forest to mining site. Compare with the low compliance of reclamation obligation, this is often the cause of deforestation and degradation. Additionally, it also brings consequences to the emergence of mining pits in many places. These coal pits (void) become an issue for the people who live in the mining area. For example in East Kalimantan, since the 2010-2018 year, 28 people drowned in coal pits that were not reclaimed; most are children.

While we would agree that it is best to avoid mining entirely. However a reform is a more realistic approach, the latest policy in Indonesia is further promoting EODB (Ease of Doing Business) hence the 2020 Mining Law and Job Creation Law is enacted to loosen the requirements and obligations for business permits including mining company despite the refusal from the civil society and activist (which then ruled as conditionally unconstitutional by the Constitutional Court of Indonesia in 2022). The 2020 Mining Law gives miners bigger concessions and longer contracts, with fewer environmental obligations (https://news.mongabay.com/2020/05/indonesia-mining-law-minerba-environment-pollution-coal/) .

In the current state, the Mining Act allows the company to transfer the responsibility of reclamation to the third party as long as they place the fund. However what if the third party also failed to conduct reclamation? Who will be responsible? The reform of the law will force the company or permit holders to be liabel for reclamation. Therefore if they not comply with the regulations, there will be no question about the liability, and the sanction can be impose properly.

We offer two major reform in formulation to strengthen the reclamation obligation.

The first key formulation that needs to change in the Mining Act is to reinforce the essence of “obligation” for IUP and IUPK holders to perform reclamation and post-mining with the supervision as in the Environmental Act. With this reform, in essence, the placement of the reclamation fund by the company does not eliminate the company’s obligation to carry out reclamation and post-mining activities.

The second key formulation is to put a mandatory condition of placing the reclamation guaratees fund as a requirement for approval of the mining plans and budgets (the RKAB) and Clean and Clear (CnC) Certification. Nearly half of mining companies not paying into mandatory reclamation and post-mining funds managed by the government due to a series of blind spots in the Indonesia regulatory framework. Among these leeway is a mandatory deposit that companies must make to the government for reclamation and post-mining guarantees fund in order to obtain a mining permits. But the deposit is not a prerequisite for approval of their mining plans and budgets (the RKAB). And it is the RKAB, rather than the Mining Permits, that allows mining company to begin operating. Only six percent, have deposited both reclamation and post-mining funds with the government, according to the state auditing agency (BPK) and only twenty one percent have deposited the reclamation fund.  Furthermore, while the government mandates a “clean and clear” certification for mining companies to confirm that they meet all legal requirements. However carrying out reclamation obligations is not a requirement for obtaining CnC certification. As the consequences many mining permit holders had secured CnC certification without deposited reclamation and post-mining funds. It enabled mining companies to continue to operate without having to rehabilitate their concessions, with no disincentives for non-compliance.

Kind Regards,

Author

Author Response File: Author Response.docx

Reviewer 3 Report

The paper is interesting as an approach to the postmining reclamation problem focused on Indonesian experience. Do not refer to the state of the art and experience in other countries. Therefore I propose the change of paper title:

"Strengthening Reclamation Obligation Through Mining Law Reform - Indonesian Point of View" (or Indonesian Experience).

References should contain the list of referred published papers only. The other comments should be included to the main paper text body.

Inappropriate is (line 28-29 and 35) statement that "...forest degradation.....are by far the main source of national greenhouse gas emissions"'. Forest do not emit greenhouse gases but mitigate their emission from external sources.

"Introduction" contain repeated statements.  Should be appropriately shortened.

Figures 1 - 5 source should be presented in "references". They are not mentioned in the paper text.

"Research design and procedure for analysis" present the obvious actions in formulation of legal acts.  Presented detailed explanation is unnecessary, and may be shortened.  

Results and discussion present the detailed analysis of Indonesian mining legislation. Its history, advantages, disadvantages and recent legislation challenges after mining law revision and need and proposed mode of legislation improvement should be clearly presented in consecutive subchapters. Recent chapter 3 should be rearranged accordingly.

Conclusions should clear present necessary steps for effective realisation of reclamation procedures and proposals for improvement of mining law.

 

Author Response

Dear Reviewer 3,

Thank you for your constructive review. We have made several changes in accordance to your suggestion.

Also to clarify,

The latest policy in Indonesia is lean toward promoting EODB (Ease of Doing Business) hence the 2020 Mining Law and Job Creation Law is enacted to loosen the requirements and obligations for business permits including mining company despite the refusal from the civil society and activist (which then ruled as conditionally unconstitutional by the Constitutional Court of Indonesia in 2022). The 2020 Mining Law gives miners bigger concessions and longer contracts, with fewer environmental obligations (https://news.mongabay.com/2020/05/indonesia-mining-law-minerba-environment-pollution-coal/) .

Despite the 2020 Mining Act Revision, Indonesia still facing the previous legal issue due to the blind spots in the regulatory framework. Ranging from the continuous conflicts between the mining company and local community to the issue of non-compliance on reclamation policy resulted in the excavation holes that left untreated and abandoned that create casualties over the years. Because most, if not all the legal and illegal mining practice in indonesia is using open-pit mining system, for expansion the company often convert forest to mining site. Compare with the low compliance of reclamation obligation, this is often the cause of deforestation and degradation. Additionally, it also brings consequences to the emergence of mining pits in many places. These coal pits (void) become an issue for the people who live in the mining area. For example in East Kalimantan, since the 2010-2018 year, 28 people drowned in coal pits that were not reclaimed; most are children.

There were 9.721 Mining Business Permits with an open-pit coal mining system recorded in Indonesia (https://www.atlantis-press.com/proceedings/jsts-19/125955338). According to WALHI mining permits in Indonesia have now reached 11 million hectares, of which 4.5 million hectares are in forest areas. Recently Indonesia experienced the highest damage to tropical forests due to the mining industry, contributing 58.2 percent of deforestation (2022 PNAS Study). https://www.pnas.org/doi/10.1073/pnas.2118273119

In the current state, the Mining Act allows the company to transfer the responsibility of reclamation to the third party as long as they place the fund. However what if the third party also failed to conduct reclamation? Who will be responsible? The reform of the law will force the company or permit holders to be liabel for reclamation. Therefore if they not comply with the regulations, there will be no question about the burden of liability, and the sanction can be impose properly.

We offer two major reform in formulation to strengthen the reclamation obligation.

The first key formulation that needs to change in the Mining Act is to reinforce the essence of “obligation” for IUP and IUPK holders to perform reclamation and post-mining with the supervision as in the Environmental Act. With this reform, in essence, the placement of the reclamation fund by the company does not eliminate the company’s obligation to carry out reclamation and post-mining activities.

The second key formulation is to put a mandatory condition of placing the reclamation guaratees fund as a requirement for approval of the mining plans and budgets (the RKAB) and Clean and Clear (CnC) Certification. Nearly half of mining companies not paying into mandatory reclamation and post-mining funds managed by the government due to a series of blind spots in the Indonesia regulatory framework. Among these leeway is a mandatory deposit that companies must make to the government for reclamation and post-mining guarantees fund in order to obtain a mining permits. But the deposit is not a prerequisite for approval of their mining plans and budgets (the RKAB). And it is the RKAB, rather than the Mining Permits, that allows mining company to begin operating. Only six percent, have deposited both reclamation and post-mining funds with the government, according to the state auditing agency (BPK) and only twenty one percent have deposited the reclamation fund.  Furthermore, while the government mandates a “clean and clear” certification for mining companies to confirm that they meet all legal requirements. However carrying out reclamation obligations is not a requirement for obtaining CnC certification. As the consequences many mining permit holders had secured CnC certification without deposited reclamation and post-mining funds. It enabled mining companies to continue to operate without having to rehabilitate their concessions, with no disincentives for non-compliance.

Kind Regards,

Author

Author Response File: Author Response.docx

Round 2

Reviewer 3 Report

paper is enough clear

Author Response

Thank you for your recommendation.