Legal policy preference for coal mining over other land use alternatives jeopardizes sustainability in Indonesia

ABSTRACT

Overlapping claims on land use between coal mining and other land-based activities have led to legal uncertainties, with negative social, economic, and environmental impacts. This study examines overlapping claims on land use arising from inconsistencies with the regulation of Indonesia’s land and resource licensing system and the consequent legal, social, and environmental impacts. This study investigates the overarching issues with the implementation of policies and regulations concerning coal mining licensing in Indonesia. Results indicate that the prevailing legal framework in Indonesia favors coal mining activities over other land uses (including smallholder production of food). The coal mining industry is given preferential treatment regarding land use and licensing compared to other land-based users, resulting in significant social and environmental injustice. Other land-based activities outside the mining sector experience greater legal uncertainty in obtaining equal access to land. This creates difficulty in maintaining continuity in their operations.

KEYWORDS:

• Coal mine
• overlapping claims on land use
• legal uncertainty
• environmental injustice

1. Introduction

Coal has been used as fuel for thousands of years and influenced energy needs in the industrial revolution era, but its negative impacts only became known during the 1960s (Freese, 2003). Extractive activities have long occupied the imagination of those countries blessed with coal reserves (Delina, 2021) as such activities can help satisfy their energy requirements or the products can be exported to generate national income. Coal supplies 25% of the world’s energy needs, although the demand for it fell to 4% in 2020 (International Energy Agency, 2021). Although coal burning has been restricted in recent years owing to its grave impact on climate change, it is still considered as a major boost to the economy of some countries (Carvalho, 2017).

Indonesia also demonstrates the vital role of the mining industry in its economic growth. Coal mining operations injected approximately USD 5.3 billion into the country’s economy in 2021 (Kementerian ESDM, 2022a). Moreover, until 12 March 2022, this country had exported 608,69 million tonnes of coal, with China and India being the main export destinations. On the other side, coal mining utilises vast land, which, in many cases, has been granted for other activities, such as settlement, plantation, agriculture, and forestry. The Indonesian government has issued 4,150 coal mining licences (Kementerian ESDM, 2022b), covering 17,454,548 hectares. Large licensed coal mining areas partly overlap with other land-based activities, reaching 14.08 million hectares and around 2,1 million hectares with licensed plantation areas (WaterKeeper’ Alliance, & JATAM, 2017), and another 907,5 thousand hectares overlap with forest areas (Ditjen PKTL, 2021).

Overlapping claims on land-use between mining activities and other uses exposes loopholes in the permit system, especially in the licensing process for surface and subsurface coal mining activities. Space allocation for coal mining frequently overlaps with that for other land-based activities. This overlap affects the sustainability of land use outside mining activities, changes local communities’ economic structure notably loss of livelihood sources, and impacts social change (Xue, 2021), thereby indirectly contributing to the human development index (Afkarina et al., 2019). Licensed coal mining areas have damaged agricultural land and caused environmental damages and degradation (Adri, 2019; Afkarina et al., 2019; Nasir et al., 2023; Rasimeng et al., 2019; Setiawan et al., 2016).; Moreover, their impact on climate change has become a global concern (Fünfgeld, 2020), along with the political cronyism associated with the coal economy (Toumbourou et al., 2020). These areas also set off conflicts between other land users. A report by the National Consortium for Agrarian Reform (KPA) explains that in 2021, 30 land use conflicts involving mining companies and other land users were recorded. This number is three times higher than that in the previous year (Konsorsium Pembaruan Agraria, 2022). The conflicts ensuing from the contestation between mining companies and other land users fall under the category of ecological distribution conflicts (Martinez-Alier, 2021) given that the risk of using the same area is borne by another party. Settlements often end with granting opportunities for coal mining use and temporarily or permanently ceasing other land-based activities (Muhdar et al., 2020; Nasir et al., 2022). Such settlement has raised legal uncertainty with regard to the rights of other land-based users.

Numerous works on coal mining have given wider attention to two contrasting faces of this extractive use. Some works draw coal mining significance for countries’ revenues (Atteridge et al., 2018; MoEMR, 2021; PwC, 2019). Other works point to social, economic, and environmental bad impacts that coal mining has caused (Fünfgeld, 2016; Martinez-Alier, 2021; Xue, 2021). There are only few works which seek how that impacts are related to the licensing system of coal mining (Muhdar et al., 2020; Nasir et al., 2023). This article aims at filling in the gap by examining the extent to which that licensing system has been in favour coal mining use lead to the discrimination of other land-based users, and further social, economic, and social impacts.

This study examines the implementation of policies and regulations related to coal mining licensing in Indonesia and how it can result in overlapping land-use claims. The rest of the paper is organised as follows: The next section describes the legal framework of the coal mining licensing system in Indonesia. This section is followed by a discussion of five actual overlap types between coal mining and other land-based activities. Legal uncertainty and the social, economic, and environmental impacts of the overlap issue are further described and analysed. In the last section, some critical remarks are presented.

2. Conceptual framework

In Indonesia, the state’s authority to manage natural resources, including land, is based on the concept of the state’s right to control as introduced by Article 33 (3) of the 1945 Constitution. The right obliges the government to hold and use land resources for the greatest prosperity of the people. In doing so, the government should develop and implement regulations and policies on permit governance that are able to ensure the use of land for the prosperity of the people implies protecting citizens, the environment, and land from excessive or unfair exploitation of private sectors. On the contrary, the regulations and policies on permit governance must also guarantee legal certainty for businesses and investments. In that regard, granting a license for a land-based sector has two functions. First, it is an instrument for directing and controlling such an industry. Second, it is a means of distributing land for the activity (Hadjon, 1993). Consequently, improperly granting a permit will impact the monitoring of the business and the land distribution.

This study considers that an inaccurate permit issuance can jeopardize the environment and trigger overlapping claims on land use among land users.

From the legal perspective, overlapping claims on land use could create legal uncertainty over land tenure rights (Bennett et al., 2019). Legal uncertainty itself could generate injustice. Environmental justice arises when a few people receive large benefits from natural resource utilisation whilst many people receive great burden and when there exists unequal opportunity to participate in decision making (Otto et al., 2008; Stefanou & Xanthaki, 2008). Doctrinal legal analysis suggests that overlapping is a strong indication of the presence of inconsistency. From inconsistency and incoherence then emerges uncertainty (Hesselink, 2009; Kissam, 1988). Legal certainty is one important factor for many to develop trust in the government and for individuals to plan their lives without unexpected interference from public authorities or other public members (Raz, 1979). Under legal certainty and predictability, members of the public know and are able to predict what is permitted, ordered, and prohibited. Seidman et al. (2001) explained that legal certainty results in predictability; hence, people know in advance what legislation demands from them, what legislation grants them, and what sorts of behaviour they can expect from officials if they undertake particular actions.

This study also found that regulations and policies are the ‘meeting point’ of any interests. Coal mining legislation, for instance, is a reflection of the political and economic interests of the dominant group that is behind the law-making process. The intervention in the drafting process of legislation for specific purposes is often called regulatory capture. This theory proposes the premise that specific interests override public interest. Capture refers to the taking over a law-making process by private actors, the consequence of which is designed and run primarily for their advantage and at the expense of society (see for example (Carpenter & Moss, 2014; Devaux, 2018). In this study, we perceive that mining is prioritized over other land-based sectors due to the involvement of actors in executive and legislative institutions affiliated with the mining sector.

3. Methods

In the current study, we conducted socio-legal research and investigated the overarching issues in the implementation of coal mining licensing regulations in Indonesia. This study followed a two-step approach. The first step involved a desk study aimed at analysing the legal framework of the licensing system for land-based activities. We performed a doctrinal analysis to review the available laws and regulations as well as documents relevant to the governance of coal mining and other land-based activities.

The second step involved a field study on how the problems identified in the legislation analysis manifest themselves in the actual practices of coal mining and other land- based activities in the East Kalimantan Province (henceforth EastKal) and North Kalimantan Province (henceforth NorthKal). We conducted in-depth interviews to obtain detailed information about various perspectives and behaviours and to explore new and complex issues. Specifically, we interviewed several key figures in central and local government offices, coal mining companies, oil palm plantation companies, law enforcement agencies, community members, and civil society organisations. The interviews were used to provide context to the secondary data and thereby obtain a complete picture of what occurs at different levels, especially at the local level (Boyce & Neale, 2006; Legard et al., 2003).

The research locations were set to EastKal and NorthKal (Figure 1). These two provinces were chosen for three reasons. Firstly, coal mining has been conducted in these provinces since the Dutch colonial era (Van Bemmelen, 1949; Linblad 1985; Linblad, 1988). Secondly, coal mining has significantly contributed to the gross domestic product (GDP) of these two provinces. From 2016 to 2020, coal mining contributed 33.69% to the GDP of EastKal (BPS Kaltim, 2021) and 16.70% to the GDP of NorthKal (BPS Kaltara, 2021). These two provinces have also contributed the most to national coal mining production. Thirdly, these provinces are currently home to 371 coal mining licences. In 2020, EastKal and NorthKal produced 209.20 million tonnes of coal (ESDM Kaltara, 2019; BPS Kalimantan Timur, 2022).

Figure 1. Map of Indonesia (green and yellow): the black boundary lines indicate East Kalimantan and North Kalimantan (study site).

4. The regulatory framework of land use for coal mine operations

Indonesia’s natural resources law system authorises the government to issue coal mining permits in areas where land is owned by private citizens or corporations and is being utilised for settlement, agriculture, plantation, forestry, and others. Such stipulation is stated in Article 4 paragraph 2 of the Basic Agrarian Law of 1960 and in Article 134 paragraph 1 of the Mineral and Coal Mining Act of 2009. The Mineral and Coal Mining Act stipulates that a mining permit does not grant its holder land rights but grants the right to explore and exploit coal resources. The Basic Agrarian Law stipulates that land rights do not grant holders the right to utilise other resources above and under the surface. These stipulations do not seem to cause any overlap between coal permits and land rights. However, since open-pit mining is a common practice, its operation certainly encounters other land-based activities. In several cases, coal mining permits are given in areas that belong to customary law communities. We should note that Article 18B (2) and the Article 28I (3) of the 1945 Constitution recognise, protect, and respect the right of customary law communities over land.

The policy of granting permit to private sectors has its colonial root. The first relevant law was enacted in 1870 on Agrarian Law when the Dutch colonial administration introduced the domein verklaring (free state domain) principle to encourage private investment. This law played a significant role in eroding Indonesian land ownership rights and facilitating colonial exploitation (Fauzi, 2017). The policy was followed by enacting the East Indies Mining Law (Indische Mijn Wet) in 1899. The New Order government enacted the new Mining Act of 1967 to replace the colonial law. In the course of the Reformation Era, four news acts were enacted in 2009, 2019, 2020, and 2022. However, the changes hardly addressed the issue of potential land use overlap that coal mining operations were likely to cause.

In 1976, the government issued a directive regarding the settlement of overlapping claims on land use for mining with other uses through Presidential Instruction Number 1 of 1976 concerning the Synchronization of Agrarian Affairs, Forestry, Mining, Transmigration, and Public Sector Works. The directive was aimed at resolving the conflict of jurisdiction between ministries (Simarmata, 2012). It required the Minister of Mining and governors to avoid overlapping mining operations with other land uses when issuing mining permits. However, in instances where the overlapping could not be avoided, the issuance of mining permits could be prioritised.

Decentralisation policies and regulations in 2001–2014 exacerbated the overlap between coal mining and other land-based activities. In 2004, the government significantly changed the 1999 Forestry Law by amending Article 38 (by Law No. 19 of 2004). This amendment permitted open-pit mining in protected forests, and as a result, 13 companies have been granted permission to resume mining activities in protected areas. Mining permit issuance was under the authority of districts/municipalities, as stated in the 2004 Regional Government Law and the 2009 Mining Law. During this period, the coal mining sector developed without the central and provincial governments’ supervision (Budiono Agung, 2017). In addition, the permit regulations and policies are susceptible to interest by political actors who hold influential positions in executive or legislative bodies. This intersection of personal interests and political influence may result in corrupt practices, further fueled by the industry’s economic importance (Muhajir et al., 2019). The coal industry has become a significant source of political funding at national and regional levels. A study conducted by JATAM Kaltim confirmed this finding. The study also revealed that the number of coal mining permits increased significantly ahead of the regional head elections (JATAM, Greenpeace, ICW, & Auriga, 2019).

Prevailing laws and regulations require mining business permit holders to acquire land before carrying out mining activities.¹ The implementation of such provision could cause private landowners or other users to be vulnerable to coal mining expansion. As stipulated in the 2020 Mining Act, a regional spatial plan is a basis for mining area designation; however, the coal deposit potential can alter the spatial planning in practice. As a response to land use overlaps, the government issued the Government Regulation (GR) No. 43 of 2021 concerning the Settlement of Incompatibilities Relating to Spatial Planning, Forest Areas, Licenses or Land Rights. This GR stipulates that where permits are issued in an area that had been previously allocated other permits or land titles, the overlapped part should be excluded from that permitted area.

The government further sought to regulate the provisions regarding the use of land for coal mining activities through GR No. 96 of 2021 concerning the Implementation of Mineral and Coal Mining Business Activities. This GR revoked GR No. 23 of 2010. Under this GR, the permit holder is required to settle the land rights in the concession with the land rights holder before carrying out mining business activities. The permit holder can settle the land rights issue in stages depending on the need to utilise the land for coal mining activities.

The permit holder is also obliged to provide compensation on the basis of a mutual agreement with the land rights holder; the value is calculated according to the land area or the objects located in the concession areas (Article 175). Unlike previous regulations, this GR provides a way out when the parties do not reach an agreement. Under Article 176, in case the parties fail to reach a consensus, the central government undertakes to resolve their case through mediation coordinated by the Ministry of Energy and Mineral Resources (MoEMR) and the Minister of Agrarian and Spatial Planning/National Land Agency. The regional government is also involved in the mediation. The central government can provide recommendations for resolving the arising land rights issues in the mediation process.

5. Coal mining and other land- based activities: overlapping claims on land-use

Indonesia’s diverse resources within the same tracts of land have resulted in the enactment of various regulations and establishment of institutions. Land surface control appears in various provisions concerning plantation, settlement, agricultural land, and transmigration. As described previously, the land rights holder is only necessarily entitled to the land surface and does not have control over the resources above and under the surface.² The separation of these two types of control leads to land use overlap. Overlaps between areas of coal mining and other land-based activities have been identified in the following cases. This article organises the cases into five categories: mines vs. plantations, mines vs. forestry, mines vs. transmigration areas, mines vs. local community land, and mines vs. customary land.

5.1. Mines vs. plantations

A coal mining company can also use plantation land to carry out its activities. The use of plantation land is usually unavoidable because the key objective of mines is to extract minerals beneath the land, whereas oil palm plantations only focus on using the surface soil as a growing medium.

This study examined the case of PT Perkebunan Kaltim Utama I (PT PKU) vs. PT Kutai Energi (PT KE), PT Trisensa Mineral Utama (PT TMU), PT Adimitra Baratama Nusantara (PT ABN), and PT Indomining in EastKal.³ In June 2009, the regent of Kutai Kartanegara district issued a coal mining licence for 6,932 ha of land to PT KE. However, PT PKU was against the issuance of the permit because it overlapped with their concession areas. In addition, PT PKU discovered that its concession areas overlapped with three other mining companies, namely, PT TMU, PT ABN, and PT Indomining. The total overlapping area was 3,968.3 ha (Nasir et al., 2022).

To settle the dispute, the district government conducted a coordination meeting in December 2010 and reached an agreement on shared land use, with priority being given to coal mining activities. Although PT PKU signed the agreement, the company was still not satisfied with the outcome and sued the regent in the administrative court in July 2011. The judges rejected PT PKU’s request to revoke the permit issued to PT KE because the lawsuit was filed late (i.e. more than 90 days after the issuance of the licence).⁴ In NorthKal, the overlap between mining activities and plantation was highlighted in the case PT Duta Tambang Rekayasa (DTR) vs. PT Nunukan Jaya Lestari (NJL). In this case, the overlapping area was 100% or 1.700 ha. PT NJL had been in operation since 2003, but in 2010, the district government of Nunukan issued an mining business permit (henceforth IUP) to PT DTR on the concession of PT NJL to facilitate their coal mining operations. Both companies then agreed to solve such land overlap through the Joint Land Use Agreement (JLUA) scheme.

The JLUA scheme is especially for overlapping claims on land use that involves mining and plantation companies. Coal mining and plantation companies hold valid permits to carry out land-based activities. IUP holders cannot revoke the plantation permits as their licence does not cover the right to use land.⁵ Meanwhile, plantation business permit holders have no right to the coal deposits beneath their lands. In practice, the limitation of the rights of both parties forces them to adopt a JLUA.

A JLUA is an agreement between concerned parties that allows coal mining companies to exploit plantation areas by digging, cutting trees, displacing arable land, and restoring the topsoil to the former mining area, which technically can still be reclaimed. In some instances, plantation areas that are used for mining are left with mining pits; consequently, the areas can no longer serve their previous functions as plantations.

An official from the Nunukan district government explained that earlier investors in the district were timber companies that later applied for plantation permits in the same area. The companies took such actions to avoid forestation obligations, such as forest reclamation and rehabilitation. In the process, a general survey by an IUP holder identified coal deposits beneath the plantation area. To resolve the overlap, the companies arrived at a decision to enter into JLUAs and allow mining activities in the plantation area (Respondent #2). An official from the Agriculture and Food Security Agency of NorthKal further explained that they allowed JLUAs if they were entered into by businesses within the same area (Respondent #3). However, the JLUA practice lacks legal certainty because the licensing system does not explicitly outline its legal effect. An environment practitioner in NorthKal noted that the regent of Nunukan district is aware of the JLUA practice; however, she does not know its legal implications. According to the respondent, this lack of knowledge amounts to negligence on the part of the regent (Respondent #4).

5.2. Mines vs. forestry

Indonesia accounted for 58.2% (1.901 km²) of the tropical deforestation directly caused by industrial mining activities (2000–2019); in particular, EastKal has lost 19% of its tree cover in the past two decades (Giljum et al., 2022). The overlap between mining activities and forestry does not occur directly; instead, it is caused by the designation of forest areas not being based on factual conditions in the field as well as mining activities that extend to conserved areas. Hence, the overlap between forestry concession areas (e.g. timber utilisation permit or Izin Usaha Pemanfaatan Hasil Hutan Kayu) and coal mining areas has reached 25% or 2.3 million ha (Nanggara et al., 2017).

By November 2021, the total size of Borrow to Use Forest Area Permit (Izin Pinjam Pakai Kawasan Hutan/IPPKH) in EastKal that overlapped with forest areas had reached 41.6 thousand ha (MenLHK, 2021b). The overlap between mining and forestry is reflected in the case between the Forest Education and Research Area⁶ in Muara Kaeli village and the mining concession of PT. Sinar Kumala Naga (PT SKN) in the district of Kutai Kartanegara. In July 2009, the district government of Kutai Kartanegara issued a coal mining permit to PT SKN. On the ground, the permitted area overlapped with the Forest Education and Research Area covering about 29.61 ha. The mining activities of PT SKN also caused damage to several forest areas and disrupted the livelihoods of people living in and around the forest (Nasir et al., 2022).

By November 2021, the total size of IPPKH in NorthKal that overlapped with forest areas had reached 12.5 thousand ha (MenLHK, 2021a). In Nunukan district, for example, the mining activities of 11 companies overlap with forestry activities. Only four mining companies have permits to use the forest areas or IPPKH whilst the remaining seven companies run mining operations without IPPKH (Agustina, 2018). In the Bulungan district, an overlap occurred between the area with Permit for Utilization of Timber Forest Products belonging to PT. Kayan Makmur Sejahtera and the area with Permit to Use Forest Area owned by PT. Pesona Khatulistiwa Nusantara (a mining company). The overlapping areas reached about 4.000 ha.

5.3. Mines vs. transmigration areas

The transmigration policy has two axes. Firstly, the transmigration programme is a government programme that is considered as a key contributor to food security in Indonesia. Second, the programme is based on certain decisions regarding the security of tenure and protection of livelihoods (Purba et al., 2018). The use of transmigration land for coal mining disrupts agricultural and settlement activities, as demonstrated by the following cases.

Mulawarman village, located in Kutai Kertanegara district, EastKal, has been a transmigration area since 1981, and it overlaps with the mining areas of PT Kayan Putra Utama Coal (KPUC), which obtained a mining licence in 2012. The companies acquired the land directly from the landowners, and several excavations were conducted near residents’ homes.⁷ These mining activities often threatened the safety of the residents.

Figure 2 shows that transmigration, as indicated by the building, had been there before the mining company. The company then invaded the area, damaged public roads, and destroyed community farms by releasing mud to rice fields. One villager said they had no choice but to sell their land and other properties to the mining company (Respondent # 4). Another villager also explained that during negotiation, the mining company promised them that it would carry out mining activities outside the settlement area without bothering their rice fields. However, in practice, the mining operations destroyed the community settlements and agriculture (Respondent #5). The villagers had been receiving compensation amounting to Rp. 300,000 (equivalent to € 19.35 each month since 2012) whilst the villagers insisted that they did not realise the consequences of such payments (Muhdar et al., 2020).

Figure 2. Overlaps between a coal mining area vs. The transmigration area in Mulawarman village, Kutai Kertanegara district (photo: M. Muhdar).

Silva Rahayu village, located in Bulungan district, NorthKal, have been a transmigration area since 1992. The villagers suffered from water shortage and dust from the mining activities. The villagers sold their farming fields to a mining company, PT Tubindo (since 2009),⁸ and the company agreed to return the fields to the previous owners after completing its mining activities. Despite the agreement, the reality was that the fields were no longer suitable for re-farming after the post-mining stage owing to the presence of un-reclaimed voids (Figure 3).

Figure 3. Overlaps between a coal mining area vs. The transmigration area in Silva Rahayu village, Bulungan district (photo: Muhdar).

Mining business permits are granted on the basis of where the mineral and coal sources are. The decision to grant permits is made unilaterally without involving the land rights holders or even protecting community land rights. An example is the case of PT Mahakam Sumber Jaya (since 2004) and PT Kitadin (which began in 1982 and was renewed in 2013) in Kertabuana village, Kutai Kartanegara district, EastKal. The village has around 398 ha of fertile rice fields. Residents own some 80 ha of these rice fields, and the rest is owned by mining companies that allow residents to carry out farming on the lands as long as the companies do not require the fields for mining (Johansyah & Bahri, 2011; Purba et al., 2018). Coal mining has severely impacted the environment in Kertabuana. It has damaged and contaminated agricultural irrigation, causing a decrease in productivity. Wastewater has also polluted the agricultural land and settlement area (Greenpeace, 2016), leading to a lack of access to clean water sources for the community (Hardjanto, 2016; Johansyah & Bahri, 2011). One of the villagers stated that they had to stay and fight the mining companies and asserted that although mud from the mining activities had damaged some parts of their rice fields, the village would never surrender to the mining companies (Respondent #8).

In NorthKal, the same was witnessed in the case of PT Benamakmur Selaras Sejahtera (PT BSS) vs. the villagers of Tengkapak village in Bulungan district, NorthKal. PT BSS built hauling roads and carried out mining activities on the community’s farmland whilst providing compensation, such as recruiting a few villagers to work, providing a school bus, donating medicine to the community health centres, adding support facilities, and renovating one school building.

5.4. Mines vs. customary land

A conflict between coal mining companies and customary law communities occurred in Muara Tae village, Kutai Barat district, EastKal. Since the mid-1990s, concessions have been made for oil palm and mining plantations, which overlap with customary lands in the villages (FWI, 2016; Tim Inkuiri Nasional Komnas HAM, 2016). Of the 10.8 thousand ha of the Muara Tae area, only 703.35 ha (6%) are free from concessions. In terms of mining, in 1996/1997, a coal mining company, PT Gunung Bayan Pratama Coal, secured a permit for exploration and production operations. The company occupied 5,554 ha or half of the area of Muara Tae (FWI, 2016). Conflicts between customary law communities and the mining company continue thus far.

In this case, the conflicting parties have taken their case to an administrative court. For example, people in Muara Kalei filed a lawsuit against PT SKN and the regent of Kutai Kertanegara (the licensor) in November 2015. They asked the court to order the regent to exclude the overlapping area of about 29.61 ha from the concession. The judge accepted the plaintiff’s claim and ordered the regent of Kutai Kartanegara to release such area from the permit (Nasir et al., 2022).

In brief, the overlapping claims on land use, impacts, and its settlements are described in the following Table 1.

Table 1. Overlapping claims on land use, impacts, and its settlements.

No	Overlapping claims on land use	Impacts	Settlement
1.	Mines vs. plantations	damage to the surface of the plantation areas, Unclarity obligation on the reclamation of abandoned land	JLUA
2.	Mines vs. forestry	damage to several forest areas and disrupt the livelihoods of people living in and around the forest	Mediation Litigation
3.	Mines vs. transmigration areas	disrupt agricultural and residential areas	Compensation to land right owners
4.	Mines vs. customary land	disrupt agricultural and residential areas	Litigation

6. Discussion

6.1. Uncertainty for other land users

The accounts regarding the regulatory framework for mining activities and the actual overlaps suggest that the mining permit system is not in harmony with other land-based activities. The mining permit policy seems to undermine the interests outside the mining sector, and this characteristic highlights the state’s partiality towards extractive activities. As a result, landowners are deprived of legal certainty, which has grave impacts on business sustainability and compounds the economic and social burdens resulting from mining activities. Moreover, land surface alteration in ex-mining areas causes changes to the legal status of the land. As voids are filled with water, uncertainty about whether land and water rights are still applicable in such areas emerges.

The Indonesian government’s response to these problems was realised through a one-map policy, as stipulated in Law No. 4 of 2011 on Geospatial Information. However, these efforts are still not good enough because of the weak checking process on the ground. The technical obstacle is primarily related to the collection and management of data, including area business permit decisions that had been claimed by customary law communities long before the one-map policy was introduced. The expansion of coal mining activities to other people’s land has been a challenge to the government’s efforts to realise social equity (Schlosberg, 2007). GR No. 43 of 2021 concerning the Settlement of Incompatibility in Spatial Planning, Forest Areas, Permits, and Land Rights attempts to solve the negligence that has been going on for some time. However, this GR still requires the Indicative Map of Overlapping Spatial Utilization prepared by the Minister of Economic Coordinator, which remained unavailable at the time of writing (December 2022). In the meantime, the GR cannot be implemented without the indicative map.

As described previously, in the case of mines vs. plantations, voids emerged after the completion of mining activities. Meanwhile, replanting and reclaiming these voids are impossible. Furthermore, JLUAs do not indicate who should perform reclamation to abandoned lands. Mining regulations do stipulate that mining companies are required to perform the reclamation. However, they may decline to fulfil the obligation, arguing that it shall belong to plantation companies.

JLUAs have a weak legal justification, as reflected in the following three explanations. Firstly, mining and plantation activities come with permits, with some obligations imposed to the permit holders. One obligation is to perform reclamation. JLUA clauses raise uncertainty about who shall perform the obligation. Secondly, JLUAs do not emphasise the involvement of the government agencies or officials issuing the licences. Hence, government agencies may lose the opportunity to ensure that companies do not use the JLUAs to abolish their obligations. Thirdly, JLUAs lose their validity as they are not in accordance with the stipulation of Article 1320 of the Indonesian Civil Law Code. This article requires the making of any private contract to have legal basis. The central government later provided a legal basis for JLUAs in GR Nr. 43 of 2021. However, any JLUA made before 2021 does not have legal validity.

We argue that legal uncertainty can produce injustice because mining companies are prioritised relative to other land-based sectors. For instance, the unilateral issuance of permits by the government to mining companies has placed other land users in a weak bargaining position in the decision-making process even though it involves fundamental rights, that is, land ownership. This situation has hindered the allocation of national land resources to guarantee ownership of land outside the mining sector owing to the weak legal protection provided by the state.

Regulations in the coal mining sector authorise mining companies to acquire land within their concession areas by using various methods in accordance with statutory regulations. They have also triggered the expansive nature of coal mining in other areas, including the weak bargaining power of licensees to provide a choice of underground mining models that have minimal adverse impacts relative to current open-pit mining practices.

From a legal policy perspective, the tendency to prioritize the mining sector can be traced from the involvement of influential actors in executive and legislative positions. It is, for instance, demonstrated in the case of the Job Creation Law, which simplifies permit procedures and attracts investors (Al’afghani & Bisariyadi, 2021). Its formulation entangled 12 elite political actors who strongly influence politics. Of these 12, two are directly affiliated with a coal-fired power plant company, while other parliament members are also closely associated with such companies (Bersihkan Indonesia, 2020). These facts indicate the high possibility of conflict of interests, as the regulated matter holds a direct or, at the very least, indirect link to their position in the coal mining companies, either as owners or commissioners (Primayogha et al., 2020).

6.2. Social and environmental impacts

Licensed coal mine areas that overlap with other land-based activities have led to land and environmental damages (Bian et al., 2010). The social impact of coal mines on transmigration areas and local and customary lands includes discrimination in the access to and control of land resources, leading to environmental injustice. In the cases described above, the communities were unable to find ways to reverse the negative social, economic, and environmental impacts they were facing. Extreme changes to the landscape resulting from destructive mining activities pushed local and customary communities to choose one of two available choices: becoming an unskilled mining worker or waiting for the closure of the mining operation.

When JLUAs are made to settle disputes between mining companies and other large-scale users, social and economic impacts on local and customary communities are minimal. However, as discussed above, other environmental issues may arise as the party to perform reclamation is not clearly identified. In the long term, local and customary communities will suffer from issues brought about by unrestored, abandoned lands if the issue is not settled.

Mining activities create problems such as local community marginalisation and environmental destruction (Erb, 2016), particularly in areas with overlap issues with other users. The forest coverage is decreasing, and fully restoring it is impossible. Transmigration areas are also vulnerable to mining activities. The greater the threat of destructive mining to transmigration areas, the greater the difficulty in achieving food security as one of the national development goals.

Coal mines in customary land represent another issue that has sparked debate at all levels of decision making, across civil society organisations, and within communities themselves. The legal framework concerning the recognition and protection of customary law communities involves long and complicated procedures, and it has been poorly implemented (Simarmata, 2019). The legal framework stipulates that the government shall provide protection to customary rights only if the community has received formal recognition from the government. Land for customary law communities is part of their identity and spirituality. Therefore, land is deeply rooted in their culture and history (OECD, 2017; UN, 2007). Environmental damages in customary land contribute to long-term economic problems because previously, livelihood sources were around them, in which case the distribution of risks becomes a form of injustice (Bullard, 2018).

Customary communities residing in coastal areas are also vulnerable to mining activities. Coal companies use coastal areas as a stockpile before transferring products from small/medium vessels to ‘mother vessels’ (huge vessels) for export purposes. Fishermen’s access is limited because coal mining companies also use the areas for coal transportation (Muhdar et al., 2019). In the Dayak Modang regions of Busang subdistrict in East Kutai district, for example, rural landscapes and livelihoods have been transformed owing to the broader form of industrial resource extraction encompassing commercial logging, plantations, and mining (Toumbourou et al., 2022). This situation causes the socioeconomic marginalisation of indigenous peoples.

Based on the previous discussion, we argue that mining is not ecologically sustainable, generates adverse social impact, and contributes to legal uncertainty. The presence of mining companies that threaten the sustainability of other land-based sectors demonstrates the neglect of the principles of justice and ethics. Furthermore, based on their permits, coal mining often distributes social and environmental risks to other land users.

7. Conclusion

This research confirms that the involvement of influential actors in executive and legislative bodies causes the legal policy preference for the mining-oriented permit system. As a result, it has significantly contributed to overlapping land use claims between coal mining and other land-based activities. The overlap has caused other land-based users to experience legal uncertainty over their land rights. In addition, the overlap has caused local and customary communities to suffer from the social and economic impacts, as well as environmental destruction. The uncertainty has resulted in the unstable land tenure rights of other land-based users. Destructive mining, which extremely changes the landscape, may cause other users to lose their rights over their properties. The degradation of forest and agricultural land by extractive activities continues to threaten the food security of local and customary communities. Consequently, it disrupts people’s livelihoods and thereby lead to poverty.

JLUAs, as a bottom-up solution to the overlap later endorsed by the government, have exacerbated the environmental degradation. Such private contracts have caused mining permit holders to often ignore their obligations towards environmental protection and conservation. The contracts can possibly erode the applicability of public authorities over land use.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1. Articles 135 and 136 paragraph 1 of the 2009 Mineral and Coal Act and Article 100 GR No. 23 of 2010 concerning the Implementation of Mineral and Coal Mining Business Activities.

2. Article 33 (1) of the Indonesian Constitution of 1945.

3. See Administrative Court Decision No. 18/G/2011/PTUN-SMD.

4. See Administrative Court Decision No. 24/G/2011/PTUN-SMD.

5. Article 134 (1) of the Mineral and Coal Mining Act of 2009.

6. Forest Education and Research Area is a forest area designated for forestry research and development, forestry education and training, and religion and culture.

7. Mining laws and regulations allow mining permit holders to have or not have land titles in conducting mining activities. In practice, most mining companies are in favour of not having land titles. They enter into contracts with landowners, which enable them to conduct mining operations over the land. The contract could be in the form of land rent or production sharing (see (Simarmata & Chamdani, 2021)).

8. Bulungan Regent’s Decree No: 788/K-XI/540/2009, and Decree of the Head of the Investment and One Stop Service Office of North Kalimantan Province, No. 757/184/IUP-OP.P1/DPMPTSP/V/2018, concerning Extension of Production Operation IUP to PT. Tubindo, covering an area of ±5,817 ha.