ENVIROMENTAL LAW

SYNCHRONIZATION OF FOREST AREA LICENSES FOR MINES THAT ARE

TOO BUREAUCRATIC

LECTURER OF ENVIROMENTAL LAW:

SITI RAKHMA MARY HERWATI

BY:
M. FERNANDA KHADAFI (017201800024)

LAW
PRESIDENT UNIVERSITY
2020

Jababeka Education Park, Jl. Ki Hajar Dewantara Kota

Jababeka, Bekasi 17550, Indonesia
Telp: +62 21 8910976263 Fax: +62 21
8910976
Email: info@president.ac.id /
ask@president.ac.id
 CHAPTER 1

INRODUCTION

A. Background
Forest resources have a role as producers of various goods and services so that
it is attractive for all sectors outside the forestry sector to use forest areas. Therefore,
this needs to be a serious concern and treatment from the government (Syahadat &
Sylviani, 2014).
Management and handling of licensing systems especially mining permits are
very complex because they involve cross sectors. For example the IUP process in
another area of use (APL) is issued by the Ministry of Energy and Mineral Resources
(ESDM), but if the requested mining area is included in the forest area, the IUP holder
must take care of IPPKH at the Ministry of Environment and Forestry (LHK) . The
existence of Laws (Laws) in Indonesia is still sectoral in nature which is more
concerned with the sector because its drafting comes from ministries related to that
sector. As a result the licensing process in each sector such as forestry, mining and the
environment is regulated by a separate law and ministry (Rosadi, 2008).
In managing a mining business permit (IUP), it still poses problems for permit
applicants or investors who will invest their capital. Borrowing and Use of Forest
Areas Permits (IPPKH) for the mining sector, for example, are still a problem with
convoluted and sometimes "nuanced" procedures that incur high transaction costs for
each IUP in the forest treasury, (Syahadat, Subarudi, & Setiadi, 2016 ). The issue of
mining licensing is inseparable from the bureaucratic system that surrounds it,
because mining licensing is very close to the practice of "gratification" which is the
domain of bureaucrats before the business runs in the proper business corridor
(Subarudi, 2014).
To overcome this problem, a Presidential Regulation (Perpres) No. 97/2014
was issued concerning One Stop Integrated Services (PTSP), where Article 4 states
that the scope of PTSP covers all licensing and non-licensing services. In an effort to
support the realization of PTSP, transparent and accountable support and treatment is
needed by all parties, especially related to the mining permit system in the forest area
as an effort to accelerate licensing and increase the number of investors interested in
the LHK business. Clear and certain licensing procedures and regulations will create a
conducive business climate (Subarudi, 2008).
B. Problem Identification
1. Is synchronization of the mining permit system in the forest area necessary?
2. Is the IPPKH management process in accordance with the principles of good
governance?

C. Purposes
Identify mining permit policies in forest areas, synchronize mining permit systems,
and develop efforts to perfect IPPKH policies.

CHAPTER II

DISCUSSION

A. Environmental and Forestry Policies relating to Mining Business

The implementation of Perpres policy No. 97 of 2014 must be translated into
regulations from each agency both at the central and regional levels because the
Perpres is valid and general in nature. For example at the central level, the
requirements and mechanisms for mining permits in forest areas are outlined in the
Minister of Environment and Forestry Regulation (PermenLHK) Number P.50 /
Menlhk / Setjen / Kum.1 / 6/2016 concerning Borrowing and Use of Forest Areas
(P3KH) Guidelines . Then at the provincial level issued Governor Regulation
(Pergub) of West Java Number 92 of 2014, Pergub of East Kalimantan Province
Number 48 of 2015 concerning Implementation of Integrated Licensing Services
(P2T). The purpose of the enactment of this regulation is as a basis for the follow-up
of licensing and non-licensing through PTSP administrators who have been delegated
or delegated authority from the government and governor.
Establishment of the implementation of P2T is basically intended to simplify
the bureaucracy of licensing services in various forms, including speeding up service
time by reducing the stages of activities in less important services (Perpres Number
97 of 2014). It is expected that with this P2T system, the implementation of licensing
services at the central and regional levels will be more transparent, accountable, easy,
inexpensive and accessible to all parties in need as an effort to achieve good
governance.
 In supporting this, Perpres Number 97 of 2014 was followed up by the
Ministry of LHK by issuing PermenLHK Number P.97 / Menhut-II / 2014. Jo P.1 /
Menhut-II / 2015 concerning Delegation of Permit and Non-Licensing Authority in
the Environment and Forestry to the Investment Coordinating Board (BKPM). BKPM
is an investment service agency of the Government of Indonesia formed with the
intent to effectively implement law enforcement against foreign and domestic
investment. As a liaison between the business world and the government, BKPM is
mandated to encourage direct investment, both from within and outside the country,
through the creation of a conducive investment climate (Destiana, 2011).
Delegation of LHK permits to BPKM facilitates licensing services, so
investors can save on licensing fees because they no longer need to go to various
ministries / institutions (K / L). In this case the Head of BKPM can issue permits in
the LHK field, but the LHK technical review or review is still conducted by the
Ministry of Environment and Forestry. Licensing and non-licensing in the LHK sector
delegated to BKPM, one of which is the permit for the use of forest areas in
production forests and protected forests under the IPPKH scheme. Laws and
regulations that underlie the issuance of IPPKH in accordance with PermenLHK
Number P.50 / Menlhk / Setjen / Kum.1 / 6/2016 concerning Guidelines for
Borrowing and Use of Forest Areas consist of 11 units of Law, 13 units of
Government Regulation (PP), nine units of Presidential Regulation (Perpres ) /
Presidential Decree (Kepres), and three PermenLHK units.

B. Efforts to Perfect the Mining Licensing System

Efforts to improve the mining system can be done through (i) discussion of the
basic legal perspective, (ii) synchronization of mining licenses in the forest area, and
(iii) concrete steps to improve the mining permit system.

1. Discussion of basic legal perspectives.

The government has declared that all licenses should be managed in one door
or one roof, known as KPT. The hope is that investors will be able to obtain business
certainty and make it easier for the applicant to manage their permits related to permit
conditions that must be passed without having to go back and forth to handle various
permits. Arranging one-door permit, known as integrated licensing, is regulated in
Presidential Regulation Number 97 Number 2014 (PTSP). The purpose of the PTSP
was to a) provide protection and legal certainty to the community, b) shorten the
service process, c) create a service process that is fast, easy, cheap, transparent,
certain, and affordable; d) bring closer and provide wider services to the community.

In the licensing mechanism even though the permit issuing is the authority of
the BKPM at the central level, or BKPMPT at the regional level, but before the permit
is signed and issued there must be research conducted by technical agencies. Permit is
issued after there is a technical recommendation from the local technical agency in
this case the LHK institution (Ministry of Environment and / or forestry service).
Related to the effectiveness of policies made by the government (Perpres Number 97
of 2014) and IPPKH mechanism (PermenLHK Number. P.50 / Menlhk / Setjen /
Kum.1 / 6/2016 concerning Guidelines for Borrowing and Using Forest Areas) stated
that to obtain IPPKH requires within 31 working days and the actual completion of
licensing will be longer if it is associated with the requirement to be completed with
eligibility documents regarding environmental permits (PP No. 27 of 2012), Amdal
requires 105 working days (Environmental Regulation No. 5 of 2008 concerning
Work Procedures) Assessment Commission on Environmental Impact Analysis), and
UKL-UPL (Environmental Regulation Number 13 of 2010 concerning Environmental
Management Efforts and Environmental Monitoring Efforts and Statement of
Capability of Environmental Management and Monitoring) that must be possessed by
each permit applicant. Therefore, PTSP service period is no more than 7 (seven)
working days from the receipt of complete and correct licensing and / or non-
licensing documents, it is necessary to add notes or assumptions that all technical and
additional requirements have been completed first. This means that PTSP policies are
ineffective as long as the policies issued by the technical ministries regarding mining
permits are not changed or revised.

2. Synchronization of mining licenses in the forest area

Synchronization of policy products related to the mining permit system in

forest areas is greatly influenced by the extent to which the provisions in it are able to
accommodate the laws and regulations issued by other technical ministries. Therefore,
in examining the issue of the effectiveness of synchronizing mining permits in forest
areas it is not enough to talk about the licensing process that is in the policies issued
by the Ministry of LHK or the Ministry of Energy and Mineral Resources only,
because underneath there are still licenses and other non-permits that must be taken
care of and resolved, for example with the provisions in Law No. 39/2009 that require
environmental permits as a condition for activity permits, including mining business
activities. In PermenLHK Number P.50 / Menlhk / Setjen / Kum.1 / 6/2016
concerning Borrowing and Use of Forest Areas Guidelines to administer IPPKH may
be shorter and easier, but the permit is meaningless if it is not equipped with an
environmental permit. If indeed the permit is to be in accordance with the
expectations of the government (President) for a shorter period of administration, then
the IPPKH rules or policies must be stated / mentioned and / or with a note that other
permit requirements issued by the regional government constitute additional
requirements. must be met in the permit has been completed. This means that all other
permits issued by authorized officials in the regions have been completed. This
emphasis is needed to facilitate the issuance of permits or in accordance with the
provisions in force today (seven working days) as stated in Presidential Regulation
No. 97 of 2014.

3. Concrete steps to improve the mining permit system in the forest area.

From the results of the previous discussion, there are at least 7 (seven)
concrete steps that must be taken as a concrete effort to improve the IPPKH system,
namely:

(1) Amdal and UKL-UPL are not licensing documents but scientific research
documents about something that will happen to the environment when the
activity will be carried out. However, the close relationship between EIA and
UKL-UPL documents with environmental permits, where environmental
permits are issued after the EIA research, UKL-UPL is carried out, then the
document automatically becomes a permit document. The existence of these
documents gives the impression of being too bureaucratic which results in the
slow processing of permits. To make it easier in the IPPKH process there must
be policy reforms by synchronizing policies on the use of forest areas issued
by the Ministry of Environment and policies issued by the Ministry of
Environment related to Environmental Impact Analysis, UKL-UPL and
Environmental Permits considering the Ministry of Environment and Ministry
of Forestry have been combined.

(2) The purpose of the existence of an integrated licensing arrangement, so

that the licensing process is more efficient, fast, and simple. Therefore, the
institutional arrangement and coordination between various related parties
must be integrated so that it can be realized in a one-stop licensing system as
an idea that can help the implementation of mining business activities in
Indonesia. In addition, it must also be considered inequality of human
resources in the forestry sector because experts in the forestry sector are very
minimal in the regional BKPMPT.

(3) Rearranging overlapping IUPs by arranging status or revoking IUPs which

until now has not been clear and clean.

(4) Lack of supervision when an IUP has been issued. This is exacerbated
when regions have issued hundreds of permits but apparently they do not have
mining supervisors or inspectors. The process of granting permits should be
monitored and each region should have sufficient quantities of mine inspectors
in quantity and quality.

(5) Adjustment of KK. If speaking legally, the adjustment of the CoW must be
done within one year in accordance with the Minerba Law, but in its
implementation the time stays so that it requires the government's
assertiveness that amending the contract so that it is more just and profitable
for the country.

(6) The government must be more selective in granting IUPs, bearing in mind
that there are already many mining companies that are legal (have IUP) but do
not fulfill their obligations, for example in arrears of reclamation guarantees
that must be paid in advance before the IUP is issued.

(7) With the issuance of Law Number 4 of 2009, other permits such as KK
(Contract of Work), Mining Authorization (KP), Coal Mining Business
Agreement (PKP2B), and others have been deleted and replaced into IUP, but
the completeness of other documents such as Amdal , UKL, UPL and
environmental permits must also be completed by the new IUP holder.
 CHAPTER III

CLOSING

A. Conclusion
Mining licensing policies in forest areas are less effective because they
involve two ministries' doors, namely the Ministry of Energy and Mineral Resources
for IUPs and the Ministry of Environment and Forestry for IPPKH.
The IPPKH mechanism based on the Minister of Environment and Forestry
Regulation Number P.50 / Menlhk / Setjen / Kum.1 / 6/2016 concerning Guidelines
for Borrowing and Use of Forest Areas takes 31 working days, but in practice it turns
out to take three times longer than the time (31 days) so the timing must be reviewed
in accordance with the facts and real conditions in the field.
The implementation of PTSP at the regional level varies due to differences in
policies from one region to another in the issuance of permits in accordance with the
policies of the Pergub of each region.

B. Suggestion
Synchronization of policy products related to mining permit systems in forest
areas needs to be done by sitting together between the Ministry of Energy and Mineral
Resources and the Ministry of Environment and Forestry. For example, policies on
environmental impact analysis, UKL-UPL, and environmental permits issued based
on the Minister of Environment's regulation at that time, should have been easier to
synchronize considering that the Ministry of Forestry and the Ministry of
Environment had already joined, so that the bureaucracy in managing permits in the
LHK field could be cut.
BIBLIOGRAPHY

Destiana, L. (2011). Analisis kualitas pelayanan

perizinan investasi di badan koordinasi
penanaman modal (BKPM). (Skripsi). Depok:
Universitas Indonesia.

Peraturan Gubernur Provinsi Jawa Barat. Nomor 92
Tahun 2014 tentang Petunjuk Pelaksanaan
Peraturan Daeran Nomor 7 Tahun 2010 tentang
Penyelenggaraan Pelayanan Perizinan Terpadu
(2014).
Peraturan Pemerintah Republik Indonesia Nomor
78 Tahun 2010 tentang Reklamasi dan Pasca
Tambang.
Peraturan Pemerintah Republik Indonesia Nomor
24 Tahun 2012 tentang Perubahan atas Peraturan
Pemerintah Nomor 23 Tahun 2010 tentang
Pelaksanaan Kegiatan Usaha Pertambangan
Mineral dan Batubara.
Peraturan Presiden Republik Indonesia. Nomor 97
Tahun 2014 tentang Penyelenggaraan Pelayanan
Terpadu Satu Pintu.
Rosadi, O. (2008). Pengelolaan sumber daya alam:
Best regard, cita hukum, politik hukum dan realita.
UIR. Pekan Baru. Jurnal Makamah, 1.
Subarudi. (2008). Tata kelola kehutanan yang
baik: sebuah pembelajaran dari Kabupaten
Sragen. Jurnal Analisis Kebijakan Kehutanan. 5(3),
179 – 192.
Subarudi. (2014, April). Tata kelola ijin pinjam-
pakai kawasan hutan. Makalah disajikan dalam
Seminar Nasional Reforma Agraria untuk
Mendukung Tata Kelola Hutan yang Baik. Jakarta:
Pusat Penelitian dan Pengembangan Perubahan
Iklim dan Kebijakan.
Subarudi, Kartodihardjo, H., Soedomo, S., &
Sapardi, H. (2016). Kebijakan resolusi konflik
tambang batu bara di kawasan hutan di
Kalimantan Timur. Jurnal Analisis Kebijakan
Kehutanan, 13(1), 53-71.
Syahadat, E., & Dwiprabowo, H. (2013). Kajian
paduserasi tata ruang daerah (TRD) dengan tata
guna hutan (TGH). Jurnal Analisis Kebijakan
Kehutanan, 10(2), 89-117.
Syahadat, E., Subrudi, & Setiadi, A. (2016).
Efisiensi perizinan bidang LHK (Kehutanan, peti,
pertambangan dalam kawasan hutan, dan jasa
lingkungan) (Laporan Hasil Penelitian). Bogor:
Pusat Penelitian Sosial, Ekonomi, Kebijakan dan
Perubahan Iklim.
Syahadat, E., & Sylviani. (2014). Analisis
kebijakan peyediaan lahan hutan tanaman industri.
Jurnal Analisis Kebijakan Kehutanan, 11(3), 277-
296.