Law Reform, 20.
, 2024, 188-210 Master of Law.
Faculty of Law.
Universitas Diponegoro Research Article Revitalising Indigenous Rights Participation in Mining Lawmaking Process:
Evaluation and Proposal for Indonesia Asrul Ibrahim Nur1.
Sholahuddin Al Fatih2*.
Christina Clarissa Intania3 1Geza-Marton Doctoral School of Legal Studies.
University of Debrecen.
Hungary 2Faculty of Law.
Universitas Muhammadiyah Malang.
Indonesia 3The Indonesian Institute.
Indonesia *salfatih@umm.
ABSTRACT
Indonesia's climate ambition, particularly in developing an electric vehicle ecosystem, has made significant progress since 2019 through the adoption of various legal instruments leading to mining law These initiatives include establishing an electric vehicle battery industry supported by downstream mining policies.
This policy ensures the availability of metal ores, such as nickel, which is a key raw material for the battery industry.
However.
Indigenous communities living near mining areas designated as National Strategic Projects have experienced negative impacts, including environmental This study posits that environmental damage is a consequence of excluding Indigenous communities from mining policy reforms, as they traditionally serve as protectors of the environment.
The primary aim of this study is to analyze the importance of Indigenous peoplesA meaningful participation and to examine the tendency of IndonesiaAs mining law reforms to overlook Indigenous involvement in environmental preservation.
This paper employs a doctrinal and normative approach to statutory laws.
The research underscores the urgency of ensuring meaningful participation of Indigenous peoples in mining law reforms and suggests methods for restoring their right to participate through available forums and legal instruments.
The paper proposes several steps to accommodate Indigenous peoplesA aspirations in legislation: first, addressing the loss of identity experienced by Indigenous peoples.
second, optimizing the use of existing representative offices in each province.
third, implementing a system that allows Indigenous peoples to easily express their aspirations and Keywords: Indigenous Rights.
Indonesia.
Mining Law Reform.
Meaningful Participation.
INTRODUCTION
According to data published by the Ministry of Mining, as a form of extractive industry.
Energy and Mineral Resources, by 2022, 80% of poses significant environmental risks, particularly tin and 19% in terms of its adverse social effects on local domestically (Direktorat Jenderal Mineral dan communities (Zanini et al.
, 2.
However.
Batubara, 2.
The downstream development mining activities play a crucial role in the of the mining industry became a top priority Indonesian economy, contributing at least 12.
program during President Joko Widodo's second to the Gross Domestic Product (Taufikurahman et The policy is characterized by a ban on the , 2.
Indonesia has ambitious plans to export of raw mining products, which must be increase the added value of its mining industry.
processed in Indonesia before being exported to were processed Law Reform, 20.
, 2024, 188-210 Master of Law.
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Universitas Diponegoro another country (Schryder & Iwasaki, 2.
taken control of 4,200 hectares of land previously Mining law reform is both intensive and ambitious, managed by local communities (Mining Advocacy amending Law Number 4 of 2009 on Mineral and Network & People Coalition for the Right to Coal Mining and adopting the Omnibus Law on Water, 2.
Therefore, revitalizing meaningful Job Creation.
This policy is also part of community participation in mining law reform in Indonesia's ambition to become a global center Indonesia is essential.
for the electric vehicle industry, particularly in the The right to participation for indigenous production of batteries made from metal minerals peoples is recognized in various international sourced from Indonesian mines (Tritto, 2.
legal instruments, such as the Indigenous and However, the downstream development of Tribal Peoples Convention, 1989 (No.
ILO
the mining industry through mining law reform in Convention .
adopted by the International Indonesia has been criticized by various parties Labour Organization (ILO).
Additionally, the for its lack of transparency and insufficient public United Nations General Assembly adopted the United Nations Declaration on the Rights of Adiputro, 2.
Indigenous peoples are the Indigenous Peoples (UNDRIP) in 2007 (Barelli, communities most affected by intensive mineral The concept of free, prior, and informed Various studies indicate that pollution and consent (FPIC) was developed as a framework to ensure the participation of indigenous peoples in consequences of metal mining activities geared extractive industries, including mining (Klein, towards the electric vehicle battery industry.
Muyoz-Torres, & Fernyndez-Izquierdo, 2.
(Lumbantoruan.
Nugroho.
Ecological disasters resulting from nickel mining Scholars of indigenous rights argue that have occurred in regions such as Morowali.
FPIC and other participation rights are rooted in the fundamental principle of self-determination, experienced sudden floods and landslides which is considered the cornerstone of indigenous between 2019 and 2020 (Mining Advocacy peoples' rights (Ward, 2.
Consequently.
FPIC Network & People Coalition for the Right to is particularly significant in efforts to involve Water, 2.
The exclusion of Indigenous indigenous communities in the process of peoples from mining law reform in Indonesia is a reforming mining laws, as in Indonesia.
16,000
major factor to environmental Another important concept for measuring degradation around mining areas.
Furthermore, the meaningful participation of indigenous people mining activities have encroached on the habitats is the classic theory of the ladder of participation, of indigenous populations.
In Weda.
North proposed by Arnstein .
and Connor .
Maluku, for instance, mining companies have Law Reform, 20.
, 2024, 188-210 Master of Law.
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Universitas Diponegoro This theory aims to measure and explain the degree of community participation.
Several Ruwhiu and Carter .
conducted a study focusing on the meaningful involvement of the Maori community in New Zealand.
A key involvement of indigenous peoples in mining law finding from this study emphasized the need for reform in Indonesia.
A study by Bedner and Huis .
highlighted the return of Indigenous peoples' rights in legislation related to natural Additionally, it is crucial to incorporate the resource management in Indonesia, particularly in perspectives of indigenous people in the mining mining, forestry, and water.
They noted that while law-making process.
natural resource management legislation in This study seeks to fill the research gap Indonesia acknowledges the rights of indigenous identified in the five previous studies on peoples, it does so in a limited way.
Another study indigenous peoples' participation in Indonesia's by Jamin et al.
discusses the benefits and mining law reform process.
Methodologically, this protections afforded to indigenous peoples in study will also analyze the debates surrounding mining activities, which often tend to harm the the amendments to the Law on Mineral and Coal Mining that took place between 2018 and 2020.
improvements in mining management and The goal of this research is to contribute to the academic discourse on the role and position of Additionally.
Irsan and Utama .
indigenous peoples in mining law legislation in a conducted research on the politics of mining law, global south country like Indonesia.
The post-mining particularly focusing on coal and its impact on the welfare of the Indonesian people.
Traditionally, legal scholars in doctrinal research use sources such as laws, case laws.
Rahayu et al.
examined the legal histories, and adopted regulations (Gawas, involvement of local communities in mining This study analyzed legal instruments activities and their economic consequences.
adopted by the Indonesian government, including While laws (Indonesian: undang-undan.
, government community-based mining, some mining activities regulations, and presidential regulations.
The are conducted unlawfully, falling outside the legal analysis was conducted both descriptively and Community mining refers to the direct analytically, focusing on aspects of indigenous involvement of people in extraction activities, people's participation rights within the Indonesian which not only have social and economic legal framework.
The analysis and discussion are consequences but also influence the policy- situated within the context of indigenous people's making process.
participation rights in the legal instruments that Indonesian Law Reform, 20.
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Universitas Diponegoro form the basis of Indonesia's mining law reform.
Presidential Regulation.
The analysis was Therefore, conducted descriptively and analytically by incorporates more than just legal instruments and elaborating on aspects of indigenous people's literature from legal disciplines in its analysis.
participation rights within the Indonesian legal References from other fields of study are also employed to support the arguments.
Thus.
The analysis and discussion are situated although this study adopts a doctrinal legal within the context of indigenous people's research approach, insights from other disciplines participation rights in the legal instruments that are necessary to fully explain the legal form the basis of Indonesian mining law reform.
phenomena analyzed and to reach sound References from other fields of science are also employed to support the arguments.
Thus.
This paper is organized into four sections:
although this study adopted doctrinal legal the introduction, research methods, results and research, insights from other disciplines are discussion, and, finally, the conclusion.
necessary to explain the legal phenomena observed in the analysis and conclusions.
RESEARCH METHOD
This study adopted doctrinal legal research with both a statutory and conceptual RESULTS AND DISCUSSION Mining The article seeks to build a theoretical Law Reform Framework Indonesia framework and analyze the consequences of Mining law has been a significant issue legal implementation (Davies, 2.
As a result over the past decades due to its ongoing of employing doctrinal legal research methods.
This section will first explain the this study has discussed and analyzed the proper history of mining law and its regulations in application of legal doctrines through the Indonesian history.
Before independence.
Dutch examination of authoritative texts, doctrines, and colonials controlled Indonesia's natural resources, legal cases (Pradeep, 2.
including minerals and mining.
The Indische Conventionally, the sources used by legal Mijnwet .
ereinafter referred to as IMW), also scholars in doctrinal research include laws, case known as Mijnordonantie, was promulgated in laws, legal histories, and adopted regulations 1899 through Staatblad 1899.
Number 214, and (Gawas, 2.
This study analyzed the legal took effect on May 1, 1907.
It addressed mining Indonesian job safety as outlined in Articles 365 to 612.
government, which consist of Law (Indonesian:
Mijnordonantie was later revised and recast into undang-undan.
Government Regulation, and Mijnordonantie 1930, which came into force on Law Reform, 20.
, 2024, 188-210 Master of Law.
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This new version no longer Mining Business License (Izin Usaha supervised mining work safety but was regulated Pertambangan.
IUP).
Special Mining Business under Mijn Politie Reglement with Staatblad 1930.
License (Izin Usaha Pertambangan Khusus.
Number 314 (Listiyani.
Said, & Khalid, 2.
IUPK), and Community Mining License (Izin Following Indonesia's independence, the Pertambangan Rakyat.
IPR).
This licensing Government system is significant because it places the Regulations in Lieu of Law (Perpp.
Number 37 government in charge, unlike contracts or of 1960 on Mining, effectively ending the Mijn agreements, which place the government on an Politie Reglement of 1930.
The government also adopted Perppu Number 44 of 1960 on Oil and Furthermore, the licensing function is restrictive Natural Gas in the same year.
Additionally.
Law and can address environmental issues by Number 5 of 1960, which pertains to the requiring businesses that receive environmental Fundamental Agrarian Regulations (UUPA), permits to remediate pollution or damage caused governs mining indirectly.
During this period, the by their activities.
mining industry established a concession system Following the adoption of the Indonesia that granted mining rights and land ownership to Mining Law 2009, in January 2017, the private companies.
To accelerate economic Indonesian government introduced Government development.
Perppu Number 37 of 1960 was Regulation Number 1 of 2017, which allowed the repealed and replaced by a new fundamental export of raw nickel, bauxite, and copper.
mining law.
Law Number 11 of 1967 on implement this regulation, licenses would be Fundamental Mining Provisions, which took effect issued by the Ministry of Energy and Mineral on December 2, 1967 (Kosim et al.
, 2.
Resources (Warburton, 2.
Ironically, on May On January 12, 2009, the Indonesian 12, 2020, the House of Representatives Government and Parliament adopted Law unanimously agreed to revise the Indonesia Number 4 of 2009 on Mineral and Coal Mining Mining Law 2009.
At the beginning of his second .
ereinafter referred to as the Indonesia Mining term.
Joko Widodo signed and introduced Law Law 2.
This law marked a significant shift in Number 3 of 2020 on June 10 .
ereinafter mining law by altering three fundamental referred to as the New Mining La.
, an elements: the rule of law, state control, and the amendment to the Indonesia Mining Law 2009.
legal relationship between the state and private Rather than addressing the shortcomings of the previous law, the New Mining Law removes the adoption of this law, mining concessions have size limit for mining operations and allows for two been granted only through permits, such as the automatic license extensions of 20 years each.
(Puspitawati.
Since Law Reform, 20.
, 2024, 188-210 Master of Law.
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Indonesia's latest policy promoting Second.
Ease of Doing Business (EODB) effectively guarantees the fulfillment of their rights and provides mining companies with more extensive By participating in the policy concessions and longer contracts while imposing formulation process, local communities can have fewer environmental obligations.
Thus, the New their rights protected, particularly regarding land Mining Law and Law Number 11 of 2020 .
he Job and property ownership around mining areas.
Creation Law and its amendmen.
were adopted Conversely, fulfilling these rights also entails an to loosen the requirements and obligations for obligation to protect the environment from damage caused by irresponsible exploration or companies, despite opposition from civil society exploitation (Harada et al.
, 2.
and environmental activists (Fernando et al.
Third, participation is fulfilled in the preparation of regulations, the New Mining Law reform still statutory regulations.
Involving local communities needs to address existing legal difficulties in policy formulation upholds the principle of concerning licenses, reclamation, community meaningful participation, a key principle in the protection .
ncluding meaningful participation of formation of laws and regulations in Indonesia.
indigenous people.
, and sanctions (Harun et al.
engaging local communities, the government ensures that regulations are developed according There are three essential arguments for why local communities need legal protection and effectiveness, marketability, and binding power involvement in formulating policies regarding (Haridison, 2.
mining management.
First, it relates to nature The New Mining Law shifts the pattern from Local communities, especially decentralization to centralization, returning mining indigenous ones, have lived in these areas for a licenses to the central government rather than to long time and possess extensive knowledge local governments, as was the case under the about preserving and protecting nature.
Some previous law.
This policy contradicts the needs of local communities, such as the Osing.
Tengger, regional communities, particularly concerning the and Baduy communities, use their local wisdom, legal protection of the participation rights of which is based on their religious traditions and indigenous communities in areas where natural resources are explored and exploited (Sibarani et (Jayasinghe et al.
, 2.
Thus, involving local , 2.
The table below outlines the significant communities in formulating mining management changes in the mining law reform of 2020:
policies is crucial for environmental sustainability.
Law Reform, 20.
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Universitas Diponegoro Table 1.
Mining Law Reform 2020 No.
Law 3/2020 investment in the mining sector.
However, the Law 11/2020 and its Similiar.
The only difference lies in the delegated legislation in the form of Government Regulations.
drive to protect the environment from the damage Article 4 paragraph .
states that ownership and control of minerals and coals under the authority of the Central Government Article 5 paragraph There is no specific .
regulates regulation regarding the production of the amount of metallic metallic minerals, minerals production including prohibitions and export on their export.
This regulation is essential to limit the export of metal ore such as nickel, the raw material for batteries for electric vehicles.
The authority of the The authority of the Regional/Local Regional/Local Government Government is stated (Province and in Article 7 and Regency/Cit.
is removed in Article 8.
removed in Article 7 and Article 8.
Article 35 stated that Article 35 does not the mining business is explain who issues carried out based on the permit Business Licensing from the Central Government and further regulated through Government Regulations There are no articles or paragraphs that specifically protect the rights of indigenous peoples, even though many mining areas are included in the territory of indigenous peoples.
Source: Summarise and analyse from Law No.
3/2020 and Law No.
11/2020.
caused by excessive exploitation and exploration is often overshadowed by investors' desire to maximize profits from the mining sector.
Evidence of the government's pro-investor stance is seen in its neglect of the aspirations of communities affected by mining, which Commission VII of the DPR has not considered in drafting regulatory updates on mining.
The principle of transparency was also compromised, as the Mining Law was passed behind closed doors without involving the communities impacted by environmental disasters (Juaningsih, 2.
Moreover.
Constitutional Court Decision Number 37/PUU-XIX/2022 clearly favors investors, with the Constitutional Court Panel rejecting three of the four requests for a judicial review of the Mining Law.
These requests were related to .
the distance from access to participation and services of relevant mining institutions due to the centralization of regional government mining authority.
the potential criminalization of communities rejecting mining in Article 162 of the Minerba Law.
the automatic extension guarantee for KK and PKP2B.
The Panel of Judges did agree that some The mining law reform generally reflects key points of the case concerning the utilization of the government's intention to nationalize and space granted to WIUP.
WIUPK, and WPR integrate foreign and private ownership of mineral and coal resources in Indonesia (Warburton, interpretation "as long as it is in accordance with Mining law reforms are often driven by the applicable laws and regulations" (Rusdiana.
Fitri, need to address environmental concerns, social & Divia, 2.
However, achieving this is impacts, economic development, and to attract challenging and differs from how palm oil is Law Reform, 20.
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Universitas Diponegoro with the integration of from Indonesia.
Malaysia, be reflected in the legislative process.
Indonesian legislation, several principles need to Singapore (Warburton, 2.
The combination of be fulfilled.
According to Article 5 of Law Number nationalist persistence and variations in the boom 12 of 2011 on the Formation of Legislation, as era may lead Indonesia toward unmanageable amended by Law Number 15 of 2019 and Law and confusing management of mineral resources Number 13 of 2022 .
he Formation of Legislation (Warburton, 2.
La.
, seven principles must be applied: clarity of Lack of Meaningful Participation in Mining purpose, appropriate institution or officials, type.
Law Reform hierarchy, material suitability, implementability.
FPIC is a legal concept widely recognized usefulness and efficiency, formulation clarity, and in international legal instruments, particularly ILO The principle of transparency in the Convention 169 and UNDRIP.
FPIC comprises Formation of Legislation Law requires that four four interconnected and indivisible concepts.
elements be met: .
participation at the stages of Firstly, "free" refers to the condition where planning, preparation, discussion, ratification, indigenous peoples are not subjected to pressure, intimidation, or manipulation in both the mining monitoring and reviewing.
providing access to law and its execution.
The notion of "prior" the public who have an interest and are directly signifies that agreement must be obtained before .
obtaining information or providing the initiation of extractive activities such as input at every stage of the formation of laws and Thus, it is crucial to allocate sufficient time and .
offering opportunities for input to ensure that indigenous communities have both orally and in writing, online and offline.
given their informed consent and possess Meaningful participation is reflected in the Furthermore, third element of transparency: the ability to obtain "informed" denotes that indigenous peoples information or provide input at every stage of should be provided with clear and reliable According to the principle of information about the extractive operations that transparency, the public has the right to be will affect them.
Finally, "consent" refers to an involved in every stage.
Article 96.
of the agreement reached through equitable discussions Formation of Legislation Law (Law Number 13 of and serves as the fundamental safeguard against 2.
allows the infringement of indigenous peoples' rights aspirations through public consultations, including (Barelli, 2.
public hearings (Rapat Dengar Pendapat Umum, to gather public In the context of the lawmaking process.
RDPU), working visits, seminars, workshops, the basic principles of public participation should discussions, and other consultation activities.
Law Reform, 20.
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states that the results of these In addition to public hearing meetings and consultations will be considered in the planning, other previously mentioned methods, parliament preparation, and discussion of draft laws and members can visit specific regions to gather However, this provision makes For example, in the context of the current Mining Law, members of Commission VII consideration for lawmakers and does not of the House of Representatives visited provinces mandate that affected communities receive valid including Riau Islands.
West Kalimantan.
North and accurate information regarding the impact of Sulawesi, the proposed laws.
Perwakilan Rakyat Republik Indonesia, 2.
Public hearings are one of the most South Kalimantan (Dewan These direct visits, when conducted effectively, can be a very effective way to connect with The time and materials from these people in the regions and observe the actual meetings are typically documented in the official conditions that might significantly influence the record of the bill-making process.
However, not provisions of the bill.
everyone can attend these hearings.
Only However, not all documentation of regional visit activities is recorded in the official records non-governmental accessible to the public.
As a result, the effectiveness of aspiration gathering during professional associations, academics, and other regional visits cannot be fully assessed or relevant parties are invited.
These representatives monitored by the public.
may also come from regional organizations, not Based on an exploration of the deliberation just national ones.
For example, the Mining Bill documents for the mining law bill, there are at Drafting Chronology document published on May least three issues that warrant criticism.
First, 15, 2020, lists a diverse array of participants, public participation is often interpreted as Department.
East Kalimantan Engineering Forestry Faculty Mulawarman University.
South Sulawesi WALHI engagement with affected communities.
Second, (Wahana Lingkungan Indonesi.
MIFA Brothers, public participation instruments such as public LLC.
Nickel Association of Indonesia, and others (Dewan Perwakilan Rakyat Republik Indonesia, consultations tend to be elitist, focusing primarily This illustrates the diversity of participants on parliamentary agendas that are often politically involved in bill drafting.
Third, indigenous peoples, who are directly affected by mining activities, have not Law Reform, 20.
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updated perspective, higher levels on the ladder input is often merely discussed rather than actively considered.
Indigenous communities Connor critiqued Arnstein's ladder, have historical, social, and economic ties to the noting that it had limitations: the citizens depicted land designated for mining (Amiq et al.
, 2.
in ArnsteinAs paper were not diverse, and the Therefore, these communities should be given a eight steps were insufficient to represent the levels of participation in real-life society.
ConnorAs participation based on the concept of FPIC, which revised ladder introduces a systemic approach to is recognized internationally as a fundamental preventing and resolving public controversies element for fulfilling indigenous rights (Papillon.
Leclair, & Leydet, 2.
Political agendas frequently deviate from According to ConnorAs updated model, the concerns and priorities of indigenous actions should be taken by both the public and In the context of mining, there is a leaders to create effective policies.
The actions tendency to prioritize the interests of the state and can vary based on the actual situation and be corporations, often at the expense of indigenous selected according to their suitability.
Additionally.
These communities have historically held there is a cumulative relationship between the inherent rights to mining locations that are crucial public and leaders across different stages of for their subsistence (Klein.
Muyoz-Torres, & action, where various approaches are used Fernyndez-Izquierdo, 2.
simultaneously to meet the needs of all involved Some parties (Connor, 1.
including Arnstein's ladder of citizen participation Turning to the current Indonesian Mining from 1969 (Arnstein, 1.
Arnstein's ladder of Law, many parliamentary meetings are closed, participation generally consists of three levels:
even though Law Number 17 of 2014 by the non-participation, pseudo-participation.
PeopleAs Consultative Assembly.
House of Non-participation Representatives.
Council, and Regional Legislative Council, as well participation, or tokenism, comprises informing, as the House of Representatives Code of consultation, and placation.
The highest level.
Conduct, stipulates that closed meetings are people power, includes partnership, delegated allowed only when discussing bills related to state power, and citizen control.
secrets or decency (Simabura.
Rofiandri, & Arnstein's theory was further developed by Connor in 1988 (Connor, 1.
According to this Regional Representative Nurtjahyo, 2.
Reports and articles from civil Cakra Wikara Law Reform, 20.
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Rofiandri, program, as outlined in the Interinstitutional & Nurtjahyo, 2.
This contrasts sharply with Agreement on Better Law-Making of April 13, the earlier-mentioned bill chronology document, 2016, further implementing Article 295 of the which indicated a broad invitation to relevant Treaty on the Functioning of the European Union.
parties for public hearings.
Reviewing the official As of 2021, the Better Law-Making initiative has Mining evolved to include various methods of enhancing Representatives website, the interactive timeline participation in legislation by providing platforms does not match the chronology in the Mining Bill such as: .
public consultations and calls for Drafting Chronology published on May 15, 2020.
evidence involving the public and stakeholders.
According to the official archive, a public hearing AHave Your SayA, a portal for public consultation was held only once on April 7, 2020, with and feedback that allows individuals to digitally participation from the Law Faculty of the provide input on proposed legislation.
University of Indonesia.
feedback on proposals and evaluations of existing Law House The discrepancies between the Mining Bill European Union.
These European Drafting Chronology, the report from Cakra opportunities for EU citizens to engage in the Wikara Indonesia, and the official archive legislative process.
interactive timeline reveal a lack of consistent Meaningful participation was addressed in Indonesia in Constitutional Court Decision participation process in drafting the current Mining Number 91/PUU-XVi/2020, which examined the Law.
This highlights significant issues with formality of Law Number 11 of 2020 concerning transparency and accountability in the 2020 Job Creation.
According to the Constitutional lawmaking process.
Neither ArnsteinAs nor Court's considerations, three conditions must be ConnorAs ladders can be accurately applied due met to achieve meaningful participation: the right to the lack of a clear and consistent depiction of to be heard, the right to be considered, and the the process.
Therefore, public participation in the right to be explained.
Meaningful participation is creation of the Mining Law cannot be effectively especially necessary for "groups of people who assessed because of insufficient transparency are directly affected or have concerns about the and accountability.
draft law being discussed.
" These three elements One example of effective participation in should be implemented in the drafting process, legislation is the European Union (EU).
The EU, including the joint discussions between the House through the European Parliament, the Council of of Representatives (DPR) and the president, as Law Reform, 20.
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In the mining sector, president, and the Regional Representative issues related to land grabs, human rights Council (DPD), as outlined in Article 22D, paragraphs .
of the 1945 Constitution.
deteriorating livelihoods are expected (Putri, and joint approval between the DPR and the Besides being affected, indigenous peoples play a crucial role in environmental In conclusion, reflecting on both ArnsteinAs conservation (BBC News Indonesia, 2.
ladder of participation and ConnorAs updated According to a 2019 statement from the Director- model, the Indonesian approach to meaningful General involvement introduced in the Constitutional Court Conservation of Nature, approximately 80% of the Decision has not yet progressed beyond the level world's forest biodiversity is found in territories of tokenism described in early participation managed by indigenous peoples, and these areas It does not address the actions required produce 73% less carbon than lands managed by by leaders according to ConnorAs updated ladder.
Additionally, compared to the EUAs model of youth Conservation of Nature, 2.
Therefore, it is participation, which includes more comprehensive essential to involve indigenous peoples in indicators for ensuring participation.
IndonesiaAs environmental protection efforts.
International (International Union Union approach remains at the level of dialogues Participation initiated by the parliament and between citizens and the government, rather than government to include indigenous peoples should achieving the synergy required at the upper levels be prioritized, as they are a marginalized group of early participation theories and the actions with limited resources to advocate for their required by leaders in newer models.
The Indigenous peoples depend on their Indonesian participation indicators need to be ability to voice their needs and demands, which more comprehensive, reflecting the thoroughness can be empowering for groups with limited of the EUAs model.
resources, according to Diana Voerman-Tam.
Meaningful participation applies to all levels Arthur Grimes, and Nicholas Watson .
proactively including indigenous peoples in indigenous peoples, who are protected under dialogues, the parliament and government can Article 28D, paragraph .
of the 1945 Indonesian affirmatively support their participation.
Indonesia.
Constitution.
As one of the affected groups.
According to the official bill drafting especially concerning environmental issues, land, infrastructure, and the participation of 35 Representatives of the Republic of Indonesia, the indigenous peoples, their involvement must be hearings involved numerous stakeholders from House Law Reform, 20.
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Indonesia, as one of the organization (Dewan Perwakilan Rakyat Republik countries with the largest mining industry in the Indonesia, 2.
However, based on the minutes indigenous peoples in both the licensing process Representatives working group and the relevant and legislation related to mining.
Indigenous ministries dated 18 July 2019, 12 September 2019, 25 September 2019, and 27 November Indonesia, are recognized as subjects of rights 2019, as well as the official records of the bill within the Indonesian legal system (Mulyani, published on the House of Representatives' official website, there were no discussions that acknowledged by the Indonesian legal system that provide legitimacy for their involvement in the House organizations, nor were there any topics related to Indonesia, known as There First.
Article 3 of Law Number 5 of 1960 on The the Basic Agrarian Law and Constitutional Court peoplesA decisions recognize land and territorial ownership participation is through WALHI from the South rights (Case Number 35/PUU-X/2012 on the Sulawesi chapter, the only environmental non- Judicial Review of Law Number 41 of 1999 on governmental organization invited to the hearing.
Forestry, 2013, para.
This right, often This study could not find any official records referred to as ulayat rights or rights to avail, is one published by the House of Representatives of the primary rights held by indigenous peoples indicating that indigenous peoples or their (Bedner & Arizona, 2.
Although the Basic organizations were invited or involved.
Therefore.
Agrarian Law does not specifically define it, this it can be concluded that indigenous peoples and right is still recognized by the state (Mulyani, their aspirations were not considered during the The existence of rights to avail allows drafting of the 2020 Mining Law, resulting in their indigenous peoples to manage and benefit from lack of participation.
natural resources on their land (Widiyono & Khan.
Defining legislative process.
indigenous peoples (Dewan Perwakilan Rakyat Republik Restoring Indigenous However, there are inconsistencies People's Rights in IndonesiaAos Mining Law between the recognition of this right and its Reform The Indonesian government often neglects it in various legal instruments.
Law Reform, 20.
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Universitas Diponegoro leading to conflicts and agrarian injustice (Van 2011 but experienced regression after the Der Muur, 2.
In the context of extractive adoption of the Job Creation Law in 2020, which industry investment, this neglect becomes even neglected public involvement in its legislative more evident.
Recognizing and implementing the procedures (Sjarif, 2.
This situation led to a right to avail is crucial for engaging indigenous judicial review by the Constitutional Court, which peoples in legislation that affects their land.
recognized the right to be heard, the right to be Another right of indigenous peoples is to be considered, and the right to be explained for consulted and to give free, prior, and informed community groups directly affected or concerned consent (FPIC).
Although the recognition of about the draft law under discussion (Case indigenous peoples' rights is not explicitly outlined Number 91/PUU-XVi/2020 on the Judicial in Indonesia's national legal framework, a Review of Law Number 11 of 2020 on Job Constitutional Creation, 2.
Court acknowledges this right as a legal principle (Case Figure 1.
Indigenous Rights in Mining Law Number 32/PUU-Vi/2010 on the Judicial Review Reform of Law Number 4 of 2009 on Mineral and Coal Mining, 2.
The FPIC principle emerged in the Organization (ILO) International Convention Right to avail Labor Concerning Indigenous and Tribal Peoples in Independent Countries (C169/1.
(Hanna & Vanclay, 2.
Implementing this principle is fundamental, as Rights to free, prior, informed ideally, any activity, including the granting of licenses or legislation affecting indigenous Source: The author's analysis .
peoples, should obtain prior consent (Prihandono.
Widiati, & Valsiukas, 2.
The final right is the right to participate in public policy-making, including legislation.
Public participation in the formation of legislation in Indonesia has been regulated since 2004 through Law Number 10 of 2004 on the Formation of Laws Regulations.
The mechanisms for public participation were further developed in the Formation of Legislation Law Right to The indigenous people living in mining areas are among those most affected by the negative impacts of environmental degradation.
Cases from nickel mining areas in Sorowako.
Pomala, and Morowali show that open-pit mining leads to significant environmental damage, such as loss of biodiversity, vegetation, sedimentation, and soil erosion (Sangadji.
Ngoyo, & Ginting.
These conditions directly impact the quality Law Reform, 20.
, 2024, 188-210 Master of Law.
Faculty of Law.
Universitas Diponegoro of life of indigenous communities, who have no The neglect of the FPIC concept in other place to live (Muhdar.
Simarmata, & Nasir.
Indonesia's mining law reform will result in the The root of this problem lies in the need for disregard of indigenous peoples as historical indigenous involvement in the legislative process custodians of the land and resources (Townsend to reform mining law.
This argument is reflected in & Townsend, 2.
The absence or inadequacy Constitutional Court Decision Number 59/PUU- of meaningful participation by indigenous peoples XVi/2020, which examined the procedure for will lead to at least three future consequences:
establishing the New Mining Law.
First, the lack of participation will cause the The government's statement submitted to substance of mining law to focus solely on the the court mentioned that the bill was drafted with interests of the state and corporations.
This public participation from various elements, condition will force indigenous peoples to resist through legal or other means, leading to inevitable non-governmental However, this public participation was merely a vertical and horizontal conflicts.
formality, as it did not include indigenous Second, the non-implementation of the communities, who are directly affected by mining FPIC concept will result in indigenous peoples Meaningful involvement of indigenous feeling marginalized and excluded from extractive people in public participation mechanisms is Their land will be taken without consent, essential to making them the subject of policy while the state, which should protect their rights, decisions (Chandra Sy & Irawan, 2.
In 2021, legitimizes corporate actions through licensing.
Constitutional Court Decision Number 91/PUU- This situation can also create conflicts between XVi/2020 indigenous peoples, the state, and corporations.
meaningful public participation, at least three Third.
FPIC is an internationally recognized community rights must be acknowledged: the standard closely related to sustainable mining.
right to be heard, the right to be considered, and the context of climate change and energy the right to be explained.
However, our transition issues, sustainable mining is crucial for investigation into the minutes of the deliberation Indonesia.
It is also important for attracting meetings on the Mining Law Amendment Bill investors, especially foreign investors, to the reveals that the bill was not consulted with the Indonesian extractive sector.
public (Dewan Perwakilan Rakyat Republik Therefore, efforts are needed to restore the Indonesia, 2.
This indicates that meaningful rights of indigenous peoples in mining areas to public participation, especially from indigenous participate in mining law reform legislation in communities, is lacking.
Indonesia.
Three steps must be taken to implement this restoration.
First, any bill aimed at Law Reform, 20.
, 2024, 188-210 Master of Law.
Faculty of Law.
Universitas Diponegoro indigenous peoples may experience.
A special
task force should be formed, consisting of Rights Action
Actor
Right to Optimizin
g the role
of the Office of Energy Mineral Resource s in the level and DPD
Represe Office in Establish
n and g system
DPR,
DPD,
and local representatives from the Central Government.
DPR.
DPD, and Regional Government, to gather and address the aspirations and complaints of indigenous peoples regarding the impacts of mining activities.
Additionally, to fulfill the right to be considered, the DPD should enhance the effectiveness of its representative offices in provinces with mining areas.
The DPD can serve as a bridge between the interests of indigenous Right to peoples in mining areas and the central government and DPR.
Meanwhile, to fulfill the right to be explained, both central and local governments should facilitate the creation of a monitoring Subject
DPR,
DPD,
and local Goals Establishin g the Office of Energy and Mineral Resources in the local level and DPD Representa tive Office in the region as a people and Ensure that people can and followup.
Source: The author's analysis .
system for aspirations and complaints that is Restoring indigenous peoples' participation easily accessible to indigenous peoples.
This rights requires considering the impacts and system should be developed with consideration for infrastructure and accompanied by ongoing economic aspects.
Increasing meaningful public Transparency regarding the status of participation must also enhance the quality of submitted aspirations and complaints will improve legislation and ultimately improve the welfare of the governance of public participation and indigenous peoples living in mining areas.
Mining positively impact the quality of legislation (Kosack activities that extract natural resources will & Fung, 2.
inevitably affect the environment and surrounding Table 2.
Restoration of Indigenous People's Participation Rights communities (Jamin et al.
, 2.
Therefore, legal Rights Right to be heard
Action
Establish
Actor
DPR,
DPD,
and local Subject Indigineo Goals to identify impacts or ges faced s from indigenous peoples' interests by providing channels for them to voice their aspirations.
Without the participation of indigenous peoples, mining legislation risks addressing only the interests of industrial elements that extract natural Law Reform, 20.
, 2024, 188-210
Master of Law.
Faculty of Law.
Universitas Diponegoro
resources, neglecting the social, economic, and REFERENCES