Mining Law Research Articles

Aspek Hukum Hak Menguasai Negara DI Bidang Pertambangan Pasca Pembaruan Undang-Undang Mineral dan Batubara di Indonesia

The concept of State Control Rights, as constitutionally attributed in Article 33 Paragraph (3) of the 1945 Constitution, constitutes a fundamental paradigm. The dialectics of mining policy formulation in Law No. 3 of 2020, which updated the regulation of minerals and coal, ushered in a series of transitions and consequences for the development of the concept of State Control in Indonesia, particularly concerning the substance of Article 4 Paragraph (2) of Law No. 3 of 2020, which introduced the policy of re-centralization. This research employs a juridical-normative method, utilizing a legislative approach and norm analysis pertaining to the concept of State Control Rights. The findings of this study indicate that, firstly, the formulation of state control in Law No. 3 of 2020 aligns intending to implement the concept of State Control as established by the Constitutional Court’s decision, emphasizing the permit system as a replacement for the contract system. Secondly, the centralization of authority over mineral and coal mining does not contradict the concept of State Control, as long as it can optimally generate an ideal and effective mining management system in advancing the prosperity of the people. The objective of this research is to provide a comprehensive overview of the application of State Control Rights in the revision of mining legislation, thereby offering policy insights for the development of substantive and just mining law in Indonesia.

Pancasila Ideology in Challenges of Globalization on Mineral and Coal Law in Indonesia

Objective: Globalization has a great influence on the legal system of a country, including the mining legal system. In Indonesia, Pancasila can be considered the legal basis and the source of all laws. This study aims to analyze Pancasila as a Source of Law to answer the Challenges of Globalization related to Mineral and Coal Mining Laws in Indonesia. Method: The research method used is doctrinal law. The Statute Approach examines all laws and regulations relating to legal matter. Data was collected by studying literature and conducting direct interviews with informants. Result: Generally, the legal development of mineral and coal mining in Indonesia is based on Pancasila. Mining activities must be distinct from foreign investment activities. Regarding investment, the principles of international foreign investment conventions are not under Pancasila. Conclusion: Pancasila, as the nation's basic philosophy, is open without the need to change its fundamental values to be maintained following existing developments. Thus, even though Pancasila may not be in harmony with the legal principles of international investment, as long as the executive, legislative and judicial institutions are based on Pancasila in carrying out their duties, then in the future other ideologies cannot influence Pancasila ideology.

Juridical Review of Coal as an Object of Fiduciary Collateral in Banking Credit Agreements (Study of the Decision of Pt Anzawara Satria V. PT Bank Artha Graha Internasional TBK)

Mining activity is a capital-intensive industry that requires enormous cost. In supporting financing in mining activities, one of the sources is through a bank credit facility. With a series of mining activities that are quite complex, there is a high risk of financing from mining activities, one of which is the risk of non-performing loans. In anticipating these risks, banking institutions in practice have implemented the prudential principle through the implementation of 5C, one of which is guarantee (collateral). Based on Judicial Decision Number 714/ PDT /2016/ PT.DKI between PT Anzawara Satria against PT Bank Artha Graha Internasional, Tbk., PT Anzawara Satria as a mining company has provided guarantees in the form of coal supplies to PT Bank Artha Graha International Tbk. This research will review the material properties of coal as bank guarantees and analyse the position of coal as collateral based on Indonesian Mining Law. This research uses a normative juridical method with sources from secondary data, namely: (1) primary data materials in the form of relevant laws and regulations; (2) secondary data material, which includes books, journals, articles, or other related sources. This research resulted that, first, based on the nature of coal, coal may be guaranteed by fiduciary and pledge. Second, based on mining law in Indonesia, coal may be guaranteed with the condition that mining business actors are required to pay production fees (royalties) as a form of transfer of ownership rights from the state to business actors

Prohibition of Retrogression of Sámi Culture and the Finnish Mining Act

This Article discusses the prohibition of retrogression of the culture of the Sámi people enforced by the Finnish Constitution and international conventions and whether it has been included in the current Finnish Mining Act in a sufficient manner. The article also discusses how the prohibition has been ensured in two main decisions of the Finnish Supreme Administrative Court considering the subject. The article is based on the author’s Bachelor’s thesis on the subject which examines the culture of the Sámi people and the mining law. The research method used in the article is mainly legal dogmatics which is used to systemize the mining law and interpret its provisions considering the prohibition of harming the culture of the Sámi people using different legal interpretation methods. In addition to that, some decisions of the Finnish Supreme Administrative Court, statements of the Constitution committee and the statements of the Sámi assembly are analyzed in the article. After the introduction, the article presents a brief overview of Sámi culture and examines then the prohibition of retrogression of the culture in the context of the Finnish Constitution, international law and the Mining Act. Then the article examines two of the most important Finnish Supreme Administrative Court cases considering the subject and after that, it is examined how the prohibition materializes in practice in the point of view of the Sámi assembly. The last chapter contains the summary and the conclusions. The most noteworthy conclusion seems to be that although it might at first seem that the prohibition of retrogression has been included in the Mining Act the proper way, the reality in practice is much different. The rights of the Sámi people as indigenous people are not ensured well enough because of the obscurity and vagueness of the provisions of the Act.

ENVIRONMENTAL AND SOCIAL INJUSTICE: IMPACT AND SUSTAINABILITY OF SMALL SCALE TIN MINING UNDER INDONESIA’S NEW MINERAL AND COAL REGULATION

The transformation of mining law policy in Law No. 3 of 2020 concerning Minerals and Coal has broad implications for mining law, including illegal tin mining. The high dependence of the tin extractive economy in Bangka Belitung has changed the landscape of this archipelago province as an area with a high level of natural damage and social disasters. The ability of governments through regulatory instruments to tackle illegal mining is an important ideal goal. This research was conducted using socio-legal methods, to produce a comprehensive analysis related to the environmental and social impacts of illegal tin mining after the renewal of the mineral and coal law. This study found that the transition of mining authority from the central government to the regional government directly has an impact on the proliferation of illegal mining activities. Substantive changes in the mineral and coal law have not provided a strategic solution because the tug-of-war over authority ends with the continued delegation of authority to grant community mining permits to local governments. Meanwhile, the unpreparedness of local governments has resulted in the continued marginalization of mining communities and has an impact on widespread environmental damage. The lack of fair decision-making processes for people mining licences is indicative of an immature tin mining management in Bangka Belitung. The purpose of this study is to provide a comprehensive overview of the implications of the latest mineral and coal policies on illegal tin mining activities, as a reference and consideration in strategic policy making to create an ideal and sustainable tin mining ecosystem.

Demonstrating the possibility of safe operation in the first phase of the site selection procedure in Germany

Abstract. The Federal Company for radioactive waste disposal (BGE) is responsible for the search for a site with the best possible safety for the disposal of high-level radioactive waste in Germany. The site selection procedure is regulated in a law that was adopted by the German Federal Parliament (Repository Site Selection Act – StandAG, 2017, last updated 2020 (StandAG)) and aims to be a participatory, transparent, learning, and self-questioning process based on scientific expertise. The first step of the first phase of the site selection procedure was completed in September 2020 and resulted in the identification of sub-areas that give reason for expecting favourable geological conditions for the long-term storage of nuclear waste in the sub-surface. These sub-areas cover approximately 54 % of Germany and are located in three different host rocks: rock salt–halite, claystone, and crystalline rock. The challenge for the next step is to find suitable siting regions within the previously determined sub-areas that are then considered further in the next phase of the site selection procedure (Hoyer et al., 2021). The preliminary representative safety analyses in Phase I, Step 2 of the site selection procedure require according to Section 7 (6) No. 4 EndlSiUntV that “the basic possibility of safe operation shall be demonstrated, but a complete operational safety analysis does not need to be performed”. The method is described in BGE (2022a, b) and can be summarized as follows. The demonstration of the basic possibility of safe operation is carried out within the framework of the representative safety analyses for the individual aspects of operational safety in different degrees of detail. The non-radiological aspects of operational safety, which are, for example, derived from occupational health and safety, mining law and fire protection, a site-independent consideration of the regulatory basis and the derivation of corresponding actions, are considered requirements for and are taken into account by the preliminary repository design according to Sect. 6 (4) EndlSiUntV. To demonstrate the basic possibility of safe operation for the operational safety aspects “radiation protection” and “release of radioactive substances” in the investigation areas to be considered, a general catalogue is compiled that summarizes possible events and actions to fulfill the requirements for operational safety. This general catalogue is independent of location and coverage of all host rocks and repository concepts. From this general catalogue, possible specific events are identified for each individual investigation area, and the necessary actions are derived. In addition to the demonstration of the basic possibility of safe operation, the robustness of operational safety within the investigation area is evaluated in a second step.

PENEGAKAN HUKUM TERHADAP PERTAMBANGAN EMAS TANPA IZIN (PETI) SEBAGAI UPAYA PENGENDALIAN DAMPAK LINGKUNGAN DI KECAMATAN SINTANG KABUPATEN SINTANG

Gold mining without a permit is one of the activities that results in a decrease in environmental quality, because gold mining activities use mercury to separate gold ore from rocks until the refining process. The purpose of this study is to identify and analyze the implementation of law enforcement against gold mining without a permit and controlling the environmental impact of gold mining without a permit in Sintang District, Sintang Regency. The type of research is sociological juridical. Data collection by interview and observation was then analyzed by qualitative methods. Unlicensed gold mining is caused by economic factors, education and the community feels they have the right to manage natural resources. Gold mining law enforcement without a permit applies criminal law with the imposition of fines and is still not optimal due to several constraints on the location of miners moving around, the absence of regional regulations related to PETI and community resistance. The government's efforts to control environmental impacts on water pollution from PETI activities are monitoring water quality conditions on a regular basis.

Study on Surface Deformation and Movement Caused by Deep Continuous Mining of Steeply Inclined Ore Bodies

In order to study the surface movement and deformation law of deep continuous mining of steeply inclined orebodies in high-stress areas, the surface movement and deformation law of deep continuous mining by caving method in the Shizishan mining area was studied based on the field fissures investigation, GPS monitoring, and large-scale geotechnical engineering numerical simulation software FLAC3D 5.0. The results show that with deep continuous mining of the orebody, surface fissures, and monitoring displacement are rapidly increasing. After the stoping of different sublevel orebodies, there will be an obvious settlement center on the surface, and the horizontal surface displacement also shows a trend of gradual increase. The results indicate that surface subsidence at the mine site is in an active development phase. The research results are of great significance to the prevention and control of surface rock movement disasters in mining areas.

Legal aspects of mining in Ukraine: European integration vector

Purpose is analysis of the current legal tools and acts in the field of mining in the European Union to identify and substantiate their potential consideration while reforming Ukrainian legislation in the context of European integration, energy transformation, and postwar recovery. Methods. The study is a sequential analysis of the European sources for legal support of mining. The analysis is aimed at determination of tendencies, their necessity and implementation expediency while reforming the national legislation on subsoil as well as mining legislation. Findings. Elements of the current legal mechanism from the viewpoint of subsoil use in the EU have been reviewed. Moreover, they have been systemized according to following types: tools and institutions; messages (communications) and reports; and directives, instructions, procedural rules, and the EU decisions. Reformation tendencies of legal mining support have been substantiated. The tendencies depend upon the fact that Ukraine selected the Eurointegration vector as well as upon the necessity to decarbonize power sector and postwar recovery specificity. The regulations, relevant for reforming provisions of mining legislation of the certain EU member states required for legal mining support in the field of investment, institutional, permissive, and contractual relations, have been defined. Originality is substantiation of expedient use of sustainable European practices in the legal regulation of Ukrainian mining sector based upon the achievement of symbiosis of preserving the national interests as well as fulfillment of integration obligations in the process of energy transformation and postwar recovery. Practical implications are expedient implementation of the findings in the process of legislative activities; law enforcement actions by officers of the authorized state bodies and economic entities in the field of mining; and research connected with further development of mining law theory; and academic activities related to teaching of topics concerning the current legal aspects of mining.

Resource Nationalism and Community Benefits

Resource nationalism has been an area of interest among researchers and policy makers at local and global levels. This is triggered by the fact that governments and various stakeholders are interested in determining how natural resources benefit individual citizens in their countries. This paper draws from a study that investigated the role of resource nationalism in improving community benefits in Geita region, Tanzania. Data collection was conducted through questionnaire survey, focus group discussions, in-depth interviews and documentary review. Results from the study revealed that local community benefits in terms of revenue collections and projects being implemented have increased. For instance, in a period of four years (2017/18 to 2020/21) after the enactment of mining laws of 2017, a total of TZS663bn was collected as compared to TZS197bn collected for the same period before the enactment of the mining laws. As per the number of projects implemented through CSR, the results indicated that it increased from 15 in 2014/15 to 129 in 2020/21; covering sectors such as education, health, infrastructure and the empowerment of small and medium enterprises (SMEs). Furthermore, the paper reveals that there have been improvements in community participation as compared to previous years; and recommends more improvements in community participation and transparency in corporate social responsibility (CSR) projects to ensure its sustainability. It also recommends policy actions for setting the amount of CSR for mining companies to contribute

The mining permitting process in selected developed economies

This article surveys the mining permitting process and discusses the process to obtain permits for the exploration and mining of metals in five industrialised countries: Sweden, Finland, Poland, Western Australia (Australia) and Ontario (Canada). The purpose is to provide an overview of the permitting process when the demand for metals may grow at a faster pace than ever before. The countries have been chosen for their well-developed mining industries while still representing different historical and legal backgrounds and traditions. Focus lies on three aspects of the permitting process: Mining policy, legislation and permits; Environmental legislation and permits and; Stakeholder influence/participation including appeals. We describe the present situation in all countries in detail. The mining policy and legislation in the countries studied are converging and the mining laws are becoming increasingly similar. Legislation is being revised at shorter intervals, and minor additions and amendments can be made in between completely new legislation. In all the five countries emphasis is placed on ensuring that the permitting process is transparent and open from the first exploration steps to the closure of a depleted mine. Governments are developing new policies, legislation, regulations and permitting processes to ensure that the growing demand can be met while at the same time the increasing demands by various stakeholders on land use, environmental and social developments can increasingly be included in the permitting process.

Random fatigue life analysis of carbon fiber‐reinforced plastic for automotive drive shaft with environment temperature data

AbstractAutomotive drive shaft is an indispensable key component of the transmission system, and the use of composite drive shafts has shown great promise. The epoxy matrix of the shaft is susceptible to the effects of temperature in comparison to carbon fiber. To investigate the influence of the environmental temperature on the fatigue life of a carbon fiber‐reinforced plastic drive shaft, a temperature‐based property curve and performance fraction model for the shaft are established. The temperature coefficient is calculated and introduced by combining the collected temperature data with the property fraction function. A generalized S‐N surface of the composite drive shaft is proposed based on experimental data. The fatigue life under collected and processed random loads of the carbon fiber‐reinforced plastic drive shaft is predicted by modified Miner's law. The effect of mean, amplitude of load and ambient temperature on fatigue life are taken into account.

Fleet Ownership Model for Mineral Export Products Concerning Indonesia’s Downstream Mineral Policy: A Case Study of Copper Ore Exports

Indonesia’s copper ore has a contribution of 3% in the world’s copper ore needs and has rank of the 5th largest export of mining materials after briquette, kerosene, coal, and crude oil. According to Mineral and Coal Mining Law Number 4 of 2009 that raw materials of mining products have been prohibited to be exported including copper ore due to increasing the value of mineral export products. Thus, it would affect to the current copper ore shipment, which should firstly be processed by smelter to be work-in-process products, namely cathodes. In order to comply with the downstream policy, this study aimed to select the optimum vessel used for delivering copper ores to smelter as well as to define the minimum unit cost for transporting cathodes from smelter to importing countries. The method of non-linear programming was used to produce the minimum unit cost of transport for these three scenarios of fleet ownership model: (1) charter vessel, (2) new shipbuilding vessel, (3) second-hand vessel. The results obtained that the selected domestic ship was a new shipbuilding scenario with the type of bulk carrier, transporting copper ores from site to smelter. Meanwhile, the selected export ship was a voyage charter scenario with the type of general cargo vessel, delivering cathodes from smelter to importing countries.

Penegakan Hukum Administrrasi Pengelolaan Lingkungan Hidup di Lokasi Pertambangan

The surveillance provided by the energy service and mineral resources inspector of the southeast province of sulawesi in 2019 revealed mining operations that had not taken a good look at contamination prevention and environmental damage. Problem 1) how does the management of the environment at the mine location in northern stick 2) how does improving the management of the environment at mine location in northern stick. The purpose of research 1) to analyze the management of the environment at the mine location in northern konawe 2) to analyze the improved management of the environment at the mine location in northern konawe. The type of empirical legal research for primary data in interviews and observations supported by secondary data. The results of environmental management research have been carried out by authorities from the elements inspector of the ward service mine through the development and control of the operation of the mining operations. Through the phasing procedures, fines and penalties of the mining stops. The control and development of the 2021-2022 found two mining companies in violation of the code of mining law.

Study on the Evolution Law of Overlying Strata Structure in Stope Based on “Space–Air–Ground” Integrated Monitoring Network and Discrete Element

The geological environmental damage caused by coal mining has become a hot issue in current research. Especially in the western mining area, the size of the mining working face is large, the mining intensity is high, while the surface movement and deformation are more intense and wider. Therefore, it is necessary to effectively monitor the surface using appropriate means and carrying out research on the overlying strata structure of the stope. In this paper, by using advantages of various subsidence monitoring technologies and the technical framework of the Internet of Things (IoT), a “space–air–ground” integrated collaborative monitoring network is constructed. The evolution law of overlying strata structure is studied based on discrete element simulations and theoretical analysis. Furthermore, a discrete element mechanical parameter inversion method is proposed. The main results, using numerical simulations, are as follows: The mean square error of monitoring surface subsidence is 33.2 mm, the mean square error of mechanical parameter inversion is 13.4 mm, and relative error is as low as 3.8%. The surface subsidence law of adjacent mining under different working face widths and interval coal pillar widths is revealed. The Boltzmann function model of surface subsidence ratio changing with width–depth ratio and the calculation formula of width reduction coefficient of adjacent mining working face are inverted. The critical failure width of the interval coal pillar is determined as 20.5 m. Based on the theory of “arch–beam” structure and numerical simulation results, the overlying strata structure model of adjacent mining in the mining area is constructed. The research results can provide technical support or theoretical reference for mining damage monitoring, subsidence control, and prediction in western mines.

The Strengthening Government Policies on Mineral and Coal Mining to Achieve Environmental Sustainability in Indonesia, Africa and Germany

<div><table cellspacing="0" cellpadding="0" align="left"><tbody><tr><td align="left" valign="top"><p class="AbstractText">Indonesia has enacted a number of regulations dealing with issues of mining governance, and governance. However, the issuance of these various laws and regulations has resulted in illegal mining crimes resulting in environmental damage. The purpose of this study is to analyze sustainable mining governance policies in Indonesia, Africa and Germany. This research method uses a doctrinal legal approach. Resources have been compiled through an examination of mineral and coal mining laws and regulations, governance and environmental governance regulations, as well as reports from various authorities on the same subject. The results of this study show how Indonesia's previous mining law policies recognized local governments as the authority for licensing and monitoring mining activities. This policy was revoked based on the latest governance regulations and had an impact on the vacancy in monitoring mining activities at the district/city level, as a result of this vacancy there was environmental damage due to illegal mining and bad mining activities so that it was necessary to strengthen government policies in monitoring mineral and coal mining. Mining governance policies in Indonesia, Africa and Germany are currently starting to lead to environmental sustainability.</p></td></tr></tbody></table></div>

Strengthening Reclamation Obligation through Mining Law Reform: Indonesian Experience

Reclamation can produce more value for the environment and create a far better situation than post-mining conditions. While the reclamation obligation policy is a great way to introduce a restorative approach to the environment, the main problem is the disobedience of the mining companies in their reclamation obligation. Therefore, we focused on conceptualizing the strengthening of the reclamation obligation policy in the Mining Act based on the understanding of preventing environmental and social damage. This research is conducted in doctrinal legal studies to create a prescriptive result. Despite the 2020 Mining Act Revision, Indonesia is still facing the previous legal issue due to blind spots in the regulatory framework. Ranging from the continuous conflicts between the mining company and the local community to the problem of non-compliance with the reclamation policy, which has resulted in excavation holes that were left untreated and abandoned, which has created casualties over the years. We offer two major reforms in formulation to strengthen the reclamation obligation. First, is the need to reinforce the essence of “obligation” for IUP and IUPK holders to perform reclamation and post-mining with supervision, as in the Environmental Act. With this formulation, the placement of the reclamation fund by the company does not eliminate the company’s obligation to carry out reclamation and post-mining activities. Second, for the company to comply with placing reclamation and post-mining funds, it is crucial to implement a mandatory condition, whereby the placing of a reclamation guarantees fund is a requirement for approval of the mining plans and budgets (the RKAB), and Clean and Clear (CnC) Certification. Therefore, the reform will cause a shift and strengthen the values of obligation in post-mining reclamations.

Non-governmental organisations and the politics of mining law review in Malawi: Bifurcations, subjectivities and contested emancipation agenda

In response to NGOs’ demand that mining must benefit communities living around the mining areas, the Government of Malawi reviewed the 1981 MMA. About six local NGOs actively participated in the processes of reviewing the Act. The review of any law, however, involves bargaining amongst political actors holding different interests and power. Mobilizing the concept of governmentality, this paper investigates how and, in whose interests, NGOs that were involved in the review of the 1981 MMA in Malawi shaped the mining review processes. While grassroots struggles against the extractive industry are not new, increased NGOs’ advocacy action in the sector provides new avenues for understanding current forms and structure of struggles. Employing a qualitative research approach (in-depth interviews, focus group discussion and participant observation), the study findings demonstrate how NGOs’ advocacy action through political processes resulted into NGOs’ bifurcated royalties and subjectivities into hegemonic knowledges and rationalities. Thus, the paper questions the conventional argument on NGO political empowerment agenda for marginalised communities by demonstrating how technocratic processes of policymaking within hegemonic structures produces environmental subjects that (re)construct agendas along the interests of powerful actors.

Transitioning Old Order Mining Rights into New Mining Rights: A Critical Analysis

The transformation of the mining industry has been a recurrent issue since the drafting of the Freedom Charter of 1955 and the dawn of democracy. Transformation had to be promoted through the development of the law, including the transitioning of the old mining rights into the new mining rights by the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA). This paper focusses on the transition from the previous South African mining law in its historical context to the MPRDA, and the developments which brought it about, including various developments in law which assist in understanding the scope and limitations of the transition. The analysis clarifies the present position in our law associated with mining rights as well as how to deal with disputes arising out of it. The South African courts are critical in the interpretation of the transitional law and how it should apply. The judicial perspective on the development of the transitional law is empirically analysed.

Legal Problems Related to Mineral and Coal Mining Permits

The issues that will be discussed in this research include what are the legal implications of transferring the authority to issue mining permits after the latest publication and what are the regulations regarding mining permits after mining permits are issued. The purpose of this study is to provide a review of legal changes related to the Mineral and Coal Mining Law. This study uses normative legal research methods with several approaches, namely the statutory approach and the conceptual approach. As a result of the transfer of the issuance of mining permits to the central government, it appears that this is aimed at unraveling licensing issues which will later facilitate the investment climate in Indonesia so as to increase Indonesia's economic growth. The impact that occurs is the authority owned by the local government where currently the local government does not have attributive authority in terms of issuing mining permits. Harmonization of Mining Business Permit arrangements means seeking conformity or harmony between laws and regulations so that overlapping regulations do not occur and as a process of establishing laws and regulations to address conflicting matters among the legal norms that have been in effect.How to cite item: Dalimunte, Abdillah, Mohammad Gufron AZ, Supriyadi, “Legal Problems Related to Mineral and Coal Mining Permits.” Jurnal Cakrawala Hukum 14 no. 1 (2023): 76-85. DOI: 10.26905/idjch.v14i1.9872.