Regulatory rules and Legal Problems of coastal resources use in Mahakam Delta

Epistema Working Paper Number 01/2011

Regulatory rules and legal problems of coastal resources use in the Mahakam Delta of East Kalimantan, Indonesia

Rikardo Simarmata

About Epistema Working Paper Papers in this series are mainly preliminary documents of research as carried out by EPISTEMA’s staffs, research fellows and partners. This series contain papers that discuss legal philosophy and theories, legal framework and socio‐legal studies on indigenous peoples and other communities’ rights on land and natural resources including in the context of climate chage policy and projects.

Suggested citation: Simarmata, Rikardo 2011. Regulatory Rules and Legal Problems of Coastal Resources Use in the Mahakam Delta of East Kalimantan, Indonesia, Epistema Working Paper number 01/2011, Jakarta: Epistema Institute (http://epistema.or.id/publikasi/working‐paper/172‐regulatory‐rules‐and‐legal‐ problems.html) EPISTEMA Institute holds the copyright of this working paper series. Dissemination and duplication for the purposes of education and supporting social movements are allowable as long as not commercially used.

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REGULATORY RULES AND LEGAL PROBLEMS OF COASTAL RESOURCES USE IN THE MAHAKAM DELTA OF EAST KALIMANTAN, INDONESIA Rikardo Simarmata

I. INTRODUCTION On September 2, 2010, around twenty officers comprising of mostly Kutai Kartane‐ gara district civilian police officers (polisi pamong praja), accompanied by the district agency officers, number of local police and military officers and the officials of Total E&P Indonesie, a joint France‐Japan oil and gas company, went to Sepatin village in the Mahakam Delta of East Kalimantan Indonesia. 1 They went there to enforce law stating that the installment of a gear on a public navigation route or in the vicinity of a well installation of an oil and gas company is prohibited. Ten fishermen had installed a local gear fish trap called julu net next to Gathering and Testing Satellite (GTS) G‐TN G19 of the company. A week before, the company reported to provincial policy office to ask them to enforce the provision upon those fishermen. At the day of the enforcement took place, two fishermen uninstalled their own julus net because they finally received a low amount of compensation the company offered.

While eight of them kept refusing to uninstall their julus net as the amount of the compensation was only a half of they had proposed to the company. Interestingly, the government and legal officers carried out the enforcement even though at the same time, according to fishery legislations, the fishermen have a right to install the julus net there because they were located within a traditional fishing ground (0‐3 miles).

The julu case told us several things concerning the use of natural resources in the Mahakam Delta. First, that there are various resource uses existing there alongside with the existence of various formal regulatory rules that govern them. Second, the various resource uses take place in a same place. Third, there is an incompatibility between the existing various formal regulatory rules. The julu case specifically

1

Total E&P Indonesie was founded in 1968; a member of Total group, a worldwide France company operating in 130 countries.

The Japan’s company is Inpex corporation. This joint operation is presently the biggest gas producer in Indonesia, yielding 30% of Indonesian gas production. See Risjanto 2009.

pictures a tense between a territorial‐based use rights and a non‐territorial‐based use rights. In that case, the company’s rights over oil and gas resources is a territorial‐based while the fishermen’ rights over the fishery resources is a non‐ territorial base. This article perceives a territorial‐based use rights as an exclusive right over certain natural resources in a specific boundary (Christy, 1982; Christy, 1997:42). While a non‐territorial‐based use right is rights over natural resources for not a specific boundary.

This article is going to make a comprehensive description and analysis of the formal regulatory rules over natural resources in the Mahakam Delta. It will describe the account of the various formal regulatory rules, and most importantly it will analyze the compatibility as well as the incompatibility amongst the various formal regulato‐ ry rules. Lastly, it will analyze the extent to the compatibility and the incompatibility affect to legal certainty the users could gain.

This article perceives the ‘formal regulatory rules’ as rules created by either central government or local government. The local government itself comprises of several levels which are province, district (kabupaten), sub‐district (kecamatan) and village (desa). As this article deals with natural resource issue then it will discuss about formal regulatory rules on natural resource use. It then leads this article to the use of the concept of ‘resource tenure’ or property rights’. This article will deliberately use a legal point of view in applying the concept. 2 Therefore, this article perceives resource tenure or property rights as a bundle of rights and duties governing access to and control over resources (Bruce, 1993:1; Hanna et al., 1999; Ciriancy‐Wantrup, Bishop, 1975:715; Schlager and Ostrom 1992), or as the terms and conditions on which resources are held, used and transacted. 3 After introduction section, the next will be an overview of Indonesian coastal legisla‐ tions. Afterwards, this article goes to a section describing the account of the various regulatory rules over natural resource in the Mahakam Delta. In doing so, this article 2

Broader than legal a point of view, social scientists define resource tenure as institutional arrangements of rules, principles, procedures, and practices whereby society defines control over, access to, management of, exploitation of, and use of means of existence and production (Dekker, 2001:15). It also perceived as patterns of behavior that specifically serve to control society’s use of environmental resources (Crocombe, 1971).

3 The definition of the resource tenure actually refers to term land tenure (Adams, Sibanda, Turner, 1999:2). This article uses the definition to a broader scope, rather than only land. One definition describes resource tenure as rights to land, water, tress, and other resources (Bruce, 1999:1).

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basically divides them into three. First, territorial‐based regulatory rules. Second, non territorial‐based regulatory rules. Third, related regulatory rules. The third one comprises regulatory rules on spatial planning and environment. The next section is the analyses of the compatibilities and incompatibilities of amongst the various regu‐ latory rules, and the extent they provided legal certainty and legal uncertainty to the various resource users or rights owners. This article will end with some concluding remarks.

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II. OVERVIEW OF INDONESIAN COASTAL LEGISLATIONS When we discuss about legislations governing Indonesian coastal resources, we may divide it into two periods. The periods are before and after the promulgation of Law No. 27/2007 concerning Coastal Resources and Small Island Management. At the period before the Law promulgated we could not find a codified definition of coastal zone or coastal resources (Natabaya, 1998:6). It occurred because there is no one statute or organic law that specifically addresses the use of coastal resources (Dirhamsyah, 2006:69). Instead, the statues or organic laws deeply fall into sectoral manner which subsequently resulted a series of gaps, overlaps, redundancies and conflicts amongst them (Patlis et al., 2001:28; Patlis, 2005:451‐52). In term of number, there were around 20 laws that are related to the governance of the coastal resources use (Saad, 2001; Putra as quoted in Patlis et al., 2001:28). Therefore, in order to know how Indonesian legislations rule the coastal resources use we are supposed to read each of them. Some of the twenty laws were Law No. 5/1960 on Basic Agrarian Law, Law No. 41/1999 on Forestry, Law No. 11/1967 concerning Mining, Law No. 9/1985 as superseded by Law 31/2004 on Fishery, Law No. 24/1992 as superseded by Law 26/2007 concerning Spatial Use Management, Law No. 21/ 1992 as superseded by Law 17/2008 concerning Sailing, Law No. 23/1997 as super‐ seded by Law No. 32/2009 concerning Environmental Protection and Management, Law No. 21/2001 on Oil and Gas, and Law No. 22/1999 as superseded by Law No. 32/2004 concerning Regional Autonomy.

There are some incompatibilities amongst the twenty laws. For instance, mangrove forest management has been a sensitive issue between the Ministry of Forestry and the Ministry of Marine Affairs and Fisheries for more than two decades. The Forestry Law allows a harvest in a coastal mangrove forest like the Mahakam Delta, while the Fishery Law 2004 prohibits all activities that are damaging to fish habitat and fisheries resources. An excessive and illegal logging of mangroves and other land forests could result in the destruction of fishing ecosystems. It ultimately leads to the destruction of the ecosystem’s function as a nursery ground for some fish and marine species, a buffer zone or ‘‘filter area’’ for coral reef ecosystems, as well as to reduce pollution, abrasion and sedimentation from land‐based activities (Dirham‐

syah, 2006:73 and 79). Another instance is that the Fishery Law 2004 defines ‘fish’ broadly so that it includes some fishes which is according Law No. 5/1990 concerning Conservation of Biological Resources and their Ecosystem are endangered species (Patlis et al., 2001:29; Dirhamsyah, 2006:80).

The sectoral manner remains existing despite some of the enacted laws did not have sectoral manner such as the Law concerning Environmental Management, and Law concerning Spatial Planning. Meanwhile due to its ambiguities, the enactment of Law 1999 on Regional Autonomy had generated regional euphoria. In fishery sector, one of the articulation of the euphoria is the fact that number of districts prohibited any traditional fishermen coming from outside to enter their district water. They did it despite the districts did not yet formally declare their maritime boundaries (Patlis, 2005:454). Law No. 32/2004 then later reduced the ambiguities.

Meanwhile, the enactment of Fishery Law 2004 did not give any change to the sectoral manner as this Law does not specifically address coastal fishery resources in any meaningful way (Patlis, 2005:452).

Legally speaking, the above sectoral manner then came to an end at the time the Law No. 27/2007 enacted in July 2007. Not only does the Law aim at eradicating the sectoral manner but also aim at ending the conflict of authority and use, and provi‐ ding a legal certainty for the resource users. 4 To avoid the sectoral manner the Law necessitates ahead the making of planning before other activities such as rights issuance and surveillance and control on the coastal resource uses take place. To make the planning are compatible with the planning of other agencies, the Law strictly requires the making of the planning of the coastal resource use to refer to other agencies’ planning. On top of that, the Law for the first time ever in the history of Indonesian legislation makes a definition of ‘coastal zone’ and ‘coastal resource’.

Not only does it aim at eliminating the sectoral manner, the Law No. 27/2007 also intends to eliminate the open access character of the coastal resource use especially for the fishery resources. 5 Like the way they perceived other countries, most 4

A testimony of General Secretary for Ministry of Marine Affairs and Fisheries in Constitutional Court session. See in the minutes of the Constitutional Court session dated 8 April 2010, p. 8. See also elucidation of Law No. 27/2007 section General.

See in the minutes of Constitutional Court session dated 8 June 2010, p. 30‐31.

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scholars also perceive that the use of Indonesian fishery resources operate through a common property and an open access regime (Saad, 2003:95 and 105; Bailey, 1997: 234). Their basic argument to arrive at the conclusion that even it is legally under a state management, but in reality exploitation over fishery resources has been lasting with insufficient control by government offices or legal enforcers (Damayanti, 2004: 4). 6 Therefore, few scholars have pointed out that despite the fishery resource use is common and open access but at the same time it centralistic as well. As a result it is only opened in de facto, but in de jure it is a state property indeed (Satria, Matsuda, 2004). 7 Another scholar refers to Article 33 (3) of the Indonesian constitution to argue that the fishery resource use is under state management. The article says: ‘Land and water and the natural riches therein shall be controlled by the State and shall be utilized for the greatest welfare of the people’.

According to the scholar the article gives authority to the central government to develop and manage the resources (Patlis, 2007:205).

Apart from the above discussion, the Law No. 22/2007 is believed has introduced a new tradition to the Indonesian coastal resource management because it introduces an exclusive rights so‐called Coastal Resources Utilization Rights (Hak Pengusahaan Perairan Pesisir or HP3). This is a breakthrough because by introducing the HP3 the Law releases the coastal resource use from the shadow of open access doctrine. 8 Conceptually, the HP3 is actually kind of territorial use rights in fisheries (abbrev TURFs). It could be defined as an exclusive right of a person or community to the use of fishery resources within a certain boundary (Christy, 1982; Christy, 1997:42). The Minister of Marine Affairs and Fisheries, a governor and a district head could grant the HP3 to an Indonesian citizen, an Indonesian company or indigenous peoples (art 18). The government officers grant the HP3 over a certain boundary. Upon a granted boundary, a HP3 holder could utilize any coastal resources existing on the water sur‐ face, body water and the water land (art 16 sec 2). The HP3 is also transferable. Its 6

For an account in other countries see Ostrom 1999.

Satria and Matsuda (2004) argue that the fishery resources are regulated by state with the introduction of control mechanism.

The state controls the use through license and zone restriction. In making the argument, they quoted Charle’s model mentioning that Indonesian fishery law applies input model to control the fishery resource use, by mixing it with measure such as gear restriction, closed area, and closed season (Satria 2006:9). Actually apart from as means to exercise state control over fishery resources, they are also as means to overcome overfishing. Quota, closed seasons, gear restriction, taxes or licenses have become alternative means for the sole ownership on fishery resource use in overcoming over fishing. See Smith and Panayotou:351.

8 Saad at http://lautmenyapa.blogspot.com/2008/11/hak‐pengusahaan‐perairan‐pesisir.html (downloaded on 15 July 2010).

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time duration is twenty years and could be renewed for another forty years (art 19).

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III. FORMAL REGULATORY RULES IN THE MAHAKAM DELTA As mentioned earlier this article divides the various formal regulatory rules into territorial‐based and non territorial‐based. The territorial‐based encompasses oil and gas, forest and land regulatory rules. Whereas the non territorial‐based is only fishe‐ ry regulatory rules. Apart from two classified regulatory rules, this article will also describe regulatory rules on spatial planning and environment. This section will des‐ cribe those regulatory rules and most importantly will analyze the extent to which they are compatible and incompatible once to another.

A. Territorial‐based Oil and gas regulatory rules In the second half of 1960s, the Ministry of Mining of Indonesian government designated an oil and gas block, named Mahakam‐Bunyu in East Kalimantan, Indo‐ nesia. The block covered area of 34,125 km2 (Idham, 1974:125; Janvry, Loiret, 1992).

The biggest part of the area was located in the Mahakam Delta while the rest was in Bunyu Island, north part of East Kalimantan province. According to Law No. 44/1960 concerning Oil and Gas, as superseded by Law No. 22/2001, and Law No. 11/1967 concerning Basic Mining Principle, the designation implied that the block then became a state mining zone (wilayah kuasa pertambangan). Further, the designation brought a legal consequence that mining and oil and gas regulatory rules would be enacted upon the block.

According to the Oil and Gas Law 1960 and the Law on Basic Mining Principle the state has a right to control (kuasa pertambangan) the use of any oil and gas resour‐ ces in the block. According to Oil and Gas Law 1960 and Law No 8/1971 concerning Perusahaan Pertambangan Minyak dan Gas Bumi Negara (Pertamina) the state delegated the rights to Pertamina, as state‐owned oil and gas company. 9 Some scho‐ lars point out that the delegation of the rights did not mean that Pertamina replaced the state position as the owner of the rights. Instead, the state had only granted the Pertamina a mineral rights (Simamora, 2000:78; Hasan, 2009:72‐3). Whatever the level of rights Pertamina had obtained from the state, the designation and later the 9

Pertamina actually originates from a merger between PN Pertamin and PN Permina, two former other state‐owned oil and gas companies. The merger was stated in Government Decree No. 27/1968 ( Simamora, 2000:30, and Hasan, 2009:73).

delegation have made Pertamina to be a new player of the resource use in the Mahakam Delta.

The first exercise of the state control over the block was a granting of a right of exploration and exploitation over the block to the Japan Petroleum Exploration (abbrev Japex) by the Ministry of Mining in 1967. The right granting was carried out through a contract called contract of work. 10 According to Oil and Gas Law 1960, Law on Basic Mining Principle and to the contract of work itself, Japex acted as a contrac‐ tor of Pertamina, not as a co‐owner (Simamora, 2000:91). In 1970, Japex, which later became Inpex, made an agreement with Total E&P Indonesie to run the oil and gas extraction in the block. In that agreement, Total E&P Indonesie would act as contrac‐ tor, and they both get a share division of fifty‐fifty. Since 1970 until presently, Minis‐ try of Mining has granted four contracts called production sharing contract (PSC) 11 to Total E&P Indonesie 12 . In accordance with Law No. 1/1967 as superseded by Law No. 25/2007 concerning foreign investment, the valid period of the rights is for 30 years and could be renewed for another 20 years.

After the designation and delegation had made Pertamina as new player, later the rights granting have made Japex and Total E&P Indonesie as new resource users in the Mahakam Delta. Yet as there had been other natural resource users in the Mahakam Delta before the rights granting, admittedly it then raises a question, what would be its legal impact to the prior use rights? As the rights granting is governed by the oil and gas regulatory rules it then raises another question, to what extent do the regulatory rules make themselves are compatible to the prior fishery and land regulatory rules?

It is a fact that before the rights granting to the company, the rights granting and the use activities to the fish and land resource have been occurred before. When a group of Bajonese fishermen inhabited a place called Pemangkaran in the Mahakam Delta in 18th century, the Sultan of Kutai (16th century‐1945), through his local represen‐ 10

Contract of work was created to replace a concession system which was introduced during the Dutch colonial period. Two raising issues that accompanied the introduction of the contract of work were state sovereignty and state revenue. See Oon 1986, Fabrikant 1975a:308‐9, and Fabrikant 1975b.

11 The PSC is the replacer of the contract of work as the latter was regarded as a disguised concession. PSC is actually another type of a contract. It is an adopted concept originally emanating from adat law (Simamora, 2000:59; Hasan, 2009:54).

12 The four PSC are Mahakam PSC (1970), Tengah JOB PSC (1988), Saliki PSC (1997) and Southeast Mahakam PSC (1998). The four PSCs covers area of 5,926 km.

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tative (Demang), granted settlement permits to them. Later on, in early 20th century, the Sultan granted several plantation concessions to Buginese and Banjarnese (Levang, 2002:4‐5). 13 After the Indonesian independence in 1945, the fishermen rights to catch the fish and the farmer rights to use the land were revitalized. It occurred through a passage of a Governor Decree of East Kalimantan No. DPRGR‐ Prov./8/PD/67 concerning fishery permit, and a Governor Decree in 1975 concerning the utilization of state land (Simarmata, Dharmawan, 2003:22).

To encounter the situation like in the Mahakam Delta where there is an oil and gas resource use amidst the fish resource use, the central government apparently formed a policy favoring the oil and gas resource use. The legal instrument to the policy is a circular letter of Directorate General for Fishery of the Ministry of Agriculture No. E.V/2/4/15/1975. The letter stipulates that in radius 500 meters form the company installation is a forbidden area while in radius 1 mile from the installa‐ tion is a restricted area. The letter totally prohibits ship or boat to enter the for‐ bidden area, but in the restricted area passing across ship or boat is still allowed as long as they do not install an anchor. Due to the flourishing of conflict between Total E&P Indonesie and the fishermen, the Kutai district head then revitalize the 1975 letter by passing another circular letter No. 1000/287/Pem.A/VI/2004. Thus, the Ministry of Mining and the Kutai district government barely needed the circular letters to restrict the fishermen rights to pass across and catch the fishes in the forbidden and restricted area. Interestingly, the two letters are opposite to some fishery legislations which will be described later.

The policy favoring the oil and gas resource use occurs too to the land use. According to Oil and Gas Law 1960, the exploration and exploitation rights that Total E&P Indonesie owns does not include land use rights. Therefore, in order to be able to use the land which is located above the block, Pertamina through Total E&P Indonesie, should obtain the land by purchasing the land or compensating the land owners. A Presidential Directive No. 1/1976 concerning the synchronization of land issue to forestry, mining, transmigration and public work issue, reasserted the above 13

Concerning the types of rights over natural resources in the course of the sultanate period see Peluso 1983a, 1983b, Peluso 1987, Magenda 1991, Pemprov Kaltim 1992, Obidzinski 2003, Linblad 1985 and Linblad 1988.

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provision. According to the directive a mining or oil and gas company should appropriate the land of local residents or indigenous peoples if the resident and peoples have an official right. Going further, it states that if the company is going to close certain area that will avoid the local residents to exercise their rights, the company then should compensate them.

According to oil and gas regulations, Pertamina would purchase and compensate as long as the land owners could prove their entitlement to the land by showing owner‐ ship documents. The ownership documents could be a certificate issued by a land agency or a land letter signed by the village and sub‐district authorities. 14 In addition, in practice, the company also requires an identity card (kartu tanda penduduk) and family card (kartu keluarga). Nevertheless, as long as the company can show their PSC official documents to the land owners the land owners are not allowed to refuse to sell the land or to get compensated.

Apparently, the granting of the exploration and exploitation rights did not only imply to the resources users existing earlier, but it also implied to resource use coming later. In 1980s a private company intended to develop an intensive large‐scale shrimp pond in two islands in Muara Badak sub‐district. Yet, the company got difficult to step further as Pertamina was objected. Pertamina argued that the two islands were included in the state mining zone. Therefore to be able to use the land Pertamina only allowed the company to utilize the land with a condition that the company should hand back the land to Pertamina if Pertamina would use it. The company eventually refused the offer and canceled their plan to develop the shrimp pond. This case is more like a power demonstration rather than a legal action be‐ cause, as mentioned earlier, that the rights of Pertamina and its contractors did not include rights to land. It was a fact that by having the delegated rights to control, for a long time (1971‐2000) Pertamina had become a powerful institution as it was not mere a company, but also a regulatory body (Oon, 1986:163).

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They are head of hamlet (ketua RT), village head (kepala desa) and head of sub‐district (camat). For the explanation of the letter and its formality see Simarmata 2010 and Simarmata forthcoming.

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Forest regulatory rule In early 1983, the central government introduced another territorial‐based re‐ gulatory rule in the Mahakam Delta; it is a forest regulatory rule. The Minister of Agriculture enacted decree No. 024/Kpts/Um/1/1983 which endorsed the so‐called Consensus Forest Use Planning of the East Kalimantan or TGHK. The endorsement of TGHK also constituted as a state forest declaration. The decree stated that the size of state forest in East Kalimantan was 21,144,000 ha, a size that is as large as the pro‐ vince width itself. Therefore, the declaration has made the province totally became as state forest. 15 According to the 1983 decree, the entire mangrove forest of the Mahakam Delta was production forest. It brought an implication that now both the block and the agricultural land are at the same place with the production forest.

They simultaneously exist in a same place. In other words, the agricultural land was now part of the forest land, and above the block there is a forest. What would be the impact of the declaration to the fishery, land and mineral use rights? Before come to the answer of that question, an account of the legal rules over the production forest will come first.

In accordance with Law No. 1/1967 concerning Forestry as superseded by Law No. 41/1999, and a decree of Minister of Agriculture No. 683/Kpts/Um/8/1981 concerning Criteria and Procedures to Demarcate Production Forest, after the declaration a team comprising of the officers of the Ministry of Agriculture and other related ministries, should carry out a demarcation. According to Chhatre (2003:152) and Soewerwine (2004:99) a demarcation is to draw and delineate the boundaries of certain areas by using some scientific mechanism such as survey and map. Three main activities of the delineation are measurement, mapping and installing physical border marks. The demarcation is expected to help the forestry officers to easier carry out a forest protection over the production forest from harmful activities.

Unfortunately, due to lack of budget, personnel and above of all a timber orient‐ tation, the provincial forestry government carried out the demarcation after 18 years of the declaration. It started 2001 and came to an end in 2005.

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Interestingly, at the time of making the so‐called Consensus Forest Use Planning, the whole East Kalimantan area had been actually plotted into timber concessions (Vargas 1985:61). Therefore, the so‐called Consensus Forest Use Planning was not more than copying the timber concession areas.

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According to Forestry Law 1967 and Government Regulation No. 21/1970 concerning forest concession, any utilization and occupation of the production forest of the Mahakam Delta should be conducted through a right or license which is granted by the Minister of Forestry, governor or district head. Without the right or license, the utilization or occupation will be definitely categorized as illegal. The illegal users could be threatened to have to pay sum amount of fines or to be sent in jail.

Unfortunately since its declaration until presently, the Minister of Forestry, the governor or the Kutai district head have not granted any rights or license in the production forest. Therefore, the production forest of the Mahakam delta is the only production forest in the East Kalimantan that the government has never granted a right or a license on it. 16 Apart from the late demarcation and the absence of timber rights granting in the production forest, but the forest regulatory rules remain prevailing in the production forest. Yet, as the declaration came later, then how does it take into account the prior oil, gas, and land users? How do the forest regulatory rules make themselves are compatible to the prior land and oil and gas regulatory rules?

Upon the oil and gas recourse use, the forest regulatory rules are clear. According to Government Regulation No. 28/1985 as superseded by Government Regulation No. 45/2004 concerning Forest Protection, as the rights granting to the Total E&P Indonesie took place prior to the passage of the Government Regulation then the company could keep carrying out the oil and gas use. Nevertheless, the regulation requires the company to adjust its self to the provision of the regulation. Later, the Ministry of Forestry ruled that the adjustment is that Total E&P Indonesie should have a forest use permit (izin pinjam pakai kawasan hutan) which is issued by the Minister of Forestry. By having that permit the Total would be able to use the production forest land, as well as to cut trees over it. The time duration of the permit will automatically follow the duration of a PSC contract the company has.

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The central government had granted mangrove forest areas which were located in north part of East Kalimantan to four timber companies as of early 1970s. There were Karyasa Kencana, Bina Lestari, Inhutani, and Jamaker. In total, the areas of the four companies were approximately 213,040 hectares (Soetrisno 2007:12). Prior to it, the grant of mangrove concession in East Kalimantan had been actually commenced in Dutch colonial period where the Dutch colonial government and the Kutai sultan th granted a forest concession to a Phillipines company in the first half of 20 century (Lindblad, 1988; Obidzinski, 2003).

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Pursuant to a decree of Minister of Forestry No P.14/Menhut‐II/2006 and Government Regulation No. 24/2004 concerning Forest Use Permit, to be able obtain the permit the regulations require the company to provide some require‐ ments and to do some obligations. One of the requirements is that the company should provide a compensation to the Ministry of Forestry either through tax paying and watershed rehabilitation or providing an exchange forested area in other places.

While the instances of the obligation are paying for any tree they cut, demarcating, carrying out forest protection, and doing replanting and reclamation to any piece of forest area they utilized. At the time of writing, Total E&P Indonesie is still arranging the forest use permit to the Ministry of Forestry after they have been operating in the Mahakam Delta for 40 years and after 25 years of the passage of the Govern‐ ment Regulation 28/1985. Therefore, until recently there is no any official report released by either the company or the Ministry of Forestry about the size of forest land and number of the tress the company has utilized and cut. The company only said that they have successfully replanted 13,000 ha with mangrove tress (rhizo‐ pora). The Kutai district government said that the company has used land 2,834 ha (Paparan Bupati Kukar, 2005:9). Yet none of the two figures exactly leads to a precise size of the utilized forest land and cut trees.

Apparently, the forest regulatory rules only allow some specific non forestry re‐ source uses that can be carried out within the production forest. The specific non forestry resource uses mentioned by the regulatory rules are kind of uses that have a strategic purpose. The regulatory rules then make a list of the allowed uses where mining is included on the list. Yet, the list does not include agriculture land and aquaculture land. In line with the provision, for the aquaculture land which at the time of the declaration had flourished as an impact of trawl ban regulation in 1980, there is already a joint decree of Minister of Agriculture and Minister of Forestry No KB.550/246/Kpts/4/1984 which prohibits aquaculture within a forest production. 17 Thus, in accordance with the logic of the above regulations, the land users in the 17

Several studies conclude that the trawl ban policy then generated the fish pond opening in the Mahakam Delta. See for example Bappedalda Kukar&PKSPL IPB 2002:III‐66, and Hidayati et al 2005. For the impact of the policy in other parts of Indonesia see Bailey 1988, 1997 and Jhamtani 2003.

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Mahakam Delta are illegal at the time the declaration took place. The regulations actually perceive them as illegal occupants.

However apart from their illegal status, the declaration does not totally neglect the land users. According to regulations concerning forest plan and demarcation, in carrying out the demarcation of a declared forest, a committee established by a dis‐ trict head, should take care rights claim from third parties. 18 The rights claim of the third parties could be concerning rights to land or rights to crops and buildings above the land. Only if the rights claim is taken care then the declared forest can be subsequently mapped and declared as a definite state forest land.

The mentioned 1976 Presidential Directive also has such above provisions. As similar as obligations imposed to a mining and oil gas company, the Directive also obliges a timber company to appropriate the land of the local residents or indigenous people if the thay have an official rights over the land. The Directive also obliges the com‐ pany to compensate the local residents or indigenous peoples if the company is going to close an area which will avoid the local residents to exercise their rights.

Yet a provincial forest unit, called UPTD Planologi Kehutanan which demarcated the production forest of the Mahakam Delta in the course of 2001‐2005, hardly complied with the above provisions. Instead of inventorying rights over the land, tress and crops existing near by and within the production forest, the service unit tended to cover the demarcation they were carrying out in order to avoid a clash with the pond owners or pond workers. In doing so, they even managed to convince the pond ow‐ ners or pond workers that the demarcation would not bring any effect to the existence of their fish ponds (Simarmata, forthcoming). As a result, the demarcation itself missed thousand of pond owners who some of them even have had land letter issued by village head and head of sub‐district.

Despite the demarcation finally resulting an exact size of the production forest after for 22 years was unclear, but it still left number of questions. 19 The fact that it did

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The member of the committee comprises district agencies dealing with issue on development planning, land and forest, the service units of the Ministry of Forestry, head of sub‐district, village head and local elder.

19 The demarcation noted that the fixed size of the production forest is 103,682 ha. It also noted that the size of the rest land that does not include into the production forest is 6,787 ha. Thus, the total size of the land of the Mahakam Delta is 110,683 ha.

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not inventory the rights over land, trees and crops, does it mean that the land ownership is automatically legal so that they are allowed to occupy and keep utilizing the forest land? If the land ownership is legal does it mean that they do not need to propose a license from the Minister of Forestry, governor or the Kutai head district any longer? The answer to the questions will come later.

The above descriptions inform us that apart from the land and fish resource use, in the Mahakam Delta the central government imposed oil and gas, and forest regula‐ tory rules that are territorial‐based. Upon the designated and demarcated areas, the central government enacted the regulatory rules which basically aim at arranging how and by whom the two resources can be accessed and used (Vandergeest, Peluso, 1995). From a legal point of view, the description told us how the two terri‐ torial‐based regulatory rules dealt with the former resources uses such as fish and land resource use. It also said how the later territorial‐based regulatory rules made themselves compatible to the former one.

B. Non territorial‐based As has pointed out that fishing is the first resource use in the Mahakam Delta before the agriculture, rattan collection, aquaculture and oil and gas come later (Levang, 2002:4) Like in nationwide level, the fishing resource use in the Mahakam Delta has been also open access in de facto but under state management in de jure. Legally speaking, the central and the local government control the fishing use by requiring the modern fishermen to have the so‐called fishery enterprise permit (izin usaha perikanan). While for the traditional fishermen, they only require them to register their fishing activities to the district fishery agency. Other means to control the resource use are gear and zone restriction, and closed area. Yet, according to the fishery regulatory rules, the permit holders freely catch fish everywhere as long as in the mentioned zone (Saad, 2003). They do not have to exercise their rights to fish in only a certain exclusive boundaries.

The East Kalimantan government has exercise their control over the fish resource use since 1967 when they enacted the governor decree concerning the fishery permit. In Kutai district to implement the decree of Minister of Agriculture No. 607/

16

1976 concerning fishing zone, the district government enacted a local regulation No. 19/1978 concerning fishing. 20 Later, the local regulation was superseded by the Kutai district regulation No. 3/1999 in order to make an adjustment to Fishery Law No. 9/ 1985.

The 1999 Kutai district regulation stipulates that catch fishing in the Kutai district shall be undertaken through a permit or recommendation from a village head or a head of sub district. The Kutai district head authorizes to grant the permit. Only Indonesian citizen and company entitle to obtain the permit. Time duration of the permit is 30 years and could be renewed for another 20 years. The 1999 Kutai regu‐ lation reasserts that the use of gear should be in accordance with the fishing zone as stipulated in the 1976 ministry decree. According to 1976 ministry decree there are four fishing zones. Zone I (0‐3) is only for traditional fishermen who do not use engine boat, and it is strictly forbidden for trawl. 21 The use of the gears shall not ruin the fishery resources and environment. With regard to the closed area, the regulation prevail a total ban for fishing in some listed reservoir areas. Unfortunately none of an area of the Mahakam delta is included on the list.

Interestingly either the 1976 and 1999 Kutai district regulation does not relate itself to the 1975 circular letter of the Directorate General for the Minister of Agriculture concerning the prohibition to the fishermen to pass cross and fish in the forbidden and restricted areas. The two regulations neither reaffirm nor neglect the circular letter. With regard to that matter, the regulations only stipulate the prohibition to the fishermen to disturb public interest and public navigation route (jalur pelayaran umum). As mentioned before that it is the 2004 circular letter of the Kutai district head that include the forbidden and restrictive area to a list at where the fishing and passing across are forbidden and restricted.

In the course of 2000, the Kutai district government strengthened its control over the fish resource use as they enacted four local regulations. The control is not only to

20

The 1976 decree has been superseded by a decree of Minister of Marine Affairs and Fisheries No. 392/1999.

The enactment of the 1976 ministry decree aimed to protect the traditional fishermen from modern fishermen who have big boats. By specifically allocating only for the traditional fishermen, the decree intended to avoid the modern fishermen who used trawl and who have engine boat sizing more than 10 horse power, to not enter the Zone I (Bailey ,1988&1997; Tribawono, 2002; Jhamtani, 2003).

21

17

fishing and aquaculture as mentioned in the regulation No. 27/2000 concerning authorities of Kutai district and in the regulation No. 36/2000 concerning fish enterprise, but also to the quality of manufactured‐fish products and the quality of seeds as mentioned in regulation No. 37/2000 and 34/2000 respectively.

There is no any provision in the 2000 regulations that could specifically relate to the situation of the Mahakam Delta. Like the 1999 regulation, the 2000 regulations do not also concern with the issue of area division between fishing ground and the oil and gas extraction. Interestingly, even though regulations were enacted at the peak period of the fish pond opening (1997‐2000), they do not have any provision stating that any proposal for the fishery permit (aquaculture) will not be processed if the pond is located within the production forest. Or to have provisions stating that any fish harvesting from aquaculture which is located within the production forest are illegal fish.

The only local regulation that manage to link between the fish pond and the forest production is a circular letter of Kutai district head No. 100/75/Pem.A/IV/2003. On his preamble the letter deliver its concern about the importance of environmental sustainability in the Mahakam Delta. With such concern the letter asked people who reside in or outside the Mahakam Delta to stop opening new fish pond for it violates Forestry Law 1999 and Environmental Management Law 1982 (it should mean No. 23/1997). In addition, the letter asked the district related agencies, particularly Forestry Agency to implement and enforce the provisions of the Forestry and Envi‐ ronmental Management Law. Nevertheless, as a circular letter it could only make a call or invitation to the land users without power to ask them to stop opening the new fish ponds or to sustainably manage the existing ones. According to Law No. 10/2004 concerning the Establishment of Law, a circular letter is not a legal rule. It evolves in public administration practices used as a legal instrument in order to implement administrative duties. Therefore, a circular letter is mainly addressed to public administrators and will merely bind the public in indirect way. Most importantly that it is not allowed to undermine the legal rules (Ridwan, 2003:130‐ 142).

18

C. Related regulatory rules The spatial planning regulatory rules have apparently provided a legal certainty for a few land users of the Mahakam Delta. In addition, the spatial and environment regulatory rules have also collaboratively regulates how the resource uses in the Ma‐ hakam Delta should be so it leads to an environmental protection.

As of 1993, the land use activities in the Mahakam Delta were not totally ruled any longer by the two territorial‐based regulatory rules. In order to implement Law No. 24/1992 concerning Spatial Planning as superseded by Law No. 26/2007, the pro‐ vinceal government issued a Provincial Regulation No. 12/1993 concerning Spatial Planning of the East Kalimantan Province. It was intended to valid for 15 years. In a map attached to the provincial regulation, it was said that five locations in the Mahakam Delta were excluded from the production forest area. The five locations are Letung Island, Lerong Island, Tanjung Aju Island, Terantang Island, and Paranga‐ tan Island. The provincial government did the exclusion as they used data provided by provincial land agency telling that in the five locations there were existing residences, coconut plantations and fish ponds. Meanwhile, the provincial land agency got the data trough a survey that the agency carried out in the course of 1970s and 1980s. The survey was named Land Use Systematic Survey. At the time of the provincial spatial planning was endorsed, there was not an official figure men‐ tioned about the fixed size of the five locations. It is the demarcation of the pro‐ duction forest in 2005 that count the size is 6,787 ha. It is 6,14% of the total size of the land of the Mahakam Delta. Prior to the figure, in 1987 and 1991, National Land Agency (Badan Pertanahan Nasional‐BPN) had had another figure telling that around 891 ha of the excluded areas had been certified. 22 The official name of the excluded locations is the so‐called Non Forestry Zone (Kawasan Budi Daya Non Kehutanan).

The exclusion then brought a legal consequence that upon the area the forest regulatory rules did not prevailed any longer and it was replaced by the land re‐ gulatory rules. According Basic Agrarian Law 1960 (art 21) upon the 891 ha. of the certified land, as they are ownership land, the owners could use and transfer their 22

The land certification was part of a collaborative program between BPN and Ministry of Agriculture aims to help farmers who planted coconuts, cloves, rubbers to be able to easily a credit from banks.

19

land to other people. While for the rest of the Non Forestry Zone, the land regulatory rules allow land utilization as long as be carried out through a rights entitlement by the land agency. According to Basic Agrarian Law and Government Regulation No 8/1953 concerning State Land Use, the rest of the Non Forest Zone is state land because there is no any land title upon them, neither state‐based land title nor adat‐ based land title (Harsono, 2005:272; Ilyas, 2005:100). Some land regulations classi‐ fied them as cultivated land (tanah garapan). A letter of Head of National Land Agency No. 110‐2111 of 2003 defines the cultivated land as state land or private land that is being used by someone with or without permit and with or without a certain time period. In accordance to the letter, Presidential Decree No. 34/2003 and a dec‐ ree of the Head of National Land Agency No. 2/2003, the Kutai district head could grant land reclamation permit upon the land. 23 The maximum size of the land could be granted is 2 hectares with 3 years time duration.

When the provincial government revised the 1993 spatial planning in 1999, the ex‐ clusion remained. The Minister of Forestry took the similar policy when the 1983 so‐ called Consensus Forest Use Planning was revised in 2001. Therefore as of 2001, the mangrove forest of the Mahakam Delta was not entirely as a state forest any longer as it was before. 24 Unfortunately, the law makers did not intend to also link the regulations concerning the exclusion to regulations concerning protected area management. According to criteria devised by a Presidential Decree No. 32/1990 concerning Protected Area, the mangrove forest of the Mahakam Delta is a protected area as it is a coast that has a mangrove forest (art 6 (3). Moreover, it also has green belts (article 5(1&2). The Presidential Decree is an organic regulation of Law No. 4/1982 concerning Environ‐ mental Management as superseded by Law No. 23/1997 and currently by Law No. 32/2009. The Presidential Decree orders any provincial government to declare pro‐ tected areas in their respective province and post them in their respective spatial planning. The East Kalimantan government has implemented the order and included the mangrove forest of the Mahakam Delta as one of the protected areas in its 1999 23

From 1972 till 1984, the authority to grant the land reclamation permit was under head of sub‐district. Yet, in 1984, Minister of Home Affair dissolved the authority and later granted it to a district head ( Simarmata, 2010:10).

The minister revised it through a ministry decree No. 79/Kpts‐II/2001.

24

20

and 2004 spatial planning (Bappeda Kukar, PT. Sarana Bagja Bumi, 2006:6). Unfortu‐ nately, the Kutai government has not yet proceed the provincial spatial planning by posting the Mahakam Delta mangrove forest into their district spatial planning as the district does not have yet a district spatial planning since its establishment in 1959.

As the exclusion does not link to the status of the Mahakam Delta as a protected area then the legal enforcement did not take place. According to the Presidential Decree No. 32/1990, any cultivation within a protective zone which potentially changes the ecological function of the protected area is prohibited. Therefore, the authorities should not issue a particular land rights use if it will ruin the ecological function of the mangrove forest of the Mahakam Delta. Governor Decree No. 31/ 1995 concerning the registration of cultivated state land has unintentionally linked the exclusion to the regulations concerning the protected area. The decree asks every village head to not sign a land letter if the land is located within a protected area (art 10a).

Yet in the Mahakam Delta due to the officers’ lack of knowledge of the regulations, and their understanding to the economic demand of the villagers, the village heads and heads of sub‐district signed the land letter without examining whether they were located or not located within the production forest and the protected area. The employees of Total E&P Indonesie and the officers of Executive Agency for Upstream Oil and Gas Activities (henceforth Executive Agency) which replaced the position of Pertamina, have the similar perception. As mentioned before that in compensating the land owners they just needed to assure that the land owners have ownership documents. They did not examine if the land were located within or outside the pro‐ tection forest or the protected area. They did so because oil and gas regulations did not make any difference of it.

21

IV. EMERGING LEGAL ISSUES Previous descriptions have figured out the compatibility and incompatibility of those regulatory rules existing in the Mahakam Delta. This section is going to analyze the effect of the compatibility and incompatibility to the resource users. To what extent do they provide and do not provide a legal certainty for the resource users. The way this section organizes the analysis is by focusing to each user. Yet, before going to the analysis, the section is going to paraphrase the compatibility and incompatibility in advance.

Compatible and incompatible Law on Oil and Gas and its organic regulations do not have any provision ruling how should an off shore oil and gas extraction deals with the fish regulatory rules. The mere regulation concerning that matter is Government Regulation No. 17/1974 con‐ cerning the Implementation of Monitoring Upon Off Shore Oil and Gas Exploration and Exploitation. This regulation has only an article that is related to the fishery resources telling that an oil and gas resource use can not be carried out in an area which functions as a nursery ground and which has coral reefs. A result, to resolve conflict between the oil and gas and fishery resource use, the Ministry of Agriculture and the Kutai district government preferred to launch an accommodative policy to the oil and gas resource use. The 1975 circular letter is a concrete example of the accommodation. Through the letter, the fish regulatory rules restrict the fishery resource use when encountering an oil and gas resource use. The restriction is apparently against the fish regulatory rules which have introduced a free boundary principle that saying once some one obtained the fishery permit; he or she can catch fish in any Indonesian maritime (Saad, 2003). In addition, in 1976 the Ministry of Agriculture passed a decree that allows any traditional fishermen to fishing in all the four fishing zones and totally protected the 0‐3 miles for only the traditional fishermen.

Unfortunately, none of fishery legislation that coming after the 1975 circular letter states anything about the restriction mentioned in the 1975 and 2004 circular let‐ ters, even the most recent Fishery Law No. 31/2004. They do not have any provision stipulating that in the forbidden and restricted area mentioned, the fishing is

forbidden or restricted. As most of the Kutai district regulations originated from the implementation of delegated authority rather than the implementation of attributed authority, they are as similar as to the regulatory rules made by the central govern‐ ment (Simarmata, 2005). Therefore, the 1976, 1999 and 2000 Kutai regulations do not have any provision that uphold the 1975 circular letter. Despite the Kutai district head made the 2004 circular letter to uphold the 1975 circular letter but it still left a question, why the Kutai district government does not state it in the Kutai regulations or in a decree of the Kutai head instead of regulating it in a circular letter which is according to Indonesian law can not be publicly bind?

Meanwhile, the oil and gas regulatory rules are compatible with the land regulatory rules since the beginning as they oblige any oil and gas company to purchase the land from the owners or compensate them. More than it, the oil and gas regulatory rules are even compatible to informal land rules who acknowledge the land letter as an evidence of land ownership.

The forest regulatory rules, the second territorial‐based regulatory rules, are compa‐ tible to the oil and gas regulatory rules. In a case like in the Mahakam Delta where there had been a declaration of state mining zone earlier as well as the granting of the rights to explore and exploit the oil and gas resources, the forest regulatory rules allow the resource use keep operating with a condition that the resource user had to have the forest permit use. Unfortunately, the oil and gas regulatory rules do not make themselves are compatible to the forest regulatory rules as they compensated the land owners even though their land and fish ponds were located within the production forest.

The 2000 Kutai regulations are not compatible to forest regulatory rules as they do not have any provision that could be applied to avoid the emerging number of fish pond opening in the Mahakam Delta. There is no any provision that discourage the existence of the ponds as well as the sale of the fish products originating from the area. Nevertheless, now days the Kutai district government has been arranging to make the fish regulatory rules are compatible to the forest regulatory rules by draft‐ ing new regulations which has been running as of 2007. Two draft regulations con‐

23

cerning the Management of Marine and Fishery in the Mahakam Delta and Traditional Standardized Fish Pond have provision stating that the Kutai district go‐ vernment will issue a permit for the aquaculture as long as they are located outside a state forest.

The spatial planning regulatory rules that have excluded the five locations from the production forest do not intend to make them to be compatible to the environment regulatory rule which strictly prohibits any activities that could potentially change the ecological function of the protected area. Yet, the 1995 Governor Decree con‐ cerning the registration of cultivated state land is compatible to the environment regulatory rule as it prohibits every village head to sign a land letter if the land is located within a protected area.

Legal certainty for the Users The julu case mentioned above reflects the effect of the presence of the oil and gas resource use to the fish resource users. Apart from the fishermen’s motive to install the julu, the incompatibility between the 1975 and 2004 circular letter and the natio‐ nal and local fishery regulations has clearly affected the fishermen’s fishing rights. 25 Their rights to catch fishing in the radius mentioned, which is located within the traditional fishing zone, is violated. It is still so even though the fishermen got paid US$4 for each trunk of the julu construction. According to Law No. 10/2004 on the Establishment of Laws, the fishermen legal position should have been stronger than the company legal position as the prohibition to install the julu in the vicinity of the company’s installation is only regulated by a circular letter. In their official complain on 26 August 2009 to the provincial police office, Total E&P Indonesie only mentioned that the fishermen had violated the 2004 circular letter.

Yet, in the julu case, due to the position of the oil and gas resource use as a national vital object, the fishing rights should be undermined. According to the decree of Minister of Energy and Mineral Resources No. 1762/K/07/MEM/2007 concerning the security of national vital objects within the ministry of energy and mineral resources, 25

Most of the Kutai district agency officers and even the officers of sub‐district and village officers suspected that the fishermen’s motive to install the julus was for getting compensated by the company. Therefore, they called the julus as a trap rather than a real gear. The suspect was getting reasonable as some of the fishermen had installed the julus two days after the company and the local officers inform the villagers about the plan to enforce law upon the julus.

24

the PSC areas of Total E&P Indonesia is one of nine national vital objects that are located in East Kalimantan. Presidential Decree No. 63/2004 concerning the Security of National Vital Object defines national vital object as: ‘Area/location, building/installation or enterprise that area related to the people livelihood and national interest, or a strategic state source of re‐ venue’.

Total E&P Indonesie should secure their installations from any threat and disturbance that can jeopardize the installations. In carrying out the security, Total E&P Indonesie could ask a back from the local police and military officers. In September 2007, the company officially asked the help of the sub‐district police officers to handle a case in Tani Baru village where some pond owners ceased the company’s sea trucks. They ceased the sea trucks as the company refused to pay a compensation for their broken pond dikes. Eight police officers then went to the village and succeeded to force the fishermen to sign a statement telling that they would not do such cessation anymore.

The fishing rights of the fishermen were even more uncertain as in several meetings of the julu case, the officers of the Kutai Fisheries and Marine Affairs Agency stated that the julus were illegal as the owners had not had any permit issued by the local authorities. 26 According to the Kutai regulation No.36/2000, each small subsistence fishermen is not obliged to have the fishery permit. Instead the regulation requires them to have a registration certification issued by the agency. Indeed, the regulation threats a sanction for the fishermen if they do not register. In doing so, the regu‐ lation refers to the Fishery Law. Interestingly, the Fishery Law itself obviously states that the registration for the small subsistence fishermen is only for the purpose of making statistical record and carrying out empowerment program. Thus, the Kutai district regulation No/ 36/2000 its self has also restricts the fishermen’s rights to fishing because they can only exercise their rights if they obtain the registration certification from the agency.

Other oil and gas uses that also restrict the fishermen fishing rights are seismic and drilling activity. Unlike the restriction to not fish in the vicinity of the installation 26

The minutes of meeting on 24 August 2009,

25

which permanently restrict the fishing rights, the seismic and drilling activity will only temporarily restrict the rights in the course of the activity take places. Interestingly, the reasons the company has been used to do the forbiddance are not really legal argument. They usually used two arguments. First, for the sake of security reason.

Second, because the oil and gas use belongs to the state or a state project. Thus, there is no any clear legal provision yet saying that for seismic and drilling activities the company could forbid the fishermen to not fish during the activities take place.

As the fishermen will not be able to fish during that time, then the company and Executive Agency will compensate the fishermen for their installed gears that should be taken away from the area, and for loss of opportunity to get income from fishing in that area. Yet, the second compensation is not a real compensation as the fishermen should work for the company as security officers during the seismic ope‐ ration. For that work they were paid for US$5 per day. In other cases, the way the company to compensate the fishermen was by rented the fishermen boats.

Meanwhile due to the compatibility between the oil and gas, and the land regulatory rules, the land owners right is rather certain. As mentioned before that even though they can not refuse to sell or to not receive the compensation, they company could not arbitrarily appropriate their land. Their land rights are also saved from the demarcation activity as the forest regulatory rules oblige the government to also provide the compensation. Despite the exclusion along side with the declaration of the Mahakam Delta as a protected area in the provincial spatial planning prohibit the uses that can possibly ruin the ecological function of the Mahakam Delta, the land owners right are still secured as they can have the land letter. Their land rights became stronger as in practice almost all the officers of the provincial and Kutai agency officers and even the company employees acknowledged the formality of the land letter. A retired officer of the provincial forestry agency, who used to work for the production forest of the Mahakam Delta, even perceived that the land letter as equal as the oil company rights to explore and exploit.

It is not only did the government officers acknowledge the formality of the land letter, but also judges. The judges took the decision when examined a land case H.

26

Maming vs H.Onggeng and H. Latif. 27 The dispute object was a 500 hectares land that was located in Muara Pantuan village. In their verdict, the judges won the H. Onggeng and H. Latif because the defenders delivered some convincing written documents that proved their ownership over the disputed land. 28 Some of the 131 written evidences delivered by the defenders are the land letter issued in January 1st 1998. Village head and head of sub‐district signed all the land letters. Meanwhile, the plaintiff delivered a written document called forest reclamation letter which was only signed by retired village head. After also carried out a field visit to where the disputed land was located the judges decided that the official owner of the disputed land was the defenders. The appealed court of Samarinda upheld the district court decision in 2007. 29 However, despite the land letter is an official document, they were not asked by the forestry officers during and after the demarcation, and most officers acknowledged its formality, but as far as the forest regulatory concerned their land rights are still uncertain. The land use is still illegal as the forest regulatory rules do not include the agriculture and aquaculture as use having strategic purpose. Moreover, the land is also located in a protected area as the 1993 Governor Decree prohibits any village head to sign the land letter if the land is located within a protected area. Therefore, in providing the compensation, Total E&P Indonesie made a difference between the land that is located inside and outside the production forest. 30 For the land located outside the production forest, the compensation included the value of the land.

While for the land located inside the production forest, the compensation did not include the value of the land. It is so as the land located inside the production forest was regarded as state land, while the land located outside was regarded as private land.

27

H. Maming and H. Onggeng are two big land lords in the Mahakan delta. As they had political and economic power, the conflict then involved local higher policy and military officers. H. Onggeng who had close relation to former Kutai regent and the provincial parliament members was closely connected to the local military officers, while H. Maming was closely connected to the local police officers. Besides, the two land lords also mobilized civilian paramilitary from Samarinda city. The conflict even forced Kutai regent to issue a circular letter in 2003. One of the six points of the circular letter specifically ask the two land lords to control themselves and not to continue their activities above the disputed land.

28 No. 44/Pdt.G/2003/PN Tgr. The case was officially registered in the Kutai district court in November 2003 and be settled in December 2004. Yet, the same case has been previously examinee in the same court in August 2003, but the plaintiff refilled the case as he loose.

29 Verdict no. 132/PDT/2006/PT.KT.SMDA. 30 To provide the compensation the company refers to the Kutai district regulation No. 180.188/HK‐630/2008 concerning the standard of compensation.

27

Another government officersbehavior that generates the insecurity is the refusal of district land agency to issue land certificates in the Mahakam Delta if the land is located inside the production forest. From 1997 up to 2002, there were some vil‐ lagers of the Mahakam Delta tried to apply for land certificates to the district land agency. The reason the land agency explained is because the land forest is under the forestry ministry authority. The land agency officers kept refusing to receive the application even though the applicants brought the land letter with them.

Meanwhile, even though the fish, forest and environment regulatory rules favor the oil and gas resource use, yet Total E&P Indonesie still has been encountering several uncertainties. First, apart from their act to compensate the land located inside the production forest, they still worry about the legality of the act. A decree of Minister of Energy and Mineral Resources No. 22/2008 concerning the kinds of expenditures that can not be reimbursed by the production sharing contractors does not include the compensation as spending that can not be reimbursed by the company. It means that the expenditure of the compensation could be reimbursed as a recovery cost.

Yet, the company still worries about being charged to have compensated the illegal occupants. The fact that the oil and gas regulatory rules does not make any distinc‐ tion concerning the location of the land does not completely guarantee the legality of the compensation as the forest regulatory rules classifies the fish pond as illegal use. Therefore, for safety reason, the company did not include the value of the land if it is located inside the production forest.

Furthermore, the compensation spending could be also questioned from the envi‐ ronment and spatial planning regulatory rule point of view if the company compen‐ sated for the fish ponds which are located in the green belt. There are some cases that the company paid for such compensation because the company wanted to use the land or because the company’s sea trucks resulted waves that allegedly caused the dikes of the pond owners were broken. In 2008, the company compensated some fishermen of Muara Pantuan village who accused that the waves of the com‐ pany’s sea trucks have generated abrasion. The abrasion then broke their pond dikes

28

and it ultimately made their shrimps died. Their fish ponds were exactly located within the green belt as they were 10‐25 meters from the river line.

The fact that the company only referred to the circular letters in making complain to the policy officers and the Kutai district government officers concerning the gear installation tells that the company has been facing another legal insecurity. In that legal situation, there is always a possibility for the fishermen to question the legal binding of the circular letter as the legal rules grant the fishermen to fish in the vici‐ nity of the company installation. There is no doubt that the company has been hiding behind the argument saying that the oil and gas use belongs to the state, to conceal their lack of legal base.

The legal insecurity that the company has been encountering does not barely emanate from the incompatibility of the legal rules, but also from actors that the fishermen or pond owners engaged in the cases. Intending to strengthen their bar‐ gaining position in the dispute settlement, some of the fishermen and pond owners engaged their relatives or reported their cases to ethnic‐based local organization.

Both their relatives and the local organization have influential political pressure and have access to political decision. In 2008, a retired police officer who is a member of a Dayak ethnic group reported to Gerakan Pemuda Asli Kalimantan (Gepak), an eth‐ nic‐based local organization, that the the company’s canal has caused fishes and shrimps within his pond died. The retired police officer lived in Samarinda city, a capital of East Kalimantan province, and also a member of the Gepak. In February 2010, an immigrant Buginese coming from South Sulawesi, called one of his relative who lives in the Kutai district city to come to the Mahakam Delta. He needed his relative to come as he had been failed so far to ask the company to compensate him for he accused the company’s rig operation has made his pond dike broken. His relative is a secretary of a nation wide nationalist organization who has a close political relation to a most potential candidate for the District head election. A fisher‐ man reported to his brother in law who became the Kutai parliament member during 2004‐2009 that he had failed to force the company to compensate his and other fishermen julu‐julu with amount they wanted.

29

In the lattest case, the company was even confused as the Executive Agency refused to approved that the amount the fishermen proposed as qualified as cost recovery.

To come out from the unwanted situation, the company then asked the parliament member to sign a statement telling that he endorsed the amount and by that he then would be responsible for any legal allegation coming later.

30

V. CONCLUDING REMARKS In the Mahakam Delta, the compatibility and incompatibility amongst the regulatory rules simultaneously exist. Yet it is unfortunate that the compatibility is not a part of legal framework made to support an integrated and sustainable coastal mana‐ gement. Therefore it is not a product of legal principle that in order to be able to achieve the sustainability all the regulatory rules should strictly refer to each other.

Rather the compatibility emanated from implementing a particular legal concept such as that the mineral rights do not include the land rights. The more influential driving force generating the incompatibility is favoring the oil and gas resource use.

As the compatibility does not emanate from a by design legal framework it did not occur through a systematic mechanism. The regulatory rules coming later did not automatically make themselves are compatible to the previous regulatory rules. In term of the cause, those regulatory rules do not automatically adjust themselves to each other because each agency making them champions their own regulatory rules.

Therefore, rather then serving a common goal, they are developed to serve the administrative bureaucracy (Patlis, 2005:452‐453; ADB, 2002).

In the Mahakam Delta, the way the central and the local government resolve disputes emanating from the incompatibilities was to create the organic regulation and even policy rules like the circular letters. In practice, it is very often that the circular letters become an administrative solution as well as legal and social solution.

The organic regulation like the decree of the Kutai district head becomes a bridge that cements the incompatibility between the spatial planning, environment and the land regulatory rules. However, as the organic regulation and the circular letter are not a fundamental solution then they still left many legal questions that need to answer.

Few of the users have gained legal certainty from the incompatibilities but all of them have been encountering legal uncertainties generated by the incompatibilities.

The level of the legal certainties or legal uncertainties the resource users have been encountering is influenced by the way the bureaucrats and the company employees perceived the regulatory rules, and by the number other actors involved. To de‐

crease the effect scale of the incompatibilities to themselves, the fishermen and the pond owners or pond workers engaged the third influential parties. In other way around, the engagement made the legal certainties the company gained was decreased.

32

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EPISTEMA Working Papers Working Paper Number 01/2010

: Konsep hak‐hak atas karbon, Feby Ivalerina

Working Paper Number 02/2010

: Forest tenure security and it’s dynamics: A

conceptual framework, Myrna A. Safitri Working Paper Number 03/2010

: Perubahan Iklim, REDD dan perdebatan hak: Dari

Bali sampai Kopenhagen, Bernadinus Steni Working Paper Number 04/2010

: Negara hukum bernurani: Gagasan Satjipto

Rahardjo tentang negara hukum Indonesia, Yance Arizona Working Paper Number 05/2010

: Kuasa dan hukum: Realitas pengakuan hukum

terhadap hak masyarakat adat atas sumber daya alam di Indonesia, Herlambang Perdana Wiratraman, dkk.

Working Paper Number 06/2010

: Bersiap tanpa rencana: Tinjauan tanggapan

kebijakan pemerintah terhadap perubahan iklim/REDD di Kalimantan Tengah, Mumu Muhajir Working Paper Number 07/2010

: Satu dekade legislasi masyarakat adat: Trend

legislasi nasional tentang keberadaan dan hak‐hak masyarakat adat atas sumberdaya alam di Indonesia (1999‐2000), Yance Arizona Working Paper Number 08/2010

: Kesiapan dan kerentanan sosial dalam skema

kebijakan perubahan iklim/REDD di Indonesia, Semiarto Aji Purwanto, Iwi Sartika dan Rano Rahman Kertas Kerja Nomor 09/2010

: Indah kabar dari rupa: Studi mengenai pemenuhan hak‐hak

masyarakat adat dalam kerangka hukum dan kelembagaan pelaksanaan demonstration activities REDD di Indonesia di Kabupaten Kapuas Hulu Kalimantan Barat, Laurensius Gawing Kertas Kerja Nomor 10/2010

: Tanggapan Kebijakan Perubahan Iklim di Indonesia:

Mekanisme Reducing Emissions from Deforestation and Forest Degradation [REDD] sebagai Kasus, Mumu Muhajir Kertas Kerja Nomor 01/2011

: Regulatory Rules and Legal Problems of Coastal Resources

Use in the Mahakam Delta of East Kalimantan, Indonesia, Rikardo Simarmata

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EPISTEMA INSTITUTE is a research and knowledge management institute on law, society and environment that is established by Epistema Foundation in September 2010.

Vision of Epistema: To set up learning circles on law, society and environment as a support to social movements promoting the establishment of Indonesian national legal system which is based on the values of democracy, social and environmental justice and cultural pluralism.

P rograms and activities 2011‐2014: 1. Learning Circles for Social and Environmental Justice (LeSSON‐JUSTICE) Activities: o Learning circles on various thoughts in the study of law; o Learning circles on the rule of law formation and indigenous peoples; o Learning circles on law, natural resource management and climate change.

2. Interdisciplinary Research on Community Rights on Better Livelihood, Just Social Tradition and Sustainable Environment (IN‐CREASE) Activities: o Models of legalization of communities rights on land and natural resources in national and regional legislation: Recognition, integration or incorporation?; o A comparative research on state’s recognition on indigenous peoples and their rights on land and natural resources in Southeast Asia; o Local knowledge to promote low‐carbon development in state and community legal/normative system; o Policy, institutional and communities’ preparedness to implement REDD 2010‐2012 at national and regional levels; o National and regional policy and institutional frameworks post‐Kyoto Protocol; o Measuring formal and substantive elements of the rule of law in Indonesian judicial decisions pertaining to communities rights on land and natural resources.

3. Resource Centre for Social and Environmental Justice (RE‐SOURCE) Activities: o Database, publication series (Indonesian socio‐legal; law and climate justice; law and society; Indonesian legal scholars), working papers; e‐journal, on‐ line and networking library; o Film making and interactive CDs production on law, environment and society.

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Structure of organization and personnels: Epistema Foundation Founders: Prof. Soetandyo Wignjosoebroto, MPA Sandra Yati Moniaga, SH Myrna A. Safitri, SH., Msi

Board of Trustees: Chaiman : Prof. Dr. Muchammad Zaidun, SH., M.Si Members : Prof. Soetandyo Wignyosoebroto, MPA

Prof. Dr. Bernard Arief Sidharta, SH Sandra Yati Moniaga, SH Ifdhal Kasim, SH Ir. Abdi Suryaningati

Board of Supervisors: Chaiman : Geni Flori Bunda Achnas Members : Dr. Kurnia Warman, SH., MH Yuniyanti Chuzaifah, PhD R. Herlambang Perdana Wiratraman, SH., MA. Asep Yunan Firdaus, SH Board of Management: Chairman : Rival G. Ahmad, SH., LL.M Secretary : Dr. Shidarta, SH., MH Treasurer : Julia Kalmirah, SH

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Epistema Institute: Executive Director: Myrna A. Safitri, SH., Msi Program manager on law and environmental justice: Mumu Muhajir, SH Program manager on law and society: Yance Arizona, SH Media development and information management Assistant: Andi Sandhi Publication and learning circles management Assistant: Alexander Juanda Saputra, SH Finance: Sri Sudarsih Administrative assistant: Wiwin Widayanti

Office:

Jalan Jati Mulya IV No.23 Jakarta 12540 Telepon

: 021‐78832167

Faksimile

: 021‐7823957

E‐mail : epistema@epistema.or.id Website : www.epistema.or.id

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