Waiting for Final JusticePublished by MAC on 2002-05-17
Waiting for Final Justice
Dayak Siang, Murung and Bakumpai Communities Versus
PT. Indo Muro Kencana/Aurora Gold
The struggles of the Dayak Siang, Murung and Bakumpai people against PT. IMK/Aurora Gold has been going on for a long time. PT. IMK is owned by the Australian Aurora Gold. The communities struggles have all been carried out peacefully, starting from sending protest letters to holding demonstrations in Australia. However, their struggles up until now have been in vain as the company has yet to make any moves to resolve the issues of the community. Of further concern is that PT. IMK plans to close their operations in 2002.
Why are the communities pressing charges?
Twenty-nine people from the Dayak Siang, Dayak Murung and Dayak Bakumpai indigenous communities who reside in the region of Murung Raya Regency, Central Kalimantan, have filed a lawsuit against PT. Indo Muro Kencana (PT. IMK) in the South Jakarta State Court, Tuesday, July 30, 2002. These twenty-nine people have given legal authority to TATR, a team of lawyers from eight organizations including YLBHI, WALHI, ELSAM, JATAM, ALPERUDI, TAPAL, KONTRAS and the legal office of Ahmad Yani.
Those pressing the charges are traditional miners who own mining locations/pits found in several locations including Luit Raya, Sarujan, and Kerikil at the Murung Raya Regency (previously North Barito Regency), Central Kalimantan. Since 1987, the charged (PT. Indo Muro Kencana) have conducted mining activities at all of these community-mining locations.
The charged has taken over mining pits owned by the community with the use of violence, firing shots in the air and at mining equipment owned by the plaintiffs as well as burning the properties and belongings of communities at these sites. The actions of the charged have caused the loss of mining pits owned by the community, which are the source of livelihood for the community. This has caused deep suffering and misery for the community.
The indigenous communities have thus chosen to take legal action against the company in order to resolve the problems of the community that have up until now have been blocked with dead ends. PT. IMK/Aurora Gold has never been seriously addressed any of the issues of the community. In fact, the company has shown their refusal to take responsibility for the negative impacts they have caused for the local communities.
The Dayak Siang, Murung and Bekumpai communities have been facing a brick wall. PT. IMK/Aurora Gold has rejected all claims made by the community in a letter dated August 30, 1999. Letters rejecting the existence of PT. IMK have also included various community demands to the company. These include among others: a written open apology to all people in the twelve villages as well as other villages impacted by PT. IMK's activities; recognition of the rights of the Dayak Siang, Murung and Bekumpai indigenous communities; recognition that since the beginning of PT. IMK s mining activities, the company has taken over the rights of the indigenous communities to life, business and development; calls to the company to cease mining operations and leave the area; rehabilitation of the environment that has been degraded because of mining, including rehabilitation on the rivers, forests, lands, cultivations, mining pits as well as several other demands.
The actions of the charged in taking over the mining pits of the community and destroying the plaintiff s mining equipment have clear manifestations of violated international laws, national laws, customary laws and religious laws on the environment and indigenous communities of the Dayak Siang, Murung and Bakumpai indigenous communities. These include:
1. The actions of the charged go against ILO Convention No. 169 regarding Indigenous and Tribal Peoples in Independent Nations, in Article 7 (1) The peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development. In addition, they shall participate in the formulation, implementation and evaluation of plans and programmes for national and regional development, which may affect them directly.
2. The actions of the charged are against Indonesian Civil Law Article 1365 that states that Actions that violate the law, that bring losses to other persons, obligates the guilty party who has caused the losses to provide compensation for those losses . Thus, the plaintiffs are filing this lawsuit because the plaintiff s rights on their mining pits have been taken away with the use of force. Article 5 of Agrarian Act states that Agrarian law on the earth, water and atmosphere is customary law, as long as it does not go against national and state interests, based on national unity, Indonesian socialism and regulations found in this Act and other regulations, while upholding items found in religious law.
3. The actions of the charged have also broken obligations made in the Contract of Work between the Government of the Republic of Indonesia and the charged since the charged parties have taken over mining pits and equipment owned by the plaintiffs. The actions of the charged go against and/or violate regulations in the Contract of Work. Article 4 (2) of the Contract of Work states that Not included in the Contract of Work area is the providing of all Mining Authority. Requests of Mining Authority that are in process by the Government prior to this Agreement as recorded in Annex C of this agreement, and all Mining authority of Class C minerals will be dealt with by the Local Government and Community Mining Activities .
4. The actions of the charged in taking over gold mining pits and equipment owned by the plaintiffs go against the values of the humanity of the community held by the Dayak Siang, Murung and Bakumpai indigenous communities as stated in Customary Law: Kouh Dusa Nyakah Atawa Manting.......Whoever deliberately or not deliberately, carries out actions that disturb, destroy and dispose of the belongings or the rights of another person......... and Kouh Dusa Ngorampah atawa Ngamah Ramu Dulun Bokon....Whoever deliberately or not deliberately carries out actions of disturbing, taking over with force and other similar actions on the properties of right holders and thus act alone and not through the channels of customary law....
The actions of the charged on the communities have resulted in the loss of property of the communities in the amount of Rp 364.213.500 ( three hundred and sixty-four million, two hundred and thirteen thousand and five hundred Rupiah) and a total gold loss of the community in the amount of 379,171 ( three hundred and seventy nine thousand, one hundred and seventy one ) grams of gold.
PT. Indo Muro Kencana
PT. Indo Muro Kencana (IMK)'s Contract of Work was made between the Government of the Republic of Indonesia and PT. Indo Muro Kencana. At the time of the signing of the Contract of Work, PT. Indo Muro Kencana was owned by Duval Corporation of Indonesia, Pelsart Muro Pty.Ltd, Jason Mining Limited and PT. Gunung Muro Perkasa. Agreements in the contract were signed by the President of the Republic of Indonesia in 1985 via Contract of Work No.B-07/Pres/1/1985 dated January 21, 1985. The Contract of Work was to cover a period of thirty years (1985 2014). Since 1997, the majority of the shares in PT. IMK have been owned by Aurora Gold Ltd, a gold mining company from Australia that now owns 100 % of the shares of PT. IMK. The gold mining location area is 47,962 hectares.
Based on the Contract of Work, PT. IMK's operational period is thirty years which means that the company s operations are due to end in 2014. However, since the gold reserves have shown insufficient potential, the company will close their operations sooner than originally planned. The counting of leftover gold reserves shows only 1.482 million tons, consisting of 3.74 grams per ton of gold and 99 grams per ton of silver. The limited gold reserves have thus pushed PT. IMK to close operations in September 2002.
PT. IMK's gold mining Contract of Work area in the Murung Raya Regency covers the Districts of Murung, Tanah Siang, and Permata Intan. Previously, the lands in these three districts were used as community gold mining sites, indigenous lands, sacred lands and community gardens. The communities were the first to discover the gold in the area and proceeded to mine the gold using traditional methods. This is a long part of their history. By 1979-1980, the community miners in Luit Raya were using water pumps and other machines in their gold mining activities.
With the issuing of PT. IMK's Contract of Work, the communities were faced with an upheaval in their way of life. Conflicts between the indigenous community gold miners and PT. IMK/Aurora Gold have resulted in the mining concession area.
Legal Authority of the Plaintiffs
A team of eight lawyers associated with TATR -Community Mining Advocacy Team (Tim Advokasi Tambang Rakyat) has filed a lawsuit on behalf of the plaintiffs, the Dayak Siang, Murung and Bekumpai indigenous communities. These eight lawyers and their organizations are; Chairil Syah, SH, (Legal Alliance for Democracy in Indonesia/ ALPERUDI), Zen Smith, SH, (ALPERUDI), Ersan Budiman, SH, (ALPERUDI), Abdul Haris Semendawai, SH, (ELSAM-Institute for Policy Research and Advocacy), Supriyadi Widodo Eddyono, SH (ELSAM), Munarman, SH, (YLBHI), Kurniawan Adi Nugroho, SH, (YLBHI), Lukmanul Hakim, SH, (Environmentalist Defender Network /TAPAL), Sinung Karto, SH. (KONTRAS), Ahmad Yani SH, (Legal Office of Ahmad Yani), Hasanuddin, SH, (Mining Advocacy Network-JATAM), Isna Hertati, SH (Indonesian Forum for the Environment -WALHI).
Note: In an Aurora Gold press statement dated May 17, 2002, the company announced that it had entered into a Heads of Agreement to sell its interest in PT Indo Muro Kencana to Archipelago Resources Limited, also from Australia. Aurora Gold expects that the sale will be completed on July 31, 2002 upon completion of due diligence. In April 2002, Archipelago Resources Limited purchased Aurora Gold s other mining investment in Indonesia, the Toka Tindung project. The Heads of Agreement states that the Aurora Gold is responsible for the reclamation of existing mining areas and the paying out of all employee entitlements up until the date of the sale completion. The May press statement also stated that Aurora Gold expects to stop all mining operations at Mount Muro in June and complete the reclamation of the existing mining areas prior to the sale completion date.