Energy Observer: Don't Agree To Changes In Share Owner Ownership Ownership Of Mining Business Permits

Energy and mining observer who is also an alumnus of the Colorado School of Mines, Insitut Francaise du Petrole and the University of Indonesia, Kurtubi reminded officials at the Directorate General of General Legal Administration (AHU) of the Ministry of Law and Human Rights not to be rash in granting approval for the change in share ownership of the mining business license holder company (IUP).

Because, said Kurtubi, as long as the change in ownership of the Concession - another term for the IUP - a mining area must be approved by the Ministry of Energy and Mineral Resources (ESDM) as the party authorized to issue a Concession / IUP.

According to him, the transfer or buying and selling of Concession/IUP that often occurs today is one of the weaknesses of the Concession System (IUP) adopted by the government today, in addition to many other weaknesses such as parties/institutions authorized to issue concessions/IUPs often changes from the Regent to the Governor and then return to the Ministry of Energy and Mineral Resources.

President Director of PT Citra Lampia Mandiri (CLM) Helmut Hermawan confirmed the illegal practice of mining mafia through PT Aserra Mineralindo Investama (AMI) and took over shares of PT CLM and PT Asia Pacific Mineral Resources (APMR) and seized PT CLM's nickel mining.

Starting with the invitation to cooperate with PT AMI to PT CLM through the agreement of PT AMI to deposit capital US$ 28.5 million. However, only 2 million US dollars have been deposited, AMI has claimed ownership, followed by the seizure of mining land.

"After transferring funds, even though the numbers are far below their obligations, they can change the cooperation deed themselves, without going through the GMS mechanism - which incidentally is illegal - to land grabbing," Helmut said in his statement, Friday, December 23.

Helmut said the mining mafia, among other things, took advantage of loopholes from the Online General Legal Administration System (AHU) - Ministry of Law and Human Rights, which gave confidence to notary officials to carry out unlawful executions. That's why, continued Helmut, his party asked for legal protection.

PT CLM and PT APMR have become victims of illegal and unlawful takeover of shares by PT AMI. In fact, the takeover of shares received recognition from the Directorate General of AHU of the Ministry of Law and Human Rights, even though it violated the Minerba Law No. 3 of 2000 and a court decision that had permanent legal force (inkracht).

Perhaps in the field there have been other developments in the form of forced takeover and breaking the law against various assets and property of PT CLM in its nickel mining concession area in Kec. Malili, Kab. East Luwu, South Sulawesi by a group of people claiming to be the management of PT CLM, which was just led by Zainal Abidinsyah Siregar. Ironically, this incident seemed to have the blessing of the East Luwu Police because the police did not try to prevent the takeover.

The gang of thieves claimed that the takeover had a legal basis in the form of the acquisition of shares of PT CLM which had received the blessing of the government through the Directorate General of AHU of the Ministry of Law and Human Rights. But ironically this ratification contradicts the Minerba Law and a court decision that has permanent legal force (inkracht). And then it turned out that it was again proven that the acquisition of shares of PT CLM and PT APMR was legally flawed.

The case that befell PT CLM and PT APMR was called the Chairman of Indonesia Police Watch (IPW) Sugeng Teguh Santoso as a mafia practice that used the 'Hostile Take Over' pattern, namely the forced attempt to take over the shares of the mining company with a legal process that seemed as if it were legal but actually illegal.

Hostile take over usually begins with a cooperation agreement or purchase of official company shares that have a Mining Business License (IUP). However, through strong networks/networks, especially in legal institutions, they then take over the company's shares cheaply.

Kurtubi continued that another weakness of the concession system is that the party authorized to issue a Concession/IUP often uses its authority as a source to obtain money, so that IUPs for a mining area overlap over each other because IUPs are expelled by more than one.

"Another weakness is that the Concession/IUP holder is too easy to trade his IUP. Even the IUP that has just been received from the Regent/Gubernur/ESDM, has often been traded to investors who really have funds/modals," added Kurtubi.

According to Kurtubi, the fatal weakness of the Concession/IUP system, both under the Minerba Law No.4/2009 and Law No.3/2020, was due to Concession/IUP and also a Work Contract (PKP2B) which is a colonial-era mining governance system that does not reflect the management of natural resources (SDA) which should refer to Article 33 of the 1945 Constitution, which must be controlled by the state for the greatest prosperity of the people.

As a comparison, in the Oil and Gas Sector, since 1960 based on Law No.44/Prp/1960 and Law No.8/1971, the Concession/IUP system and Work Contract System (PKP2B), are no longer used and replaced with a Revenue Sharing Contract system between State Companies (PN) which was formed under a contract with Mine Investors. The state obtained a share of 65% and the Investor processed 35 percent.

With the concession system, the state is not guaranteed to receive greater revenue from the benefits made by miners. Because in the Minerba Law, it is not specifically stated that wealth/assets in the form of mineral and coal reserves in the earth's stomach are state property and must be managed for the greatest prosperity of the people.

Therefore, the Consession holders feel as if the minerba assets / reserves in the earth's stomach belong to them. It is enough to bring a geolygist report about the estimated mineral and coal reserves in the concession area, then taken to the bank to obtain a loan. Even though the mineral reserves in the earth's stomach are owned by the state and only the owner has the right to wear them to the bank.

Kurtubi emphasized that all oil and gas reserves and mineral and coal in the stomach are state-owned and must be controlled by the state by means of the state to form a State Company (PN) with the law and the PN is authorized by the Mining Authority. All investors must have a "B-to-B" share of the proceeds with the State Company that holds the Mining Authority (PNPKP) by distributing results such as in oil and gas (65:35).

"Thus, there will be no more buying and selling of Concession (IUP) and the State/APBN will certainly receive revenue from natural resources which must be greater than the profits of investors in mining businesses," concluded Kurtubi.