Court Rejects Cassation Appeal, Tambang Mas Sangihe’s Contract of Work Annulled

The Supreme Court's ruling rejecting the cassation appeal regarding PT Tambang Mas Sangihe’s (TMS) contract of work has permanent legal force. PT TMS plans to submit a review.

AYU NURFAIZAH UNTUK KOMPAS

Residents of the Sangihe Islands, North Sulawesi rallied in front of the Directorate General of Corrections Building, Central Jakarta, Thursday (17/11/2022).

MANADO, KOMPAS — The Supreme Court has rejected a cassation request regarding the contract of work for the production operations of PT Tambang Mas Sangihe (TMS). With this ruling, the energy and mineral resources minister must revoke the contract of work.

The Sangihe people coalition called the rejection of the cassation a victory. As for PT TMS, the company plans to submit a judicial review (PK).

"As Sangihe people, of course we are very joyful. Without the defense of the Regional Legislative Council [DPRD] and the regional administration, it turns out that the law can really be upheld through a long struggle of the people," said Jan Takasihaeng, coordinator of the coalition of communities rejecting PT TMS, Save Sangihe Island (SSI) on Monday (16/1/2023).

The Supreme Court handed down the ruling on the case on Thursday (12/1), 42 days after the cassation appeal was filed by the energy and mineral resources minister and PT TMS. With the Supreme Court ruling, the decision of the High State Administrative Court (PT TUN) Jakarta No. 140/B/2022/PT.TUN.JKT, which required the energy and mineral resources minister to revoke Decree No. 163.K/MB.04 /DJB/2021 regarding the approval of the increase in the production operations stage of the contract of work of PT TMS, remains valid.

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The head of the SSI legal team, Revoldi Koleangan, said that this Supreme Court ruling had permanent legal force, even though the process of minutation, or the decision dossier, was still ongoing. The consideration of the panel of judges is not yet known.

"We hope that next month we will have a complete decision," he said.

With the rejection of the cassation appeal regarding the increase in PT TMS's production operation work contract status, all supporting permits that the Canadian-based company has obtained are no longer valid. This includes an environmental permit from the North Sulawesi Administration, which was sued by SSI and went through to the cassation process at the Supreme Court.

On 22 December 2022, the Supreme Court rejected SSI's lawsuit so that the permit remains valid. “However, if the main permit is no longer effective, surely the other permits will also expire, because this Supreme Court ruling adheres to the principle of erga omnes, binding all parties," said Revoldi.

We hope that next month we will have a complete decision.

Revoldi also stated that PT TMS had never had a valid mining permit according to Law No. 4/2009 concerning minerals and coal (Minerba), which has been amended in Law No. 3/2020. Supposedly, contracts of work drawn up before the two laws were issued must be changed into special mining business permits (IUPK), including the contract of work for PT TMS which was made in 1997.

In addition, according to Article 6 of Law No. 30/2014 concerning government administration, government officials can only issue permits, not make contracts. “So, the decree on increasing the status of the production operation contract of work is just camouflage. According to the law, it should be in the form of a permit, not a contract," said Revoldi.

KOMPAS/KRISTIAN OKA PRASETYADI

Dozens of students staged a demonstration at the North Sulawesi Governor's Office, Manado, Monday (21/6/2021), to refuse a special mining business permit for PT Tambang Mas Sangihe.

Therefore, Revoldi asked PT TMS to stop carrying out any activities. The government and legal apparatus must also comply with this inkrah (final and binding) decision. If the energy and mineral resources minister and PT TMS want to submit a PK appeal, Revoldi stated that the SSI was ready to face it.

In line with Revoldi, Jan also stated that the local community hoped that PT TMS would no longer continue to use force to mine gold on Sangihe Island, a small island covering only 73,698 hectares. Several times, he said, PT TMS had mobilized heavy equipment on the mining site while the legal process was ongoing. This was carried out in December 2021 and in February, June and August 2022. These mobilizations always ended in clashes between the residents and the apparatus guarding the heavy equipment.

"In the future, we hope that the regency and provincial administrations as well as the police, in this case the Sangihe Police, will comply with the decision that has just been issued. They must no longer provide security guards when PT TMS asks for safeguarding heavy equipment," said Jan.

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This clashes, according to the SSI, resulted in the criminalization of one of their activists, Robison Saul. He was arrested on 30 June 2022 and was charged with possession of a sharp weapon in the form of a knife made from white iron. Robison was accused of violating Article 2 Paragraph (1) of Emergency Law No. 12/1951.

The trial in the Robison case is still ongoing, but Jan hopes his colleague can either be released or sentenced to prison for a period equal the time he has already spent in custody.

"He has been detained for quite a long time, almost seven months," he said.

Judicial review

On the other hand, PT TMS stated that it would submit a PK appeal as soon as the cassation decision document was published. Legal director of Baru Gold, the parent company of PT TMS, Rico Pandeirot said the Supreme Court made two conflicting cassation decisions, namely ordering the revocation of the increase in the status of the contract of work as well as declaring PT TMS's environmental permit valid.

Rico also said that PT TMS still fully had the right to carry out mining activities in Sangihe, specifically in Bowone village, Tabukan Selatan Tengah District.

“Contracts of work have been recognized since the Minerba Law was passed. So, our contract of work is still legal and valid, recognized by the government of Indonesia," he said.

The problem is, why haven't we been able to mine until now?

He also claimed that Baru Gold had always paid taxes and royalties to the government since 1995. The only way to cancel PT TMS's contract of work, according to him, was international arbitration.

"The problem is, why haven't we been able to mine until now? Those who mine there are illegal miners, PETI [unlicensed gold miners]. Also, when it talks about environment, SSI is very extraordinary, but in terms of PETI, it is melempem [powerless]. So [the members are] hypocrites too,“ said Rico.

Rico also complained about the impartiality of the legal apparatus towards PT TMS, which he said clearly had an official license. Several times, according to him, requests for escorting the mobilization of heavy equipment were rejected by the police. Rico also claims, by attaching a citizen's video, that the police were actually escorting the excavator belonging to PETI.

Meanwhile, the Energy and Mineral Resources Ministry has yet to respond to the Supreme Court's ruling. Bureau of Communication, Public Information Services and Cooperation head at the Energy and Mineral Resources Ministry, Agung Pribadi, said that he would consult first with the legal bureau. The North Sulawesi Administration had previously stated that it would not conflict with residents.

This article was translated by Kurniawan Siswo.