ANALISIS YURIDIS IZIN USAHA PERTAMBANGAN PASCA PERATURAN MENTERI ESDM NOMOR 28 TAHUN 2017 TENTANG PENINGKATAN NILAI TAMBAH MINERAL MELALUI KEGIATAN PENGOLAHAN DAN PEMURNIAN DALAM NEGERI

Abstract

Legislation concerning mining practices in Indonesia continues to evolve to this day. The existence of government legislation number one of the year 2017 has been a major boon for the the national government of Indonesia’s efforts to better control mining practices in Indonesia, but has thus far proven to be inadequate in establishing coherence to the rule of law. Thusly the ministry of energy and natural resources has commissioned legislation in the form of ministerial regulation number 5 of the year 2017 concerning commodity pricing control towards minerals through processing and refining. The aforementioned ministerial legislation accommodates regulations concerning the transition of “kontrak karya” towards “izin usaha pertambangan” as well as obligations of contract holders in constructing purification and processing facilities in Indonesi. In the span of no more then 3 months, the ministerial legislation was revised into ministerial legislation number 28 of the year 2017, which in its contents, contains judicial instructions that benefits contract holders leeway in the transitional process form “kontrak karya” to “izin usaha pertambangan”. The methodology used in the writting of this thesis is juridical empiricism, which is an approach method that utilizes primary sources which are relevant to the study. After analyzing primary sources, seondary sources are used to suplement the study further. After both sources are properly accounted for, the writter then analyzes the materials using a method known as analitical description. The conclusion taken from this method of approach is one where deduction takes prcident, which is the mindset where constitues facrs that are general in nature, then simplified further as to create a resault that is more generalized This thesis aims to understand, firstly, the judicial implications regarding “izin usaha pertambangan” post the applications that the new ministerial regulation brings forth. Secondly, how to handle problems presented with implementing the new provisions of the ministerial regulation into the dynamic of distribution of “izin usaha pertambangan” the results of this thesis highlights a few interesting key points, firstly, the implication of post ministerial legislation integration into the legal mining framework has shown that processing and refining activities following these new provisions has been designated as the new de facto rule of law. Provisions concerning permits that is regulated regarding commodity pricing by the central government has been changed. Secondly, there are many obstacles concerning the implementation the new provisions instituted by the new ministerial regulations into the legal framework, this is explicitly show in the distribution of mining rights. The obstacles mentioned above are as follows: the submission of a judicial review to the constitutional court of Indonesia has resulted in the hindered the implementation of the new provisions constituted within the new ministerial regulations. Contract holders have decided to press charges against the Indonesian government to the international court of justice on the grounds that the national government has violated provisions of the contract in which both parties have agreed upon prior to the implementations of mining permits. As a result, the national government of Indonesia has given special ad hoc mining permits towards contract holders as a way of mitigating the problems brought forth with the governments efforts to revise the mining permit system in Indonesia.