Monday, 3 March 2008

Into the woods

Opinion and Editorial: Into the woods

Source: The Jakarta Post - February 26, 2008

Even with so many laws and regulations already enacted to enforce the sustainable management of our forest resources, illegal logging has remained common throughout the country.

So, we can only imagine what will happen with the broad license for the plundering of our protected forests as provided by President Susilo Bambang Yudhoyono through Government Regulation No. 2/2008.Yet, both the President and Forestry Minister M.S. Kaban last week stubbornly defended the regulation as an additional measure to protect forests, and blamed environmentalists and analysts for misreading the regulation.

We cannot help but wonder how the government could have issued such a bad regulation that virtually allows companies to exploit protected forests as long as they are willing to pay annual rental fees ranging from Rp 1.2 million (US$125) to Rp 3 million per hectare.

Is the government so strapped for additional revenue that it is willing to trample upon the principle of sustainable forest management?

The presidential decree does take into account a previous regulation issued by then president Megawati Soekarnoputri in 2004 (Government Regulation No. 41/2004) that allowed 13 mining companies to conduct mining operations in designated protected forests under certain conditions.

However, this newest regulation was not issued specifically to collect additional levies (rents) from the 13 mining companies, as the government claims. Nor does the regulation specifically name the 13 mining firms as the targets of the rental fees.

Yet potentially more devastating to our forests is that Government Regulation No. 2/2008 further broadens the categories of business operations that can encroach on protected forests, to include the building of electricity transmission and distribution networks and turnpikes.

We find it difficult to understand why Forestry Minister Kaban defended Yudhoyono's decree merely as a follow-up to the 2004 regulation.Megawati issued Government Regulation No. 41/2004 to implement Law No. 19/2004, which was enacted to resolve once and for all the imbroglio surrounding 150 mining concessions that were awarded in protected forests before Law No. 41/1999 was enacted.

This 1999 forestry law banned open-pit mining in protected forests.However, the law could not be enforced retroactively on the 150 mining concessions that were awarded before 1999, otherwise the government would have been plunged into messy international litigation that could have cost tens of billions of dollars in taxpayer money.

The House of Representatives and the government eventually worked out a political consensus in 2004 (Law No. 19/2004) that allowed open-pit mining operations in protected forests only for several of the 150 mining concessions.

The 13 mining firms were selected by a joint government-House team under stringent criteria: the amount of investment already made, the commercial volume of mineral deposits already found and the potential benefits of their operations to the national economy.

Environmental NGOs asked for a judicial review of Law No. 19/2004 but the Constitutional Court upheld the law in July 2005, ruling the 1999 law on forestry could not be applied retroactively to mining concessions awarded before 1999.Law No. 19/2004 seemed at the time the best compromise between the objectives of protecting our forests and of maintaining legal certainty for investors in the mining sector.

Regulation No. 2/2008 would not have caused such a controversy had it specifically been designed to collect additional fees from the 13 mining companies operating in protected forests. Judging from the arguments both Yudhoyono and Kaban have used to defend the regulation, the 13 mining concessions might have been the primary target of the regulation, but the final decree the President signed on Feb. 4 was not specifically designed for the 13 mining firms.

We find it difficult to understand how Forestry Minister Kaban could have drafted such a controversial regulation and why President Yudhoyono would have signed such a poorly written decree without ordering a comprehensive regulatory-impact analysis.

It is not environmentalists or the general public who have misunderstood the regulation, as Yudhoyono alleged last Friday. Rather, it is the President, who hurriedly signed a poorly drafted regulation.The only thing to do now is annul Regulation No. 2/2008.