Gold Mine in Indonesian Forest: Wages of Protest is Death

By Bob Burton

CANBERRA, Australia, February 10, 2004 (ENS) - For the past month, three organizers of a campaign by traditional land owners against development of a gold mine in the Toguraci protected forest have languished in jail - but at least they are alive. One of their fellow campaigners is not.

On Monday in Jakarta, a protest in support of the community activists pressed the Indonesian National Commission on Human Rights (Komnas HAM) to dispatch a team to undertake a field investigation into abuses against the mine opponents in North Malaku province.

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This banner was displayed Monday as people from the Toguraci forest gave evidence of abuse to the human rights commission. The banner says "Investigate Thoroughly! Human Right Abuses in North Maluku - Kao and Malifut Indigenous Alliance." (All photos by Igor O'Neill courtesy Mineral Policy Institute)
An international alert from Friends of the Earth International mobilizing supporters to lobby the police has resulted in improved conditions, but not freedom, for the three jailed organizers.

The Toguraci protected forest on the Indonesian island of Halmahera is one of 22 areas in Indonesia where mining interests, with the backing of the Australian government, are pressing the Indonesian government to overturn a ban on open-cut mining in protected forests.

The arrest of the three men - Reynold Simanjuntak, Asrul Hisuaibun and Fahri Yamin - occurred early on the morning of January 7 during a demonstration by some 850 protesters from the Kao and Malifut communities against the gold mine operating in a protected forest.

Having given prior notice to the local police of the planned protest, they were met at the mine by the Mobile Brigade riot police, known in Indonesia as Brimob.

According to community sources, shortly afterwards one of the Brimob officers directed the unarmed protestors to sit on the ground, which they did. He fired three warning shots into the ground at the feet of the protesters and then, at a range of approximately three meters, shot and killed community activist, Rusli Tungkapi, 30.

Many in the protest group were then beaten and arrested. All but three now have been released.

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Indigenous people protest the Newcrest open pit gold mine in the Toguraci protected forest. October 2003.
The Indonesian National Commission on Human Rights has announced an investigation into the killing of Tungkapi and other acts against the protesters. A Brimob commander has been arrested for the killing.

In an English translation of a January 27 letter to police headquarters, Komnas HAM wrote, “Besides the shooting, it is reported that Brimob paramilitary police of North Maluku made arrests and vicious beatings of scores of members of the Kao and Malifut local community. Currently the community is living in fear as Brimob has begun searches for those involved in the peaceful protest action of 7 January 2004."

"If the report is correct," wrote the human rights commission, "then the shooting, arrests and vicious beatings are human rights violations.”

The Melbourne based mining company, Newcrest, and the Australian government both lobbied Indonesian government ministers to deal with the protestors after the mine site was shut down for five weeks in October and November 2003. Both are unrepentant.

Newcrest General Manager of Corporate Affairs Peter Reeve acknowledges and defends the company's payment of US$35,000 a year for the 65 man Brimob unit for its services in protecting the mine. “We pay upkeep and an expenses type service fee,” he said.

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Soa-Pagu tribesman in the Toguraci protected forest
In a speech to the Brisbane Mining Club on November 28, 2003, Newcrest Chief Executive Tony Palmer said that the police and army had refused to get involved at first when the proposed mine site was occupied by over 2,000 people in October 2003.

The Brisbane newspaper, "The Courier Mail," reported that the assembled mining executives laughed when Palmer outlined plans to use a militia to deal with the protestors.

Newcrest, which has a 82.5 percent stake in PT Nusa Halmahera Minerals, has gone to extraordinary measures to build its proposed mine in the Toguraci protected forest.

In May 2003 Newcrest successfully pressed the Indonesian Ministry of Forests for a temporary exemption from the ban on open pit mining in protected forests in the expectation that the Indonesian Parliament would soon weaken the law.

Newcrest won the temporary exemption, but widespread opposition by community groups and local officials stalled plans to remove or weaken the law - Article 38(4) of the Forestry Act, which bans mining in protected areas.

While Reeve, acknowledges the exemption expired in June 2003, he claims support from the Indonesian government mining department means the company does not need to wait to see if the Indonesian Parliament overturns the ban on mining in protected forests before developing the gold mine.

“The intent of that permit at the time was to continue through and to [allow us to] put the necessary things in place to allow the construction permit to be granted, which it was, and we have put the mine in place. Now you can’t rescind permits after a certain period of time, and then say that you can’t do that anymore and so we’ll put the trees back up,” Reeve said.

Igor O’Neill, a spokesman for the mining watchdog group Mineral Policy Institute, visited the mine site late last year and is currently in Jakarta. O"Neill argues that getting a nod from the Indonesian mining agency does not overcome the provisions of the Forestry Law. “These legal instruments are clearly subordinate to Indonesian Acts. As in any jurisdiction, this means all current laws are applicable, including the Forestry Law,” he said.

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The Newcrest subsidiary PT Nusa Halmahera Minerals has cut into the Toguraci protected forest for gold.
Newcrest, along with other major Australian mining companies including BHP-Billiton and Rio Tinto, succeeded in enlisting the support of the Australian Embassy in Jakarta to press the Indonesian government to accommodate the mining industry demands.

A spokeswoman for the Australian Department of Foreign Affairs and Trade said the introduction in 1999 of a new Indonesian Forestry Law "contradicted the legal rights of a number of mining companies, including Newcrest, to operate under Contracts of Work agreed with the Indonesian government before the law came into effect."

"The Australian government has sought, as a matter of principle, to encourage Indonesia to honor its existing contracts with mining companies,” she said.

O’Neill argues that the provisions of the mining contracts warn that legislation affecting the company may change. Nor, he argues, is there the legal power for Newcrest to gain an exemption or claim that provisions banning open-cut mining in a protected forest are overridden.

“The mines operation is, therefore, unambiguously in violation of Article 38(4) of the Forestry Act. The Act contains no provisions, which would allow the restrictions of Article 38(4) to waived under any conditions. No permits issued by the forestry minister, mining minister, president or others have the authority to waive the provisions of Article 38(4), nor of Article 19,” O'Neill wrote in a legal analysis of Newcrest’s claims.

Four tribes of indigenous people live in the Kao and Malifut districts surrounding the gold mine site, which is located in a protected forest of ancestral significance.

In November 2003, over 2,000 local indigenous people occupied Newcrest's Toguraci mine siteand halted work at, demanding compensation and a share in benefits from Newcrest's previous gold mining since 1999.

At a press conference in Jakarta last December, indigenous spokesman Jhon Djinimangele said, "Mining activity has taken place all throughout Toguraci. We think it's affected about 60 hectares, and we're worried exploration and mining will expand to take over more and more traditional land."