Irreversibility is governed in Government Regulation No. 43 of  2021 on Settlement of Spatial, Forest Area, Permits, and/or Land Rights  Non-Conformity (“GR 43/2021”) which defines it as: “a condition in which Permit, Concession, Land Right, and/or Management Right is issued in accordance with the applicable laws and regulations at the time, however becomes non-conforming with the prevailing laws and regulations.”1 In specific, one of the issues governed in GR 43/2021 is on the non-conformity of permit, concession, land right, and/or management right within forest area due to irreversibility. In this matter, irreversibility is related to the control and utilization of permit, concession, land right, and/or management right within forest area prior to the appointment or designation of the area as forest area.2

In the occurrence of irreversibility, GR 43/2021 governs about how such problem can be settled. The existence of settlement of irreversibility is in fact one of the implementations of Law No. 11 of 2020 on Job Creation (“Job Creation Law”) as repealed by Government Regulation in Lieu of Law No. 2 of 2022 on Job Creation.

Irreversibility of permits, concessions, land rights, and/or right of management within forest area is regulated under Article 11 of GR 43/2021 as elaborated above. This settlement of irreversibility can be applied in the issue of palm-oil plantation within forest area that occurred prior to the stipulation or promulgation of new laws and regulations.

Implementation of Irreversibility Aspect

This article will discuss how the irreversibility aspect becomes one of the issues taken into account by the Panel of Judges in assessing and deciding dispute on environmental unlawful act  through the Rokan Hilir District Court Decision No. 1/Pdt.G/LH/2021/PN Rhl.

Disputing Parties

The claimant is an environmental organization named Yayasan Wahana Sinergi Nusantara (Wasinus), whereas the Defendant is a private party and Co-Defendant is Ministry of Environmental and Forestry (Minister of Environment and Forestry).

Background

The basis of the claim asserted by the Claimant is that the Defendant conducted unlawful act because of his ownership of palm-oil plantation and other facilities in the area of ± 756 hectares (“disputed object”) within the forest area based on Decree of Minister of Forestry No. 173/Kpts-ll/1986 dated 6 June 1986 on Appointment of Forested Area in Riau Province Level I Region as Forest Area. Specifically, the disputed object is within the preserved forest area based on Regional Regulation of Riau Province Level 1 Region No. 10 of 1994 on Spatial Planning for Riau Province Level 1 Region (“Regional Regulation 10/1994”). The Claimant claimed there has been an environmental destruction to the forest area because of the existence of disputed object. Whereas, Co-Defendant was involved in this dispute because it is the public legal entity who issued decree on forest area, not because its conduct of unlawful act.3

In this dispute, the Claimant asked the Panel of Judges to determine that the disputed object is within the preserved forest area and punish the Defendant to restore the condition of the disputed object, whereas the Co-Defendant is requested to comply and obey the decision.

Read Also  Registration Procedure of Waqf Land

Defendant’s Arguments

Preserved Forest Area that is argued by the Claimant was yet to be finalized or definitively designated according to the Decrees of the Minister of Forestry. In addition to that, Job Creation Law on Prevention and Eradication of Forest Destruction sector also regulates about irreversibility using the term ‘established plantation’4 in which obligating the settlement of this dispute through administrative procedures referring to Government Regulation No. 24/2021 on Procedures for Imposing Administrative Sanctions and Procedures for Non-Tax State Revenue Derived from Administrative Fines in the Forestry Sector (“GR 24/2021”).5 Thus, the Defendant simply argued that the forest area designation had yet to happen at the time he obtained land rights, in this case are Certificates of Right of Ownership (“SHM”) that are evidence numbered T-17 – T-124, of the Disputed Object.

Panel of Judges’ Consideration

The Panel of Judges first considered whether the disputed object is actually in forest area. Therefore, Panel of Judges assessed whether process of forest gazettement – consists of appointment, delineation, and designation processes – has been carried out. Based on the revealed facts, gazettement has been carried out since the processes abovementioned have been done, as also described in Decree of Minister of Environment and Forestry No. SK. 903/MENLHK/SETJEN/PLA.2/12/2016.6

After the assessment that concludes the determination that states the geographical location of the disputed object is within the forest area, thus the Panel of Judges considered whether the Defendant’s possession over the disputed object is unlawful act. In this matter, the Panel of Judges assessed that the possession over the disputed object by the Defendant contradicts with Article 50 paragraph (3) of Law No. 41 of 1999 (“Forestry Law”) on Forestry which governs about the actions that are prohibited to be conducted on forest area.  Specifically, the Panel of Judges assessed that the Defendant’s possession contradicts with letter a and b of the aforementioned article, particularly governing the prohibition to cultivate and/or use and/or occupy forest area illegally and encroach forest area. Accordingly, the Panel of Judges assessed that the Defendant’s possession over the disputed object is formally unlawful act — contradicting with the laws and regulations.7

Subsequent to the consideration that the Defendant’s possession over the disputed object is formally unlawful act, the Panel of Judges then considered whether SHM filed by the Defendant as evidence and underlying right of his possession over the disputed object is an irreversibility. Panel of Judges referred to the regulation as abovementioned which is Article 1 point 11 of GR 43/2021.

First, the Panel of Judges considered irreversibility of spatial nonconformity with Riau Province Forest Area based on the SHM evidence, issued in 2006, filed by the Defendant. The Panel of Judges applied Regional Regulation 10/1994 proving that the Disputed Object is within the Preserved Forest Area. Therefore, the SHM cannot be the underlying right of the disputed object.8

Furthermore, Panel of Judges referring to GR 43/2021 defined that irreversibility on land rights exists if such right was issued prior to the appointment or designation of forest area. Nevertheless, referring to Decree 173/1986, it can be concluded that the appointment of forest area occurred in 1986 whereas SHM, filed as evidence, were issued in 2006.9

Read Also  Implementation of an Electronic-Based Government System within the Ministry of Agrarian Affairs and Spatial Planning/National Land Agency

Defendant argued that the case shall be settled administratively due to the existence of irreversibility by referring to Articles 110A and 110B of Act 18/2013 as supplemented by Job Creation Law. Panel of Judges considered that the article governs about person conducting business that has been established and owned Business Permits within the forest area. However, facts revealed that Defendant does not have permit in conducting his palm oil plantation established on the Disputed Object. Thus, the articles could not be applied for the Defendant.10

Court Decision

First, assessment that SHM, that were deemed as underlying right  by the Defendant for his possession over the disputed object, are not irreversibility. It is due to the fact that when the SHM were issued, the area where the disputed object was located has been determined as preserved forest area. Second, such possession contradicts with Forestry Law because by possessing the disputed object, it means that the Defendant cultivated and/or used and/or illegally occupied the forest area, as well as encroached the forest area.11 Third, the Defendant did not even have the permit in conducting its palm oil plantation business, only used SHM as underlying right for his possession.12 For these reasons, Panel of Judges assessed that the Defendant’s possession over the disputed object is unlawful act.

Closing

Irreversibility, as elaborated above, is a condition in which permit or land right was issued prior to the existence of the new laws and regulations that make the issuance of the permit or land right becomes non-conforming with the prevailing laws and regulations. In the case of environmental dispute in relation to forest area – such as palm-oil plantation, building, and as such – it is important to assess whether there is irreversibility of the underlying right that is used to carry out such activities in forest area, especially in the case the underlying right at the time of the dispute is not in accordance with the prevailing laws and regulations.

Brigieth Rungo Rata

 

 

Sources

  1. GR 43/2021, Article 1 point 11.
  2. Ibid, Article 11 paragraphs (1) and (2).
  3. Rokan Hilir District Court Decision No. 1/Pdt.G/LH/2021/PN Rhl. pp. 3-9.
  4. Articles 110A and 110B of Law No. 18 of 2013 (“Law 18/2013”) is supplemented by Job Creation Law
  5. Rokan Hilir District Court Decision No. 1/Pdt.G/LH/2021/PN Rhl. pp. 86-89.
  6. Rokan Hilir District Court Decision No. 1/Pdt.G/LH/2021/PN Rhl. pp. 92-95.
  7. Rokan Hilir District Court Decision No. 1/Pdt.G/LH/2021/PN Rhl, p. 96.
  8. Rokan Hilir District Court Decision No. 1/Pdt.G/LH/2021/PN Rhl, p. 98.
  9. Rokan Hilir District Court Decision No. 1/Pdt.G/LH/2021/PN Rhl, p. 98.
  10. Rokan Hilir District Court Decision No. 1/Pdt.G/LH/2021/PN Rhl, pp. 99-100.
  11. Forestry Law, Article 50 paragraph (3) letter a and b.
  12. Rokan Hilir District Court Decision No. 1/Pdt.G/LH/2021/PN Rhl, pp. 105-106.