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Recent Changes on Guidelines for Mining Business License Area.pdf

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On June 21st 2021, MoEMR issued a new decree regarding the recent changes on requirements and procedures to obtain NonMetal Minerals, Certain Types of Non-Metal Minerals, and Rocks Mining Business License Area. Further, the decree asserted that the authority to stipulate and issue Non-Metal Minerals, Certain Types of NonMetal Minerals, and Rocks Mining Business License Area is delegated by MoEMR to DGMC.

Recent Changes on Guidelines for Mining Business License Area.pdf

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AHRP Legal Alert Page 1 of 9
Legal Alert June 2021
Recent Changes on Guidelines to Obtain Non-
Metal Minerals, Certain Types of Non-Metal
Minerals, and Rocks Mining Business License Area
The Minister of Energy and Mineral Resources (“MoEMR”) has issued MoEMR
Decree No. 110/2021, which regulates a guideline for application, evaluation, and
granting of mining business license area for:
a. Non-Metal Minerals Mining Business License Area/Wilayah Izin Usaha
Pertambangan Mineral Bukan Logam (“Non-Metal Minerals WIUP”);
b. Certain Types of Non-Metal Minerals Mining Business License Area/Wilayah
Izin Usaha Pertambangan Mineral Bukan Logam Jenis Tertentu (“Certain
Types of Non-Metal Minerals WIUP”); and
c. Rock Mining Business License Area/Wilayah Izin Usaha Pertambangan Batuan
(“Rocks WIUP”).
(hereinafter, Non-Metal Minerals WIUP, Certain Types of Non-Metal Minerals
WIUP, and Rocks WIUP collectively shall be referred to as “WIUPs”).
The MoEMR Decree No. 110/2021 is set as the implementing provision of MoEMR
Reg. No. 7/2020,1 and it revoked previous provisions of WIUPS application,
evaluation, and authorization under Appendix VI of MoEMR Decree No.
1798/2018.2 The MoEMR Decree No. 110/2021 is intended to provide the
guidance, including the requirements and procedures, for business actors to obtain
mining business license area, particularly for the WIUPs aforementioned.
Moreover, MoEMR Decree No. 110/2021 also implements the centralization theme
as brought by Law No. 3/2020. Since the enactment of Law No. 3/2020, the
authority related to the mining business activity is centralized at the Central
Government, namely MoEMR. Furthermore, the changes in relation to WIUPs
under the MoEMR Decree No. 110/2021 are specified further below.
A. General Overview on Mining Business License Area
Mining Business License Area /Wilayah Izin Usaha Pertambangan (“WIUP”) is the
area granted to Mining Business License/Izin Usaha Pertambangan (“IUP”) or
Rock Mining License/Surat Izin Penambangan Batuan (“SIPB”) holders.3 The IUP
is the license to carry out a mining business,4 while SIPB is a license granted to
carry out a mining business of certain types of rocks or other certain needs.5
MoEMR Decree No. 110/2021 limitedly stipulate technical provisions for (i) Non-
Metal Minerals WIUP; (ii) Certain Types of Non-Minerals WIUP; and (iii) Rocks
1
Art. 17 MoEMR Reg. No. 7/2020.
2
Dictum No. 8 MoEMR Decree No. 110/2021.
3
Art. 1 (31) Law No. 4/2009.
4
Art. 1 (7) Law No. 4/2009.
5
Art. 1 (13a) Law No. 4/2009.
On June 21st
2021,
MoEMR issued a new
decree regarding the
recent changes on
requirements and
procedures to obtain Non-
Metal Minerals, Certain
Types of Non-Metal
Minerals, and Rocks
Mining Business License
Area. Further, the decree
asserted that the authority
to stipulate and issue
Non-Metal Minerals,
Certain Types of Non-
Metal Minerals, and Rocks
Mining Business License
Area is delegated by
MoEMR to DGMC.
AHRP Legal Alert Page 2 of 9
WIUP. The following is a brief explanation of WIUPs as regulated under MoEMR
Decree No. 110/2021.
a. Non-Metal Minerals WIUP
Non-Metal Minerals WIUP is a part Non-Metal Minerals Mining Business
Area/Wilayah Usaha Pertambangan Mineral Bukan Logam (“Non-Metal
Minerals WUP”). Subsequently, Non-Metal Minerals WUP is part of mining
area in which already has the availability of data, potentials, and/or
geological information, which predominantly contain non-metal mineral
mining commodities.6
b. Certain Types of Non-Metal Minerals WIUP
Elucidation of Article 5 (2) Law No. 4/2009 explains that Certain Types of
Non-Metal Minerals are highly valued, hard-to-obtain non-metal minerals,
diamond and gemstones, or non-metal minerals needed to ensure strategic
industrial supply such as limestone, clay, and sand. Consequently, certain
Types of Non-Metal Minerals WIUP means an area which is part of Certain
Types of Non-Metal Minerals Business Area/Wilayah Usaha Pertambangan
Mineral Bukan Logam Jenis Tertentu (“Certain Types of Non-Metal
Minerals WUP”) and Certain Types of Non-Metal Minerals WUP is part of
the mining area.
c. Rocks WIUP
Rocks WIUP is a part of Rocks Mining Business Area/Wilayah Usaha
Pertambangan Batuan (“Rocks WUP”). Accordingly, Rocks WUP is a part
of a mining area that already has the availability of data, potentials, and/or
geological information which predominantly contain rock mining
commodities.7
B. Requirements to Obtain WIUPs
B.1. Comparison between Provisions under MoEMR Decree No. 110/2021
and the Previous Regulation
MoEMR Decree No. 110/2021 has changed several provisions that have been
stated in the previous MoEMR Decree No. 1798/2018. To obtain a better
understanding of the changes made, below is a table of comparisons regarding
the changes done in several aspects between MoEMR Decree No. 110/2021 and
the previous regulation:
MoEMR Decree
No. 1798/2018
(Previous Regulation)
MoEMR Decree
No. 110/2021
(Current Regulation)
Business Actors and Requirements
▪ Non-Metal Minerals WIUP and
Rock WIUP can be granted to
▪ Non-Metal Minerals WIUP and
Rock WIUP are granted to
6
Art. 1 (5) MoEMR Reg. No. 7/2020.
7
Art. 1 (6) MoEMR Reg. No. 7/2020.
AHRP Legal Alert Page 3 of 9
MoEMR Decree
No. 1798/2018
(Previous Regulation)
MoEMR Decree
No. 110/2021
(Current Regulation)
business actors which comprise of
(i) Business Entities;8 (ii)
Cooperatives;9 and (iii) Individuals
(persons, firms, or limited
partnerships).10
business actors which comprise
of (i) Business Entities; (Ii)
Cooperatives; (iii) firms; or (iv)
limited partnerships.11
▪ MoEMR Decree No. 110/2021 no
longer allowed individuals to
obtain WIUPs.
▪ Unlike the previous regulation,
MoEMR Decree No. 110/2021
regulates no specification on the
requirements that should be
submitted by the business actors.
It also regulates new provisions
regarding the required documents
to be submitted to obtain WIUPs.
WIUP Area
• Specifically for Rocks WIUP, the
area that may be applied is for least
5 (five) hectares and a maximum of
5,000 (five thousand) hectares.12
• The granting of WIUPs are
granted for areas up to:13
a. 5.000 (five thousand) hectares
for Rocks WIUP; and14
b. 25.000 (twenty five thousand)
hectares for Non-Metal
Minerals WIUP and Certain
Types of Non-Metal Minerals
WIUP.15
Longitude and Latitude of the Area
• Application is accompanied with
the administrative location and
region in the form of a closed
• Coordinates in the format of
Microsoft Excel, in which the list of
coordinates is limited by the line
8
According to Art. 1 (23) Law No. 4/2009, Business Entities are legal entities that operate within the mining sector
which are established based on Indonesian laws and are domiciled within the area of the Unitary States of the Republic
of Indonesia.
9
According to Art. 1 (6) GR No. 23/2010, Cooperatives are Business Entities whose members are Individuals or
Cooperatives legal entities, and their activities are based on Cooperatives principles and at the same time as a
people’s economic movement that is based on kinship principles.
10
According to Art. 6 (3) GR No. 23/2010, Individuals may be in the form of persons, firms, or limited partnerships.
11
It is important to note that the provision regarding the business actors which may obtain WIUP shall be in sync with
the IUP’s provision. Subsequently, according to Article 38 Law 4/2009, IUP is granted to Business Entities,
Coorporatives, and sole proprietorships. Moreover, based on the informal discussion with officer of Directorate
General of Mineral and Coal, dated 22 July 2021, such sole proprietorship may be in the form of firms or limited
partnerships (excluding persons).
12
Appendix VI of MoEMR Decree No. 1798/2018, pg. 50.
13
Dictum No. 2, MoEMR Decree No. 110/2021.
14
Art. 58 (1) Law No. 4/2009 jo. Dictum No. 2, MoEMR Decree No. 110/2021.
15
Art. 55 (1) Law No. 4/2009 jo. Dictum No. 2, MoEMR Decree No. 110/2021.
AHRP Legal Alert Page 4 of 9
MoEMR Decree
No. 1798/2018
(Previous Regulation)
MoEMR Decree
No. 110/2021
(Current Regulation)
polygon bounded by parallel lines
with the latitude and longitude with
the fewest multiples thousandths of
a second (0.001") and using the
coordinate system in accordance
with the geospatial reference
system determined by the
institution in charge of government
affairs in the geospatial sector.16
• Unlike the current regulation, the
previous regulation did not
elaborate specifically the system
that must be used to stipulate the
longitude and the latitude of the
area. In addition, the current
regulation stated that the submitted
coordinates shall be no more than
100 (one hundred) points.
parallel to the latitude and
longitude with multiples at least a
thousandth of a second
(0.001").17
• Such coordinates are in the form
of geographic coordinates
(degrees minutes seconds), and
delivered in digital format in the
form of Microsoft Excel. Lastly,
the submitted coordinates shall
be no more than 100 (one
hundred) points.
Area Located in Sea
• In the event that the requested area
is located in the sea, the application
is accompanied by technical
recommendations from:18
1. the institution in charge of
government affairs in the in
marine spatial planning sector;
and
2. the institution in charge of
government affairs in the
shipping navigation safety and
information defense area in the
sea sector.
• The 2 (two) institutions above
referring to Minister of Marine
Affairs and Fisheries.
• In the event that the WIUP
application is located in sea area
above 12 (twelve) nautical miles,
business actors shall get a
technical recommendation of
consideration on spatial suitability
sea for mining activities in the
region sea above 12 (twelve)
nautical miles from Minister of
Marine Affairs and Fisheries.19
• The current regulation has
elaborated further regarding the
specific area in sea, which is
above 12 (twelve) nautical miles.
In addition, added a
reccomendation letter from
Minister of Marine Affairs and
Fisheries as a requirement for
WIUP located in sea.
16
Appendix VI of MoEMR Decree No. 1798/2018, pg. 49.
17
Appendix of MoEMR Decree No.110/2021, pg. 14.
18
Appendix VI of MoEMR Decree No. 1798/2018, pg. 50.
19
Appendix of MoEMR Decree No.110/2021, pg. 14.
AHRP Legal Alert Page 5 of 9
MoEMR Decree
No. 1798/2018
(Previous Regulation)
MoEMR Decree
No. 110/2021
(Current Regulation)
Overlapping WIUP
• In the event that the requested area
is within the metal minerals WIUP,
coal WIUP, metal minerals WIUPK,
or coal WIUPK that has been
granted to IUP or IUPK holders
shall submit the application
accompanied by the approval of
IUP or IUPK holders based on
utilization agreements land and/or
shared supporting facilities.20
• In the event that WIUPs
application overlaps with other
WIUP or WIUPK, business actors
shall get a statement letter of no-
objection letter/approval from
existing IUP or IUPK holders.
• Both previous and current
regulations obligate the applicant
to obtain approval from the
existing IUP or IUPK holders if the
requested WIUPs is overlapping
with the WIUP owned by existing
IUP or IUPK holders.
• However, the previous regulation
stated that the approval was
obtained in the form of ulitization
agreements land and/or shared
supporting facilities, meanwhile,
current regulation obligates that
the approval shall be in the form
of a statement letter of non-
objection/approval.
Table 1. Comparison on Provisions between MoEMR Decree No. 1798/2018 and
MoEMR Decree No. 110/2021
Lastly, there are some provisions that have been revoked or taken out from
MoEMR Decree No. 1798/2018 by the MoEMR Decree No. 110/2021. The revoked
provisions are as follows:21
a. In the event that the requested Non-Metal Minerals WIUP and/or Rocks
WIUP fall under the MoEMR’s authority, namely cross-regional province or
borders with other countries within a radius of 500 (five hundred) meters
from the state border, the application shall be accompanied by a
recommendation from the Governor in the form of consideration that
contains information regarding the use of area and/or spatial planning.
b. In the event that the requested area is located in the river, the application
shall be attached with the technical recommendation from the Minister of
Public Works and Public Housing.
c. In the event that the requested area is located in the radioactive WIUP, the
application shall be attached with the technical consideration from National
Nuclear Energy Agency of Indonesia.
20
Appendix VI of MoEMR Decree No. 1798/2018, pg. 50.
21
Ibid.
AHRP Legal Alert Page 6 of 9
d. In the event that the requested area is located in a forest area, the area must
not be located in protected or conservation forest.
B.2. Additional Provisions According to MoEMR Decree No. 110/2021
Other than the provisions as explained in Section A.1 above, MoEMR Decree No.
110/2021 has also added new provisions in regards to the requirements of
obtaining WIUPs. The new provisions can be found in the dictum of the decree and
are explained further in the appendix.
In regard to WIUPs area, it is granted with a maximum area of 5,000 (five
thousand) and 25,000 (twenty-five thousand) hectares depend on the type of
commodities. Please refer to Section A.1 for a detailed explanation of the
maximum area of WIUPs. Although WIUPs that is granted above 100 (one
hundred) hectares does not surpass the maximum area as stated above, the said
WIUPs is granted with the condition that the commodities shall be used to support
national strategic projects, cement industry, and/or development projects financed
by the Central Government and/or Regional Government.
C. Authority to Grant WIUPs
The issuance of MoEMR Decree No. 110/2021 impacts the institution entitled to
grant WIUPs. Below is the comparison between MoEMR Decree No. 1798/2018
and MoEMR Decree No. 110/2021 in relation to such matter.
MoEMR Decree No. 1798/2018 MoEMR Decree No. 110/2021
The authorized institution to grant
WIUPs:
1. MoEMR through Integrated
Information and Investment
Room/Ruang Pelayanan
Informasi dan Investasi Terpadu
of Directorate General of Mining
and Coal that is given the
delegation of authority; or
2. Governor through Provincial
Regional Apparatus Work
Units/Satuan Kerja Perangkat
Daerah Provinsi that is given the
delegation of authority.22
The authorized institution to grant
WIUPs:
MoEMR through Director-General of
Mining and Coal (“DGMC”) that is given
the delegation of authority.23
Table 2. Comparison on Authority to Grant WIUPs between MoEMR Decree
No. 1798/2018 and MoEMR Decree 110/2021
Based on the above table, the Governors are no longer have the authority to grant
WIUPs. Such authority is now solely owned by MoEMR and MoEMR may delegate
22
Appendix VI of MoEMR Decree No. 1798/2018, pg. 47.
23
Dictum No. 4, MoEMR Decree No. 110/2021.
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Recent Changes on Guidelines for Mining Business License Area.pdf

  • 1. AHRP Legal Alert Page 1 of 9 Legal Alert June 2021 Recent Changes on Guidelines to Obtain Non- Metal Minerals, Certain Types of Non-Metal Minerals, and Rocks Mining Business License Area The Minister of Energy and Mineral Resources (“MoEMR”) has issued MoEMR Decree No. 110/2021, which regulates a guideline for application, evaluation, and granting of mining business license area for: a. Non-Metal Minerals Mining Business License Area/Wilayah Izin Usaha Pertambangan Mineral Bukan Logam (“Non-Metal Minerals WIUP”); b. Certain Types of Non-Metal Minerals Mining Business License Area/Wilayah Izin Usaha Pertambangan Mineral Bukan Logam Jenis Tertentu (“Certain Types of Non-Metal Minerals WIUP”); and c. Rock Mining Business License Area/Wilayah Izin Usaha Pertambangan Batuan (“Rocks WIUP”). (hereinafter, Non-Metal Minerals WIUP, Certain Types of Non-Metal Minerals WIUP, and Rocks WIUP collectively shall be referred to as “WIUPs”). The MoEMR Decree No. 110/2021 is set as the implementing provision of MoEMR Reg. No. 7/2020,1 and it revoked previous provisions of WIUPS application, evaluation, and authorization under Appendix VI of MoEMR Decree No. 1798/2018.2 The MoEMR Decree No. 110/2021 is intended to provide the guidance, including the requirements and procedures, for business actors to obtain mining business license area, particularly for the WIUPs aforementioned. Moreover, MoEMR Decree No. 110/2021 also implements the centralization theme as brought by Law No. 3/2020. Since the enactment of Law No. 3/2020, the authority related to the mining business activity is centralized at the Central Government, namely MoEMR. Furthermore, the changes in relation to WIUPs under the MoEMR Decree No. 110/2021 are specified further below. A. General Overview on Mining Business License Area Mining Business License Area /Wilayah Izin Usaha Pertambangan (“WIUP”) is the area granted to Mining Business License/Izin Usaha Pertambangan (“IUP”) or Rock Mining License/Surat Izin Penambangan Batuan (“SIPB”) holders.3 The IUP is the license to carry out a mining business,4 while SIPB is a license granted to carry out a mining business of certain types of rocks or other certain needs.5 MoEMR Decree No. 110/2021 limitedly stipulate technical provisions for (i) Non- Metal Minerals WIUP; (ii) Certain Types of Non-Minerals WIUP; and (iii) Rocks 1 Art. 17 MoEMR Reg. No. 7/2020. 2 Dictum No. 8 MoEMR Decree No. 110/2021. 3 Art. 1 (31) Law No. 4/2009. 4 Art. 1 (7) Law No. 4/2009. 5 Art. 1 (13a) Law No. 4/2009. On June 21st 2021, MoEMR issued a new decree regarding the recent changes on requirements and procedures to obtain Non- Metal Minerals, Certain Types of Non-Metal Minerals, and Rocks Mining Business License Area. Further, the decree asserted that the authority to stipulate and issue Non-Metal Minerals, Certain Types of Non- Metal Minerals, and Rocks Mining Business License Area is delegated by MoEMR to DGMC.
  • 2. AHRP Legal Alert Page 2 of 9 WIUP. The following is a brief explanation of WIUPs as regulated under MoEMR Decree No. 110/2021. a. Non-Metal Minerals WIUP Non-Metal Minerals WIUP is a part Non-Metal Minerals Mining Business Area/Wilayah Usaha Pertambangan Mineral Bukan Logam (“Non-Metal Minerals WUP”). Subsequently, Non-Metal Minerals WUP is part of mining area in which already has the availability of data, potentials, and/or geological information, which predominantly contain non-metal mineral mining commodities.6 b. Certain Types of Non-Metal Minerals WIUP Elucidation of Article 5 (2) Law No. 4/2009 explains that Certain Types of Non-Metal Minerals are highly valued, hard-to-obtain non-metal minerals, diamond and gemstones, or non-metal minerals needed to ensure strategic industrial supply such as limestone, clay, and sand. Consequently, certain Types of Non-Metal Minerals WIUP means an area which is part of Certain Types of Non-Metal Minerals Business Area/Wilayah Usaha Pertambangan Mineral Bukan Logam Jenis Tertentu (“Certain Types of Non-Metal Minerals WUP”) and Certain Types of Non-Metal Minerals WUP is part of the mining area. c. Rocks WIUP Rocks WIUP is a part of Rocks Mining Business Area/Wilayah Usaha Pertambangan Batuan (“Rocks WUP”). Accordingly, Rocks WUP is a part of a mining area that already has the availability of data, potentials, and/or geological information which predominantly contain rock mining commodities.7 B. Requirements to Obtain WIUPs B.1. Comparison between Provisions under MoEMR Decree No. 110/2021 and the Previous Regulation MoEMR Decree No. 110/2021 has changed several provisions that have been stated in the previous MoEMR Decree No. 1798/2018. To obtain a better understanding of the changes made, below is a table of comparisons regarding the changes done in several aspects between MoEMR Decree No. 110/2021 and the previous regulation: MoEMR Decree No. 1798/2018 (Previous Regulation) MoEMR Decree No. 110/2021 (Current Regulation) Business Actors and Requirements ▪ Non-Metal Minerals WIUP and Rock WIUP can be granted to ▪ Non-Metal Minerals WIUP and Rock WIUP are granted to 6 Art. 1 (5) MoEMR Reg. No. 7/2020. 7 Art. 1 (6) MoEMR Reg. No. 7/2020.
  • 3. AHRP Legal Alert Page 3 of 9 MoEMR Decree No. 1798/2018 (Previous Regulation) MoEMR Decree No. 110/2021 (Current Regulation) business actors which comprise of (i) Business Entities;8 (ii) Cooperatives;9 and (iii) Individuals (persons, firms, or limited partnerships).10 business actors which comprise of (i) Business Entities; (Ii) Cooperatives; (iii) firms; or (iv) limited partnerships.11 ▪ MoEMR Decree No. 110/2021 no longer allowed individuals to obtain WIUPs. ▪ Unlike the previous regulation, MoEMR Decree No. 110/2021 regulates no specification on the requirements that should be submitted by the business actors. It also regulates new provisions regarding the required documents to be submitted to obtain WIUPs. WIUP Area • Specifically for Rocks WIUP, the area that may be applied is for least 5 (five) hectares and a maximum of 5,000 (five thousand) hectares.12 • The granting of WIUPs are granted for areas up to:13 a. 5.000 (five thousand) hectares for Rocks WIUP; and14 b. 25.000 (twenty five thousand) hectares for Non-Metal Minerals WIUP and Certain Types of Non-Metal Minerals WIUP.15 Longitude and Latitude of the Area • Application is accompanied with the administrative location and region in the form of a closed • Coordinates in the format of Microsoft Excel, in which the list of coordinates is limited by the line 8 According to Art. 1 (23) Law No. 4/2009, Business Entities are legal entities that operate within the mining sector which are established based on Indonesian laws and are domiciled within the area of the Unitary States of the Republic of Indonesia. 9 According to Art. 1 (6) GR No. 23/2010, Cooperatives are Business Entities whose members are Individuals or Cooperatives legal entities, and their activities are based on Cooperatives principles and at the same time as a people’s economic movement that is based on kinship principles. 10 According to Art. 6 (3) GR No. 23/2010, Individuals may be in the form of persons, firms, or limited partnerships. 11 It is important to note that the provision regarding the business actors which may obtain WIUP shall be in sync with the IUP’s provision. Subsequently, according to Article 38 Law 4/2009, IUP is granted to Business Entities, Coorporatives, and sole proprietorships. Moreover, based on the informal discussion with officer of Directorate General of Mineral and Coal, dated 22 July 2021, such sole proprietorship may be in the form of firms or limited partnerships (excluding persons). 12 Appendix VI of MoEMR Decree No. 1798/2018, pg. 50. 13 Dictum No. 2, MoEMR Decree No. 110/2021. 14 Art. 58 (1) Law No. 4/2009 jo. Dictum No. 2, MoEMR Decree No. 110/2021. 15 Art. 55 (1) Law No. 4/2009 jo. Dictum No. 2, MoEMR Decree No. 110/2021.
  • 4. AHRP Legal Alert Page 4 of 9 MoEMR Decree No. 1798/2018 (Previous Regulation) MoEMR Decree No. 110/2021 (Current Regulation) polygon bounded by parallel lines with the latitude and longitude with the fewest multiples thousandths of a second (0.001") and using the coordinate system in accordance with the geospatial reference system determined by the institution in charge of government affairs in the geospatial sector.16 • Unlike the current regulation, the previous regulation did not elaborate specifically the system that must be used to stipulate the longitude and the latitude of the area. In addition, the current regulation stated that the submitted coordinates shall be no more than 100 (one hundred) points. parallel to the latitude and longitude with multiples at least a thousandth of a second (0.001").17 • Such coordinates are in the form of geographic coordinates (degrees minutes seconds), and delivered in digital format in the form of Microsoft Excel. Lastly, the submitted coordinates shall be no more than 100 (one hundred) points. Area Located in Sea • In the event that the requested area is located in the sea, the application is accompanied by technical recommendations from:18 1. the institution in charge of government affairs in the in marine spatial planning sector; and 2. the institution in charge of government affairs in the shipping navigation safety and information defense area in the sea sector. • The 2 (two) institutions above referring to Minister of Marine Affairs and Fisheries. • In the event that the WIUP application is located in sea area above 12 (twelve) nautical miles, business actors shall get a technical recommendation of consideration on spatial suitability sea for mining activities in the region sea above 12 (twelve) nautical miles from Minister of Marine Affairs and Fisheries.19 • The current regulation has elaborated further regarding the specific area in sea, which is above 12 (twelve) nautical miles. In addition, added a reccomendation letter from Minister of Marine Affairs and Fisheries as a requirement for WIUP located in sea. 16 Appendix VI of MoEMR Decree No. 1798/2018, pg. 49. 17 Appendix of MoEMR Decree No.110/2021, pg. 14. 18 Appendix VI of MoEMR Decree No. 1798/2018, pg. 50. 19 Appendix of MoEMR Decree No.110/2021, pg. 14.
  • 5. AHRP Legal Alert Page 5 of 9 MoEMR Decree No. 1798/2018 (Previous Regulation) MoEMR Decree No. 110/2021 (Current Regulation) Overlapping WIUP • In the event that the requested area is within the metal minerals WIUP, coal WIUP, metal minerals WIUPK, or coal WIUPK that has been granted to IUP or IUPK holders shall submit the application accompanied by the approval of IUP or IUPK holders based on utilization agreements land and/or shared supporting facilities.20 • In the event that WIUPs application overlaps with other WIUP or WIUPK, business actors shall get a statement letter of no- objection letter/approval from existing IUP or IUPK holders. • Both previous and current regulations obligate the applicant to obtain approval from the existing IUP or IUPK holders if the requested WIUPs is overlapping with the WIUP owned by existing IUP or IUPK holders. • However, the previous regulation stated that the approval was obtained in the form of ulitization agreements land and/or shared supporting facilities, meanwhile, current regulation obligates that the approval shall be in the form of a statement letter of non- objection/approval. Table 1. Comparison on Provisions between MoEMR Decree No. 1798/2018 and MoEMR Decree No. 110/2021 Lastly, there are some provisions that have been revoked or taken out from MoEMR Decree No. 1798/2018 by the MoEMR Decree No. 110/2021. The revoked provisions are as follows:21 a. In the event that the requested Non-Metal Minerals WIUP and/or Rocks WIUP fall under the MoEMR’s authority, namely cross-regional province or borders with other countries within a radius of 500 (five hundred) meters from the state border, the application shall be accompanied by a recommendation from the Governor in the form of consideration that contains information regarding the use of area and/or spatial planning. b. In the event that the requested area is located in the river, the application shall be attached with the technical recommendation from the Minister of Public Works and Public Housing. c. In the event that the requested area is located in the radioactive WIUP, the application shall be attached with the technical consideration from National Nuclear Energy Agency of Indonesia. 20 Appendix VI of MoEMR Decree No. 1798/2018, pg. 50. 21 Ibid.
  • 6. AHRP Legal Alert Page 6 of 9 d. In the event that the requested area is located in a forest area, the area must not be located in protected or conservation forest. B.2. Additional Provisions According to MoEMR Decree No. 110/2021 Other than the provisions as explained in Section A.1 above, MoEMR Decree No. 110/2021 has also added new provisions in regards to the requirements of obtaining WIUPs. The new provisions can be found in the dictum of the decree and are explained further in the appendix. In regard to WIUPs area, it is granted with a maximum area of 5,000 (five thousand) and 25,000 (twenty-five thousand) hectares depend on the type of commodities. Please refer to Section A.1 for a detailed explanation of the maximum area of WIUPs. Although WIUPs that is granted above 100 (one hundred) hectares does not surpass the maximum area as stated above, the said WIUPs is granted with the condition that the commodities shall be used to support national strategic projects, cement industry, and/or development projects financed by the Central Government and/or Regional Government. C. Authority to Grant WIUPs The issuance of MoEMR Decree No. 110/2021 impacts the institution entitled to grant WIUPs. Below is the comparison between MoEMR Decree No. 1798/2018 and MoEMR Decree No. 110/2021 in relation to such matter. MoEMR Decree No. 1798/2018 MoEMR Decree No. 110/2021 The authorized institution to grant WIUPs: 1. MoEMR through Integrated Information and Investment Room/Ruang Pelayanan Informasi dan Investasi Terpadu of Directorate General of Mining and Coal that is given the delegation of authority; or 2. Governor through Provincial Regional Apparatus Work Units/Satuan Kerja Perangkat Daerah Provinsi that is given the delegation of authority.22 The authorized institution to grant WIUPs: MoEMR through Director-General of Mining and Coal (“DGMC”) that is given the delegation of authority.23 Table 2. Comparison on Authority to Grant WIUPs between MoEMR Decree No. 1798/2018 and MoEMR Decree 110/2021 Based on the above table, the Governors are no longer have the authority to grant WIUPs. Such authority is now solely owned by MoEMR and MoEMR may delegate 22 Appendix VI of MoEMR Decree No. 1798/2018, pg. 47. 23 Dictum No. 4, MoEMR Decree No. 110/2021.
  • 7. AHRP Legal Alert Page 7 of 9 its authority to DGMC.24 Moreover, in relation to the authority delegation by MoEMR, DGMC is required to submit a written report on the implementation of delegation to MoEMR that contains data on the granting of WIUP.25 The report shall be submitted periodically every 3 (three) months or at anytime when needed. However, MoEMR may withdraw the delegation of authority to DGMC should its implementation not effective.26 D. Procedures to Obtain WIUPs Pursuant to the Appendix of the MoEMR Decree No. 110/2021, the procedures to obtain WIUPs are as follows: 1. Submit an Application Applicants shall submit an appplication for WIUPs as well as the required documents to the DGMC.27 2. Evaluation The technical unit, as the evaluator, evaluates the application documents, which may issue the following results:28 a. for application that meets the requirements, the evaluator shall draft a payment letter of reserves area and printing WIUPs map costs in accordance with the application area to the state treasury. b. for application that has not met the requirements, the evaluator shall draft a rejection letter for WIUPs application to be submitted to the DGMC. The evaluation procedure shall be conducted within 4 (four) days. Its result is written in the verification and evaluation sheet.29 3. Reserves Area The payment letter of reserves area and printing WIUPs map costs shall be signed by the DGMC and given to the applicants who have met the requirements. Subsequently, the applicant shall make a payment of reserves area and printing WIUPs map costs to the state treasury and submit the copy of proof of such payment within 5 (five) business days after the payment letter is received. If the applicant does not submit the said copy of proof of payment within its time period, such applicant is considered to have drawn back and the application area becomes an open area.30 On the other hand, the rejection letter of the application shall be signed by the DGMC and given to the applicant who has not met the requirements.31 24 Dictum No. 5, MoEMR Decree No. 110/2021. 25 Dictum No. 6, MoEMR Decree No. 110/2021. 26 Dictum No. 7, MoEMR Decree No. 110/2021. 27 Appendix of MoEMR Decree No. 110/2021, pg. 10. 28 Appendix of MoEMR Decree No. 110/2021, pg. 10. 29 Appendix of MoEMR Decree No. 110/2021, pg. 8. 30 Appendix of MoEMR Decree No. 110/2021, pg. 10 and 11. 31 Appendix of MoEMR Decree No. 110/2021, pg. 11.
  • 8. AHRP Legal Alert Page 8 of 9 4. Preparation of WIUPs Approval Towards the submitted copy of payment proof of reserves area and printing WIUPs map costs, the evaluator shall prepare: (i) the draft of WIUPs approval with an order to provide placement of guarantee of exploration commitment/penempatan jaminan kesungguhan eksplorasi; (ii) the appendix of the coordinate list; and (iii) the appendix of map, to be signed by the DGMC. This procedure shall be conducted within 4 (four) days.32 5. Issuance of WIUPs Approval The letter of WIUPs approval and the order to provide placement of guarantee of exploration commitment as well as the appendix of the coordinate list and map shall be signed by the DGMC and given to the applicants within a day.33 The following chart elaborates the procedures to obtain WIUPs according to MoEMR Decree No. 110/2021: Graphic 1. Procedures to Obtain WIUPs. 32 Appendix of MoEMR Decree No. 110/2021, pg. 8 and 11. 33 Appendix of MoEMR Decree No. 110/2021, pg. 9 and 11.
  • 9. AHRP Legal Alert Page 9 of 9 Bibliography/References 1. Law Number 4 of 2009 on Mineral and Coal Mining as lastly amended by Law Number 11 of 2020 (“Law No. 4/2009”). 2. Government Regulation Number 23 of 2010 on The Implementation of Mineral and Coal Mining Business Activities as lastly amended by Government Regulation Number 8 of 2018 (“GR No. 23/2010”). 3. Minister of Energy and Mineral Resources Decree Number 1798 K/30/MEM/2018 on Guidelines For The Implementation of Preparation, Determination, and Granting of Mining Business Permit Areas and Mining Business Permit Areas Specifically For Minerals and Coal as amended by Minister of Energy and Mineral Resources Decree Number 24K/30/MEM/2019 of 2019 and partially revoked by Minister of Energy dan Mineral Resources Decreee Number 110.K/HK.02/MEM.B.B/2021 of 2021 (“MoEMR Decree No. 1798/2018”). 4. Minister of Energy and Mineral Resources Regulation Number 7 of 2020 on Procedures for the Granting of Areas, Licensing, and Reporting in Relation to Mineral and Coal-Mining Business Activities as amended by Minister of Energy and Mineral Resources Regulation Number 16 of 2021 (“MoEMR Reg. No. 7/2020”). 5. Minister of Energy and Mineral Resources Decree Number 110.K/HK.02/MEM.B.B/2021 on Guidelines for Application, Evaluation, and Granting of Non-Metal Mineral Mining Business License Areas, Certain- Types of Non-Metal Mineral Mining Business License Areas, and Rock Mining Business License Areas (“MoEMR Decree No. 110/2021”).
  • 10. We will continue to follow the developments on this topic and provide additional information as it becomes available. If you have any questions on this topic, please contact: This publication has been prepared by AHRP for educational and informational purposes only. The information contained in this publication is not intended and should not be construed as legal advice. Due to the rapidly changing nature of law, AHRP makes no warranty or guarantee concerning the accuracy or completeness of this content. You should consult with an attorney to review the current status of the law and how it applies to your circumstances before deciding to take any action. Menara Palma 15 th floor, Jl. HR. Rasuna Said Blok X2 Kav.6 Jakarta 12950 Phone: +6221 25983316 Fax: +6221 25983818 E-mail: office@ahrplaw.com www.ahrplaw.com HANA OKTAVIANDRI PRADITA LANUANSHA PUTRI hana@ahrplaw.com lanuansha@ahrplaw.com lanuansha@ahrplaw.com WILKINS HUMPREY BERKELEY wilkins@ahrplaw.com fadra@ahrplaw.com VANESSA NETHANIA vanessa@ahrplaw.com merina@ahrplaw.com MELLY MORAITO SIREGAR melly@ahrplaw.com valen@ahrplaw.com