Legal Policy for Community Welfare Based Mining Management

This paper focuses on community welfare-based mining management legal policies with the aim of improving the welfare of communities around the mine. The research method used is normative legal research with a statutory approach, case approach and conceptual approach. The results of the research show that the legal policy for managing metallic mineral mining in improving the welfare of communities around the mine is based on four main pillars, namely legal policy for democratic mineral and coal mining management, mineral and coal mining governance using good governance performance standards. Realizing social justice in the fifth principle of Pancasila, and monitoring and enforcing the law against perpetrators of environmental destruction and pollution in the mining sector. The concept of managing metal mineral (nickel) mining based on the welfare of communities around the mine involves regulations regarding licensing, land use, regional development, CSR programs, and participation of local communities in community development programs implemented by mining companies.

This paper focuses on community welfare-based mining management legal policies with the aim of improving the welfare of communities around the mine.The research method used is normative legal research with a statutory approach, case approach and conceptual approach.The results of the research show that the legal policy for managing metallic mineral mining in improving the welfare of communities around the mine is based on four main pillars, namely legal policy for democratic mineral and coal mining management, mineral and coal mining governance using good governance performance standards.Realizing social justice in the fifth principle of Pancasila, and monitoring and enforcing the law against perpetrators of environmental destruction and pollution in the mining sector.The concept of managing metal mineral (nickel) mining based on the welfare of communities around the mine involves regulations regarding licensing, land use, regional development, CSR programs, and participation of local communities in community development programs implemented by mining companies.

INTRODUCTION
Mineral and coal natural resources contained within Indonesia's jurisdiction are non-renewable natural resources.Minerals and coal are gifts from God Almighty which have an important role in fulfilling the livelihood needs of many people, so their control and management are controlled by the state to provide real added value to the national economy in an effort to achieve prosperity and welfare of the people in an equitable manner.The soul and spirit of Law Number 4 of 2009 concerning Mineral and Coal Mining, as amended by Law Number 3 of 2020 concerning Amendments to Law Number 4 of 2009 concerning Mineral and Coal Mining, is stated normatively in Article 3 of Law Number 4 of 2009.2009, Mineral and coal management objectives include, stated in letter e "increasing the income of local, regional and state communities, as well as creating jobs for the greatest welfare of the people", and Article 4 paragraph (1) of Law Number 3 of 2020, "minerals and coal as natural resources that non-renewable national wealth is controlled by the state for the greatest welfare of the people.
The provisions of the norms of the two articles are derived from the values or norms of the goals of the Republic of Indonesia as intended in the Preamble to the 1945 Constitution of the Republic of Indonesia, which states "...promoting general welfare", and the provisions of Article 33 paragraph (3) of the 1945 Constitution of the Republic of Indonesia, "Earth and Water and the natural resources contained therein are controlled by the state and used for the greatest prosperity of the people."According to Achmad Haris January, the phrase "advancing general welfare" and the essence of the meaning of "controlled by the state", without realizing it only functions as jargon, while in reality it has been heavily influenced by various laws and regulations, both at the statutory level and in its implementing regulations. .As a result, the paradigm structure of an agrarian country shifted towards industrialization with state policies in the mining sector which were very capitalist (financiers).This ultimately creates hegemony over mining concessions by foreign multinational or transnational entrepreneurs.
Based on the Constitutional basis (1945 Constitution of the Republic of Indonesia) and the Operational basis (Law Number 4 of 2009 Jo.Law Number 3 of 2020), Mining is part or all of the stages of activities in the framework, management and exploitation of minerals or coal which includes general investigation, exploration, feasibility studies, construction, mining, processing and/or refining or development and/or utilization, transportation and sales, as well as post-mining activities.Meanwhile, mining is an activity to produce minerals and/or coal and associated minerals.Mineral mining is the mining of a collection of minerals in the form of ore or rock, excluding geothermal, oil and gas, and groundwater.
Indonesia is the country richest in minerals, 4 Results of the annual Price Waterhouse Cooper (PWC) survey show that mining production exports have contributed 11% of export value since 2002, while this sector also contributed 2.7% of gross domestic product (GDP) and US$ 920 million in taxes and non-tax levies for various levels of government.
The metal mineral (nickel) mining sub-sector is one of the many mainstays of state revenue in order to realize people's welfare.People's welfare can be described by fulfilling basic needs, namely basic needs for clothing, food, shelter (primary), additional needs (secondary) and complete needs (tertiary),5 so that happiness can be achieved.Happiness requires more than just fulfilling basic needs because even though human needs have the same basis, they still have different desires which are called a hierarchy of needs, namely comfort, personality and equality of love.
The state guarantees every human being their social rights in meeting their economic needs, so it can be said that prosperity is seen from the economic development of the majority of society.These basics of welfare try to fulfill the demands of a hierarchy of needs which are usually referred to as basic human rights.Management of metal mineral (nickel) mining has a positive impact on communities around the mine in the form of creating jobs, increasing welfare and comfort for communities around the mine, and positive sides for local governments, for example regional revenues through profit sharing funds which bring an increase in the Regional Revenue and Expenditure Budget (District APBD) up to billions of rupiah.6 However, it cannot be denied that the negative side of this mining activity is that the impact it causes is very large, including environmental damage.Such as: abandonment of mine excavations by companies that ignore reclamation and post-mining obligations; there were fatalities due to falls in the mine shaft g not reclaimed; the opening of mining areas in forest areas, and the occurrence of erosion, landslides and floods.
Apart from these problems, in the mining sector, in its management, disputes often arise between companies and communities around the mine.Many companies pay little attention to the welfare of local communities in the fields of health, education and the economy.Government policies related to empowering local communities are included in mining management.Community empowerment efforts can be seen from 3 (three) sides, namely: First, creating an atmosphere or climate that allows community potential to develop (enanbling); Second, strengthening the potential or power of the community (empowering); and third, to differentiate in the sense of protecting.Community development is an effort to improve the quality of communities living around mines so that they are able to catch up in various areas of life.
Normatively, the obligation to develop society includes developing the quality of human resources, health and economic growth.This is as intended in Article 95 letter d of Law number 4 of 2009, which states that IUP and IUPK holders are obliged to "carry out development and empowerment of local communities", and article 10 paragraph (4) of the Regulation of the Minister of Energy and Mineral Resources of the Republic of Indonesia number 24 of 2012, stated that "Development and empowerment of local communities, optimization of utilization and conservation of alluvial tin mineral resources, IUP or IUPK holders in the form of BUMN or BUMD in carrying out alluvial tin deposit excavation activities can hand over their work to Local Mining Services Companies and/or communities around the mine through this explanation, mining company actors should empower communities around the mine to create benefits for local residents/communities.However, judging from the existing facts, many private mining companies have not carried out maximum activities in empowering communities around the mines.

LITERATURE REVIEW
Various problems and the emergence of phenomena and issues of environmental damage and even loss of life in ex-mining areas have given rise to distrust in the government to fulfill community welfare.The fact is that communities around the mine experience many impacts from their activities, including lives, environmental damage and other impacts.The mining business management efforts that have been put into practice have apparently not been able to fulfill the basic principles of welfare.Partnership program, after obtaining approval from the Minister.Management of metallic mineral (nickel) natural resources should fulfill the values of justice for society.In the perspective of fair management of metal mineral (nickel) natural resources, legal protection is given to community members and the environment.Protection of the environment is intended to provide balance in the utilization of both users of natural resources and communities who do not enjoy the economic benefits of utilizing natural resources, 7 the metal mineral (nickel).Therefore, in utilizing natural resources for the welfare of the people, it should be based on moral, legal and religious values.Morality can curb human desires to act in ways that deviate from legal regulations.

METHODOLOGY
Research methods are an important factor in research.Research is a series of scientific activities in order to solve a problem.This research is normative research, namely legal research that focuses on the analysis of statutory regulations.

RESULT AND DISSCUSION A.Legal Policy for Mining Business Management in Improving the Welfare of Mining Communities Regulation of Metal Mineral Mining Business Licensing Policy
An important instrument in metal mineral (nickel) mining management activities in fulfilling justice and community welfare is that the government creates instruments to control mining activities including: a. Licensing Instrument.Before describing the mining business licensing instruments, 9 the licensing instruments from the administrative law aspect are first described.A permit is a state administrative legal instrument issued by a state administrative official (government official) based on the underlying statutory regulations, in order to prevent and control the impact of the actions of an individual or legal entity by complying with the requirements stipulated in granting the permit.10 Mining Business Permit (IUP) Production Operations, as a permit granted in accordance with the Exploration IUP issued and its activities include activities, mining, processing and/or refining or development and/or utilization, as well as transportation and sales.As a form of responsibility, the government should carry out preventive legal protection for the management (filling in) of mining pits (ex-mining) in mining concessions which are the authority of the government in accordance with laws and regulations in the mining sector, both central government and provincial regional governments.The impact of licensing policies and inappropriate management of mining business permit areas has resulted in bad conditions such as ex-mining pits containing toxic water becoming open land without reclamation.
Government policy is also considered not serious about the management of mining pits which can cause casualties, such as people's livestock falling into ex-mining pits; because mining is carried out openly and there is no effort to carry out landfill and/or reclamation at the former mine.As a result of ignoring reclamation obligations and CSR (Corporate Social Responsibility) programs; namely a concept or action carried out in the business or industrial world as a sense of responsibility towards social interests and the surrounding environment) which is not appropriate, so this mining hole is actually used by local residents without considering the danger to their lives.
The CSR (Corporate Social Responsibility) program is a form of community empowerment around the mine, this can be seen from 3 (three) sides, namely: First, creating an atmosphere or climate that allows the community's potential to develop (enabling); Second, strengthening the potential or power of the community (empowering); and third, empowering in the sense of protecting.

Metal Mineral Reclamation and Post-Mining Policy Regulations
The sustainability of metal mineral mining management is reclamation and post-mining.Reclamation is an activity carried out throughout the mining business stages to organize, restore and improve the quality of the environment and ecosystem so that it can function again according to its intended purpose; while post-mining activities are planned, systematic and ongoing activities after some or all mining business activities to restore natural environmental functions and social functions according to local conditions throughout the mining area.
Metal mineral mining management policies must essentially be implemented by paying attention to good mining principles so as not to cause negative impacts on the environment, especially significant disturbances in the balance of the land surface such as decreased land productivity, increasingly dense soil, erosion, sedimentation, land movement., landslides, disturbed flora and fauna, and public health and climate change.For this reason, appropriate reclamation and post-mining activities are integrated clemency must be carried out as early as possible without waiting for the entire mining process to be completed.
To Government regulations regarding reclamation are essentially to create sustainable development in mineral mining business activities by paying attention to environmental principles, transparency and community participation.Because mining activities, if not carried out properly, can have a negative impact on the environment, especially significant disturbances in the balance of the land surface.Environmental impacts due to mining activities include; land production decreases, land becomes denser, erosion and sedimentation occurs, land movements or landslides occur, disruption of flora and fauna, disruption of public health, and changes in microclimate.
Post-mining reclamation is carried out to realize restoration, namely the return of the ecosystem that existed before mining activities began; and rehabilitation includes the creation of a new living environment.During this process, long-term monitoring and management activities are needed to assess the effectiveness of the reclamation, identify necessary corrective actions, and monitor ongoing processes such as: water or gas waste management.Mining sites are conventionally returned to their land use function when mining has not been carried out, but the land can also be developed into a recreation area, technological or scientific facilities, or for agriculture such as fish farming.Likewise, revegetation is the activity of replanting trees that once existed, where these trees were cut down or destroyed due to mining activities.
The effectiveness of post-mining supervision of metallic minerals is considered to be crucial when the neglect of reclamation and post-mining continues to increase, this is due to factors: First, the government and regional authorities have the perception that the role of authority as a subordinate policy is made by the center and is only procedural in nature; Second; minimal consideration has been developed to support the environment and society.The impact is that environmental problems, such as pollution and environmental damage, will result in limited access to fulfill people's health needs.

B.Metal Mineral Mining Management Concept Based on the Welfare of Communities Around the Mine Metal Mineral (Nickel) Mining Management Policy for Community Welfare
The concept of managing natural resources and the environment is thought to have existed and is as old as human civilization.The story of the Prophet Noah's Ark (Noah's Ark) is considered by some circles to be the beginning of the concept of protecting nature for human welfare.Management of metal mineral mining in Indonesia is an important part of the government's agenda to develop the national economy.One of the policies implemented is by issuing regulations regarding the management of natural resources, especially metallic minerals.The government's agenda is understood as matters that receive serious attention from the authorities over a certain period of time.
The main focus of the metal mineral mining management policy is to collect as much foreign exchange as possible through investment and export of raw metal minerals, which the Central Government later realized was the cause of major floods and other rapid environmental damage.The concept of state control over natural resources is based on the Constitutional Court's interpretation of the meaning of "controlled by the state" which means the state as a regulator, facilitator and operator dynamically acts towards the state only as a regulator and facilitator.The meaning of being controlled by the state is that the people collectively give a mandate to the state to carry out policies (beleid) and actions in management (bestuursdaad), regulation (regelendaad), management (behhersdaad) and supervision (toezichthoudendaad) for the purpose of maximizing the prosperity of the people.
The government must be a supervisor and regulator guided by the safety of the people.The bigger the company and the greater the number of people who depend on it for their livelihood, the greater the government's participation.Another meaning is that the homeland must be under state control and large mining companies are run as state businesses.To fulfill the objectives of community welfare as stated in Article 33 of the 1945 Constitution of the Republic of Indonesia, the government can formulate a policy for managing metallic mineral mining based on legal regulations that combine positive law and prophetic ethical values, namely a policy for managing metallic mineral mining that is based on transcendent principles. in the form of faith in Allah who places nature as the highest priority, not only pursuing worldly profits and happiness but also providing protection for religion, soul, reason, property, lineage and honor as an effort to achieve essential prosperity as mandated by the constitution.
The reasons why the Natural Resources Law often experiences conflict (overlapping) and does not place material democratic values, is because: a. Fulfillment of the integration of natural resource management principles and the environment is very minimal and often contradictory b.There are differences in regulatory content (conflict/overlap) c.The Constitutional Court regulates the limits and scope of content material, gives new meaning to norms, explains the application of principles and norms d.The coherence of lex generalis and lex specialis is not very visible.
Remembering that the lex specialis rarely refers to the lex generalis.The weakness of the metallic mineral mining management policy is not in the substance, the relationship between the center and the regions, facilities and infrastructure and even the substance, but in relation to the use of natural resources for welfare, it must be based on moral values, written laws or laws that live in society.

Weaknesses of Metal Mineral Mining Management Policies
One effort to fulfill social welfare (welfare state) is through development in the environmental sector with mining management in which there are a variety of natural resources.The worst thing in mining management is excessive use, resulting in environmental pollution and destruction, so that environmental management and use must remain limited by everyone's right to a good and healthy living environment.In relation to authority, the consequence of the state prioritizing law and welfare is that the state is given responsibility in efforts to achieve community welfare, including environmental protection and management.
Strategies to save environmental conservation, the interests of local communities and leaving minerals for future generations are nil.In fact, the government continues to grant permits to foreign, private and national mining companies.The mining industry's contribution to the country is very low, but the mining industry is still very important for the country.Although mining is a business whose nature of activities always causes changes only in the natural environment around.As a result, regulations regarding mineral and coal mining were born, which clearly stated that the management of mineral and coal mining would be the authority of the central government.This is caused by several factors: First, foreign countries require coal imports in the form of raw products.The impact is that the remaining non-mining productive areas become less productive and less economical and the use of land with low carbon reserves is not optimal, especially for forestry and plantations, and the productivity of food crops and horticulture, animal husbandry and fisheries is not yet optimal; Second, the lack of downstream industries using land for the distribution of agricultural products in a broad sense and the lack of fisheries industry centers in coastal areas; Third, inequality in development between regions is still a problem in economic activity.The development gap between districts in the province of Southeast Sulawesi is still relatively high.Development carried out in a region cannot always be enjoyed equally by all levels of society because increased regional development is not always accompanied by an equal increase in population income.Fourth, differences in income for financing education and various other capital.One measuring tool that can be used to see the gap in population income is the Gini ratio.
The welfare of the community around the mine in relation to the management of metal mineral mining has not shown any significant positive impact on improving the welfare of the local community or around the mine.Moreover, with the enactment of Law Number 3 of 2020 concerning Mineral and Coal Mining, there has been a degradation of regional government authority regarding the principle of decentralization as intended in the provisions of Article 18 of the 1945 Constitution of the Republic of Indonesia in the field of mining management.Article 4 paragraph (1) and paragraph (2) of Law Number 3 of 2020, paragraph (1) Minerals and Coal as non-renewable natural resources are national assets controlled by the state for the greatest welfare of the people; paragraph (2) Control of minerals and coal by the state is carried out by the Central Government in accordance with the provisions of the law.With the enactment of Law Number 3 of 2020, there has been a degradation of regional government authority in the field of mining management, from decentralization of Regency/City Governments and Provincial Governments to centralization of the central government, naturally the welfare of local communities or communities around mines has received less attention from the government because it is the decision maker and policy maker.Mining is in the hands of the central government and they lack knowledge and understanding of the conditions of the communities around the mine.This is one of the characteristics of a centralized country.

Welfare Concept in Metal Mineral Mining Management Policy
The concept of essential welfare is an important part of the nation's legal ideals.Because the Indonesian state always uses "protection, prosperity, education and active participation in peace" as a state.The goal of the country is actually clear at the basis of the state, namely Pancasila which is based on God, Humanity, Unity, Democracy and Justice.However, in state management, the Indonesian State cannot be separated from its connection with the era of globalization which has similar views and those which do not.The Indonesian state in its relations with other countries cannot be separated from any sector, including natural resources and the economy.
For this reason, natural resource management based on the concept of welfare is an important part of the nation's legal ideals.Considering that metallic minerals as natural wealth contained in the earth are non-renewable natural resources, their management is carried out as optimally as possible, efficiently, transparently, sustainably and environmentally friendly, as well as fairly in order to obtain the greatest benefits for the welfare of society in a sustainable manner.According to Bagir Manan, interpreting Article 33 paragraph (3) of the 1945 Constitution of the Republic of Indonesia, "The right to control the state" which is based on the constitution "is to be used for the greatest prosperity of the people".These two rules cannot be separated from each other, they are a systematic whole.So, the right to control the state is instrumental; while using it as much as possible for the prosperity of the people is an objective (objectives).For this reason, the State has the following obligations: First, all forms of utilization (earth and water) and the results obtained (natural wealth), must significantly increase the prosperity and welfare of society; Second, protect and guarantee all people's rights contained in or on the earth, water and various natural resources that can be produced directly or enjoyed directly by the people ; Third, prevent all actions from any party that will result in people not having the opportunity or losing their rights to enjoy natural resources.
It is well known that the interests of general mining contractors are profit oriented, but they are also burdened with community development responsibilities, social responsibilities of general mining companies, including metal mineral mining, based on the provisions of the work contract; while the government on the other hand has an interest in the certainty of revenue/income from the government's share (government take) on the results of mining products, both from taxes and royalties, deadrent (fixed fees)/production fees, as well as taxes from mining service companies, in order to meet income for the central state revenue and expenditure budget as well as local government original income are a public responsibility and carry out the mandate to improve the welfare of society, in accordance with Article 33 paragraph (3) of the 1945 Constitution of the Republic of Indonesia.
Mineral and coal mining management is carried out jointly between the central government, regional governments and entrepreneurs or business actors; In addition, business entities, cooperatives and individual companies or local communities are also given the opportunity to carry out mining businesses in accordance with permits that have been regulated in statutory regulations.This means that the management of metal mineral mining should ideally realize social justice which seeks access to prosperity in a social structure which is the basis for implementing ecological justice.For example, if there is a social order that is socially just, then the type of ecological justice that preserves critical natural resources (critical natural capital) for the sake of human welfare through efforts to repair, replace or protect it will be realized.
An interesting link between social justice and ecological justice is Andrew Dobson's opinion connecting it with the ethical view of biocentrism put forward by Sonny Keraf, that humans can only live and develop as complete humans not only in social communities, but also in ecological communities, namely creatures that its life depends on and is closely related to all other life in the universe.In other words, humans as social creatures cannot be separated from their role as ecological creatures.Human life is not only determined by the social community, but also the ecological community, namely creatures whose lives depend on and are closely related to all other life in the universe.
Social justice and ecological justice in relation to the management of metal mineral mining are essentially the creation of social and environmental balance in creating people's prosperity.The prosperity of the people can be interpreted as the happiness of the people, as stated by Satjipto Rahardjo, that the law was made to make the people prosperous, not make it miserable for the people.However, in reality, the existence of mining businesses or activities in local communities around mining sites, instead of getting happiness and prosperity, actually experience impacts from mining activities, such as: dust in the dry season, floods and landslides in the rainy season and causing loss of agricultural land, livestock and other.
For this reason, the management of metal mineral mining should prioritize the local wisdom of local communities (communities around the mining location), where there is a reciprocal relationship between humans and nature in environmental management (participerend cosmisch).Looking at the characteristics of law in the field of natural resources, especially mining, the living law is part of the Indonesian national legal system which cannot be separated from one another.Local values or wisdom are integrated into the design of unified national mining management laws/policies.

CONCLUSIONS AND RECOMMENDATIONS
Legal policies for managing metal mineral mining businesses must be based on 4 main pillars, namely democratic governance policies, using good governance performance standards, realizing social justice, and being consistent in monitoring and enforcing the law.Metal mineral mining management must be carried out by paying attention to good mining principles and carrying out appropriate and integrated reclamation and post-mining.The concept of managing metal mineral mining must be based on the welfare of the community around the mine and must be carried out through a conceptual approach that provides physical and spiritual well-being.The government must create a metal mineral mining management policy based on legal regulations that combine positive law and local wisdom values.Even though every mining activity, the company has implemented a CSR program, one of the things that can improve family welfare is the opportunity to get a proper education for children through providing educational funds in the form of scholarships and participation in community development programs implemented by mining companies.

FURTHER RESEARCH
This research still has limitations so further research needs to be done on this topic "Legal Policy for Community Welfare Based Mining Management".
realize the essence of metal mineral mining management policies, it is necessary to enforce reclamation and post-mining laws by the Indonesian government based on Law Number 4 of 2009 Jo.Law Number 3 of 2020.This law clearly states sanctions for metal mineral mining businesses to provide reclamation guarantees and submit reclamation plan (RR) documents to the government as a condition for obtaining a Mining Business Permit (IUP).The implementing regulations for the Mineral and Coal Law are outlined in Government Regulation Number 78 of 2010 concerning Reclamation and Post-Mining, regarding Mineral and Coal mining business activities.
b. Utilization of Exploration areas and Production Operation areas.In good mining principles by paying attention to exploration areas and Production Operations in the surrounding environmental area.